Decision No. 4391/2002/QD-BGTVT On the issuance of regulations on responsibility and forms of handling violations in the management and quality assurance of transportation infrastructure construction projects

Pursuant to …;

Regarding the issuance of regulations on responsibilities and forms of handling for organizations and individuals when violating in management and maintenance of road traffic infrastructure

organizations and individuals when violating management and ensuring quality

construction projects for traffic infrastructure

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THE MINISTER OF TRANSPORTATION

Pursuant to Decree No. 22/CP dated March 22, 1994 of the Government stipulating tasks, powers, responsibilities for state management and organizational structure of the Ministry of Transport;

Pursuant to Decree No. 86/2002/NĐ-CP dated November 5, 2002 of the Government stipulating functions, tasks, powers, and organizational structure of Ministries and ministerial-level agencies;

Pursuant to the Investment and Construction Management Regulations issued together with Decree No. 52/1999/NĐ-CP dated July 8, 1999 and Decree No. 12/2000/NĐ-CP dated May 5, 2000 of the Government;

Pursuant to the Tendering Regulations promulgated under Decree No. 88/1999/NĐ-CP dated September 1, 1999 and Decree No. 14/2000/NĐ-CP dated May 5, 2000 of the Government;

Pursuant to Decision No. 17/2000/QĐ-BXD dated August 2, 2000 of the Ministry of Construction on issuing regulations on construction project quality management;

Pursuant to Directive No. 23/2002/CT-BGTVT dated December 3, 2002 of the Minister of Transport on strengthening investment and construction management in transport;

At the proposal of the Director of the Department of Inspection and Quality Control - Ministry of Transport;

DECISION:

Article 1. Now hereby promulgates along with this Decision the "Regulations on Responsibilities and Administrative Sanctions for Organizations and Individuals Violating Management and Ensuring Quality of Traffic Infrastructure Construction Projects"

Article 2. These Regulations shall be uniformly implemented throughout the country and take effect fifteen days from the date of signature.

Article 3. Ministers, Heads of ministerial-level agencies, Heads of agencies under the Government, Chairmen of Provincial People's Committees directly under the central government, Boards of Directors of State-owned Corporations, organizations and individuals related to the management and construction of traffic infrastructure projects are responsible for implementing these Regulations.

 

REGULATIONS

 

Responsibilities and forms of administrative sanctions for organizations and individuals when violating management,

ensuring quality of traffic infrastructure construction projects

(Issued together with Decision No. 4391/2002/QĐ-BGTVT dated February 27, 2002

of the Minister of Transport)

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Chapter 1:

GENERAL PROVISIONS

Article 1.

These Regulations determine the responsibilities and forms of administrative sanctions for all violations concerning management and ensuring quality during the implementation of traffic infrastructure construction projects, including: roadways, railways, inland waterways, sea routes, and civil aviation, hereinafter referred to as traffic infrastructure construction projects (TICP).

Article 2.

1. All organizations and individuals who are Project Owners (or authorized by the Project Owner to act as representatives of the Project Owner), consulting units (project preparation, design, review, supervision, testing, inspection, quality inspection...), construction enterprises, and other organizations and individuals related to management and ensuring quality when implementing TICPs must comply with these Regulations.

2. These Regulations apply to all TICPs nationwide, regardless of the Project Owner and source of investment. For ODA projects, specific provisions will be made if required by the signed agreement.

Chapter 2:

RESPONSIBILITIES OF ORGANIZATIONS AND INDIVIDUALS IN MANAGEMENT AND ENSURING QUALITY OF TICPS

Article 3. The organizations and individuals mentioned in Clause 1, Article 2 of these Regulations, in addition to complying with all current legal regulations of the State, relevant ministries and sectors, and the Ministry of Transport regarding investment and construction management, must also comply with specific regulations for each category and at each stage of implementing TICPs as follows:

1. For Consulting Units Preparing Projects and Designing:

a. The report on preliminary feasibility studies and feasibility studies must ensure completeness and accuracy of all contents as prescribed, particularly data on land compensation, hydrological surveys, flood levels calculated, width and clearances for navigation...

b. The survey outline for the project preparation phase or design phase must be approved by the competent authority before implementation (except in cases where the competent authority has a written permit to implement beforehand or the project is self-funded by the Consulting Unit).

c. The design documents must comply with the project investment decision.

d. Special attention must be given to geological and hydrogeological surveys. At locations with special geology, sufficient drilling volumes for geological exploration must be supplemented. For drainage works in urban areas and complex mountainous terrain, sufficient adjustment factors must be considered to ensure proper drainage and prevent erosion (especially for river and water-related structures).

c. The design documents must consider the capacity and scope of local material supply for the construction project.

f. The design must ensure coordination with other transportation facilities and technical infrastructure in the area.

g. Consideration must be given to operational conditions, compatibility with local planning, aesthetic appearance, environmental impact, and surrounding landscape where the project is located.

