Chapter VIII
REGULATIONS ON CONTRACTS
Article 47. Components of the contract
1. Components of the contract mean the data which form and make up the contract in order to regulate the responsibilities and obligations of the investor and of the contractor. The components of the contract and the order of their legal priority shall be as follows:
(a) Written contract (enclosing Appendices including price lists and any other items);
(b) Minutes of negotiation and finalization of the contract;
(c) Decision approving the results of selection of contractor;
(d) Specific conditions (if any) of the contract;
(dd) General conditions (if any) of the contract;
(e) Tender or set of proposals and documents clarifying them (if any) from the selected contractor;
(g) Tender invitation documents or set of requirements and data amending them (if any);
(h) Any other enclosed data.
2. In the case of a contract for construction and installation, the price list must be formulated on the basis of the minutes of negotiation and finalization of the contract, the decision approving results of selection of contractor, the tender or set of proposals from the selected contractor based on detailed items of work set out in the bill of quantities of the tender invitation documents or set of requirements.
If the authorized person has permitted addition to or adjustment of the volume of work prior to signing the contract, then the price list must also include such additional or adjusted volume of work.
3. If an additional Appendix to the contract is signed in accordance with article 52.2 of this Decree, then such Appendix shall also be one of the components of the contract.
Article 48. Form of lump sum contract
1. The principles for payment applicable to a lump sum contract as stipulated in article 49 of the Law on Tendering shall be specifically regulated as follows:
(a) The contract sum shall not be altered throughout the duration of implementation of the contract, except for a case of force majeure pursuant to a term [clause] in the contract (namely an event actually occurring outside the control or foreseeability of the investor and the contractor, and unrelated to any breach by or negligence on the part of the investor or contractor, such as a war, rebellion, strike, fire, natural disaster, flood, epidemic, quarantine or embargo). Payment may be made on a number of occasions or may be one payment on completion of the contract. The total amount payable by the investor shall be the correct sum stipulated in the contract when the contractor has discharged all his contractual obligations. If an event of force majeure occurs, then payment shall be made in accordance with the contractual term (if any) on force majeure.
If a lump sum contract of a tender package contains two or more sections of work such as formulation of a pre-feasibility study, of a feasibility study report [and/or] of technical design, then the contract must stipulate the method of payment for each section, including specific provisions on the following: if the pre-feasibility study report is not approved, then the contractor shall only be paid for his work being preparation of the pre-feasibility study report; if the feasibility study report is not approved, then the contractor shall only be paid for his work being preparation of the pre-feasibility study report and of the feasibility study report.
(b) Where a contractor is selected by other forms of selection than direct appointment, payment must be based on the contract sum and contractual terms [clauses] on payment, and shall not be based on the estimated budget or any current State regulations and guidelines on price rates and unit prices; nor shall it be based on unit prices set out in financial invoices for input items of the contractor such as materials, machinery, equipment and other input items.
2. For work being construction and installation, the parties must, prior to signing the contract, re-check the list of the volume of work required to be done pursuant to the approved design, and if the contractor (including a directly appointed contractor) or the investor discover that such list of the volume of work required to be done is inaccurate in terms of the design, then the investor should report to the authorized person to make a decision on supplementing such work to ensure that it conforms with the design. It shall not be necessary for the investor to report to the authorized person if the volume of work needs to be reduced for compliance with the design. In such a case, after signing a lump sum contract, the volume of work which the contractor actually completes in accordance with the design (irrespective of whether it is more or less than the volume stipulated in the contract) shall not have any impact on the amount payable to the contractor, and payment to the contractor shall be implemented in accordance with clause 1 of this article.
The investor shall be responsible for the accuracy of the quantity and volume of work, and if there is any loss arising due to an inaccurate calculation of such volume or quantity, then the individual or organization belonging to the investor which made the mistake shall be liable to compensate and shall be dealt with in accordance with law. If there is a term on dealing with incorrect calculations of the volume and quantity of work in a contract between an investor and a consultant for preparation of tender invitation documents, set of requirements or estimated budget, then the investor must pay compensation in accordance with such term in the contract signed with the consultant.
Article 49. Form of unit price contract
The principles for payment applicable to a unit price contract as stipulated in article 50 of the Law on Tendering shall be specifically regulated as follows:
1. The payment price shall be calculated by taking the unit price (or the unit price as adjusted) stipulated in the contract and multiplying it by the actual volume and quantity of work completed by the contractor.
2. If in the case of construction and installation the actual volume of work completed by the contractor in order to comply with the design is less than the volume stipulated in the contract, then the contractor shall only be entitled to payment for the volume of work completed. If however the volume of work actually completed for compliance with the design is more than the volume stipulated in the contract, then the contractor shall be entitled to payment for such difference.
The investor, the consultant supervisor and the contractor shall be responsible to certify in the minutes of check and acceptance, the volume of work completed in order to provide the basis for payment to the contractor.
3. Payment must be based on the payment terms stipulated in the contract, and when conducting payment the investor and the paying organization must comply with article 53 of this Decree.
Article 50. Form of time based contract
Payment to a contractor pursuant to the form of a time based contract shall be implemented as follows:
1. Expert remuneration rates means expenses paid to experts and calculated by taking the basic salary and related expenses as agreed by the investor and the contractor and set out in the contract or as adjusted pursuant to article 57 of the Law on Tendering, multiplied by the actual time worked calculated in months, weeks, days and hours.
