Chương 5 Nghị định 99/2007/NĐ-CP: Hợp đồng trong hoạt động xây dựng công trình

Chapter V

CONTRACTS IN WORK CONSTRUCTION ACTIVITIES

Article 19.- Contracts in construction activities

1. A contracts in construction activities (below referred to as construction contract for short) means a written agreement between the principal and the contractor on the establishment, change or termination of the rights and obligations of the contracting parties for the performance of all or several jobs in construction activities. Construction contracts are legal documents binding on the contracting parties in terms of rights and obligations. Disputes between the contracting parties are settled on the basis of legally effective contracts.

2. Construction contracts cover the following principal contents: jobs and tasks to be performed; types of guarantee; quality and other technical requirements of jobs; implementation duration and progress; contractual prices and payment modes; pre-acceptance test and hand-over conditions; warranty duration; liability for contractual breaches; contractual adjustment; other agreements according to types of contract; languages used in contracts.

3. Construction contracts shall be concluded only when the principals complete the selection of contractors according to regulations and the contracting parties have concluded the process of negotiations on contracts.

4. The construction contracts include the following major types:

a/ The consultancy contract means a construction contract for the performance of one, several or all consultancy jobs in construction activities;

b/ The equipment and material supply contract means a construction contract for supply of materials, technological equipment for a work construction investment project;

c/ The construction contract means a construction contract for the execution of construction, equipment installation for work, work items or construction parts according to work construction designs;

d/ The engineering-provision-construction contract (the EPC contract) means a construction contract for the performance of all jobs from designing, supply of materials and equipment to construction of works, work items;

e/ The turn-key contract means a construction contract for the package performance of all jobs: project formulation; designing; supply of materials and equipment; work construction.

Article 20.- Construction contract dossiers

1. A construction contract dossier comprises a construction contract and its accompanying documents.

2. The documents accompanying a construction contract constitute an integral part of the contract. Depending on the scale and nature of jobs, the documents accompanying the construction contracts comprise all or some of the following documents:

a/ Notice on contract winning or contractor appointment document;

b/ Contractual conditions ( exclusive and common conditions of the contract);

c/ The contractors proposals;

d/ Technical instructions, reference conditions;

e/ Design drawings;

f/ Written amendments and supplements;

g/ Contract performance security, down-payment guarantee and other guarantees, if any;

h/ Other relevant documents.

3. The contracting parties reach agreement on priority order upon the application of contractual documents if these documents contain contradictory or different provisions.

Article 21.- Construction contract prices

A construction contract price is an amount of money paid by a principal to a contractor for the performance of a work volume under the progress, quality and other requirements provided in the construction contract. Depending on the characteristics and nature of construction works, the contracting parties shall agree on the construction contract prices in one of the following form:

1. The package contract price:

a/ The package contract price means a contract price, which remains unchanged throughout the course of contract performance, excluding cases of permitted adjustment provided for in the contract, if any;

b/ The package contract price is applied to the following cases:

Works or bidding packages with work volumes, quality or implementation duration being clearly identified or in a number of cases with work volume being unidentifiable but the contractors have full capability, experience and documents for calculation and determination of the package prices and accept risks related to the determination of the package prices.

Bidding packages or consultancy jobs are ordinary and simple, for which the contract prices are determined in percentages of the value of works or work volumes.

2. Contract prices based on fixed unit prices:

a/ The fixed unit price-based contract price is a contract price determined on the basis of temporarily calculated work volume and the unit price of each contractual job is fixed and remains unchanged throughout the course of contract performance, except cases of permitted adjustment provided for in contracts, if any;

b/ The fixed unit price- based contract price applies to works or bidding packages without conditions for accurate determination of work volumes but with full conditions for determination of unit prices of job performance and the contractors have full capability, experiences and documents for calculation and determination of fixed unit prices of work construction and risks related to the determination of unit prices;

c/ The fixed unit prices remain unchanged throughout the course of contract performance, except for cases of permitted adjustment clearly stated in the construction contracts.

3. Contract prices based on adjusted prices:

a/ The adjusted price-based contract price is a contract price, where work volume and unit price for contractual jobs are allowed for adjustment in cases provided for in the contract;

b/ The adjusted price-based contract price applies to works or bidding packages, which, at the time of concluding the contract, have no conditions for accurate determination of work volumes to be performed or expenses for determination of unit prices for performance of jobs;

c/ The adjusted prices will be adjusted when all conditions for determination of work volume and execution unit prices prescribed in the contracts are fully met.

