Decree No. 15/2023/NĐ-CP on piloting the awarding of contracts for construction packages under transportation projects in the program for restoring and developing the economy and society.

DECREE

Regarding the pilot implementation of bonus contracts for construction tender packages under transportation projects in the program to restore and develop the economy and society

traffic project in the economic and social recovery and development program

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Pursuant to the Law on Organization of the Government dated June 19, 2015; the Law Amending and Supplementing Certain Provisions of the Law on Organization of the Government and the Law on Organization of Local Administration dated November 22, 2019;

Pursuant to the Law on Construction dated June 18, 2014; the Law Amending and Supplementing Certain Provisions of the Law on Construction dated June 17, 2020;

Pursuant to the Law on Bidding dated November 26, 2013;

Pursuant to Resolution No. 43/2022/QH15 dated January 11, 2022 of the National Assembly on fiscal and monetary policies supporting the Program to Restore and Develop the Economy and Society;

At the proposal of the Minister of Planning and Investment;

The Government issues this Decree stipulating the pilot implementation of bonus contracts for construction tender packages under transportation projects in the Program to Restore and Develop the Economy and Society.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Decree stipulates the pilot implementation of bonus contracts for construction tender packages under transportation projects in the Program to Restore and Develop the Economy and Society as specified in Resolution No. 43/2022/QH15 dated January 11, 2022 of the National Assembly, which is detailed in Appendix I of the List of Projects Applying the Provisions on Pilot Implementation of Bonus Contracts attached hereto.

Article 2. Applicability

Agencies, organizations, and individuals participating in or related to the investment process of projects as stipulated in Article 1 of this Decree.

Chapter II

PROVISIONS ON BONUS CONTRACTS

Article 3. Principles of Bonus

1. Construction works and sub-works must be carried out in accordance with the contract (in terms of quantity, volume, quality), meeting technical standards and specifications, and must be inspected and handed over according to the laws on construction.

2. The awarding of bonus contracts must ensure transparency, fairness, and must be clearly stipulated in the tender documents and request documents, and reflected in the contract signed between the investor and the contractor.

3. The awarding of bonus contracts applies to each specific tender package. The amount of bonus shall not exceed the bonus fund prescribed in Article 4 of this Decree.

4. The awarding of bonus contracts only applies to contractors who comply with the law in implementing the tender package and have actual bonus funds.

5. Bonus shall not be applied in cases where the price of the tender package, tender documents, request documents, and contract signing are not conducted in accordance with the laws on construction for the purpose of profiting from bonuses.

Article 4. Source of Bonus Fund

The bonus fund is sourced from the surplus after bidding (including direct assignment).

Article 5. Method of Calculating the Amount of Bonus

The amount of bonus (T) = TD x TG x K.

Where:

- TD is the Surplus after bidding = Approved budget estimate price of the tender package (excluding contingency reserve) - Winning bid price (excluding contingency reserve).

- TG is the Time reduction ratio (%) = Time reduced (days) / Contracted execution time (days). In case TG > 20%, TG is taken as 20%.

The contracted execution time is the specific time determined in the contract signed between the investor and the contractor, excluding time interruptions due to subjective factors from the investor's side and objective reasons due to force majeure agreed upon by both parties.

Time reduced = Contracted execution time - Actual execution time of the tender package.

- K is the Encouragement Coefficient = 5.

Chapter III

PAYMENT OF BONUS AND INSPECTION, SUPERVISION

Article 6. Authority

1. The investment decision-maker decides on the application of bonus contract provisions when approving the tender selection plan.

2. The investor decides specifically on the awarding of bonus contracts, implements the payment of bonus contract funds, adjusts or recovers bonus funds.

