Thông tư 16/2016/TT-BXD hướng dẫn 59/2015/NĐ-CP hình thức tổ chức quản lý dự án đầu tư xây dựng

CIRCULAR

GUIDANCE ON APPLICATION OF A NUMBER OF ARTICLES OF THE GOVERNMENT’S DECREE NO.59/2015/ND-CP DATED JUNE 18, 2015 ON CONSTRUCTION PROJECT MANAGEMENT

Pursuant to the Law No.50/2014/QH13 on Construction dated June 18, 2014;

Pursuant to the Government’s Decree No.62/2013/ND-CP defining the functions, responsibilities, entitlements and organizational structure of the Ministry of Construction dated June 25, 2013;

Pursuant to the Government’s Decree No.59/2015/ND-CP dated June 18, 2015 on construction project management;

In consideration of the request of Departments of Construction Management,

The Minister of Construction hereby issues this Circular providing guidance on application of a number of articles of the Government’s Decree No.59/2015/ND-CP dated June 18, 2015 on construction project management.

Chapter I

GENERAL PROVISIONS

Article 1. Scope and regulated entities

1. Scope: This Circular provides guidance on the establishment and responsibilities of Management Boards of construction projects funded with the State budget and extrabudgetary funds; and introduction of Operation Regulations of field-based and area-based project management boards (hereinafter referred to as “field-based and area-based PMB”).  Management of projects funded with ODA, or concessional loans from foreign sponsors shall conform to the agreement signed with the sponsor.

2. Regulated entities: This Circular applies to field-based and area-based PM founders specified in clause 1, Article 63 of the Law on Construction, investment decision-makers, investors and management boards of projects funded with the State budget, extrabudgetary funds and relevant entities.

3. Under the Law on Construction and the Government’s Decree No.59/2015/ND-CP  on construction project management dated June 18, 2015 (hereinafter referred to as “ Decree No.59/2015/ND-CP  “), Ministries, ministerial-level agencies, Central authorities of political organizations, socio-political organizations, People’s Committees of provinces, economic groups and state-owned corporations shall continue to provide instruction on  project management within their administration.

4. Investment decision-makers and investors of projects funded with other sources of finance shall consider applying provisions in the Decree No. 59/2015/ND-CP and guidance hereof to manage their projects according to the reality.

Article 2. Interpretation

For the purpose of this Circular, terms herein shall be construed as follows:

1. Subsidiary of economic groups or State-owned corporations means a business entity incorporated and operated in accordance with the Law on Enterprises and named in the Charter of the economic group or State-owned Corporation.

2. Project manager means a title of persons appointed to take charge of or execute part or whole project.

3. PMB founder means a person who is competent to establish field-based and area-based PMB under clause 1, Article 63 of the Law on Construction.

4. Management entrustment means the entrustment of project management to field-based or area-based PMBs via under entrustment agreements by the investment decision-maker and investor.  

Article 3. Principles for establishment and reorganization of field-based or area-based PMBs

The establishment and operation of field-based or area-based PMBs under the Law on Construction shall:

1. Be conformable to the development orientations and planning, mid-term public investment plans, and policies on public investment and state-owned enterprise investment and restructure.

2. Satisfy all requirements for field-based and area-based PMBs stipulated in clause 2, Article 62 and clause 1, Article 63 of the Law on Construction.

3. Do not interrupt project progress nor make payroll increase Field-based and area-based PMB’s officials on the payroll must not concurrently hold different positions or take charge of tasks other than those designated.

4. Self-arrange operation funds on the basis of  project management budget allocated from the approved total investment  and other legal proceedings (if any) With respect to field-bases and area-based PMBs of projects in mountainous areas, islands, severely disadvantaged areas, small-scale projects required to have economic-technical reports, or newly approved projects to which  capital has not been mobilized yet, the PMB founders and investment decision – makers may provide funding for PMBs according to the reality.

5. Ensure the capacity of established/reorganized field-based /area-based PMBs under the under the Law on Construction.

Article 4.  PMB operation

1. Every field-based or area-based PMB established by the Minister, Head of Ministerial-level agency, president of People’s Committee of provinces or districts under Articles 17 and 18 of the Decree No.59/2015/ND-CP is considered as a public service provider that exercises financial autonomy and finances its recurrent expenditures under the Government's Decree No.16/2015/ND-CP dated February 14, 2015 on public service provider autonomy.

2. Every field-based/ area–based PMB established by the competent person of any economic group or state-owned general corporation under Article 18 and 18 of the Decree No.59/2015/ND-CP shall be considered as a subsidiary whose costs may be independently or dependently accounted. Such member will operate under its parent company’s legal status. Field-based or area-based PMBs may be restructured or established under the Resolution of the Board of Members or Board of Directors and either exercises their financial autonomy or is funded in case of dependent cost-accounting.

3. The PMB of single construction project established under Article 19 of the Decree No.59/2015/ND-CP shall be considered as a service provider under the investor’s authority. Such PMB is established, operated and dissolved under the investor’s Decision and according to the reality and relevant regulations of laws.

