Circular No. 22/2009/TT-BXD detailing the conditions of capacity in construction activities

CIRCULAR

Regulations on the conditions of capacity in construction activities

Pursuant to the Construction Law dated November 26, 2003;
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;
Based on Decree No. 08/2005/NĐ-CP dated January 24, 2005 of the Government on Urban Planning;
Based on Decree No. 209/2004/NĐ-CP dated December 16, 2004 of the Government on Quality Management of Construction Projects, and Decree No. 49/2008/NĐ-CP dated April 18, 2008 of the Government amending and supplementing certain articles of Decree No. 209/2004/NĐ-CP dated December 16, 2004 of the Government on Quality Management of Construction Projects;
Based on Decree No. 12/2009/NĐ-CP dated February 12, 2009 of the Government on project management for investment in construction works,

The Ministry of Construction hereby provides detailed regulations on the conditions of capacity for construction activities as follows:

PART I

GENERAL PROVISIONS

Article 1. Scope of regulation and applicable subjects

2. Applicability:

This Circular stipulates detailed regulations on the conditions of capacity for construction activities of organizations and individuals specified in Decree No. 12/2009/NĐ-CP dated February 12, 2009 of the Government on project management for investment in construction works (hereinafter referred to as Decree 12/CP); Decree No. 08/2005/NĐ-CP dated January 24, 2005 of the Government on Urban Planning (hereinafter referred to as Decree 08/CP); Decree No. 209/2004/NĐ-CP dated December 16, 2004 of the Government on Quality Management of Construction Projects (hereinafter referred to as Decree 209/CP); Decree No. 49/2008/NĐ-CP dated April 18, 2008 of the Government amending and supplementing certain articles of Decree No. 209/2004/NĐ-CP dated December 16, 2004 of the Government on Quality Management of Construction Projects (hereinafter referred to as Decree 49/CP).

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 domestic and foreign organizations and individuals participating in construction activities in Vietnam.

Article 2. Conditions of capacity for organizations when participating in construction activities

1. Organizations participating in construction activities must have sufficient conditions of capacity appropriate to the type of project; the type, level of construction works, and tasks undertaken by the organization.

2. The capacity of organizations directly participating in construction activities is classified into Class 1 and Class 2 based on the following criteria:

a) Professional capacity of individuals within the organization;

b) Experience in construction activities demonstrated through management capability and results of completed tasks by the organization;

c) Financial capability, workforce, and construction equipment actually available to the organization or leased by the organization to meet the requirements of the work or tender package.

The classification of organizations when participating in construction activities is for the organization to self-determine its appropriate capacity class according to the requirements of the tender package or specific work when participating in implementation; it serves as a basis for competent authorities to check compliance with regulations on conditions of capacity for construction activities of relevant subjects without being a basis for ranking construction enterprises.

3. Investors shall base their selection of organizations and individuals with appropriate conditions of capacity on the scale and nature of the tender package or specific work.

Article 3. Conditions of capacity for individuals when practicing construction activities

1. Individuals participating in construction activities must hold certificates issued by legitimate training institutions in Vietnam or abroad that are suitable for the tasks they undertake.

2. Individuals assuming positions specified in Clause 4, Article 36 of Decree 12/CP must meet the conditions stipulated in Chapter IV of Decree 12/CP. Specifically, individuals assuming positions as head of planning design projects, or leading specialized design projects of urban planning construction must meet the conditions stipulated in Articles 48 and 49 of Decree 08/CP.

Positions such as head or leader of urban planning design projects; head or leader of construction design projects; head of construction survey projects are appointed by the head of consulting organizations based on the conditions and standards set out in Decree 12/CP, Decree 08/CP, the management capability of the individual, and the scale and nature of the work.

3. Individuals involved in project management must hold a certificate in project management for investment in construction works as prescribed, except those engaged in administrative and service-related work.

