Decision No. 11/2005/QD-BNN on the issuance of regulations on responsibilities and forms of handling violations related to project management for construction works and construction quality under the Ministry of Agriculture and Rural Development's jurisdiction.

DECISION OF THE MINISTER

MINISTRY OF AGRICULTURE AND RURAL DEVELOPMENT

Regarding the issuance of regulations on responsibilities and forms of handling violations related to project managementfor construction investment projects and construction quality

under the Ministry of Agricultureand Rural Development's management.

_______________________________________

 

THE MINISTER OF AGRICULTURE AND RURAL DEVELOPMENT

 

Pursuant to the Construction Law No. 11/2003/QH11 dated November 26, 2003;

Pursuant to the Civil Servants Decree dated February 26, 1998, the Decree amending and supplementing certain articles of the Civil Servants Decree dated April 28, 2000, and the Decree amending and supplementing certain articles of the Civil Servants Decree dated April 29, 2003;

Pursuant to Decree No. 86/2003/NĐ-CP dated July 18, 2003 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Agriculture and Rural Development;

Pursuant to the Government Decree No. 209/2004/NĐ-CP dated December 16, 2004 on the management of construction project quality;

Pursuant to Decree No. 16/2005/NĐ-CP dated February 7, 2005 of the Government on Managing Investment Projects for Construction Works;

Based on the proposal of the Director of the Legal Department and the Director of the Construction Management Department,

 

DECISION:

 

Article 1. This Decision promulgates the Regulations on Responsibilities and Forms of Handling Violations Related to Project Management for Construction Investment Projects and Construction Quality Under the Management of the Ministry of Agriculture and Rural Development.

Article 2. This Decision takes effect fifteen days from the date of publication in the Official Gazette.

Article 3. The Head of the Ministry’s Office, the Director of the Legal Department, the Director of the Construction Management Department, the Director of the Water Resources Department, the Director of the Dyke Management and Disaster Prevention Department, and the Heads of units under the Ministry, organizations, and individuals concerned shall be responsible for implementing this Decision.

 

REGULATIONS ON RESPONSIBILITIES AND FORMS OF HANDLING VIOLATIONSRELATED TO PROJECT MANAGEMENT FOR CONSTRUCTION INVESTMENT PROJECTS AND QUALITY

CONSTRUCTION PROJECTS UNDER THE MANAGEMENT OF THE MINISTRY OF AGRICULTUREAND RURAL DEVELOPMENT.

(Issued together with Decision No. 11/2005/QĐ-BNN dated March 7, 2005)

of the Minister of Agriculture and Rural Development)

 

PART I

GENERAL PROVISIONS

Article 1. Scope of application

These regulations set forth responsibilities and forms of handling violations by organizations and individuals concerning project management for construction investment projects and construction quality under the management of the Ministry of Agriculture and Rural Development (hereinafter referred to collectively as construction projects).

Article 2. Applicability

For project sponsors, organizations, and individuals who are consulting firms (project development, design, survey, review, supervision, testing, quality certification, project management), construction contractors, and other organizations and individuals involved in the management and construction activities when implementing construction projects under the management of the Ministry of Agriculture and Rural Development.

Article 3. Procedures and steps for handling violations

1. Procedures and steps for handling violations by organizations and individuals regarding project management for construction investment projects and construction quality under the management of the Ministry of Agriculture and Rural Development shall be carried out in accordance with current laws.

2. In addition to being handled according to these regulations, organizations and individuals specified in Article 2 must also bear responsibility and be subject to other forms of handling for violations according to relevant laws.

 

Chapter II

RESPONSIBILITIES REGARDING PROJECT MANAGEMENT FOR CONSTRUCTION INVESTMENT PROJECTS

AND CONSTRUCTION QUALITY

Article 4. Responsibilities for project management for construction investment projects

Shall be implemented in accordance with Government Decree No. 16/2005/NĐ-CP dated February 7, 2005 on project management for construction investment projects.

Article 5. Responsibilities for construction quality management

Shall be implemented in accordance with Government Decree No. 209/2004/NĐ-CP dated December 16, 2004 on construction quality management.

Article 6. Responsibilities of state management agencies under the Ministry

Departments managing specialized sectors under the Ministry of Agriculture and Rural Development, within their assigned functions, shall take the lead or coordinate with the Ministry's Inspectorate and specialized departments of provinces and centrally-administered cities:

1. Regularly inspect and audit at each stage of project implementation (for projects managed by the Ministry), promptly proposing preventive measures and handling violations. Each inspection must have a written report submitted to the competent authority.

2. Coordinate with the State Acceptance Council to conduct appraisals, re-inspections, or hire consulting units with sufficient capacity and legal entity status to appraise and re-inspect the quality of Class A projects, key projects, and other projects, if there are doubts about the quality of the works, organize independent inspections and tests.