4. For construction projects funded with other sources of finance, the investment decision-maker shall have the right to decide form and methods of management according to the project management requirements and project particular progress.

Chapter II

REORGANIZATION OR ESTABLISHMENT OF FIELD-BASED OR AREA-BASED PMBS

Article 5.  PMB reorganization

The reorganization of PMBs by the investment decision-maker and investor shall be carried out as follows:

1. Reorganization of PMBs of single construction project funded with State budget and extrabudgetary funds:

a) Every PMB of single construction project that has been set up by investors by the effective date of the law on Construction shall be entitled to operate until the project is finished and comes into operation. According to the particular requirements of specific regulatory authorities and enterprises, the investor may restructure and reorganize such PMB as a field-based or area-based PMB, where necessary.

b) PMBs of single construction project (other than those established in accordance with clause 2, Article 62 of the Law on Construction) established after the effective date of the Law on Construction shall be merged into a field-based or area-based PMB that has been set up by the Minister, Head of Ministerial-level agency, President of People’s Committee of the province/district, competent person of the economic group or State-Owned Corporation.

c) For projects which are funded with the State budget and invested by members of economic groups or State-owned corporation but are not eligible to have their own PMB, the investment decision-maker shall request the Board of Members or Board of Directors of the economic group or State-owned Corporation to have field-based or area-based PMB manage or hire project management consultancy under clause 2, Article 20 of the Decree No.59/2015/ND-CP;

d) For projects invested under investment programs within the administration of the province or district where such program is originally launched, the program owner shall negotiate with the People’s Committee of the province and district about the hire of field-based or area-based PMB for managing their project.

dd) For projects funded with ODA, or concessional loans from foreign sponsors shall conform to the agreement signed with the sponsor.

e) For EPC projects, such projects may be managed by EPC contractors under Article 22 of the Decree No.59/2015/ND-CP. Every investor shall assign specialized teams to supervise and inspect the project management by EPC contractors.

2. PMBs of multiple projects that are established by investment decision-makers and operating in regulatory authorities, economic groups or State-owned corporations shall be re-organized to satisfy field-based or area-based PMB criteria under the Law on Construction. Restructure and reorganization of PMBs of multiple construction projects funded with State budget and extrabudgetary funds are as follows:

a) Every investment decision-maker and investor shall:
Review functions, responsibilities and organizational structures of existing PMBs, and submit proposals for methods of restructuring to the competent person;

b) Completely define functions, rights, responsibilities and organizational structure of the existing PMBs as the basis for establishment of field-based and area-based PMBs thereafter;

c) Upgrade facilities and increase the capacity to meet field-based and area-based PMBs criteria stipulated in Article 64 of the Decree No.59/2015/ND-CP.

3. According to the reality, the People’s Committee of the province shall specifically define  the functions, responsibilities and organizational structure of the  urban management boards established under the Government’s Decree No.11/2013/ND-CP dated January 14, 2013 on management of urban development investment in respect of civil construction projects and technical infrastructures within the province.

Article 6. Establishment of field-based or area-based PMBs

1. Ministries, ministerial-level agencies, People’s Committees of provinces and districts, economic groups and State-owned corporations shall  be responsible for the establishment of field-based and area-based PMBs in accordance with Article 17 of the Decree No. 59/2015/ND-CP  for managing projects funded with State budget and extrabudgetary funds.

According to the reality of regulatory authorities and enterprises, competent persons prescribed in clause 1, Article 63 of the Law on Construction may select one or several key PMBs to undergo re-organizing as the basis for the foundation of field-based or area-based PMBs in accordance with clause 2, Article 5 hereof.

2. Establishment of field-based and area-based PMBs by Ministries, Ministerial-level agencies and regulatory authorities of provinces or districts

a) For Ministries and Ministerial-level agencies:

- Professional authorities in charge of construction project management (hereinafter referred to as “professional authority”) prescribed in Article 76 of the Decree No.59/2015/ND-CP shall set up field-based and area-based PMBs that will take charge of managing their projects. In case affiliated enterprises having capable of project management exist, the PMB founder may transform the operating models or assign extra tasks to field-based and area-based PMBs according to the reality. According to the quantity, scale of the project and the reality, the head of professional authority may authorize the Director General to establish PMB that will take charge of managing project invested by the General Directorate.

- Ministries and ministerial-level agencies shall consider establishing field-based and area-based PMBs according to the demand and construction scale under the mid-term public investment plans. In case of absence of PMBs or existence of PMBs but they are not qualified for managing all projects within the administration, the investment decision-maker shall request the investor to entrust a field-based or area-based PMBs at the project location to take charge of project management.

b) For provincial governments:

- People’s Committees of provinces shall establish their field-based and area-based PMBs in accordance with point b, clause 1 of Article 18 of the Decree No.59/2015/ND-CP, including: industrial and civil construction PMBs and urban and agricultural development PMBs.
The  centrally-affiliated province and province having at least 02 economic zones, industrial zones, processing export zones, hi-tech parks, new urban complexes, or natural sanctuaries may establish 02 more area-based PMBs to take charge of infrastructure project management.

