Chương IX Nghị định 63/2014/NĐ-CP: Hợp đồng

Chapter IX

CONTRACT

Article 89. General principles of contracts

1. The written contracts are civil contracts which assign the parties the responsibilities to perform the tasks prescribed in such contracts. The valid contracts which are concluded by the parties and comply with the regulations of the law are the legal documents that assign the parties the responsibilities during the execution of such contracts.

2. The contracts must be drawn up according to the prescribed forms in the invitation for bid, proposals, and suitable to the conclusion of the contract negotiations, the results of the selection of contractors according to the requests of the contracts and guidance given by the regulatory authorities.

3. The parties can choose referees to settle disputes during the execution of the contracts before signing such contracts. The disputes needing settled by the referees must be prescribed in the contracts.

Article 90. Contractual prices

1. The contractual prices must be specifically prescribed in the contracts attached to the management rules about the amendments (if any).

2. The contractual prices must be specific and conformable with the contractual price brackets using the prescribed forms in the invitation for bid, request for proposals and concluded before the contracts are signed.

Article 91. Currency and methods of payment for contracts

1. The currency used for paying any contract must be specifically prescribed in such contract and conformable with the requests of the invitation for bid, request for proposals and the regulations of the law.

2. The expenditures arising within Vietnam’s territory shall be paid in VND, others shall be paid in foreign currencies under the regulations in the contract.

3. The contract can be paid in cash, via wire transfer or other methods agreed by the parties under the regulations of the law and prescribed in the contract.

Article 92. Advance

1. An advance on the contract is an amount that is advanced to the contractor to carry out the contractual tasks.

2. The advance shall be determined according to the scope and nature of the contract. A contract must prescribe: the advance, time for advance, advance guarantee, withdrawal of advance; responsibilities of the parties to administer and use the advance; revocation of the guarantee if the advance is used for wrong purposes.

3. The contractor shall administer the advance as long as such advance is effectively used for the right purposes and objects. The advance must not be left idle or used for the wrong purposes.

4. Regarding the production of high value building components, semi-finished products and some materials need seasonally storing, the contract must prescribe the advance plan and the advance to ensure the progress of the contract.

Article 93. Adjustment to contractual prices workload

1. A contract must specify the adjustment to the contractual price including the adjustments, principles, time to calculate the adjustment and database to calculate the adjustment.

2. Adjustment to the unit prices:

Any contract using variable unit prices must specify:

a) The time to calculate the initial unit price (which is usually fixed 28 days before the deadline for bid submission) to determine the difference between the successful unit price and the variable unit prices;

b) The database to adjust the unit prices of which the price indexes to adjust the unit prices is the price indexes provided by the General Statistics Office or the construction price indexes provided by the Ministry of Construction and the People’s Committees of provinces;

c) Unit price adjustment formula:

The science-based unit price adjustment formulas must be conformable with the contract. The preferable formula is the popular formula such as the formula of the International Federation of Consulting Engineers (FIDIC), guidance of the World Bank (WB), Asian Development Bank (ADB).

3. Adjustment to the workload:

a) A contract must prescribe the principles to adjust the workload if the workload is not determined at the time such contract is signed;

b) The increased workload due to the subjective faults of the contractor must not be adjusted;

c) If the differential rate of the actual workload and the workload prescribed in the contractual price list is more than 20%, the parties must reach an agreement on suitable principles to adjust the unit price which is conformable with the conditions for the change in the workload when such difference is paid.

d) In case of the workloads that are not prescribed in the initial conditions for the change in the contract or the cases requiring the cooperation of two parties in preventing or minimizing the risks under the responsibility of one party, the parties shall discuss to find the handling measures.

4. Any expenditure arising or change in the progress must be reported to the competent authorities for consideration and the contract must be added appendices which serves as a basis for the implementation.

Article 94. Contract payment

1. A contractor shall be paid depending on the contractual price and specific clauses on payment in the contract. If an investor does not make the payment later than the stipulated time in the contract, (s)he shall be liable to the late payment interest under the term of the contract.

2. The payment does not depend on the estimate as well as the currents regulations and instructions of the State on the limits and unit prices; unit prices in the invoice for the purchase items such as materials, machinery, equipment and other items.

3. In case there are various types of contracts in a contract, each type of contract shall be applied corresponding payment principles.

Article 95. Payment for lump sum contracts

1. Payment principles:

A lump sum contract can be paid several times after each inspection in proportion to each completed workload or can be paid in lump sum after the contractor completes all of the work in the contract by subtracting the advance (if any) from the contractual price. In case the specific payment amount in proportion to each work item or inspection stage cannot be determined, such amount can be determined based on the rate (%) of the contract value.

