Circular No. 04/2014/TT-BXD guiding certain contents regarding judicial appraisal in investment construction activities

CIRCULAR

HGuidelines on certain aspects of forensic appraisal

in investment construction activitiesg

________________

Pursuant to the Construction Law No. 16/2003/QH11 dated November 26, 2003;

Based on the Law on Forensic Appraisal No. 13/2012/QH13 dated June 20, 2012;

Pursuant to Ordinance No. 02/2012/UBTVQH13 dated March 28, 2012 on forensic appraisal and valuation costs; costs for witnesses and interpreters in proceedings;

Pursuant to Decree No. 62/2013/NĐ-CP dated June 25, 2013 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Construction;

Pursuant to Decree No. 15/2013/NĐ-CP dated February 6, 2013 of the Government on construction project quality management;

Pursuant to the Government Decree No. 85/2013/NĐ-CP dated July 29, 2013 detailing and guiding the implementation of the Forensic Appraisal Law;

Pursuant to Government Decree No. 12/2009/NĐ-CP dated February 12, 2009 on project management for investment construction works; Government Decree No. 83/2009/NĐ-CP dated October 15, 2009 amending and supplementing certain articles of Government Decree No. 12/2009/NĐ-CP;

Considering the proposal of the Director of the National Construction Quality Control Agency,

The Minister of Construction issues this Circular guiding certain aspects of forensic appraisal in investment construction activities.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation and Applicability

2. Applicability:

This Circular stipulates conditions and capabilities, information disclosure of individuals and organizations conducting forensic appraisal, application of technical standards for forensic appraisal, procedures and formalities for conducting forensic appraisal, and forensic appraisal costs in investment construction activities.

第二条 组织和实施奖励工作的支出水平，如政府第152/2025/NĐ-CP号决定关于分级授权和奖励领域的分权规定

This Circular applies to individuals and organizations related to forensic appraisal in investment construction activities within the territory of Vietnam.

Article 2. Interpretation of Terms

In this Circular, the following terms shall be understood as follows:

1. Forensic appraisal in investment construction activities (hereinafter referred to as construction forensic appraisal) is the act of individuals and organizations conducting construction forensic appraisal using scientific, technical, and professional knowledge, means, and methods to evaluate and conclude on professional matters requested for forensic appraisal in investment construction activities according to requests from judicial authorities, prosecutors, or parties requesting forensic appraisal (hereinafter referred to as the requesting party) as prescribed by law.

2. Individual construction judicial appraiser includes: construction judicial appraiser, individual construction judicial appraiser by case.

3. Organization for construction judicial appraisal including: construction forensic appraisal organization by case and construction forensic appraisal office.

4. Construction forensic appraisal costs are necessary and reasonable amounts required to be paid for forensic appraisal work conducted by individuals and organizations conducting construction forensic appraisal, calculated based on the provisions of this Circular and other relevant laws.

Article 3. Contents of construction forensic appraisal

1. Forensic appraisal regarding compliance with legal provisions in investment construction activities includes stages: from investment project establishment, construction survey, design, construction implementation, operation and use, and maintenance of works.

2. Forensic appraisal regarding construction quality includes: construction survey quality appraisal, design quality appraisal, building materials quality appraisal, construction product quality appraisal, equipment quality appraisal, component quality appraisal, construction quality appraisal, and construction accident appraisal.

3. Forensic appraisal regarding construction investment costs, value of works, and related expenses include: total investment cost appraisal, construction project budget appraisal, final account of construction investment capital appraisal, residual value of works appraisal, and other related issues.

Article 4. Application of professional standards and technical specifications in construction judicial appraisal activities

Technical standards applied in construction forensic appraisal activities are national technical regulations and standards applicable in investment construction activities as prescribed by law.