- People’s Committees of provinces shall directly manage or entrust Department of professional construction project management (hereinafter referred to as “professional department”) to managing field-based and area-based PMBs.

c) For district governments:

- Presidents of People’s Committees of districts shall establish PMBs in charge of managing construction projects decided to be invested by the people's Committee of the district or commune and those in which the People’s Committees of the district is assigned to perform as the investor, except for projects directly managed by the People’s Committees of the district prescribed in clause 1, Article 21 of the Decree No.59/2015/ND-CP;

- People’s Committees of districts shall directly manage the operation of their PMBs.

3. Establishment of field-based and area-based PMBs by economic groups or State-owned Corporations:

a) The competent persons of the economic group or State-owned Corporation have the right to establish field-based and area-based PMBs to manage projects that are funded with State capital and decided to be invested by the Board of Members and Board of Directors. In case subsidiaries of economic group and State-owned Corporation have capable of managing projects, such groups or corporations may establish field-based or area-based PMBs by re-organizing the above-mentioned subsidiaries.

b) The Board of Members and Board of Directors of the economic group of State-owned corporation shall consider approving the establishment of field-based and area-based PMB affiliated to a subsidiary, where necessary,  to manage projects decided to invest in by such subsidiary. Field-based or area-based PMBs established by subsidiaries shall meet all criteria prescribed in regulations of laws on construction, and shall comply with provisions hereof;

c) For class-A projects of economic groups or State-owned corporations decided to be invested by regulatory authorities, the field-based or area-based PMB of such economic group or State-owned Corporation shall take charge of managing aforesaid projects if the investment decision-maker approves.

Chapter III

FUNCTIONS, RIGHTS, RESPONSIBILITIES AND ORGANIZATIONAL STRUCTURE OF FIELD-BASED AND AREA-BASED PMB

Article 7. Position and functions of field-based and area-based PMB

1.  Field-based and area-based PMB position

a) Field-based and area-based PMBs established by the Minister, Head of ministerial-level agencies or president of People’s Committee of provinces or districts are public service providers that exercise their financial autonomy as prescribed in clause 3, Article 3 of this Circular;

b) Field-based and area-based PMBs established by the competent person of any economic group or State-owned enterprise are independent or dependent cost-accounting subsidiaries. Such PMBs may either exercise their financial autonomy or funded by their parent company.

c) Every field-based and area-based PMB shall submit a project management capability declaration to the construction authority where such PMB is headquartered.

d) Field-based and area-based PMBs cooperate with relevant authorities and organizations shall comply with provision in Article 17 hereof.

2. Functions of Field-based and area-based PMBs stipulated in clause 2, Article 63 of the law on construction and clause 3, Article 17 of the Decree No.59/2015/ND-CP are specified as follows:

a)Perform as an investor of a number of designated projects funded with the State budget or extrabudgetary funds; According to the reality, the investment decision-maker shall consider assigning such PMBs to perform as the investor of particular projects;

b) Receive and manage investments of projects under regulations of laws;

c) Exercise rights and fulfill investors’ obligations and PMB stipulated in Articles 68 and 69 of the Law on Construction and relevant regulations of laws;

d) Perform other functions assigned by the PMB founder and take charge of project management as stipulated in Article 8 hereof;

dd) Transfer as-built construction works to the investor and its owner or directly operate the as-built construction works at request of the investor;

e)  Manage projects under the entrustment agreement with the other investor and ensure the professional capacity meet all requirements of the designated project.

Article 8. Rights and responsibilities of field-based and area-based PMBs

Pursuant to rights and responsibilities of construction investors and PMBs prescribed in Articles 68 and 69 of the Law on Construction, every field-based and area-based PMB shall:

1. Exercise rights and take on responsibilities of the investor including:

a) Project planning: prepare and submit the project planning which specifies project schedule, workload, mobilized sources, quality and quality evaluation criteria;

b) Construction preparation: go through procedures for construction planning, land and natural resource use, technical infrastructures and environmental protection, fire safety, submit project proposals for approval; receive disbursement and carry out other tasks,

c) Project execution: hire consultants for construction survey and design, submit the design and project estimates competent authority to appraise or self-assess their design and estimates; take charge of and cooperate with relevant agencies to compensate for site clearance and relocation (if any), withdraw and receive land for the project; select contractors and sign construction contract; monitor the project execution; and settle payment under construction contract and other assigned task;

d) Construction works completion and transfer: carry out the acceptance and transfer of as-built construction works; conduct commissioning; settle and finalize construction contract and investments, and maintenance;

dd) Financial management and disbursement: receive and allocate investment capital according to the project progress; and comply with the financial management regulations.

e) Administrative tasks, project coordination and accountability:  manage staff of PMB, take charge of  administrative tasks such as staff salary, benefits, emulation, awards and discipline ; set up internal communication networks and information confidentiality; provide accurate and timely information and accountability for PMB activities at request of the investor or State competent authorities;

g) Supervision, evaluation and reporting: supervise and assess the investment under regulations of laws; periodically submit project progress reports to the investment decision-maker and State competent authorities.