Chapter II

CONDITIONS OF CAPACITY OF ORGANIZATIONS AND INDIVIDUALS IN CONSTRUCTION ACTIVITIES

Article 4. Fields Requiring Capacity Conditions

1. The fields requiring capacity conditions for construction activities are stipulated in Clause 2, Article 36 of Decree 12/CP.

2. Organizations and individuals participating in the following fields: quality inspection of construction works; certification of compliance with safety load-bearing requirements of construction works and certification of compliance with quality standards of construction works; construction of works, items, or projects with special requirements must meet the capacity conditions as prescribed in Decree 12/CP and Articles 5, 6, 7, and 8 of this Circular.

3. Organizations and individuals participating in construction activities in the following fields must meet the capacity conditions as prescribed below:

a) Designing urban planning schemes in accordance with Decree 08/CP.

b) Preparing investment project proposals for construction works; managing investment projects for construction works; designing construction works; surveying construction works; supervising construction work implementation; constructing construction works in accordance with Decree 12/CP.

c) Conducting specialized construction experiments in accordance with the Regulation on Recognition and Management of Specialized Construction Laboratory Activities issued pursuant to Decision No. 11/2008/QD-BXD dated July 1, 2008, of the Minister of Construction.

d) Certifying compliance with safety load-bearing requirements of construction works in accordance with Circular No. 16/2008/TT-BXD dated September 11, 2008, of the Ministry of Construction guiding the inspection, certification of compliance with safety load-bearing requirements, and certification of compliance with quality standards of construction works.

Article 5. CONDITIONS OF CAPACITY OF ORGANIZATIONS WHEN PERFORMING QUALITY INSPECTION OF CONSTRUCTION WORKS

1. The capacity of organizations when performing quality inspection of construction works is divided into two categories as follows:

a) Category 1:

- Having at least 10 engineers with appropriate professional qualifications for the quality inspection tasks, including those responsible for departments who must have the capacity conditions equivalent to leading design category 1 suitable for the tasks they undertake;

- Having a specialized construction laboratory recognized by the competent state authority and equipped with appropriate equipment for each type of quality inspection task;

- Having performed quality inspection of construction works for at least one special class or Class I project, or two Class II projects of the same type.

b) Category 2:

- Having at least five engineers with appropriate professional qualifications for the quality inspection tasks, including those responsible for departments who must have the capacity conditions equivalent to leading design category 2 suitable for the tasks they undertake;

- Having a specialized construction laboratory recognized by the competent state authority and equipped with appropriate equipment for each type of quality inspection task of construction works;

- Having performed quality inspection of construction works for at least one Class II project, or two Class III projects, or five Class IV projects of the same type.

2. Scope of activities:

a) Category 1: Is authorized to perform quality inspection of construction works for special class, Class I, Class II, Class III, and Class IV projects of the same type;

b) Category 2: Is authorized to perform quality inspection of construction works for Class II, Class III, and Class IV projects of the same type;

c) For organizations performing quality inspection of construction works that do not yet meet the conditions to be classified, they are authorized to perform quality inspection of construction works for Class IV projects.

Article 6. Conditions for the capacity of organizations when conducting quality conformity certification for construction works

1. The capacity of organizations conducting quality conformity certification for construction works is divided into two categories as follows:

a) Category 1:

- Having a management system and operational capacity that meet current regulations for conformity certification organizations.

- Having at least ten engineers with relevant expertise for the tasks they undertake, with at least five years of experience in design, construction, or supervision work related to the certification content.

- Having conducted quality conformity certification for at least one special-class or Class I construction work or two Class II construction works of the same type.

b) Category 2:

- Having a management system and operational capacity that meet current regulations for conformity certification organizations.

- Having at least five engineers with relevant expertise for the tasks they undertake, with at least three years of experience in design, construction, or supervision work related to the certification content.

- Having conducted quality conformity certification for at least one Class II construction work or two Class III construction works or five Class IV construction works of the same type.