Chapter II

RULES ON CAPACITY AND ANNOUNCEMENT OF PERSONAL INFORMATION OF INDIVIDUALS AND ORGANIZATIONS CONDUCTING PRIVATE LEGAL ENGINEERING APPRAISALS

Article 5. Capacity Conditions for Private Legal Engineering Appraisers and Individual Appraisers for Specific Cases

Private Legal Engineering Appraisers and individual appraisers for specific cases must be Vietnamese citizens residing in Vietnam, meeting the provisions set out in points a and b of Clause 1, Article 7 of the Law on Private Legal Appraisal and satisfying the following conditions:

1. For judicial appraisal regarding compliance with legal regulations in construction investment activities:

a) Having at least five years of practical experience in one of the following tasks: project management for construction investment, construction site supervision, building inspection, or state management of construction, consistent with the registered content of private legal engineering appraisal;

b) Holding a certificate of vocational training in project management or a license to practice construction site supervision or a certificate of vocational training and a license to practice: bidding, inspection, valuation engineer, in accordance with relevant laws on construction, consistent with the registered content of private legal engineering appraisal.

2. For private legal appraisals regarding construction quality:

a) In the case of appraising the quality of construction survey or design:

- Having at least five years of practical experience in one of the following tasks: construction survey, construction design, building inspection, consistent with the registered content of private legal engineering appraisal;

- Holding a license to practice construction survey or construction design as prescribed.

b) In the case of appraising the quality of construction materials, products, and equipment:

- Having at least five years of practical experience in one of the following tasks: construction design, construction site supervision, specialized construction testing, building inspection, consistent with the registered content of private legal engineering appraisal;

- Receiving training in construction inspection according to regulations.

c) In the case of appraising the quality of construction components, construction projects, and construction accidents:

- Having at least five years of practical experience in one of the following tasks: construction design, construction site supervision, building inspection, consistent with the registered content of private legal engineering appraisal;

- Holding a license to practice construction design or construction site supervision as prescribed.

- Receiving training in construction inspection according to regulations.

3. For private legal appraisals regarding construction project investment costs, project value, and related expenses:

a) Having at least five years of practical experience in one of the following tasks: project management for construction investment, construction design, building inspection, or managing construction project investment costs, consistent with the registered content of private legal engineering appraisal;

b) Holding a license to practice valuation engineer as prescribed.

Article 6. Capacity Conditions for Organizations Conducting Private Legal Engineering Appraisals for Specific Cases

Organizations conducting private legal engineering appraisals for specific cases must be construction inspection organizations with capacity appropriate to the objects and contents requested for appraisal. Other construction consulting organizations must meet the following conditions when conducting private legal engineering appraisals:

1. For judicial appraisal regarding compliance with legal regulations in construction investment activities:

a) Having the capacity to perform one of the following tasks: project management for construction investment, construction site supervision, consistent with the registered content of private legal engineering appraisal;

b) The principal individual responsible for the appraisal must meet the provisions set out in Clause 1, Article 5 of this Circular.

2. For private legal appraisals regarding construction quality:

a) In the case of appraising the quality of construction survey or design:

- Having the capacity to perform one of the following tasks: construction survey, construction design, review of construction design, consistent with the registered content of private legal engineering appraisal;

- The principal individual responsible for the appraisal must meet the provisions set out in point a of Clause 2, Article 5 of this Circular.

b) In the case of appraising the quality of construction materials, products, and equipment:

- Having the capacity to perform one of the following tasks: construction design, specialized construction testing, construction site supervision, consistent with the registered content of private legal engineering appraisal;

- The principal individual responsible for the appraisal must meet the provisions set out in point b of Clause 2, Article 5 of this Circular.

c) In the case of appraising the quality of construction components, construction projects, and construction accidents:

- Having the capacity to perform one of the following tasks: construction design, construction site supervision, consistent with the registered content of private legal engineering appraisal;

- The principal individual responsible for the appraisal must meet the provisions set out in point c of Clause 2, Article 5 of this Circular.

3. For private legal appraisals regarding construction project investment costs, project value, and related expenses:

a) Having the capacity to perform one of the following tasks: construction design, building inspection, management of construction project investment costs, consistent with the registered content of private legal engineering appraisal;

b) The principal individual responsible for the appraisal must meet the provisions set out in Clause 3, Article 5 of this Circular.

