Circular No. 03/2009/TT-BXD detailing certain provisions of Government Decree No. 12/2009/NĐ-CP dated February 12, 2009 on project management for construction investment projects

CIRCULAR

Detailed provisions on certain contents of Decree No. 12/2009/ND-CP dated February 12, 2009 of the Government on project management for construction investment projects

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Pursuant to Decree No. 17/2008/NĐ-CP dated February 4, 2008 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Construction;

Pursuant to Decree No. 12/2009/NĐ-CP dated February 12, 2009 of the Government on project management for construction works

The Ministry of Construction provides detailed provisions on certain contents of Decree No. 12/2009/ND-CP dated February 12, 2009 of the Government on project management for construction investment projects (hereinafter referred to as Decree 12/CP) as follows:

PART I

DETAILED PROVISIONS ON THE IDENTIFICATION OF INVESTORS; REVIEW AND APPROVAL OF CONSTRUCTION INVESTMENT PROJECTS

Article 1. Identification of investors for projects using state budget funds as specified in point b, c Clause 1 Article 3 of Decree 12/CP

1. For projects decided to be invested in by the Minister, Head of a ministry-level agency, or Chairman of People's Committees at all levels, the person deciding to invest shall assign the unit managing and using the works to act as the investor.

In cases where the managing and using units cannot be identified or do not have the necessary conditions to organize and implement the project, the person deciding to invest shall assign a unit with the necessary conditions to act as the investor. The managing and using unit shall be responsible for appointing personnel to participate with the assigned investor in organizing the preparation of the project, design, monitoring, management, acceptance, and taking over the operation and use of the works. The appointed personnel participating with the investor shall be those who will manage and use the works later or those with expertise relevant to the nature of the project.

The investor shall be responsible for arranging personnel from the managing and using units in appropriate positions to participate in the management of the aforementioned tasks to ensure efficiency and the objectives of the project.

2. In cases where it is not possible to identify a unit to act as the investor according to the above regulations, the identification of the investor shall be carried out as follows:

a) The person deciding to invest shall simultaneously act as the investor.

b) The person deciding to invest may assign a Project Management Board established by themselves to act as the investor if such Board has legal personality and the necessary conditions to organize and implement the project, or the person deciding to invest may entrust through a contract with an organization having the necessary conditions to act as the investor.

Article 2. Review of construction investment projects as stipulated in Article 10 of Decree 12/CP

1. For projects using state budget funds:

a) After receiving the project dossier from the investor, the lead review unit shall be responsible for soliciting opinions on the basic design from the specialized construction management agency as stipulated in Clause 3 of this Article and obtaining opinions from related agencies.

b) The lead review unit shall compile the review contents, opinions on the basic design, and opinions from other related agencies; provide comments, evaluations, recommendations, and submit them to the person deciding to invest for approval of the project.

c) The time limit for reviewing the project as stipulated in Clause 7 of Article 10 of Decree 12/CP, including the time for considering and soliciting opinions on the basic design and opinions from related agencies, starting from the date of receipt of complete dossiers, is as follows:

- Not exceeding 45 working days for national key projects;

- Not exceeding 20 working days for Group A projects;

- Not exceeding 15 working days for Group B projects;

- Not exceeding 10 working days for Group C projects.

Beyond these deadlines, if related agencies do not provide their opinions, they shall be deemed to have agreed and shall bear responsibility for their respective areas of management.

2. For projects using other sources of funds:

a) The person deciding to invest shall organize the review of the project themselves. The lead review unit shall be designated by the person deciding to invest.

b) When reviewing the project, the person deciding to invest must solicit opinions on the basic design from the specialized construction management agency as stipulated in Clause 3 of this Article and obtain opinions from related agencies in accordance with the law.

c) The time for considering and soliciting opinions on the basic design and opinions from related agencies shall be implemented as stipulated in point c Clause 1 of this Article.

3. Authority to participate in providing opinions on the basic design of specialized construction management agencies:

a) For national key projects and Group A projects, participation in providing opinions on the basic design shall be carried out as follows:

- The Ministry of Industry and Trade shall provide opinions on the basic design for projects investing in underground mine works, oil and gas, power plants, power transmission lines, substations, chemicals, industrial explosives, machinery manufacturing, metallurgy, and other specialized industrial projects, except for construction works of building materials.

- The Ministry of Agriculture and Rural Development shall provide opinions on the basic design for projects investing in water conservancy works, dyke works, and other specialized agricultural works.

