Chương I Nghị định 37/2015/NĐ-CP: Những quy định chung

Chapter I

GENERAL PROVISIONS

Article 1. Scope and regulated entities

1. This Decree provides detailed regulations on construction contract

2. This Decree applies to organizations, individuals concerning formulation and management of the performance of construction contract for construction projects (including construction contract between investors in BOT, BTO, BT and PPP projects and contractors for project packages) as follows:

a) Construction projects by regulatory agencies, political organizations, socio-political organizations, political-social-occupational organizations, socio-occupational organizations, social organizations and units affiliated to People’s armed forces and public service providers;

b) Construction projects by state-owned enterprises;

c) Construction projects that are not defined in Points a, b of this Clause but use state capital, corporate capital from 30% and over or from under 30% to over VND 500 billion of total project investment capital;

Relevant organizations, individuals using other capital sources are encouraged to apply provisions set out hereof.

3. As for construction contract for ODA projects, provisions set out in the International Agreement to which Vietnam is a signatory shall be exercised in case they are different from provisions set out hereof.

Article 2. Interpretation of terms

In this Circular, some terms are construed as follows:

1. Construction contract is a civil contract negotiated in writing between the employer and contractor for execution of a part or whole of the construction investment activity.

2. The employer means the investor or its representative, general contractor or main contractor.

3. Contractor means general contractor or main contractor if its employer is the investor; sub-contractor if its employer is general contractor or main contractor. The contractor can be a joint venture among contractors.

4. General provisions of the construction contract refer to the accompanying documents defining rights, obligations and relationship of the parties involved in the contract.

5. Particular provisions of the construction contract refer to the accompanying documents detailing and making a number of supplements to general provisions of the contract.

6. Appendices of the construction contract are the documents attached to the contract that detail amendments and supplements to a number of terms and conditions of the contract.

7. Working days in this Decree mean solar days except Sundays, public holidays, Tet holidays as stipulated by the law.

8. Technical instructions mean a collection of technical requirements based on technical regulations and standards applied to construction works, construction engineering to instruct and define materials, products and equipment used for construction packages and tasks of construction, supervision, inspection and acceptance of construction works.

9. Front End Engineering Design means general design developed in conformity with international practice as the basis for development of detailed design.

10. Scope of work as prescribed in Clause 1, Article 12 hereof;

11. Main contractor means an organization that directly signs the construction contract with the investor.

12. Sub-contractor means an organization that signs the contract with main contractor or general contractor.

13. Foreign contractor means an organization established under foreign law or individuals holding foreign nationality that are involved in the signing and management of the performance of construction contract in Vietnam. Foreign contractor can be main contractor, general contractor or sub-contractor.

Article 3. Types of construction contract

1. Depending on nature, types of construction contracts are as follows:

a) Construction consultant contract (or contract for consultancy) is a type of contract for performance of part or whole of the consulting task in activities of investment and construction;

b) Work construction contract (or construction contract) is a type of contract for the performance of construction of the works, work items or part of construction work by design; General construction contract is a type of contract for the performance of all of the works of an investment project;

c) Technological equipment procurement contract (or procurement contract) is a type of contract for the procurement of technological equipment to be installed to the construction works under technological design; General procurement contract is a type of contract for the procurement of equipment to all of the works of an investment project;

d) Engineering and Construction contract (or EC contract) is a type of contract for the engineering and construction of the works, work items; General EC contract is a type of contract for the engineering and construction of all of the works of an investment project;

dd) Engineering and Procurement contract (or EP contract) is a type of contract for the engineering and procurement of equipment for the installation of the construction works as designed; General EP contract is a type of contract for the engineering and procurement of equipment to all of the works of an investment project;

e) Procurement and Construction contract (or PC contract) is a type of contract for the procurement and construction of the works, work items; General PC contract is a type of contract for the procurement and construction of all of the works of an investment project;

g) Engineering, Procurement and Construction contract (or EPC contract) is a type of contract for the engineering, procurement and construction of the works, work items; General EPC contract is a type of contract for the engineering, procurement and construction of all of the works of an investment project;

h) Turnkey contract is a type of contract for the performance of all the tasks from project establishment, engineering, procurement and construction of the works of an investment project;

i) Contract for supply of human force, working machinery and equipment is a type of contract for the supply of human force, working machinery, equipment and other necessary vehicles for serving the construction of the works, work items, packages or construction work as designed;

k) Other types of construction contract

2. Depending on contractual price manner, construction contracts include the following types:

a) Lump sum contract;

b) Fixed unit price contract;

c) Adjustable unit price contract;

d) Time-based contract;

dd) Combined price contract is a type of contract using the combination of contractual price types as prescribed in Points a – d of this Clause.