Article 7. Conditions for the capacity of construction forensic appraisal offices

1. Established and granted registration certificates to operate in accordance with the Law on Forensic Appraisal and related regulatory legal documents.

2. Equipments ensuring the implementation of appraisals according to the registered contents of construction forensic appraisals.

3. Meet the requirements for the capacity of construction forensic appraisal organizations according to cases suitable with the registered contents of construction forensic appraisals.

Article 8. Appointment of Construction Forensic Appraisers

1. Construction forensic appraisers are appointed in accordance with Article 9 of the Law on Forensic Appraisal.

2. Authority to appoint construction forensic appraisers:

a) The Ministry of Construction appoints construction forensic appraisers for individuals who are civil servants under ministries, ministerial-level agencies; individuals belonging to public service units or state-owned enterprises under ministries, ministerial-level agencies;

b) Provincial People's Committees appoint forensic appraisers for individuals not within the scope specified in point a Clause 2 of this Article.

3. Individuals applying for appointment as construction forensic appraisers provide information according to the form prescribed in Appendix 1 attached hereto and compile relevant files in accordance with Article 8 of the Law on Forensic Appraisal to be submitted to the Ministry of Construction or the Provincial People's Committee for consideration of appointment in accordance with the authority stipulated in Clause 2 of this Article.

4. Construction forensic appraisers wishing to expand their scope of appraisal shall provide related information concerning additional appraisal contents according to the form at Appendix 1 attached hereto for consideration of appointment in accordance with the regulations.

Article 9. Registration and Public Announcement of Personal and Organizational Information for Construction Forensic Appraisal

1. Registration of personal and organizational information for construction forensic appraisal:

a) For construction forensic appraisers, the application file for appointment serves as the registration file for announcement. The Ministry of Construction, Provincial People's Committees announce information about construction forensic appraisers on their electronic websites in accordance with point a Clause 2 of this Article.

b) Individuals wishing to be construction forensic appraisers for specific cases provide information according to Appendix 1 attached hereto and submit it to the Ministry of Construction (for individuals who are civil servants under ministries, ministerial-level agencies; individuals belonging to public service units or state-owned enterprises under ministries, ministerial-level agencies) or to the Provincial People's Committee (for other individuals) for consideration of announcement in accordance with the regulations;

c) Consulting organizations wishing to be construction forensic appraisal organizations for specific cases compile information according to Appendix 2 attached hereto and submit it to the Ministry of Construction (for organizations that are public service units or state-owned enterprises under ministries, ministerial-level agencies) or to the Provincial People's Committee (for other organizations) for consideration of announcement in accordance with the regulations;

d) Construction forensic appraisal offices provide information according to Appendix 2 attached hereto and submit it to the Provincial People's Committee where they are permitted to operate for consideration of announcement in accordance with the regulations;

e) The Ministry of Construction, Provincial People's Committees receive, organize inspections, and review application files for announcement of construction forensic appraisers for specific cases, construction forensic appraisal organizations for specific cases, and construction forensic appraisal offices within their jurisdiction. In case the application files for announcement are incomplete or invalid, within seven working days from receipt of the files, the Ministry of Construction, Provincial People's Committees send a letter requesting individuals or organizations to supplement and complete the files in accordance with the regulations;

f) When there are changes or adjustments to the information of construction forensic appraisers (place of work, permanent address, construction forensic appraisal content, relevant certificates and training certifications) or construction forensic appraisal organizations (name of organization, business registration certificate, address, construction forensic appraisal content), the individuals or organizations already announced have the responsibility to provide updated information to the Ministry of Construction or the Provincial People's Committee. Within ten working days from receiving the updated information, the Ministry of Construction, Provincial People's Committees have the responsibility to check and update the information on their electronic websites in accordance with the regulations.