 

Chapter III

VIOLATIONS AND FORMS OF HANDLING

Section 1. DURING THE PROCESS OF PROJECT DEVELOPMENT AND REVIEW

TECHNICAL DESIGN - TOTAL ESTIMATE

Article 7. Violations

1. Violations during the survey process:

a) Conducting survey work before the survey task has been approved by the competent authority (except where there is a written permit from the competent authority);

b) Survey results of topography, geology, hydrogeology, and hydrology not reflecting actual conditions and not meeting quality requirements;

c) Not adhering to survey procedures, norms, or the approved outline.

d) Not ensuring timely submission of complete survey documentation as required.

2. Violations during project development and technical design:

a) The scale and technical standards of the project determined are inconsistent with regional, territorial planning, and industry development strategies that have been approved;

b) The scale and technical standards of structural components of the project do not match the project investment decision, construction standards, national technical standards, industry standards, and specific standards applicable to the project;

c) Insufficient or erroneous data updates leading to inappropriate selection of options at the project development or design stage, affecting planning, environment, ecology, aesthetics, volume, and changing the project's objectives, total investment, and total estimate.

d) Not ensuring timely submission of complete survey documentation as required.

3. Violations during the acceptance of project development and technical design documentation:

a) Missing types or quantities of documentation as required;

b) Documentation contents not reviewed before submission to the competent authority for review;

c) Acceptance not based on the actual volume of work completed during the survey and design phases.

4. Violations during project review and technical design - total estimate review:

a) Unjustifiably extending the review period after receiving complete documentation as required;

b) Failing to identify major deficiencies and errors in project development and technical design - total estimate documentation during the review process;

c) Approving projects or technical designs - total estimates contrary to current laws.

5. Specific violations:

a) During project development:

- Hydrological, geological, and topographical data errors leading to more than 30% changes in basic design options.

- Determining the list of works, volume, and funding for main construction and land clearance compensation inaccurately, leading to adjustments and supplements that increase the total project investment at the time of project establishment by more than 15%;

b) Technical design stage:

- Errors in natural elevation leading to an increase of more than 15% or an increase of more than 5,000 m³ in excavation and dredging volumes;³ - Must adjust the alignment by more than 15% compared to the total length;

- Must adjust the location of the works or the height of the dam, drainage structures, and other works by more than 30% of the total project volume;

- Errors in geological conditions at locations approved in the outline leading to the need to:

+ Change foundation structure, reinforcement type;

+ Change more than 30% of pile and foundation volume;

- Errors in hydrological investigation and calculation leading to the need to:

+ Increase the dam length by more than 10%;

+ Change the basic reinforcement type;

+ Increase the volume of major works and key structures by 10%;

c) Violations smaller than those specified in points a and b of this clause but causing serious consequences. Forms of handling

1. For the project preparation and design consulting units:

Article 8. a) Not to be considered for assignment of projects or works of similar or larger scale within a certain period as decided by the competent authority;

b) Must redo the violated work or compensate for the cost to handle such violations. In addition, they will be fined an additional 10% of the value of the work that needs to be redone through deductions from payment;

c) The project sponsor retains 20% of the estimated budget for project preparation survey or design survey of the project or work item to serve the handling of violations (excluding compensation costs to handle violations and the 10% fine on the value of the work that needs to be redone). When the project is completed and accepted, the remaining amount will be paid;

2. For the verification consulting unit:

Not to be assigned projects or works of similar or larger scale for at least one year from the date of the handling decision by the competent authority.

3. For the Project Sponsor:

a) Collectively: not to be considered for management of projects or works of similar or larger scale within a certain period as decided by the competent authority;

b) Individually (the person directly supervising, accepting, and directly responsible for leadership): based on the assigned responsibilities and tasks, depending on the severity, will be handled according to one of the forms of reprimand, warning, demotion in salary grade, demotion in rank, removal from position, or dismissal.

Section 2. DURING THE PROCESS OF SELECTING CONTRACTORS

1. Contractors declare their capacity and experience inaccurately.

2. Winning contractors subcontract, bid-rig, or collude.

Article 9. Violations

3. Project sponsors conceal or collude with contractors upon discovering specific evidence of violations as stipulated in Clause 1 and 2 of this Article.

1. For contractors:

a) Violating the provisions of Clause 1 of Article 9 of this Regulation shall be excluded from the list of participants in bidding or be excluded immediately at the preliminary evaluation stage and not be considered for subsequent steps, and shall not be allowed to participate in any tender package for a period of six months to one year from the date of the handling decision by the competent authority;

Article 10. a) Not to be considered for assignment of projects or works of similar or larger scale within a certain period as decided by the competent authority;

b) Violating the provisions of Clause 1 of Article 9 of this Regulation for the second time shall not be allowed to participate in any tender package for a period of one to three years from the date of the handling decision by the competent authority;

c) Violating the provisions of Clause 2 of Article 9 of this Regulation shall have their winning bid results revoked and shall not be allowed to participate in any tender packages for a period of one to three years from the date of the handling decision by the competent authority;

2. For Project Sponsors:

Violating the provisions of Clause 3 of Article 9 of this Regulation shall be handled according to the provisions of Clause 3 of Article 8 of this Regulation.