2. Project management responsibilities are as follows:

a) Carry out project management tasks specified in Articles 66 and 67 of the Law on Construction;

b) Cooperate with involved entities to meet the project progress, quality, and estimated cost and environment protection requirements;

c) Take on other relevant tasks assigned or authorized by the investment decision-maker or investor.

3. Manage the project under the entrustment agreement signed with other investors if it is appropriate for the project management capacity.

4. Carry out construction supervision if it is recognized qualified under regulations of laws.

Article 9.  Field-based and area-based PMB organizational structure

1. The PMB founder shall establish the organizational structure and operation of the PMB including a number of important departments such as Director Offices, functional departments and project executive departments. According to project scale, quantity and reality, the Director of PMB shall submit a proposal to organize affiliated departments according to their functions and responsibilities to the PMB founder for determination of quantities and name of such departments.

Organizational structure and liaison among PMB departments shall be specified in Article 15 hereof.

2. Field-based and area-based PMB personnel

a) Key personnel include a Director, deputy Directors, and Chief Accountant appointed by the PMB founder;

b)The PMB director has the rights to recruit, appoint or dismiss PMB officials of all level in accordance with regulations of laws on recruitment, management and allocation of officials and workers working for public service providers and enterprises;

c) Project manager is a professional title. The professional manager is appointed, dismissed and allocated to project executive departments by the PMB Director.

d) PMB staff in charge of specialized fields shall meet requirements for qualifications under regulations of laws on construction; and the project manager shall meet requirements for qualifications under Article 54 of the Decree No.59/2015/ND-CP. For projects invested with ODA, concessional loans from foreign sponsors, PMB key personnel shall acquire an appropriate level of foreign language(s).

3. The number of workers on the PMB payroll and number of field-based and area-based PMB’s workers is determined according to the approved plan for job position and officials by occupational title.

4. Field-based and area-based PMBs exercising their financial autonomy shall be responsible for their functions, organizational structure, personnel management and financial management under the operation regulation approved by the PMB founder under regulations of laws.

5. Field-based and area-based PMBs under entrustment agreements shall follow provisions in Article 12 hereof. In case a field-based or area-based PMB manages more than one project at a time, such PMB has the right to hire qualified entities to perform particular tasks.

Article 10.  Operating funding for field-based and area-based PMBs

1. Operating funding for field-based and area-based PMBs is constituted from:

a) Fund for project management costs: The project management cost shall be estimated or determined under regulations of the Ministry of Construction. In case the PMB enters into the entrustment agreement with the investor, the project management cost is determined according to the assigned tasks prescribed in the agreement.

b) Fund drawn from collected fees and charges for project management activities such as bidding, design assessment, construction estimation and other legal proceedings at the rate prescribed by the Ministry of Finance;

c) Fund from legal proceedings and other activities;

d) Fund from the PMB founder and investment decision-maker.  Only PMBs prescribed in clause 4, Article 3 hereof are funded. Funding may be made in form of operating cost advance, provision of necessary equipment, training and other form of assistance.

2. In case the project management is entrusted to the field-based or area-based PMB by the investor, the entrusted project management cost shall not exceed that calculated in accordance with regulation of the Ministry of Construction.

3. In case of failure to meet the project progress due to force majeure events or the construction contractor’s fault, the PMB director shall carry the burden of accountability and submit proposals for project management cost adjustment to the investment decision-maker.

Article 11. Procedures for establishment and dissolution of field-based or area-based PMBs

1. PMBs that are established by the Minister, Head of ministerial-level agencies or president of People’s Committee of provinces shall be established or dissolved in accordance with the Government's Decree No.55/2012/ND-CP dated June 28, 2012 on establishment, reorganization and dissolution of public service providers.

2. PMBs of economic groups or State-owned corporations shall be establish and dissolved in accordance with the Resolution of the Board of Members and Board of Directors and charters of the economic group or State Corporation.

Article 12.  Entrustment of project management to field-based and area-based PMB

1. Every field-based and area-based PMB shall be entrusted to manage projects by investors who are not qualified for managing their own projects under regulation of laws. The entrustment shall be made in form of an entrustment agreement. In case an individual concurrently plays roles as investment decision-maker, investor and field-based or area-based PMB founder, the project management shall be assigned on the behalf of the investment decision-maker and entrustment agreement.

2. Procedures for project management entrustment are as follows:

a) The investor may submit a request for project management entrustment as a preliminary negotiation to the field-based or area-based PMB where the project is located. The request shall include project description, scope of work and conditions.

b)  According to the preliminary negotiation, the investor shall request the investment decision-maker to consider approving the entrustment of project management to the field-based or area-based PMB;                        

c) The investor shall negotiate and sign the entrustment agreement under regulations of laws on construction.