2. Public Announcement of Lists and Information of Construction Forensic Appraisers and Organizations:

a) The Ministry of Construction, Provincial People's Committees announce lists and information of construction forensic appraisers according to the content in Appendix 1 attached hereto on their electronic websites within ten working days from the date of the appointment decision, in accordance with their respective authorities;

b) The Ministry of Construction, Provincial People's Committees announce lists and information of construction forensic appraisers for specific cases, construction forensic appraisal organizations for specific cases, and construction forensic appraisal offices according to the content in Appendices 1 and 2 attached hereto on their electronic websites within thirty working days from the date of receiving complete and valid registration information files;

c) Within thirty working days from the date the Provincial People's Committee announces the list and information of construction forensic appraisers and organizations in the locality on its electronic website in accordance with its authority, the Provincial People's Committee compiles the list and information and submits it to the Ministry of Construction for joint announcement.

Chapter III

PROCEDURES AND FORMALITIES FOR IMPLEMENTING CONSTRUCTION FORENSIC APPRAISALS

Article 10. Selection of individuals and organizations to conduct judicial construction appraisal

1. The party requesting the appraisal shall select individuals and organizations conducting judicial construction appraisal with practical experience and appropriate capacity conditions in accordance with the subject matter and content of the requested and required appraisal, which have been published in accordance with the provisions of this Circular.

2. In cases where it is not possible to select individuals and organizations conducting judicial construction appraisal that have been published in accordance with the provisions of this Circular, the party requesting the appraisal may request the Ministry of Construction or local state management agencies on construction to introduce individuals and organizations meeting the capacity requirements stipulated in this Circular outside the list of individuals and organizations that have been published in accordance with the regulations.

Article 11. Acceptance of requests for judicial construction appraisal

1. Upon receipt of the decision to request, or the document requesting judicial construction appraisal, the individual or organization requested to conduct the appraisal shall be responsible for accepting and organizing the implementation of the appraisal according to the content of the request and requirement, except in cases of refusal in accordance with Clause 2 of Article 11 and point b of Clause 1 of Article 24 of the Law on Judicial Appraisal, and cases where judicial appraisal cannot be conducted in accordance with Article 34 of the Law on Judicial Appraisal.

The agreement to implement the appraisal between the party requesting the appraisal and the individual or organization conducting the judicial construction appraisal shall be evidenced by a contract or other forms of written documents in accordance with the provisions of the law.

2. In cases where the individual or organization requested to conduct the appraisal refuses to perform the appraisal, they must provide a written document clearly stating the reasons in accordance with Clause 2 of Article 11 or point d of Clause 2 of Article 24 of the Law on Judicial Appraisal.

Article 12. Handover and acceptance of objects for judicial construction appraisal

1. In cases where the request for appraisal includes the object of appraisal, the handover and acceptance of the object of appraisal must be recorded in a protocol. The content of the protocol for the handover and acceptance of the object of appraisal shall be established in accordance with Clause 2 of Article 27 of the Law on Judicial Appraisal.

2. In cases where the request for judicial construction appraisal does not include the object of appraisal such as construction works or parts of construction works, the individual or organization conducting the judicial construction appraisal, the party requesting the appraisal, and related parties must go to the site where the case requiring the appraisal is located to establish a protocol for handing over the current status of the construction work or part of the construction work to the individual or organization conducting the judicial construction appraisal.

Article 13. Implementation of judicial construction appraisal

1. The individual or organization conducting the judicial construction appraisal shall prepare and send to the party requesting the appraisal a framework for implementing the appraisal. The content of the appraisal framework includes the following basic items:

a) List of national technical standards and standards applied;

b) Object and scope of the examination;

c) List of personnel conducting the appraisal, the person assigned to lead the implementation of the appraisal, information about the capacity of the leader and other individuals conducting the appraisal;

d) Name of the organization and list of individuals hired to participate in the appraisal (in cases where organizations or other individuals with appropriate capacity as prescribed are hired to carry out one or more parts of the work related to the content of the appraisal);

đ) Methods of conducting the examination;

e) List of laboratories, list of equipment used (if applicable);

g) Costs of conducting the examination, estimated time to complete the examination;

h) Other conditions prescribed by law for implementing the appraisal. In necessary cases, the individual or organization conducting the judicial construction appraisal may request the party requesting the appraisal to allow preliminary survey of the object of appraisal to prepare the framework for the appraisal, except where the law provides otherwise.