- The Ministry of Transport shall provide opinions on the basic design for projects investing in transportation works.

- The Ministry of Construction shall provide opinions on the basic design for projects investing in civil works, building materials industry works, urban technical infrastructure, and other construction works as required by the Prime Minister. For projects investing in single civil works under 20 floors, the Construction Department where the project is located shall provide opinions on the basic design.

For projects comprising various types of works, the Ministry primarily participating in providing opinions on the basic design shall be one of the Ministries mentioned above with the function of managing the type of work that determines the nature and objectives of the project.

b) For Group B and C projects, participation in providing opinions on the basic design shall be carried out as follows:

- The Department of Industry and Trade shall provide opinions on the basic design for projects investing in underground mine works, oil and gas, power plants, power transmission lines, substations, chemicals, industrial explosives, machinery manufacturing, metallurgy, and other specialized industrial projects, except for construction works of building materials.

- The Department of Agriculture and Rural Development shall provide opinions on the basic design for projects investing in water conservancy works, dyke works, and other specialized agricultural works.

- The Department of Transport shall provide opinions on the basic design for projects investing in transportation works.

- The Department of Construction participates in providing opinions on the basic design for civil construction projects, industrial building materials construction projects, urban technical infrastructure, and other construction projects as requested by the Chairman of the Provincial People's Committee.

For projects that include various types of works, the leading department participating in providing opinions on the basic design shall be one of the departments mentioned above with management functions over the type of work that determines the nature and objectives of the project.

c) For Group B and C projects decided to invest in by the Ministry of Industry and Trade, the Ministry of Agriculture and Rural Development, the Ministry of Transport, and the Ministry of Construction, if they fall under specialized sectors managed by the State, they may examine the basic design themselves without having to seek opinions on the basic design from specialized construction management departments as stipulated in point b, Clause 3 of this Article.

d) For state-owned economic groups, if they are entrusted by the Government to manage a certain field, they may examine the basic design of construction projects within that field which they decide to invest in, without having to seek opinions on the basic design from specialized construction management agencies. For projects in other fields decided to invest in by these groups, they must still seek opinions on the basic design from specialized construction management agencies as provided in points a and b of this clause.

4. Responsibilities of the agencies participating in providing opinions on the basic design:

a) Specialized construction management agencies must provide opinions and bear responsibility for the contents prescribed in Clause 3 of Article 11 of Decree 12/CP.

b) When participating in providing opinions on the basic design, specialized construction management agencies shall not charge fees or service charges. The lead unit responsible for reviewing the project shall be responsible for allocating the project review fee to the agencies participating in the project review.

Article 3. Reviewing and approving the Economic and Technical Report on Construction Projects as prescribed in Article 13 of Decree 12/CP

1. For projects using state budget funds:

a) The investor organizes the review of the construction drawing design and project estimate to submit to the authorized person for investment decision-making approval. In necessary cases, the investor may hire consultants to conduct a preliminary review of the construction drawing design and project estimate as a basis for the review. State management activities in construction are carried out through the issuance of construction permits.

The results of the review of the construction drawing design and project estimate are prepared according to the form at Appendix 1 of this Circular.

b) The dossier of the Economic and Technical Report on Construction Projects (hereinafter referred to as the Economic and Technical Report) submitted for review by the investor includes:

- A request for review of the Economic and Technical Report according to the form at Appendix 2 of this Circular;

- The Economic and Technical Report;

- The report on the results of the review of the construction drawing design and project estimate;

c) The person deciding on investment is responsible for organizing the review of the Economic and Technical Report before approval. The lead unit responsible for reviewing the Economic and Technical Report is a specialized unit directly subordinate to the person deciding on investment.

d) The time for reviewing the Economic and Technical Report shall not exceed 15 working days.

đ) Contents of the review of the Economic and Technical Report:

- Examining factors ensuring effectiveness, including: necessity of investment; scale; implementation period; total investment amount, economic and social benefits.

- Examining factors ensuring feasibility, including: land use requirements, ability to clear the site; factors affecting the project such as national defense, security, environment, and other relevant legal provisions.

- Examining the results of the review of the construction drawing design and project estimate.

e) Approving the Economic and Technical Report:

- The lead unit responsible for reviewing the Economic and Technical Report has the responsibility to send the dossier of the Economic and Technical Report to the person deciding on investment for approval.