3. The investor shall send a professional team to supervise the execution of the entrustment agreement and participate in carrying out tasks specified in clause 2, Article 17 hereof.

4. Field-based and area-based PMBs are permitted to provide entrustments services to other investors who:

a) Be able to successfully perform project management tasks assigned by the investment decision-maker within the approved schedule;

b) Meet all requirements for qualifications under regulations of laws on construction;

c) Be entrusted to take charge of project management by the investor under clause 2 of this Article.

Chapter IV

OPERATION REGULATIONS OF FIELD-BASED AND AREA-BASED PMBS

Article 13. Requirements for field-based and area-based PMB operation regulations

Pursuant to the Law on Construction, relevant laws and this Circular, Directors of PMBs shall submit the PMB operation regulation to the PMB founder to review for approval. The operation regulation shall satisfy the following criteria:

1. The operation regulation shall specify functions, rights and responsibilities as the project investor; responsibilities for project management and scope of work in the liaison with relevant agencies and within the PMB.

2. The organizational structure and personnel shall be appropriate to the project quantity, sale and nature. The responsibilities as investor and project management responsibilities shall be separate.

3. Rights, responsibilities and required qualifications of each position or title in the PMB shall be clearly defined.

4. The PMB shall exercise the financial autonomy and finance its own recurrent expenditures.

Article 14.  Field-based and area-based PMB operation regulations

1. Every field-based and area-based PMB operation regulation includes:

a)Legal basis of the operation regulation;

b) Position and functions;

c) Rights and responsibilities

d) Organizational structure and personnel;

d) Operating funding;

e) Working hours, welfares, benefits for officials

g) Finance and asset management;

i) Supervision, accountability, assessment and reporting regimes

k) Other necessary items (if any)

2. The model operation regulation of field-based and area-based shall be presented in Annex I hereof.

Article 15.  Field-based and area-based PMB organizational structure

1. In order to take charge of responsibilities as the investor and carry out project management tasks, according to the project quantity, scale and workload, the PMB may set up a Board of Directors, project offices, functional departments in charge of investor’s responsibilities and specialty departments for project execution ( hereinafter referred to as "project executive department"). The executive office is organized by project or investment stage such as project preparation, site clearance, design and estimation, bidding and contract management, construction supervision; acceptance and transfer.

2. Directors of such PMBs shall specify functions, rights and responsibilities of and liaison among such departments and offices, and their liaison by

a) Defining rights, responsibilities of project executive departments and procedures for reporting, accountability, appraisal, approval and handling of issues arising in connection to designated projects;

b) Specifying rights and responsibilities of functional departments for consulting the Board of Director of the PMB and cooperating with project executive departments;

c) Self-supervising PMB’s activities to prevent repeat of investor's activities.

Article 16. Management of field-based and area-based PMB’s finance and assets

1. Financial management:

a) The PMB shall manage, allocate and effectively use the investments of both projects that they perform as the investor and they are entrusted to manage.

c) The PMB shall exercise financial and accounting regimes as a profitable public service provider or enterprise

2. Asset management:

a) Every PMB is provided with assets for the purpose of project management under regulations of laws. Such provided assets must be effectively used in the right manner and must not be leased, borrowed, donated or used for personal purposes.

b) Every PMB shall periodically submit reports on assets which are provided, transferred or donated by contractors or suppliers to the PMB founder;

c) Such assets shall undergo re-assessment after every single project; non-used assets shall be deal with under the current regulations of laws.

Article 17.  Liaison between field-based/ area-based PMBs and relevant entities

According to the project scale and nature, the PMB founder shall establish the liaison between the PMB and relevant agencies. To be specific:

1. Liaison with the PMB founder and investment decision-maker
Every field -based/ area-based PMBs shall:

a) Follow the instruction and be subject to the direct supervision and inspection of the fulfillment of obligations and functions by the PMB founder and investment decision- maker of the project in which the PMB acts as the investor

b) Submit the PMB operation regulation for approval (including amendments and adjustments);

c) Submit the scope of work of the investor to review for approval;

d) Submit periodic or surprise project progress reports and remedial measures for ultra vires issues;

e) Submit the accountability at request of the PMB founder and investment decision-maker.

2. Liaison with the entrusting investor  and construction works owner
Every field-based/ area-based PMB shall:

a) Exercise rights and take on responsibilities as the entrusted investor under the entrustment agreement and comply with relevant regulation s of laws; undergo the supervision of the entrusting investor during the execution of the project;

b) Take and manage the investments, make advance and payment to contractors under the investor’s entrustment.

c) Fulfill project management investor's obligations under the entrustment and relevant regulations of laws;

d) Cooperate with the owner to prepare engineering objectives, select construction contracts, and participate in acceptance and transfer of as-built works (including maintenance under regulations of laws);

dd) Transfer as-built works to the investor or owner under regulations of laws on construction; manage the as-built works in case the owner has yet to be indentified at request of the investment decision-maker.