2. The party requesting the appraisal shall review the framework to serve as a basis for implementing the appraisal. Depending on the nature of the case being requested and required for appraisal, the party requesting the appraisal may seek the opinion of the state management agency on construction regarding the contents of the framework.

3. The individual or organization conducting the judicial construction appraisal shall notify the party requesting the appraisal in writing of any changes in the personnel conducting the appraisal or other changes related to the process of implementing the appraisal, such as the occurrence of additional workload, adjustment of completion time... (if any).

4. During the implementation process, the person leading the implementation of the appraisal must record the process and results of the appraisal in writing in accordance with Article 31 of the Law on Judicial Appraisal. The document recording the process of the appraisal is prepared in the form of a logbook, numbered and confirmed by the party requesting the appraisal. The content of the document recording the process and results of the implementation of the appraisal includes: the actual daily progress of the appraisal; personnel and equipment used; observed and measured results (if any); issues arising during the implementation process and other related issues.

Article 14. Judicial Appraisal Construction File

Individuals and organizations conducting judicial appraisal in construction must prepare an appraisal conclusion report and compile other related documents into a judicial appraisal construction file in accordance with Clause 1 of Article 33 of the Law on Judicial Appraisal. The judicial appraisal construction conclusion report includes the following contents:

1. Basis for conducting the appraisal:

a) Name and surname of the person conducting the appraisal; organization conducting the appraisal;

b) Name of the investigative agency; name and surname of the person requesting the appraisal through a summons; number of the summons requesting the appraisal or name and surname of the person requesting the appraisal; time of receiving the summons or request for the appraisal;

c) Appraisal contract or other agreement in accordance with the provisions of the law.

2. General information about the subject of the appraisal (scale, current status characteristics...) and other relevant information (natural conditions, geology...).

3. Content of the request for the appraisal.

4. Methods of conducting the appraisal.

5. Results of experiments, analyses, evaluations.

6. Conclusions on the contents according to the decision requesting the appraisal or the document requesting the appraisal.

7. Time and place of conducting and completing the appraisal.

Chapter IV

COSTS OF JUDICIAL APPRAISAL IN CONSTRUCTION

Article 15. Costs of conducting judicial appraisal in construction

1. Organizations conducting judicial appraisal in construction determine the costs of the appraisal based on the object, content of the request for the appraisal, the volume of work required for the appraisal, and agree with the party requesting the appraisal. The cost of conducting the appraisal is determined by preparing a budget estimate in accordance with the regulations on managing construction investment costs and consistent with the volume of work approved in the outline. The costs of judicial appraisal in construction include some or all of the following costs:

a) Costs of preparing the judicial appraisal outline;

b) Costs of surveying the current state of the project, project components, or parts of the construction project (if applicable);

c) Costs of sample testing, testing costs;

d) Costs of researching files and documents;

e) Costs of calculation, review, evaluation costs, preparation of reports and conclusions;

f) Transportation costs, management costs;

g) Costs related to participation in the litigation process and other necessary costs.

2. Individuals conducting judicial appraisal in construction, when performing the appraisal, are entitled to receive judicial appraisal allowance and other costs in accordance with the provisions of the law.

Article 16. Advance payment and settlement of costs of judicial appraisal in construction

1. Advance payment of costs of judicial appraisal for individuals and organizations conducting judicial appraisal in construction is made before the appraisal is conducted. The amount and progress of advance payment are agreed upon based on the proposal of the organization or individual conducting the appraisal and must be sufficient to conduct the appraisal for the requested work.