2. Scope of activities:

a) Category 1: Authorized to conduct quality conformity certification for construction works of special class, Class I, Class II, Class III, and Class IV of the same type;

b) Category 2: Authorized to conduct quality conformity certification for construction works of Class II, Class III, and Class IV of the same type;

c) For organizations that do not meet the conditions for classification, they are authorized to conduct quality conformity certification for Class IV construction works of the same type.

Article 7. Special requirements for work, project components, or construction works

Work, project components, or construction works with special requirements as stipulated in this Circular include those with complex technical aspects that can easily cause safety incidents during construction, requiring construction to be carried out by organizations with sufficient capacity to ensure quality; safety for people, the construction work itself, and adjacent works.

Works, project components, and construction works with special requirements include:

1. Works:

a) Foundation treatment using barret piles and drilled shafts for various types of construction works;

b) Demolition of buildings with a height of 10 meters or more;

c) Installation of super-long and super-heavy equipment.

2. Project components:

a) Basements of high-rise buildings, underground parking lots, and other types of construction works;

b) Dams over 25 meters in height: including concrete dams, earth and rock dams of water conservancy and hydropower projects;

c) Tanks, reservoirs, pipelines for oil, gas, and air.

3. Construction works:

a) High-rise buildings of 20 floors or more or construction works with spans of 36 meters or more;

b) Tower-type construction works with heights of 50 meters or more;

c) Bridge construction works with main span lengths of 100 meters or more, arch bridges with heights of 50 meters or more, and bridges with piers of 30 meters or more in height;

d) Underground construction works: such as tunnels for mining, hydropower, transportation, and other types of construction works;

đ) Marine construction works: such as sea wave barriers, offshore drilling platforms, offshore oil and gas pipelines, and other types of offshore construction works.

Article 8. Conditions for capacity of organizations when performing works, construction items, or construction projects with special requirements

Organizations and individuals undertaking works, construction items, or construction projects with special requirements as stipulated in Article 7 of this Circular must meet the capacity conditions prescribed in Decree 12/CP and the following capacity conditions:

1. The site commander or the technical supervisor of the organization undertaking the contract must have a university degree in a relevant field, at least seven consecutive years of experience in construction work, and must have participated in at least one work, construction item, or construction project with similar special requirements or a lower level of scale.

2. Technical staff of the organization undertaking the contract working on the project must have a university or college degree in a relevant field, at least two consecutive years of experience in construction work for those with a university degree, and four years for those with a college degree.

3. Direct construction workers for works, construction items, or construction projects with special requirements must hold appropriate vocational training certificates. For operators and controllers of major construction machinery and equipment requiring strict safety standards, they must have at least one year of experience.

4. Major machinery and equipment for construction works, construction items, or construction projects with special requirements must be inspected according to regulations, meeting the technical requirements of the work and operational safety.

5. The contractor must have participated in at least one work, construction item, or construction project with similar special requirements at a lower level.

6. Depending on the volume of work and the scale of the project, the organization undertaking the work, construction item, or construction project with special requirements must have sufficient technical staff, technical workers, and machinery and equipment to ensure the capacity conditions suitable for each work, construction item, or construction project as prescribed in this Circular. The contractor may subcontract to ensure compliance with the capacity conditions set out in Clauses 1, 2, 3, and 4 of this Article.

Article 9. Types of construction projects with special requirements during construction must have relevant specialties

The relevant specialty as defined in Article 8 of this Circular refers to the specialized field that the site commander, technical supervisor, and technical staff are trained in accordance with the work, construction item, or construction project with special requirements as stipulated in this Circular, specifically for:

1. Work involving foundation treatment using barret piles or drilled shafts: requires a construction or geotechnical engineering specialty.

2. Demolition work: requires a construction specialty.

3. Installation of super-heavy equipment: requires a mechanical or installation specialty.

4. Construction of underground levels in buildings: requires a construction specialty.

5. Dam construction: requires a hydraulic or hydroelectric construction specialty.

6. Construction of storage tanks, pipelines for oil, gas, or gas: requires a construction or mechanical specialty.

7. Civil and industrial construction projects: requires a civil and industrial construction specialty.

8. Tower-type construction projects: requires a construction, mechanical, or installation specialty.

9. Bridge construction projects: requires a bridge and road construction specialty.

10. Underground construction projects: requires a construction specialty for underground infrastructure, tunnels, or mines, or a bridge and tunnel construction specialty.