3. Liaison with construction contractors
Every field-based/ area-based PMB shall:

a)  Select construction contractors, negotiate and enter construction contracts with the selected contractors under regulations of laws or entrustment of investors whose projects are managed under entrustment agreements.

b) Exercise rights and take on obligations to construction contractors as prescribed in constructions contract and relevant regulations laws;

c) Deal with contractor’s issues or proposals intra vires or request the competent authority to deal with them.

4. Liaison with State regulatory authorities

Every field-based/ area-based PMB shall:

a) Go through relevant procedures for project preparation or application for construction permit under regulation of laws (or under entrustment agreements);

b) Request the construction authority to appraise the project, project design and construction estimates under regulations of laws on construction;

c) Take charge of and cooperate with People’s Committees of all level to carry out site clearance, relocation and compensation;

d) Cooperate with local governments in administrative management, public security and order during the construction and transfer of the construction works;

dd) Submit reports and carry the burden of accountability for project management performance, incidents, safety and ultra vires proposals towards the State competent authority;

e) Undergo the supervision and inspection by the State competent authority under regulations of laws.

Chapter V

IMPLEMENTATION ORGANIZATIONS

Article 18. Responsibilities of Ministry of Construction

The Ministry of Construction shall:

1. Direct, instruct and inspect the re-organization of field-based and area-based PMBs by regulatory authorities, economic groups or State-owned corporations under the Decree No.59/2015/ND-CP.

2. Submit aggregate periodic PMB performance reports to the regulatory authority, economic group or State-owned Corporation.

3. Promptly provide instructions on PMB re-organization, establishment and operation at request of the investor or investment decision-maker.

4. Provide regulatory authorities and enterprises with training courses in construction project management upon request.

5. Cooperating with relevant associates to provide instructions on assessment of PMB capacity and consider granting the practicing certificate to project management consultancies and entities.

Article 19. Responsibilities of field-based and area-based PMB founders, investment decision-makers and investors

1. Every PMB founder shall:

a) Decide to establish, merge and dissolve PMBs in accordance with regulations of laws;

b) Define functions, rights, responsibilities, organizational structure and payrolls of PMBs;

c) Appoint and dismiss the manager and key staff of PMBs;

d) Approve PMB operation regulations;

dd) Supervise and direct PMBs to carry out assigned task and comply with reporting regime under current regulations of laws;

e) Provide funding for PMBs operation and facilities for project management, where necessary;

g) Periodically and surprisingly supervise and inspect the operation of PMBs under provisions hereof;

h) Periodically submit aggregate PMB performance reports to the State regulatory authority in charge of construction by classification.

2. Every investment decision-maker shall:

a) Decide management methods

b) Decide approaches and methods for re-organizing PMBs within the administration in accordance with provision hereof and according to the reality.

3. Every investor shall:

a) Fulfill all responsibilities and take on rights as prescribed in the Law on Construction and relevant regulations of laws;

b) Fulfill all obligations and take on rights stipulated in the entrustment agreement in case the project is under the management of field-based or area-based PMBs;

c) Take delivery of as-built construction works from field-based and area-based PMBs after the acceptance and hold the delivery ceremony under regulations of laws on construction.

Article 20, Transitional provisions

1. Any PMB of single State-invested construction project set up by the effective date of the law on Construction shall be entitled to operate until the project is finished and comes into operation. Any project that is  managed under the project management consulting contract signed by the effective date of the Law on Construction  shall be entitled to continue until the project is finished and comes into operation.

2. PMBs of single state-invested project that had been established within the period of 01/01/2015 to 05/8/2015 and fail to meet requirements in clause 2, Article 62 of the Law on Construction must change their management models.

3. In case of reorganization and establishment of field-based or area-based PMBs:

The field-based or area-based PMB founders shall re-organize their PMB within their administration under the Decree No. 59/2015/ND-CP and provisions hereof. Field-based and area-based PMBs must be re-organized by October 31, 2016;

Article 21. Entry into force

1. This Circular enters into force from August 15, 2016.

2. All regulations on construction project management boards prescribed in the Circular No.03/2009/TT-BXD dated March 26, 2009 detailing a number of articles of the Decree No.12/2009/ND-CP dated February 12, 2009 on construction project management, Circular No./2013/TT-BXD dated July  25, 2013 detailing a number of articles of the construction works quality control and Circular No.09/2014/TT-BXD on amendments to a number of articles of Circulars providing guidelines for the implementation of the Government’s Decree No.15/2013/ND-CP dated February 06, 2013 on construction works quality control shall be null and void from the effective date of this Circular.

3. Any issue arising in connection to the implementation of this Circular should be promptly reported to the Ministry of Construction. /.

ANNEX I

(Issued together with the Circular No.16/2016/TT-BXD dated June 30, 2016 by the Ministry of Construction)

DECISION

On introduction of PMB structure and operation regulation

[COMPETENT AUTHORITY/PERSON]

Pursuant to the Law No.50/2014/QH13 on Construction dated June 18, 2014;

Pursuant to the Government’s Decree No.59/2015/ND-CP dated June 18, 2015 on construction project management;

Pursuant to the Circular …….dated…………….on guideline for the implementation of a number of Articles of the Government's Decree No.59/2015/ND-CP dated June 19, 2015 on PMG structure.