2. For the Investor:

Violating the provisions set forth in Clause 3, Article 9 of this Regulation shall be subject to the handling provided for in Clause 3, Article 8 of this Regulation.

Section 3. DURING THE CONSTRUCTION AND COMPLETION OF THE PROJECT

Article 11. Violations

1. The construction work deviates from current procedures and regulations, the design, technical instructions, and contractual terms already signed. Using insufficient, incorrect, or inferior equipment and machinery in terms of quantity, type, performance, power, and personnel qualifications lower than those declared in the bidding documents.

2. Testing and inspecting the quality of the contractor's construction process, material certificates, and materials used in the project lack honesty.

3. Violations related to labor safety and environmental protection.

4. Inaccurate acceptance of the volume and quality of the works by the supervising consultant, incomplete or non-compliant handover procedures of the project by the Project Owner. The completion documents do not match the actual construction or lack the required contents.

5. Failure to meet the overall schedule or specific schedules approved by the Project Owner in the bidding documents.

Article 12. a) Not to be considered for assignment of projects or works of similar or larger scale within a certain period as decided by the competent authority;

b) Violating the provisions of Clause 1 of Article 9 of this Regulation for the second time shall not be allowed to participate in any tender package for a period of one to three years from the date of the handling decision by the competent authority;

a) Must compensate for losses according to the law and be suspended from construction, contract termination. If the violation is severe or repeated, they will not be allowed to participate in future tenders for at least one year up to three years from the date of contract termination;

b) Quality violations as stipulated, or if the package duration exceeds three months without objective reasons, the contract will be terminated and they will not be allowed to participate in subsequent tenders;

c) Two quality violations in packages will result in disqualification from participating in subsequent tenders for one year;

d) Three or more quality violations in packages will result in disqualification from participating in subsequent tenders for two years.

2. For supervising consultants:

Payment for supervision costs corresponding to the volume of violated works will not be made, subject to economic penalties, and an additional 100% of these costs when the works require demolition and reconstruction due to violations.

3. For testing and retesting units:

If serious violations recur and cause severe consequences, they will not be allowed to participate in future projects for at least one year.

4. For the Project Owner:

a) Group: reprimand or warning; if serious violations recur and cause severe consequences, they will not be allowed to participate in future projects.

b) Individual:

- Directly responsible person: reprimand or warning;

- Directly monitoring staff: reprimand or warning, demotion in rank, or transfer to another position.

Section 4. FOR SPECIALIZED AGENCIES UNDER THE MINISTRY

Article 13. Violations

1. Violation of provisions in Article 6

2. Violations in project evaluation and technical design - total budget estimation within the assigned scope, specifically:

a) Extending the evaluation time without valid reasons after receiving complete and compliant documents;

b) Failing to identify major deficiencies and errors in project development and technical design - total estimate documentation during the review process;

c) Approving projects or technical designs - total estimates contrary to current laws.

d) Failing to ensure compliance with the prescribed evaluation timeframe.

Article 14. a) Not to be considered for assignment of projects or works of similar or larger scale within a certain period as decided by the competent authority;

1) Director, Deputy Director, or equivalent: reprimand or warning;

2) Head of Department, Deputy Head of Department, or Head of Division, Deputy Head of Division: reprimand or warning, or removal from office;

3) Directly monitoring staff: reprimand or warning, demotion in rank, or transfer to another position.

Section 5. AUTHORITY TO HANDLE VIOLATIONS

Article 15. the Ministry of Agriculture and Rural Development

a) Discipline groups and individuals according to the authority prescribed by law;

b) Refuse contracts, recover performance bonds;

c) Decide to suspend contracts;

d) Decide to demolish;

đ) Impose economic discount penalties;

e) Refuse participation in bidding processes.

Article 16. The Department of Construction Project Management and specialized investment construction management departments under the Ministry

a) Discipline groups and individuals according to the authority prescribed by law;

b) Recommend revocation of supervision consulting certificates;

c) Refuse to assign design consulting, supervision consulting, appraisal consulting, inspection consulting, and testing inspection consulting tasks;

d) Suspend project construction;

đ) Refuse participation as subcontractors.

 

Chapter IV

IMPLEMENTATION

Article 17. Responsibility for dissemination

Heads of units under the Ministry, Directors of Project Management Boards, Directors of consulting organizations, Chairmen of Councils of State-owned Enterprises under the Ministry, and related agencies and organizations are responsible for disseminating this Regulation to all cadres, civil servants, officials, and employees for their knowledge and implementation.

Article 18. Responsibility for Implementation

1. Organizations and individuals subject to the provisions of Article 2 shall be responsible for complying with this Regulation. Serious violations will be handled according to relevant laws depending on the nature of the violation.

2. In case of difficulties during implementation, related agencies, units, and individuals shall promptly report to the Ministry of Agriculture and Rural Development for study, amendment, and supplementation to ensure appropriateness./.