11. Offshore construction projects: requires an offshore construction specialty.

Chapter III

IMPLEMENTATION

Article 10. Responsibilities of the project sponsor

The agency organizing urban planning and sponsors of investment construction projects are responsible for:

1. Selecting organizations and individuals who have the necessary capacity to prepare urban planning schemes or undertake works, construction items, or construction projects in accordance with Decree 08/CP, Decree 12/CP, and this Circular, and bear legal responsibility for selecting organizations or individuals without the required capacity leading to non-compliance with quality standards or causing accidents resulting in casualties or property damage.

2. Continuously monitoring, suspending, or stopping work until organizations or individuals meet the capacity conditions stipulated in the signed contract, as prescribed in Decree 08/CP, Decree 12/CP, and this Circular.

3. Other responsibilities as prescribed by law.

Article 11. Responsibilities of organizations and individuals engaged in construction activities

Organizations and individuals engaged in construction activities are responsible for:

1. Only undertaking the preparation of urban planning schemes or works, construction items, or construction projects when having the necessary capacity as prescribed.

2. Adhering to technical standards, approved designs, and self-monitoring to ensure product quality and compliance with current regulations.

3. Bearing responsibility before the project sponsor and the law for undertaking urban planning design or works, construction items, or construction projects without the required capacity as prescribed.

4. Before commencing works, construction items, or construction projects with special requirements, measures for construction must be approved according to regulations and risk management plans must be implemented.

5. Providing information about the company's construction activities on the Ministry of Construction's enterprise information website at: http://doanhnghiep.xaydung.gov.vn

6. Other responsibilities as prescribed by law.

Article 12. Responsibilities of related agencies

1. The Ministry of Construction shall be responsible for:

a) Organizing guidance and inspection of the implementation of this Circular.

b) Inspecting and handling, within their authority, or requesting handling of organizations and individuals engaged in construction activities violating capacity conditions nationwide.

2. Ministries, sectors, and provincial People's Committees are responsible for:

a) Organizing guidance and inspection of the implementation of this Circular for organizations and individuals under their management.

b) The People's Committee of the province shall direct relevant competent agencies to organize inspections and handle organizations and individuals when their construction activities violate the provisions on qualification conditions within its jurisdiction.

3. The Construction Departments shall be responsible for:

a) Organizing inspections of the qualification conditions of organizations and individuals engaged in construction activities within their jurisdiction in accordance with Decree 08/CP, Decree 12/CP, and the provisions of this Circular.

b) Temporarily suspending or halting construction works, handling according to their authority, or reporting to the competent authority for handling when organizations engaged in construction activities violate the laws on construction and the provisions of this Circular.

c) Providing information about construction enterprises and organizations and individuals who have violations in construction activities on the Ministry of Construction's website at http://doanhnghiep.xaydung.gov.vn.

Article 13. Implementation Provisions

1. This Circular shall take effect from August 20, 2009.

2. Individuals participating in project management as stipulated in Clause 3, Article 3 of this Circular, starting from January 1, 2010, must hold a certificate of professional knowledge in project management for construction investment projects in accordance with the regulations.

3. To revoke Decision 10/2008/QD-BXD dated June 25, 2008, issued by the Minister of Construction, which stipulates the qualification conditions of contractors when performing works, sub-projects, or construction projects with special requirements.

4. Ministries, ministerial-level agencies, agencies under the Government, People's Committees of provinces and centrally-administered cities, organizations and individuals participating in construction activities, and related organizations and individuals shall be responsible for implementing the provisions of this Circular. Any difficulties encountered during implementation should be reported to the Ministry of Construction for research and resolution./.