Pursuant to…..

At request………….

HEREBY DECIDES TO:

Article 1. Issue regulations on organization and operation of PMB [name of the PMB]

Article 2.This Decision comes into effect from……………

Article 3. [Name of relevant agencies] shall be responsible for the implementation of this Decision. /.

MODEL REGULATION

ON PMB STRUCTURE AND OPERATION

(Issued together with the Decision…………..)

I. PMB legal status

1. Name of PMB

- Business name:

- In English (if any):

- Headquarter: House number, street, district, and province

- [Name of PMB] is established under the Decision No............dated..................by...........

- Legal representative: Mr(s)

- PMB registered location:

2. Legal status

- [Name of PMB] is a public service provider affiliated to [name of regulatory authority]. [Name of PMB] exercises its financial autonomy and finances its own recurrent expenditures under the Government’s Decree No. 16/2015/ND-CP. (If the PMB is established by the Chief of the Board of Members or Board of Directors of an economic group or state-owned corporation, please specify if it is a independent cost-accounting member or dependent subsidiary of its parent company, and exercises its financial autonomy or is funded).

- [Name of PMB] legally possesses its own seal and accounts at [name of the State Treasury or commercial bank].

II. Functions, responsibilities and rights of the PMB

1. Functions

[Name of PMB] shall carry out its own particular functions prescribed in the Decision on Establishment of PMB and clause 2, Article 7 of the Circular No………..dated……………by the Ministry of Construction . To be specific:

- Perform as the investor of a number of projects funded with the State budget or extrabudgetary funds allocated by the investment decision-maker;

- Take charge of managing projects entrusted by other investors under entrustment agreements;

- Receive and manage the investments of projects under regulations of laws;

- Take charge of managing projects in which PMB performs as the investor and those under entrustment agreements under regulation of laws.

- Transfer as-built construction works to the investor and owner as the construction is finished.

- Performs other functions assigned by the PMB founder.

2. Rights and responsibilities

Name of PMB] shall take on  responsibilities and exercise  its rights  prescribed Article 8 of the Circular No………..dated……………by the Ministry of Construction . To be specific:

- Responsibilities for project management stipulated in Article 66 of the Law on Construction and relevant regulations of laws are as follows:

…

Responsibilities prescribed in the entrustment agreement signed between the employer and PMB are as follows:

…

Responsibilities for cooperating with relevant agencies and entities and others (if any) assigned by the investment decision-maker are as follows:

…

In addition, [name of PMB] also has rights and responsibilities stipulated in Articled 68 and 69 of the Law on Construction and relevant regulations as follows:

…

II. PMB organizational structure, rights and responsibilities of members of PMB

1. PMB organizational structure and payrolls

11.  Project Management Board includes: a manager and deputy managers

- Project manager – Mr.(s):…………………….appointed by……………….[name of PMB founder]  shall take on the following responsibilities:…………………………………

- Deputy manager – Mr.(s):…………………….appointed by……………….[name of PMB founder]  at request of the project manager shall take on the following responsibilities:…………………………………

- Chief Accountant of the PMB – Mr.(s)………………….appointed by ……………………….[name of PMB founder] shall take on the following responsibilities:………………

1.2. Functional departments include:

- Project management Board offices;

- Departments of Planning

- Technical department

- Department of Finance- Accounting

- Other departments (if any) according to the reality

1.3. Project executive departments

- The PMB have the following project executive departments:

- ……………..[name of Project executive department];

- ……………..[name of Project executive department];

…

-Each project executive department has one project manager who is appointed to directly execute the designated project by the PMB director. Project managers shall meet all qualifications requirements under regulation of laws on construction.

1.4 PMB’s payroll

- The PMB Director shall submit personnel plans or its amendments to the competent authority as the basis for determination the appropriate  number of workers;

- The personnel plan and recruitment shall be carried out according to the job demand, position and PMB official job title standards, salary budgets and relevant regulations of laws.

2. Rights and responsibilities of PMB’s members

2.1. Rights and responsibilities of the PMB Director

The PMB director shall:

- Be lawfully responsible for the PMB management and execution towards……………………. [Name of PMB founder] and shall be the PMB’s accountholder;

- Compile and introduce working rules and others related to the PMB’s operation;

- Assign tasks to deputy directors and other members; take charge of recruitment, promotion, appointment, layoff, pay raise, discipline and rewards to Manger, deputy manager and other staff;

- Convene, and chair periodic and surprise internal meetings (if any); expedite, supervise and inspect the performance of PMB departments and staff;

- Sign documents and construction contracts with selected contracted and employment contracts with PMB officials

2.2. Rights and responsibilities of the PMB deputy Director

Every deputy PMB director shall:

- Exercise rights and take on responsibilities assigned or entrusted by the PMB director; submit status reports on assigned task performance;

- Take responsibilities for the assigned task performance towards the PMB Director and founder;