4. The combined contract price is a contract price determined in the forms specified in Clauses 1, 2 and 3 of this Article. The combined contract price applies to large-sized works or bidding packages with complicated techniques and prolonged implementation duration. The principal and the contractor base on types of contractual jobs to reach agreement on, and determine types of jobs to which the package contract price, the fixed unit price- based contract price or the adjusted price-based contract price is applied.

Article 22.- Adjustment of unit prices in construction contracts

The adjustment of unit prices in construction contracts must be stated in such contracts and made in the following cases:

1. Upon conclusion of contracts, temporarily calculated unit prices were used for jobs or work volumes for which the principal and the contractor, at the time of contract conclusion, had not yet acquired full conditions for accurate determination of the unit prices and agreed to adjust them when conditions permit.

2. When the arising work volume exceeds 20% of the corresponding work volume, which must be performed by the contractor under the contract, the adjustment of the unit price of such arising work volume will be considered.

3. The unit prices which the investor and contractor agreed to consider and readjust after given durations as from the time the contracts are performed and which are clearly stated in the contracts.

4. When the prices of fuel, supplies and equipment stated in the contracts greatly fluctuate, directly affecting the contract performance or when the state changes relevant policies, which must be reported to competent persons for consideration and decision.

5. When there appear force majeure circumstances provided for in the contracts.

Article 23.- Adjustment of construction contract prices

1. The construction contract prices are adjusted only in the following cases:

a/ Addition of jobs not specified in the signed contracts;

b/ It is so provided for in Article 22 of this Decree;

c/ There appear price fluctuations prescribed in the contracts. The grounds for price fluctuation calculation are determined within 28 days before the contractor submits the payment dossiers.

2. Within the bidding package prices stated in the approved bidding plans, the adjustment of construction contract prices must be clearly stated in the construction contracts by the principal and the contractor.

3. Based on the provisions of Article 22 of this Decree, investors may approve the adjusted contractual prices and bear responsibility for their approval. For works financed by state budget capital, investors shall report the adjusted contractual prices to investment deciders before approving them.

4. Where the adjusted construction contract price exceeds the price of a bidding package stated in the approved bidding plan, investors shall report thereon to persons competent to consent before approving the adjusted contractual prices.

5. The adjustment of construction contract prices of a project must not exceed the total investment in the project already approved by competent authorities.

Article 24.- Advance of capital for performance of construction contracts

1. The advance of work construction investment capital must be stipulated in construction contracts and effected immediately after the contracts take effect. The advance levels of work construction investment capital are provided as follows:

a/ For consultancy contracts, the minimum capital advance level is 25% of the contractual price;

b/ For construction contracts, the minimum capital advance level is 10% of the contractual price, for contracts valued at over VND 50 billion; 15%, for contracts valued at between VND 10 billion and 50 billion, and 20%, for contracts valued at below VND 10 billion.

c/ For materials and equipment supply contract, the advance level is not lower than 10% of the contractual price, depending on the contractual values;

d/ For EPC contracts, the advance of capital for purchase of equipment is based on the supply progress stated in the contracts; other jobs such as engineering, the elaborated minimum advance level is 15% of the value of such contractual jobs.

2. The advance of capital for ground clearance is made under the ground clearance plans.

3. The principal reaches agreement with the contractor on plans for advance and recovery of capital for prior-production of a number of construction components and semi-finished products of great value to ensure the construction or for purchase of some types of materials for seasonal reserve.

Article 25.- Construction contract payment

1. The contractual payment must accord the types, prices and terms of contracts concluded by the contracting parties. The number of payments, the payment period and payment conditions must be clearly stated in the contracts.

2. For package contract prices: the payment is made in percentage (%) of the contractual price or prices of completed works, work items corresponding to the payment periods stated in the contracts after the payment dossiers are examined and certified by investors. The contractor will be fully paid with prices of the contracts signed with the principal and adjusted money amounts (if any) after the completion of the contracts and the pre-acceptance test and hand-over of works.

3. For fixed unit price-based contract prices: the payment is made on the basis of the completed work volume (including arising volume, if any) tested and accepted in the payment periods and the unit prices corresponding to such works stated in contracts or contract annexes.

4. For adjusted price-based contract prices: the payment is made on the basis of the completed work volume (including arising volume, if any) tested and accepted in the payment periods and unit prices already adjusted under the contracts. Where upon the mature of payment periods, there still lack conditions for adjustment of unit prices, the unit prices temporarily calculated when the contracts were signed will be used for making the payment and the payment value will be adjusted upon the availability of unit prices adjusted under the contractual provisions.

5. Where the combined contractual price is applied as provided for in Clause 4, Article 21 of this Decree, the payment shall correspondingly comply with the provisions of Clauses 2, 3 and 4 of this Article.