2. When receiving the conclusion of the judicial appraisal in construction, the party requesting the appraisal has the responsibility to organize the settlement and finalization of the costs of judicial appraisal in construction for the individual or organization conducting the appraisal and related parties in accordance with the regulations.

The procedures and formalities for advance payment and settlement of costs of judicial appraisal are implemented in accordance with the Ordinance No. 02/2012/UBTVQH13 dated March 28, 2012 on appraisal and valuation costs; costs for witnesses and interpreters in litigation and other relevant regulatory documents.

Chapter V

IMPLEMENTATION

Article 17. Content of state management over judicial construction appraisal

1. Ministry of Construction:

a) Guide and inspect the implementation of judicial construction appraisal in accordance with this Circular throughout the country;

b) Appoint and relieve construction judicial appraisers from their positions; select construction judicial appraisers for specific cases as prescribed;

c) Announce lists of construction judicial appraisers, construction judicial appraisers for specific cases, organizations conducting construction judicial appraisals for specific cases, and construction judicial appraisal offices nationwide; announce forms of penalties in construction judicial appraisal activities and remove individuals and organizations conducting construction judicial appraisals that violate provisions of this Circular from their lists on the Ministry of Construction's electronic information website;

d) Develop and organize the implementation of programs and plans to enhance professional skills related to construction judicial appraisal and legal knowledge for the team of construction judicial appraisers;

đ) Inspect, audit, and resolve complaints and denunciations regarding construction judicial appraisal activities within the scope of management authority;

e) Annually summarize the overall operation of construction judicial appraisal and submit reports to the Ministry of Justice for compilation and reporting to the Government;

The National Quality Control Agency for Construction Projects under the Ministry of Construction is the agency assisting the Ministry of Construction in carrying out the above tasks.

2. Provincial People's Committees:

a) Guide and inspect the implementation of construction judicial appraisal in accordance with this Circular at the local level;

b) Appoint and relieve construction judicial appraisers from their positions; select construction judicial appraisers for specific cases, decide on the establishment of construction judicial appraisal offices according to regulations;

c) Announce construction judicial appraisers, construction judicial appraisers for specific cases, organizations conducting construction judicial appraisals for specific cases, and construction judicial appraisal offices at the local level on the provincial People's Committee's electronic information website and compile lists to send to the Ministry of Construction for public announcement;

d) Organize professional training and legal knowledge enhancement for construction judicial appraisers and construction judicial appraisers for specific cases at the local level;

đ) Inspect, audit, and resolve complaints and denunciations regarding construction judicial appraisal activities within the scope of management authority;

e) Report to the Ministry of Construction on the organization and operation of construction judicial appraisal at the local level before December 15 each year for compilation and reporting to the Ministry of Justice;

The Construction Department is the agency assisting the provincial People's Committee in carrying out the above tasks.

Article 18. Provisions on transition

1. Construction judicial appraisal cases being carried out before the effective date of this Circular shall continue to be implemented in accordance with Circular No. 35/2009/TT-BXD dated October 5, 2009, of the Ministry of Construction guiding construction judicial appraisal.

2. Construction judicial appraisers appointed according to regulations before the effective date of this Circular shall, based on the guidance of this Circular, compile information and submit it to the Ministry of Construction or the provincial People's Committee according to their management authority for public announcement on the electronic information website.

3. Organizations already announced according to Circular No. 35/2009/TT-BXD shall, based on the guidance of this Circular, adjust and provide additional information and submit it to the Ministry of Construction for continued public announcement on the Ministry of Construction's electronic information website.

Article 19. Implementation Provisions

1. This Circular takes effect from June 15, 2014, and replaces Circular No. 35/2009/TT-BXD dated October 5, 2009, of the Ministry of Construction guiding construction judicial appraisal.

2. Ministries, ministerial-level agencies, government agencies; provincial people's committees, centrally-administered city people's committees; individuals and organizations participating in construction judicial appraisal and related individuals and organizations are responsible for implementing the provisions of this Circular. In the course of implementation, if there are difficulties, please submit comments to the Ministry of Construction for guidance and resolution./.