- Attend meetings; make proposals or recommendation for executing tasks;

2.3 Rights and responsibilities of PMB officials

Every PMB official shall:

- Be provided with healthy working environment and professional training courses; and benefit welfares and interests prescribed in regulations of laws;

- Execute and fulfill assigned tasks, comply with laws and current policies and the PMB operation regulation; has the right to refuse assigned tasks if such tasks may affect the PMB’s prestige, reputation or interests after obtaining the prior’s consent of the department manager;

- Have the right to make proposals or measures for fulfilling assigned tasks and developing the PMB

- Take responsibilities for the assigned task performance towards the PMB Director and department manager;

- Store and effectively use the PMB’s assets

IV. PMB working rules 

1. PMB working rules

- For PMB Board of Directors:……………………………………………..

- For functional departments and project executive departments:……………………………

- For PMB officials and employees ………………………………………………….

2. Meeting and reporting procedures

- Meeting procedures applied to the investment decision-maker and contractors, and internal meetings

- Regular and periodic reporting procedures applied to the PMB, its departments…………

3. Supervision and inspection

- Supervision and inspection of designated projects…………….;

- Supervision and inspection of PMB operation.................

4. Cooperation

- Cooperation among PMB departments…………………;

- Cooperation between the PMB with functional agencies and organizations of PMB founder and investment-decision maker………………………………..

- Cooperation between the PMB and relevant agencies……………………………………

V.PMB’s assets and finance

1. Financial regulations

- The PMB is a public service provider that exercises its financial autonomy and finances its own recurrent expenditures under the Government's Decree No.16/2015/ND-CP  on  the autonomy of public service providers (or a dependent or independent cost-accounting subsidiary in case the PMB is established by the economic group of State-owned Corporation);

- The PMB is entitled to register its account at the State Treasuries; and transaction account at commercial banks for financial statement under regulations of laws;

- The PMB has its own accounting department under the Law on accounting to manage and effectively use funding under regulations of laws.

- The PMB shall annually make estimation of proceedings and expenditures open accounting books for keeping track of and managing funding allocation and use; and submit an annual aggregate cost estimate and financial statement to the State competent authority.

2. Sources of finance:

- Investments of entrusted or designated projects;

- Funding for casual tasks (if any)

- Funding from the State budget (if any);

- Project management proceedings including………………..

- Others (if any)

3. Elements of expenditures

- Recurrent expenses, including……………….

- Casual expenses, including……………….

4. Allocation of income

- Establish funds…………………..;

- Give pay raise to workers……………;

- Make payment for lease ...........;

- Allocate PMB funds………..

5. Equipment and asset management...........

VII. PMB’s Liaison

The PMB shall establish the liaison with:

1. The PMB founder and investment-decision maker………………………….. [Name] by

- Undergoing the direct supervision, inspection and direction on execution of assigned tasks by the PMB founder and investment-decision-makers;

- Submitting the PMB operation regulation (including amendments to the operation regulation) to…………………….

-  Submitting the scope of work by assigned task of the investor to…………. review for approval under regulations of laws;

- Reporting, proposing and carry the burden of accountability for required issues at request of the PMB founder and investment decision-maker.

- Cooperating with functional organizations and agencies of the PMB founder and investment decision-makers in project management.

2. Entrusting investors and construction works owners…………………….. [Name] by

- Exercising rights and taking on responsibilities towards other investors under the entrustment agreement;

- Cooperating with the owner to prepare engineering objectives, select construction contracts, and participate in acceptance and transfer of as-built works (including maintenance under regulations of laws);

- Transferring as-built works to the investor or owner under regulations of laws on construction; manage the as-built works in case the owner is not identified yet at request of the investment decision-maker.

3. Construction contractors…………………. [Name] by:

- Selecting contractors to perform contracts of projects that the PMB acts as the investor or the PMB is entrusted; negotiating, concluding and executing construction contracts with selected contractors;

- Exercising rights and taking on obligations to construction contractors as prescribed in constructions contract and relevant regulations laws;

- Dealing with contractor’s issues or proposals intra vires or request the competent authority to deal with them during the execution.

5. State regulatory authorities by:

- Going through relevant procedures for project preparation or application for construction permit under regulation of laws (or under entrustment agreements);

- Requesting the construction authority to appraise the project, project design and construction estimates under regulations of laws on construction;

- Taking charge of and cooperating with …………………… [Name of such People’s Committees] in compensation, site clearance and relocation if it is requested;

- Cooperating with local governments………………. [specify name] in administrative management, social security and order during the execution and transfer of construction works;

- Submitting reports and explanations for project management performance, incidents, safety and ultra vires and remedial measures to the State competent authority;

-  Undergoing the supervision and inspection by the State competent authority under regulations of laws.

VII. Entry into force

- This operation regulation enters into force from the date of its signature.

- Members of the PMB shall………………

- Relevant agencies [specify name]……………………………shall…………………

- This Operational Regulation may be amended, where necessary, at request of the PMB Director.