2. Expenses of the expert outside those stipulated in clause 1 above including travelling expenses, investigation [prospecting] expenses, working office rent and other expenses shall be paid by the methods stipulated in the contract. The contract must stipulate the method of payment for each of the above-mentioned expenses, namely payment based on actual expenses incurred and set out in invoices and valid accounting source documents which the contractor presents, and/or payment on the basis of a unit price agreed in the contract.
The total of all sums paid to a contractor pursuant to clauses 1 and 2 of this article must not exceed the total value stipulated in the contract.
Article 51. Form of percentage based contract
The contract sum shall be calculated as a percentage either of the value of the work or of the volume of the work. After the contractor has discharged all his contractual obligations, the investor shall pay the contractor an amount of money equal to the percentage certified in the contract, multiplied by the value or volume of the completed work.
Article 52. Adjusting contract sums and adjusting contracts
1. Adjustments of the contract sum
(a) Adjustment to a contract sum shall apply to the forms of unit price contracts and time based contracts. These contracts must specify the adjustable items, the method and time-limit for calculating adjustments, and the input database for calculating adjusted prices.
Adjustment of sums shall be implemented via adjustment of the volume of work as stipulated in article 49.2 of this Decree; [and] adjustment of unit prices or adjustment of the contract sum as a result of inflation
(b) The method of adjusting the sum [or prices] stipulated in the contract must be consistent with the nature of the work stipulated in the contract. Similarly, the input database for calculating price adjustments must be consistent with the items of work. In the case of expenses originating overseas, the contract must stipulate the use of quotations [and/or] price indices of local or central authorities or of independent specialist bodies of such foreign country.
(c) When there are major fluctuations in State controlled prices of fuel, supplies and equipment as set out in the contract which directly impact on contractual performance, and the contract contains a term on adjustment of such prices, then adjustment shall be implemented in accordance with article 57.1(c) of the Law on Tendering on the principle that the new price as announced by the State authority shall apply to sections of work carried out at the time of such price fluctuation.
(d) When there is a change in State policy on tax or wages which directly impacts on the contract sum, then the contract sum [or prices] shall be adjusted pursuant to article 57.1(a) of the Law on Tendering.
2. Adjusting contracts:
Where additional work beyond the scope stipulated in the contract reasonably arises without changing the investment objective or the total invested capital (for construction and installation work applying the lump sum contract form this means additional work must be implemented to conform with the design; and for construction and installation work applying the unit price contract form this means more work than that stipulated in the contract must be implemented), then an adjustment shall be made pursuant to article 57.3 of the Law on Tendering. The investor and the contractor must sign an additional Appendix to the contract for the additional work on the following principles:
- Where the amount of additional work is less than twenty per cent (20%) of the volume stipulated in the contract and the contract contains a unit price, then such unit price shall be used for payment purposes;
- If the volume of additional work is twenty per cent (20%) or more than the volume stipulated in the contract or if the additional work does not have an applicable unit price stipulated in the contract, then the investor and contractor shall reach agreement on a new unit price on the principle stipulated in the contract as applicable to [additional] volumes of work arising.
In the case of any section of work being construction and installation, prior to signing an additional contractual Appendix, there must be approval of an estimated budget for the [additionally] arising volume of work in accordance with law.
Article 53. File on payment
The file on payment as stipulated in the contract shall comprise:
1. Applicable to that section of construction and installation applying the form of unit price:
(a) Minutes of check and acceptance of the volume of work implemented during the payment stage as certified by the representative of the contractor, the investor and the consultant supervisor (if any);
(b) Certification of the volume of work increased or reduced in comparison with the contract, and certified by the representative of the contractor, the investor and the consultant supervisor (if any);
(c) List calculating values requested for payment on the basis of the volume of work completed and certified and unit prices set out in the contract;
(d) Request for payment from the contractor stipulating the volume of work completed and its value, the value of any increase or reduction compared to the contract, any value for which payment was made in advance, and the value requested to be paid within the payment stage.
2. Applicable to that section of construction and installation work applying the form of lump sum:
(a) Minutes of check and acceptance of the work implemented during the payment stage, as certified by the representative of the contractor, the investor and the consultant supervisor (if any). Minutes certifying the volume of work namely certifying completion of what items, and that the completed work complies with the design, without requiring certification of the details of the completed volume of work.
(b) Other data pursuant to sub-clauses (b), (c) and (d) of clause 1 of this article.
3. Applicable to procurement of goods:
The file on payment should be stipulated [in the contract] depending on the nature of the goods, to include such data as invoice from the contractor, list of package goods, transportation vouchers, insurance policies, certificates of quality, minutes of check and acceptance of the goods, certificates of country of origin, and other relevant data and source vouchers.
4. Applicable to work applying the form of time based contract and/or percentage based contract: The file on payment to be stipulated [in the contract] shall depend on the nature of the consultancy work, and should include such data as minutes of check and acceptance of the results of the consultancy work, data certifying the schedule of contractual performance, and other relevant data and source documents.
In the case of construction and installation or procurement of goods, unless the contractual terms on adjustment of the contract sum specify that the investor and contractor agree to apply unit prices in input invoices (for machinery, materials, equipment and other inputs) as the basis for adjusting the sum [or prices], then the requirement that the contractor present input invoices only signifies a requirement to certify origin [of goods] or other relevant information; the unit prices in invoices shall not be used as the basis for payment to the contractor. Payment shall be based on the contract sum [or contract prices] and the payment terms in the contract, and shall not be based on the estimated budget or on current State regulations and guidelines on fixed norms [limits] and unit prices, except in the case of directly appointed contractors.
Tìm kiếm
Nghị định 58/2008/NĐ-CP (Bản Word)