6. The advance capital is recovered gradually through payments. The recovery of advance capital starts immediately after the first payment and concludes when the paid work volume reaches 80% of the contract value. For the ground clearance, the recovery of advance capital will conclude after the completion of the ground clearance.

7. Within 10 working days after the contractor submits the valid payment dossiers, investors shall make payment for the performed work volume to the contractor. For construction works financed with state budget capital, within 3 working days after the receipt of complete and valid payment dossiers of the contractor, the investors must complete all procedures and transfer the payment requests to capital-allocating or -lending agencies. In the year of construction completion or the year of work commissioning, investors shall make payments to contractors for the completed work volume minus the money amounts retained for work warranty according to regulations.

Article 26.- Construction contract payment dossiers

1. Necessary documents and certifications in the payment dossiers must be clearly inscribed in construction contracts. The payment dossiers made by contractors comprise the following principal documents:

a/ The written record on acceptance of the work volume performed in the payment period with certifications of representatives of the contractor, the principal and the supervision consultant, if any;

b/ The written certification of the volume increase or decrease over the contract with certification of representatives of the contractor, the principal and the supervision consultant, if any;

c/ The list of proposed payments based on the completed work volume, which has been certified, and the unit price stated in the contract;

d/ The contractors payment proposal, clearly stating the completed work volume and completed value, the increase (decrease) value against the contract, the advanced value, the value proposed for payment in the period.

2. For cases of contractual payment at package contract prices: The written record certifying the volume at Point a, Clause 1 of this Article, means the certification of completion of works, work items, construction jobs suitable to designs (certification of detailed completed volume is not required).

Article 27.- Unit prices of work volume arising outside construction contracts

1. The work volumes arising outside a construction contract include:

a/ The work volume added to the prescribed work volume, for contracts to which the mode of package contract price is applied;

b/ The work volume without unit price or the work volume with unit price, which is arising, added volume, for contracts to which the mode of fixed unit price- or adjusted price-based contract price prescribed in Clauses 2 and 3, Article 21 of this Decree, is applied.

2. For arising work volume smaller than 20% of the corresponding work volume inscribed in the contract and having unit price stated in the contract, the unit price stated in the contract will be used to make payments.

3. For arising work volume larger than 20% of the corresponding work volume stated in the contract or arising work volume without contract unit price, the contractor and the principal shall agree to determine it according to the principles specified in the contract regarding the unit prices of arising work volumes.

4. For the added work volume outside the work volume prescribed by the contract to which the mode of package contract price is applied, the additional value will be included in cost estimate. The principal and the contractor shall negotiate and agree to sign a contract on addition of this arising value.

5. Investors may approve unit prices for the arising work volumes, make payments for arising volumes and take responsibility for such approval and payments. For works financed by state budget capital, investors shall report thereon to investment deciders before approving the unit prices of the arising work volumes and making payments for the arising volumes.

Article 28.- Construction work insurance and work warranty

1. The insured objects, insurance sums, insurance duration and insurance liabilities of the principal and the contractor must be clearly stated in construction contracts.

2. Insurance for construction works and assets of the principal will be purchased by the principal. Where this insurance premium has been already included in the contract-winning price, the contractor shall buy the insurance.

3. The contractor shall buy necessary insurances to secure his/her activities.

4. The principal and the contractor shall agree on and provide for in the contract the warranty conditions and duration and the parties liabilities for construction work warranty as well as the money amounts retained for performance of work warranty obligations. If agreed by the principal, the contractor may pay work warranty guarantee instead of the money amounts to be retained by the principal for work warranty.

Article 29.- Rewards, fines and settlement of contractual disputes

1. The rewards for contractual over-fulfillment and fines for contractual breaches must be clearly stated in the construction contracts.

2. The reward level must not exceed 12% of the value of the over-fulfilled contractual portion; the fine level must not exceed 12% of the value of the breached contractual portion.

3. Disputes between contracting parties must be settled through negotiation and conciliation between the parties or settled by arbitrators or courts according to provisions of law.

Article 30.- Construction contract settlement

1. The principal and the contractor shall settle their construction contract within 30 days after the contractor has fulfilled contractual obligations (except for the work warranty obligation according to regulations) and proposed the contract settlement.

2. The contractor shall make the contract settlement and send it to the principal. The contract settlement must clearly determine the value of the signed contract, the value already paid, the value to be paid and other obligations to be performed by the principal under the contractual provisions. The principal shall examine and make settlement with the contractor and take responsibility for the contractual value already settled.

3. Immediately after fulfilling the work warranty obligations under provisions of the signed contract, the principal (or investor) shall repay the money amounts retained for work warranty (if any) to the contractor and settle the contract, terminating all obligations between the contracting parties.