For projects passing through complex terrain and geology, solutions and measures for durable and stable structures must be proposed. New design technologies suitable for the structure should be encouraged.

h. Internal acceptance work for project preparation and design survey documents within the Consulting Unit must be conducted on-site.

i. Ensure rationality in construction organization plans, accuracy, completeness, and specificity in quantities and technical instructions provided in tender documents.

j. Fully implement the responsibilities of the Author's Supervision as prescribed.

2. For Project Management Units (representatives of the Project Owner):

a. Are responsible to the Project Owner for reviewing and internally accepting the contents of documents before submitting them for approval in writing, including: project preparation documents, survey documents, design documents, estimates, review documents, contractor capabilities, project quality, progress... and reporting regularly on the project's implementation status to the Project Owner.

b. When reviewing bids for projects (or packages) to submit to competent authorities for approval, it must be based on each contractor's financial capacity, technological equipment, human resources, and experience in implementing specialized projects (or similar ones) that have been carried out. At the same time, when assessing the contractor's capacity, consideration must also be given to their ability to handle the total number of packages they are currently undertaking.

c. In construction economic contracts, apart from conditions regarding the duration, value of the contract, technical standards, scale, and main structure of the project, there must also be clear provisions on the level of rewards and penalties for violations concerning progress, quality, and other breaches.

d. In case of quality incidents, a prompt verification and inspection must be conducted to propose appropriate solutions, while timely reports must be submitted to the Project Owner and proactive information and explanations provided to public opinion when necessary.

e. Bear responsibility for reviewing and reporting to the Project Owner on the acceptance or rejection of supervisory consultancy.

3. For Supervisory Consultancy (SC):

Implement according to the Supervisory Consultancy Regulation issued together with Decision No. 1562/1999/QĐ-BGTVT dated June 29, 1999, of the Minister of Transport.

4. For construction installation units (hereinafter referred to as contractors):

a. The contractor is primarily responsible for quality, progress, ensuring traffic safety, safety of surrounding structures, and labor safety and environmental hygiene as stipulated in the signed contract.

b. For Class A and B projects, a Project Management Board (PMB) must be established, and the Director of the PMB must comply with the regulations set forth in Decision No. 1834/2001/QĐ-BGTVT dated June 12, 2001, of the Minister of Transport.

c. When preparing construction drawings, it must ensure technical and technological compliance with the tender documents, without causing landscape disruption or environmental pollution.

d. Must have sufficient standard-compliant testing equipment and a competent technical staff and testing personnel at the site. It is essential to have a dedicated department to maintain internal inspection activities to ensure the quality of each component and phase of construction.

If the contractor does not have a standard-compliant laboratory, they must hire an entity with adequate legal capacity to fulfill the responsibility of self-inspection of project quality.

e. Must strictly implement repairs for any defects during construction and within the warranty period as prescribed. After the warranty period and during the first operational cycle, if the project does not meet quality requirements, the contractor remains responsible.

5. For Appraisal Consultancy:

a. The appraisal results must ensure truthfulness and objectivity. During the project establishment stage, in addition to appraising the scale and technical standards, the actual data on the total investment amount and the project's compliance with current government and relevant ministry regulations must also be considered.

b. Design stage: Apart from the responsibility to review and recheck design data according to professional functions, it is necessary to proactively organize on-site inspections (with minutes) to promptly identify any inconsistencies in the design documents and report to the project owner before submitting to competent authorities for approval.

6. For Inspection Consultancy:

Bear responsibility for the truthfulness of the data, strictly prohibit contact with contractors and supervisory consultants to manipulate data, and fully bear responsibility for the confidentiality of inspection data. Only report data directly to the agency leadership assigned the task and the Project Management Board before drafting the formal report.

7. For state management agencies under the Project Owner:

a. Departments (Bureaus) providing advisory services, specialized management Bureaus of the Ministry of Transport, and Transport Departments (Transport Construction) under provincial and central city municipalities, depending on their functional responsibilities and at different stages of project implementation, must conduct regular inspections and audits of projects under their management (or construction projects within their jurisdiction). Timely measures must be proposed to prevent, address, and eliminate violations. For Class A projects and key projects, inspections must be conducted every two months during the construction phase. For remaining Class A, Class B, or Class C projects, inspections should be conducted every three months.

b. The Bureau of Inspection and Quality Control of Road Transport, specialized management Bureaus, and Transport Departments (Transport Construction), depending on their delegated authority, may conduct re-inspections of quality through independent inspection and testing steps for important Class A and Class B projects, and regardless of class in cases where there are doubts about the quality of the project.