The dossier for approval of the Economic and Technical Report includes: A request for approval of the Economic and Technical Report according to the form at Appendix 3 of this Circular; The dossier of the investor submitting the Economic and Technical Report for review as stipulated in point b, Clause 1 of this Article.

- The Decision on Approval of the Economic and Technical Report according to the form at Appendix 4 of this Circular.

An approved Economic and Technical Report means that the authorized person deciding on investment has approved the construction drawing design and project estimate; the investor does not need to approve again but only needs to sign confirmation and stamp approval on the construction drawing design before it is put out for construction.

2. For projects using other sources of funds:

The person deciding on investment is responsible for organizing the review and approval of the Economic and Technical Report and bears responsibility for the contents of their approval. State management activities in construction will be carried out through the issuance of construction permits.

Chapter II

PROVISIONS ON CONSTRUCTION PERMITS

Article 4. Construction projects not required to obtain a construction permit as prescribed in point b, Clause 1 of Article 19 of Decree 12/CP

Construction projects not required to obtain a construction permit as prescribed in point b, Clause 1 of Article 19 of Decree 12/CP include:

1. Linear construction projects not passing through urban areas but conforming to approved planning;

2. Projects included in investment construction programs decided upon by the Prime Minister, Ministers, heads of Ministries, and Chairmen of People's Committees at all levels, except for projects requiring only the preparation of an Economic and Technical Report.

Article 5. Temporary construction permits as prescribed in Clause 2 of Article 19 of Decree 12/CP

1. Issuing temporary construction permits applies only to areas that have approved planning but have not yet been implemented.

2. Based on the nature, characteristics, and implementation period of the construction planning of each area, the Provincial People's Committee shall specify the scale of projects eligible for temporary construction permits in accordance with the actual situation of the locality.

3. In the content of the temporary construction permit, the time period during which the project is permitted to exist must be clearly stated. If the State has not completed land clearance within the time specified in the temporary construction permit, the project may continue to exist until the State completes land clearance for planning purposes. At that point, the investor must dismantle the project themselves; if they fail to do so voluntarily, forced demolition will occur, and the investor shall bear all costs associated with the demolition of the project.

4. The authority to issue temporary construction permits is as prescribed for projects applying for construction permits under Article 23 of Decree 12/CP.

5. Compensation and land clearance for planning implementation shall be carried out according to current regulations; however, the portion constructed under a temporary construction permit shall not be compensated.

Article 6. Regarding Temporary Construction Permit for Rural Housing

1. For village centers or clusters of villages that have the potential to develop into urban areas but lack approved urban planning, the People's Committee of the district must establish regulations as a basis for issuing construction permits and managing construction order as stipulated.

2. The site plan of the construction project as prescribed in Clause 3 of Article 21 of Decree 12/CP shall be implemented according to the model provided in Appendix No. 5 of this Circular.

The site plan of the construction project must clearly show the dimensions and area occupied by the house, other structures on the plot, distances to surrounding structures, and points of connection for electricity, communication, water supply and drainage systems with public infrastructure outside (if applicable). On the drawing, the name of the homeowner, their address, the location of construction, and the name and address of the person who drew the plan must be clearly marked.

Article 7. Authority to issue construction permits as prescribed in Clause 1 of Article 23 of Decree 12/CP

The Provincial People's Committee organizes the issuance of construction permits or delegates the Director of the Department of Construction to issue construction permits for projects as prescribed in Clause 1 of Article 23 of Decree 12/CP.

Article 8. Amendment of construction permits as prescribed in Article 24 of Decree 12/CP

1. When there is a need to amend the design of the construction project differently from the contents of the issued construction permit regarding: location of the construction project, foundation level; red lines, building boundaries; construction area; total floor area; height of the project; number of floors (for civil projects), and other contents recorded in the construction permit, the investor must apply for an amendment of the construction permit before commencing construction according to the amended content. Other changes do not require an application for amendment of the issued construction permit.

2. The agency that issued the construction permit is the authority responsible for amending the construction permit and bears responsibility for the content allowing the amendment of the construction permit. The content of the amendment of the construction permit is supplemented in the section "extension, amendment" or as an appendix attached to the issued construction permit for the investor.