3. Depending on relationship of parties involved, construction contracts include the following types:

a) Main contract is a type of contract signed between the investor and main contractor or general contractor.

b) Sub-contract is a type of contract signed between main contractor or general contractor and sub-contract.

c) Fixed rate contract is a type of contract signed between the employer and contractor as an agency or organization.

d) Foreign construction contract is a type of contract signed between a foreign contractor and a domestic contractor or investor.

Article 4. Principles for signing construction contract

Principles for signing construction contract must conform to Clause 2, Article 138 of the Law of Construction No. 50/2014/QH13 and ensure the followings:

1. At the time of signing, the contractor must meet conditions for practice qualification and performance qualification as prescribed in the Law on Construction. As for partnership contractor, division of work quantity in the partnership agreement must be based on performance qualification of each member of the partnership. As for foreign main contractor, an undertaking to hire domestic sub-contractor to perform the tasks under the contract must be included when such sub-contractor is capable of meeting requirements of the bid package.

2. The investor or its representative is permitted to sign a contract with one or more main contractors for the performance of tasks. In case the investor signs contracts with multiple main contractors, the content of these contracts must ensure uniformity and comprehensiveness during the performance of the tasks under the contract to meet schedule, quality and efficiency of the investment project

3. General contractor or main contractor is permitted to sign contracts with one or multiple sub-contractors but such sub-contractors must be accepted by the investor. All these sub-contractors must be in uniformity and agreement with the main contractor signed with the investor. General contractor or main contractor must be responsible to the investor for schedule, quality of the undertaken tasks including the tasks performed by sub-contractors.

4. Contractual price is not permitted to exceed the bid price or result of negotiation on construction contract except the quantity generated outside scope of the bid package permitted by competent persons.

Article 5. Principles for execution of construction contract

When executing the construction contract, the parties must meet the principles for execution of construction contract as prescribed in Clause 3, Article 138 of the Law on Construction No. 50/2014/QH13:

Article 6. Validity and legality of construction contract

1. A construction contract shall become legally effective when it meets the following conditions:

a) Persons who participate in signing a contract must obtain adequate legal capacity;

b) Meet the principles for contract signing as prescribed in Article 4 hereof;

c) Form of a contract is in writing and signed by representative of the parties to a contract according to the law. In case either of the parties is an organization, such party shall sign its name and affix stamp according to the law.

2. The effective date of a contract is the date when it has been signed (affixed with stamp if any) or other specific times as agreed in the contract and the employer has received performance bond issued by the contractor (for a contract with provisions on performance bond being specified).

3. Legality of construction contract:

a) A construction contract that has become effective shall be the highest legal foundation that the employer, contractor and other related parties have the obligations to perform;

b) A construction contract that has become effective shall be the highest legal foundation for settling dispute between the parties. Any dispute that is not yet agreed by the parties to the contract shall be settled on the basis of relevant law provisions;

c) Regulatory agencies and agencies that perform controlling, allocation, provision of capital, investigation and auditing, and other relevant agencies shall perform their functions and duties as defined without encroachment on rights and interests of the parties in reliance on terms and conditions of the effective construction contract.

Article 7. Management of construction contract performance

1. Within one's rights and obligations, the parties need to establish a plan and take appropriate implementation measures in accordance with the signed construction contract to achieve terms and conditions set out in the contract.

2. Depending on construction contract types, management of construction contract performance shall include:

a) Management of contract performance schedule

b) Quality management;

c) Quantity and contractual price management;

d) Management of labor safety, environmental protection and fire & explosion prevention and fighting;

dd) Revision of contracts and other contract-related issues;

3. Both the employer and contractor must appoint and notify other party of its representative who shall manage construction contract performance. Representative of the parties must be fully entitled to decide and take responsibility for its own decision within authority as set out in the contract.

4. All proposals, requests and feedbacks from either party during the management of construction contract performance must be made in writing. Such proposals and request should represent foundations, efficiency (if any) and feedback deadline as agreed in the contract. Upon receipt of a proposal or request from one party, the other party must make a written reply about approval or disapproval of the deadline as agreed in the contract within seven working days since receipt of such proposal or request except otherwise as agreed. After this deadline, if the party that receives proposal or request fails to respond without proper reason and causes damage to the other party shall take full responsibility and pay compensation (if any).

5. Any proposal or request from either party during the management of construction contract performance must be dispatched to the address as agreed by the parties under the contract.

6. For any matter that is not prescribed hereof, the parties shall rely on relevant law provisions for execution.