Thông tư 08/2019/TT-BXD giám sát quản lý chất lượng công trình theo hình thức đối tác công tư

CIRCULAR

QUALITY SUPERVISION AND CONTROL OF CONSTRUCTIONS INVESTED IN FORM OF PUBLIC-PRIVATE PARTNERSHIPS

Pursuant to Law on Construction dated June 18, 2014;

Pursuant to Decree No. 63/2018/ND-CP dated May 04, 2018 of Government on investment in form of public-private partnerships (hereinafter referred to as “Decree No. 63/2018/ND-CP”);

Pursuant to Decree No. 46/2015/ND-CP dated May 12, 2015 of Government on quality control and maintenance of constructions (hereinafter referred to as “Decree No. 46/2015/ND-CP”);

Pursuant to Decree No.81/2017/ND-CP dated July 17, 2017 of the Government on functions, tasks, powers, and organizational structure of the Ministry of Construction;

At the request of the Director General of the State Agency for Construction Quality Control;

Minister of Construction promulgates Circular on quality supervision and control of constructions invested in form of public-private partnerships.

Article 1. Scope and regulated entities

1. Scope

The Circular prescribes contents of quality supervision and control of constructions built under types of contracts specified in Clauses 3, 4, 5, 6, 7, 8 and 10 Article 3 of Decree No. 63/2018/ND-CP.

2. Regulated entities

This Circular applies to regulatory authorities, authorized agencies as specified in Clause 4 Article 8 Decree No. 63/2018/ND-CP, investors, enterprises for implementation of projects (hereinafter referred to as “investors”) and agencies, organizations and individuals related to investment in construction in the form of public-private partnerships.

Article 2. Responsibilities for quality supervision and control of regulatory authorities

1. Comply with regulations on construction quality control under legislative documents on construction and Clauses 2, 3, 4 and 5 of this Article.

2. With respect to a construction built without being subject to a BT contract

a) Examine capacity and experience requirements of bidders in bidding documents or requests for proposals and examine bidder selection results with respect to bidding package of the project (if any) during project execution before an enterprise for project implementation approves according to the project contract;

b) Examine compliance with regulations on quality control of investors and the contractors participating in the construction according to regulations and law on construction and project contract. During the implementation, a regulatory authority shall prepare and approve an examination scheme including scope, contents, frequency and other requirements satisfactory for work that needs to be implemented;

c) Direct the investors to request supervision consultant and construction contractors to replace personnel in case the personnel fail to satisfy the capacity specified in the bidding documents, requests for proposals and regulations and law on construction;

d) Request the investors to halt or suspend the construction upon discovery of incidents making the construction unsafe, signs of violations regarding bearing capacity safety, fire prevention and fight, environment, and affecting human lives, community safety and safety of neighboring constructions and request the contractors to rectify before proceed with the construction;

dd) Conduct quality inspection on parts of the construction, work items and the whole construction upon quality suspicion or at request of a regulatory agency. A competent authority shall select and approve the selection of a contractor to conduct quality inspection in accordance with regulations and law on bidding; inspect the quality control as per the law. Procedures and schemes for quality inspection shall conform with regulations of law on construction;

e) Examine conditions for acceptance testing of the work items and construction as specified in Clause 2 Article 31 of Decree No. 46/2015/ND-CP and in the project contract;

g) Perform construction quality inspection providing the basis for transfer as prescribed in the project contract with respect to BOT and BLT contracts upon expiry of business or service lease period;

h) Cooperate with the contractors to prepare documents for the transfer of the construction;

i) Examine implementation of maintenance and service of the construction in accordance with regulations and law and the project contract.

3. With respect to a construction built subject to a BT contract

a) Comply with the provisions specified in Points a, dd and h Clause 2 of this Article;

b) Assign the project management body or project management board as specified in Clause 6 Article 8 of Decree No. 63/2018/ND-CP or hire a consultant with adequate capacity according to construction laws to supervise the cosntruction process as specified in Clause 1 Article 26 of Decree No. 46/2015/ND-CP.

If necessary, regulatory authorities shall assign the investors to implement certain contents specified in Clause 1 Article 26 of Decree No. 46/2015/ND-CP. The assignment handed to the investors shall be formulated on the basis of agreements between the investors and regulatory authorities excluding contents specified in Points b, d, e, h, n and o Clause 1 Article 26 of Decree No. 46/2015/ND-CP.

c) Halt or suspend the construction upon discovery of incidents making the construction unsafe, signs of violations regarding bearing capacity safety, fire prevention and fight, environment, and affecting human lives, community safety and safety of neighboring constructions and request the contractors to rectify before proceed with the construction.

4. Regulatory authorities may assign an agency specialized in constrction to implement provisions under Points a, b, e and I Clause 2 of this Article; assign the project management board and project management body to implement provisions under Points dd, g and h Clause 2 of this Article. The regulatory authorities shall be responsible for all obligations stipulated under signed contracts in any case.

5. The delegation of responsiblities for quality supervising and control of the construction of the competent authorities capable of signing the project contracts and the enterprise conducting the project must be clearly specified in the project contract.

Article 3. Responsibilities for quality monitor and control of investors

1. Assume responsibilities of an investor in quality supervision and control of constructions according to construction laws.

2. Comply with obligations specified in the project contracts regarding performing quality control to constructions.

3. Perform quality control to the construction on the basis of agreements with regulatory authorities specified in Point b Clause 3 Article 2 of this Circular.

4. Assume other responsibilities specified under the project contracts and other relevant law provisions.

5. Implement technology transfer, training, maintenance, service and management use of constructions in conformity with the project contract

Article 4. Expenditure on quality inspection, supervision and control of construction

1. Inspection expenditure metioned in Points dd ang g Clause 2 Article 2 of this Circular and responsibility for payment thereof shall be determined in accordance with Clause 4 Article 29 of Decree No. 46/2015/ND-CP.

2. Expenditure on supervision of construction progress specified in Point b Clause 3 Article 2 of this Circular shall be determined in accordance with regulations on management of construction investment expenditure

In case a regulatory authority supervises or assigns the investor to partially supervise the construction progress as specified in Point b Clause 3 Article 2 of this Circular, the total expenditure on supervision of the construction progress of the regulatory authority and the investor must not exceed the expenditure on supervision of the construction progress as per the law.

3. Expenditure on implementation of quality supervision and control of the regulatory authorities specified in Point b Clause 2 Article 2 of this Circular is part of the contract supervision fee. The regulatory authorities shall determine this fee on the basis of work that needs to be examined.

The contract supervision fee is part of the operation expenditure of the project management bodies affiliated to the regulatory authorities and identified according to regulations and law on management of construction investment expenditure.

Article 5. Entry into force

1. This Circular comes into force from January 01, 2020.

2. Annuls Article 4 of Circular No. 26/2016/TT-BXD dated October 26, 2016 of Minister of Construction on elaboration to construction quality control and maintenance.

3. With respect to construction projects in the form of public-private partnerships officiall signed before the effective date of this Circular, continue to perform quality supervision and control according to the project contract.

4. Difficulties that arise during the implementation of this Circular should be reported to the Ministry for consideration./.