Article 9. Management of construction for projects exempted from construction permits as prescribed in Clause 1 of Article 19 of Decree 12/CP

Projects exempted from construction permits according to points b, c, d of Clause 1 of Article 19 of Decree 12/CP, prior to commencement of construction, the investor must submit a notice of the start date along with plans of the construction layout, foundation layout, and main elevation of the project to the competent authority issuing construction permits at the appropriate level and the People's Committee of the commune for monitoring and management as prescribed. For projects requiring feasibility studies, in addition to the aforementioned documents, opinions on the basic design from the specialized construction management agency must also be submitted.

Article 10. Demolition of construction projects as prescribed in Article 32 of Decree 12/CP

1. Authority to decide on demolition of construction projects:

a) People's Committees at various levels decide on the demolition of construction projects for land clearance according to planning and compulsory demolition of projects as prescribed by law.

b) Investors of projects, owners, or managers and users of construction projects decide on the demolition of projects as prescribed in Clause 1 of Article 32 of Decree 12/CP.

2. Plan for demolition of construction projects:

a) The demolition of construction projects must be carried out according to a demolition plan. The entity deciding on the demolition of the project is responsible for approving the demolition plan.

b) The entity deciding on the demolition of the project is responsible for organizing the preparation of the demolition plan or hiring consultants to prepare the demolition plan for the project.

c) The demolition plan for the construction project must reflect measures and procedures for demolition; equipment and facilities for demolition, protective measures to ensure safety of life and property, security and public order, environmental hygiene, sequence, progress, and cost of demolition.

d) The demolition of construction projects must be carried out by units with the capability and experience. The demolition unit must implement the approved demolition plan, ensuring safety for people, property, and adjacent projects. Prior to demolition, the demolition unit must notify the People's Committee of the commune and the owners of adjacent projects.

Chapter III

PROVISIONS ON THE ORGANIZATION AND MANAGEMENT OF INVESTMENT PROJECTS FOR CONSTRUCTION

For projects funded by state budget, investors base on the scale, nature of the project, and actual conditions of their own agencies or units to choose suitable forms and models of organizational management for implementing the project.

For projects funded from other sources, only reference and application are encouraged.

Article 11. Direct management of investment projects by the investor as prescribed in Articles 33 and 34 of Decree 12/CP

1. Direct management of investment projects by the investor is a form where the investor uses their own organization's machinery to directly organize and manage the implementation of the project or entrusts a Project Management Board established by themselves to organize and manage the specific implementation of the project as follows:

a) Model 1: The investor does not establish a Project Management Board but uses their existing machinery to directly organize and manage the implementation of the project. This model is applied to small-scale projects with a total investment amount below 7 billion VND when the investor's machinery can handle the management and implementation of the project.

b) Model 2: The investor establishes a Project Management Board to assist them in directly organizing and managing the implementation of the project, specifically as follows:

- The investor assigns the existing project management board to manage additional new projects.

- In cases where the existing project management board does not meet the conditions to manage additional new projects, the investor shall establish a new project management board to manage and implement the project.

2. In case model 1 is applied, the investor uses its own legal entity to directly manage and implement the project. The investor must issue a decision appointing persons to participate in managing the project and assigning specific tasks, including a person directly responsible for the project management work. Those appointed to participate in managing the project work on a part-time or full-time basis.

3. In case model 2 is applied, the following principles must be ensured:

a) The project management board established by the investor is a subordinate unit of the investor. The powers and responsibilities of the project management board are assigned by the investor.

b) The project management board has its own legal personality or uses the legal personality of the investor to organize the management and implementation of the project.

c) The organizational structure of the project management board includes a director (or Board Head), deputy directors (or Deputy Heads), and specialized staff. The organizational structure of the project management board must be appropriate to the assigned tasks and ensure that the project is implemented according to schedule, quality, and cost savings. Members of the project management board work on a full-time or part-time basis.

d) A project management board may be assigned to manage multiple projects simultaneously but must ensure that each project is monitored, recorded separately, and settled promptly in accordance with the provisions of the law.

đ) The project management board operates under regulations issued by the investor, is accountable to the investor and the law in accordance with the assigned tasks and powers.

e) The investor must appoint responsible persons to direct, urge, and inspect the project management board's execution of its powers and responsibilities to ensure that the project is carried out according to the approved content and schedule. The investor is fully responsible for all matters within its assigned tasks and powers as stipulated by the law, including those delegated to the project management board.

4. The investor (in case model 1), the project management board (in case model 2) if they meet the capacity requirements as prescribed in Decree No. 12/CP and related regulatory documents, may independently carry out project-related tasks such as preparing, reviewing design and budget estimates; selecting contractors; supervising construction; inspecting construction quality, etc. The investor and the project management board may hire organizations and individuals as consultants to perform tasks within their management and implementation scope.