Article 7. Procedure and Documents for Requesting Contract Award Review

1. After the contract has been accepted and handed over according to regulations, the contractor shall directly send or deliver through postal service to the project owner five sets of documents requesting contract award review (the submission time must not exceed the warranty period of the project). The documents requesting contract award review include: original request for contract award review form (Form No. 02 Appendix II), original commitment form for partial or full refund of the awarded amount in case of adjustment or recovery of the award (Form No. 03 Appendix II), copies of the contract/agreement signed between the project owner and the contractor containing the contract award clause, copies of acceptance and handover minutes, copies of warranty regulations for the project, and other documents serving as the basis for the contract award (if applicable).

2. The project owner shall accept the documents submitted by the contractor according to the provisions of Clause 1 of this Article. In case the documents are not valid, within three working days from receiving the documents, the project owner shall issue a notification and request the contractor to supplement the documents for contract award review.

3. If the documents are valid, the project owner shall examine and decide on the contract award for the contractor within thirty days from receiving the valid documents. The content of the decision on contract award includes: name of the contractor, tender package name, time saved, specific amount of award, payment method, payment date (estimated), and requirements for recovering the award amount when adjusting the award or if there are violations of the contract award principles (Form No. 04 Appendix II).

Article 8. Payment of Award Amounts

1. Within three working days from the effective date of the Decision on Contract Award, the Project Owner shall directly send or deliver through postal service to the State Treasury the payment request documents including:

a) Decision on Contract Award;

b) Payment Request Form for Contract Award (Form No. 06 Appendix II);

c) Withdrawal Form (Form No. 07 Appendix II).

2. Based on the payment request documents submitted by the project owner, the State Treasury shall implement control and payment of the contract award amount within the latest three working days from the date of receiving all required documents as stipulated in Clause 1 of this Article. Control and payment principles follow the Government's regulations on management, payment, and settlement of projects using public investment funds.

Article 9. Inspection and Supervision

1. The investor decision-maker is responsible for organizing inspections, or assigning specialized agencies under their jurisdiction to inspect the implementation of contracts, including the contract award clauses.

2. The project owner is responsible for supervising the implementation of contracts, including the contract award clauses, until the end of the warranty period as stipulated in the contract.

Article 10. Adjustment and Recovery of Award Amounts

1. Adjustment and recovery of award amounts shall be carried out in cases where discrepancies arise due to incorrect calculation of the award or violation of the award principles as concluded by audits and inspections. Within thirty days from the effective date of the audit and inspection conclusions, the project owner shall issue a decision to recover the award amount corresponding to the discrepancy as concluded by the audit and inspection and require the contractor to pay it into the State Treasury according to the contractor's commitment in the contract award review documents.

2. The content of the decision to recover the contract award amount includes: name of the contractor, tender package name, reason for recovery, specific amount recovered, recovery method, and recovery date (Form No. 05 Appendix II).

3. The contractor is responsible for returning the recovered amount to the state budget within thirty days from the effective date of the decision to recover the award amount. Beyond this period, the contractor shall bear additional interest penalties at the inter-bank exchange rate prevailing at the time of repayment.

Chapter IV

IMPLEMENTING PROVISIONS

Article 11. Transitional provisions and effective date

1. This Decree shall take effect from April 25, 2023.

2. For construction procurement packages under projects listed in Appendix I attached to this Decree that have signed contracts before the effective date of this Decree, where the bonus contract terms have not been specified in the bidding plan, tender documents, or request for proposal, the project owner shall report to the investment decision-maker to decide on the application of the bonus contract term regulations for these procurement packages (Model No. 01 in Appendix II); based on the decision of the investment decision-maker, the project owner and contractor shall supplement the contract appendix regarding the bonus contract terms as stipulated in this Decree.

Article 12. Implementation Organization

1. The Ministry of Construction shall be responsible for guiding organizations and individuals if they encounter difficulties during the implementation of this Decree.

2. The Ministry of Construction shall take the lead and coordinate with the Ministry of Planning and Investment, the Ministry of Transport, and relevant agencies to summarize the implementation of this Decree.

3. Ministers, heads of ministerial-level agencies, heads of government-affiliated agencies, Chairpersons of provincial People's Committees under central cities, and related organizations and individuals are responsible for implementing this Decree./.