2. Payment documents on a lump sum contract include:

a) A record on the inspection of the workload which is confirmed by the contractor, investor and supervisor (if any). This record shall confirm the completion of the work, work item and work tasks conformable with the design. It is not required to confirm the specific completed workload;

b) With regard to the goods purchase: Depending on the nature of the goods, the payment documents may include: invoices of the contractor, list of packaged goods, transportation receipts, insurance form, Certificate of quality, record on the goods inspection, Certificate of Origin and other relevant documents.

Article 96. Payment for fixed unit price contracts

1. Payment principles:

a) The payment is calculated by multiplying the fixed unit price in the contract and the actual workload that the contractor has completed;

b) With regard to construction, if the actual workload that the contractor has completed following the design is less than the workload prescribed in the contract, the contractor shall be paid the payment for the actual workload. If the actual workload that the contractor has completed following the design is more than the workload prescribed in the contract, the contractor shall receive the payment for such difference using the fixed unit price in the contract;

c) The contractor shall receive the payment calculated on the basis of the record on the inspection of the completed workload which is confirmed by the investor, supervisor and contractor.

2. Payment documents include:

a) A record on the inspection of the workload which is confirmed by the contractor, investor and supervisor (if any);

b) A confirmation of the adjusted workload in comparison with the workload in the contract which is confirmed by the representative of the contractor, investor and supervisor (if any);

c) The spreadsheet of proposed payment based on the confirmed workload that is completed and the unit prices in the contract;

d) The proposal for payment of the contractor specifying the completed workload and value there of, differences compared to the contract, advances, and amounts payable;

dd) With regard to the goods purchase: Depending on the nature of the goods, the payment documents may include: invoices of the contractor, list of packaged goods, transportation receipts, insurance form, Certificate of quality, record on the goods inspection, Certificate of Origin and other relevant documents.

Article 97. Payment for variable unit price contracts

1. Payment principles:

a) The payment is calculated by multiplying the variable unit price in the contract and the actual workload that the contractor has completed;

b) With regard to construction, if the actual workload that the contractor has completed following the design is less than the workload prescribed in the contract, the contractor shall be paid the payment for the actual workload. If the actual workload that the contractor has completed following the design is more than the workload prescribed in the contract, the contractor shall receive the payment for such difference;

c) The contractor shall receive the payment calculated on the basis of the record on the inspection of the completed workload which is confirmed by the investor, supervisor and contractor.

2. Payment documents include:

a) A record on the inspection of the workload which is confirmed by the contractor, investor and supervisor (if any);

b) A confirmation of the adjusted workload compared with the workload in the contract which is confirmed by the representative of the contractor, investor and supervisor (if any);

c) The spreadsheet of proposed payment based on the confirmed workload that is completed and the unit prices in the contract or the adjusted unit price prescribed in the contract;

d) The proposal for payment of the contractor specifying the completed workload and value there of, differences compared to the contract, advances, and amounts payable;

dd) With regard to the goods purchase: Depending on the nature of the goods, the payment documents may include: invoices of the contractor, list of packaged goods, transportation receipts, insurance form, Certificate of quality, record on the goods inspection, Certificate of Origin and other relevant documents.

Article 98. Payment for time based contracts

1. Payment principles:

a) An expert shall receive the payment which is calculated by multiplying the expert’s salary, its relevant expenditures such as social insurance, medical insurance, unemployment insurance, days off, other expenditures prescribed in the contract or adjusted under the regulations and the actual working time (expressed as month, week, day or hour). If the actual working time of an expert is different from the working time prescribed in the contract, the expert shall receive the payment for the actual working time;

b) The relevant expenditures (excluding the salary of the expert prescribed in Point a this Clause) including: administrative expense of the regulatory unit and employment of experts (if any); expenditures on transportation, survey, leasing working office, communication and other expenditures shall be paid by the payment method prescribed in the contract. The payment for the expenditure must be specified such as paying the expenditure based on the valid invoices and documents provided by the contractor or paying such expenditure based on the unit prices prescribed in the contract.

2. Payment documents include:

Depending on the nature of the consultancy, the payment documents may include the record on the inspection of the result of the consultancy, documents on the progress on the execution of the contract and relevant documents.

Article 99. Contract finalization

1. A contract shall be finalized when:

a) The parties fulfill their obligations under the terms of the contract;

b) The contract is cancelled under the regulations of the law.

2. The contract finalization shall be recorded in writing and such record must be signed by both parties. The record on the contract finalization can be filed separately or part of the record on the final inspection or the record on the consensus on the end of the contract whose contents conformable to the responsibilities of the parties prescribed in the contract. The contract shall be considered to be finalized after 45 days from the day on which the parties to the contract fulfill their responsibilities prescribed in the abovementioned record on the contract finalization. If the contract is big and complicated, it shall be finalized within 90 days.