5. If the project management board has legal personality and professional capacity, it may be entrusted with the task of managing another investor’s project when the establishment authority of the project management board is also the investment decision-making body of that project. In this case, the investment decision-making body must issue a specific assignment decision and establish a coordination mechanism between the investor and the project management board to ensure the project is implemented according to schedule, quality, and effectiveness. After the construction work is completed, the project management board hands over the works to the investor for operation and use. Such a project management board may be allowed to bid as a consultant for other investors' project management if it meets the legal conditions and is permitted by the establishment authority.

Article 12. Forms of hiring project management consultants as stipulated in Article 33 and Article 35 of Decree No. 12/CP

1. Hiring project management consultants by the investor is a form where the investor enters into a contract with another legal entity to act as a Project Management Consultant. In this case, the investor must appoint a responsible officer and delegate tasks to units within its organization to perform the investor's duties and manage the implementation of the project management consultancy contract.

2. The project management consultant must have sufficient capacity suitable for the tasks undertaken as prescribed in Government Decree No. 12/CP on project management.

3. The project management consultant implements project management tasks according to the contract signed with the investor. The contract for hiring a project management consultant must clearly specify the scope of work and management content; the rights and responsibilities of the consultant and the investor.

4. The project management consultant is responsible for organizing its staff and appointing personnel to directly implement the project management tasks according to the contract signed with the investor. The consultant must notify the investor in writing about the responsibilities and organizational structure of the personnel directly implementing the project management, and inform other contractors and relevant organizations and individuals.

5. The project management consultant may hire other organizations or individuals to participate in some parts of the project management tasks, but this must be approved by the investor.

Chapter IV

PROVISIONS ON HANDOVER PROCEDURES

Article 13. Handover procedures for investment project approval processes and subsequent works

1. Prior to the effective date of Decree No. 12/CP, for investment projects whose designs have been reviewed but not yet approved, or which have been approved but not yet commenced or are still ongoing, the review procedures already conducted need not be repeated. Subsequent steps shall be carried out in accordance with the provisions of Decree No. 12/CP and this Circular.

2. For projects approved before the effective date of Decree No. 12/CP, during the project implementation process, if there are adjustments to the project that change the basic design that has been reviewed, the investor must report to the investment decision-maker for a decision. The lead review unit sends the adjusted project documentation to the competent state management agency for comments on the basic design in accordance with the provisions of Decree No. 12/CP and this Circular.

3. The provisions on appraisal, approval, and adjustment of construction investment projects set forth in Decree No. 99/2007/ND-CP dated June 13, 2007, of the Government on the management of construction project investment costs that differ from the provisions of Decree No. 12/CP shall be implemented in accordance with the provisions of Decree No. 12/CP.

Article 14. Transitional measures regarding issuance of construction permits

Construction works belonging to construction investment projects approved before the effective date of Decree No. 12/CP, which are required to obtain construction permits, if they have submitted applications for construction permits prior to the effective date of Decree No. 12/CP, shall not need to resubmit applications for construction permits in accordance with the provisions of Decree No. 12/CP and this Circular.

Article 15. Transitional measures regarding qualification conditions for individuals involved in managing construction investment projects

Individuals participating in project management as stipulated in Clause 4, Article 36 of Decree No. 12/CP from January 1, 2010, must hold a certificate of professional competence in construction investment project management as prescribed.

Chapter V

IMPLEMENTING PROVISIONS

Article 16. This Circular replaces Circular No. 02/2007/TT-BXD dated February 14, 2007, of the Ministry of Construction guiding certain aspects of project establishment, appraisal, and approval; construction permits; and organization of construction project management as provided in Decree No. 16/2005/NĐ-CP dated February 7, 2005, and Decree No. 112/2006/NĐ-CP dated September 29, 2006, of the Government.

Article 17. Effectiveness

1. This Circular takes effect from May 11, 2009. Previous regulations concerning determination of project sponsors; appraisal, approval of construction investment projects; issuance of construction permits; demolition of buildings; and organization of construction project management that conflict with the provisions of Decree No. 12/CP and this Circular are hereby abolished.

2. In the course of implementation, if there are difficulties, organizations and individuals shall send their opinions to the Ministry of Construction for consideration and resolution./.