Chapter 3:

VIOLATIONS AND METHODS OF HANDLING

Section A:

IN THE PROCESS OF IMPLEMENTING AND REVIEWING THE INVESTMENT PROJECT AND TECHNICAL DESIGN-GENERAL ESTIMATE.

Article 4. Provisions on violations:

1. Violations in survey work:

a. Engaging consulting organizations to carry out survey work when the survey outline has not been approved by the competent authority, except in cases where the competent authority has issued a document allowing implementation beforehand or the project is self-funded by the Consulting Organization for research purposes.

b. The results of the survey files on formative, geological, hydrogeological, and hydrological surveys do not accurately reflect reality and have poor quality.

c. The survey process does not comply with the procedures and regulations on surveying and testing or does not follow the approved outline.

2. Violations in project preparation and design work:

a. The scale and technical standards of the project determined are inconsistent with the regional planning, territorial planning, and industry development strategy approved by the State.

b. The scale and design standards of structural components of the works do not conform to the Investment Decision of the project, construction standards, national technical standards, industry standards, or specific regulations and standards applicable to the Project.

c. The investigation and updating of relevant data and materials are incomplete or erroneous, leading to unreasonable selection of schemes at the project preparation stage or design stage, affecting planning, environment, ecology, aesthetics of the area, and significantly changing the total investment of the project.

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

a. Insufficient types and quantities of necessary documents as prescribed.

b. The contents of the documents are not reviewed by the Technical Supervision Committee before submission and forwarding to the reviewing agency.

c. Final acceptance does not correspond to the actual volume of work completed during the project preparation survey phase and design survey phase.

4. Violations in project review and Technical Design-General Estimate (TDGE) review:

a. Extending the specified review period without justifiable reasons after receiving all required documents.

b. Failing to identify major errors and omissions in the project preparation documents and TDGE documents during the review process according to assigned tasks and authorities.

c. Approving projects or TDGEs contrary to State regulations.

5. Specific provisions on violations: Errors in project preparation survey work and design survey work are considered quality violations that must be addressed if they meet any of the following points:

a. Project preparation stage:

- Hydrological data, flood level calculations, channel width, navigational clearance, structure clearance... are significantly incorrect, leading to fundamental changes in the design scheme by more than 30%.

- Inaccurate determination of the list of works, volumes, and funding for main construction and land acquisition compensation, resulting in an increase in the total project investment exceeding 10% at the time of project preparation.

b. Technical design stage: - Incorrect natural elevation leading to an increase in excavation and embankment volume or dredging volume by more than 15% of the total volume or when this increase exceeds 5,000 m.³.

- Need to adjust the plan profile by more than 15% compared to the total length.

- Need to change the location of the works or increase the span of bridges, drainage structures, and other structures by more than 30% of the total length of the works.

- Geological conditions at locations already approved in the outline are incorrect, leading to:

+ Changing foundation type or reinforcement type.

+ Piles or foundations need to be changed by more than 30% of the length.

- Incorrect hydrological investigation or calculation leading to:

+ Increasing bridge spans by more than 30%.

+ Fundamental changes in reinforcement type.

+ Increasing the volume of bank protection works by more than 10%.

c. Minor violations as stipulated in points (a) and (b) of this Article but causing serious consequences.

Article 5. Forms of Disciplinary Action.

If the degree of violation is less than that specified in Clause 5, Article 4, related agencies and units shall handle it themselves and report to the Ministry in writing. If the degree of violation is as specified in Clause 5, Article 4, the handling measures will be as follows:

1. For consulting organizations conducting project preparation surveys and design surveys:

a. Collective:

- Not eligible to undertake similar or larger-scale projects within a certain period as decided by the competent authority.

- Must redo the violated work or compensate for the costs to rectify the errors. Additionally, they will be fined an additional 10% of the value of the work that needs to be redone through deduction from payment.

- Economic conditions for handling violations: The contract clearly states that the Project Management Board retains 20% of the estimated cost of project preparation surveys or design surveys until the project is completed and accepted.

b. Individual:

- The head of the survey investigation or the head of the project establishment study (technical design) related to the violation will be dealt with based on the severity and frequency of recurrence: reprimand, warning, delayed salary increase, demotion, transfer, dismissal.

- Directly responsible leaders: Based on their responsibilities, they may face reprimand, warning, or demotion.

2. For consulting organizations conducting reviews: Violating Clause 4, Article 4, they will not be assigned similar or larger-scale projects for at least one year from the date of the competent authority's decision.

3. For the Project Management Board (representing the Investor):

a. Collective:

- Not eligible to manage similar or larger-scale projects within a certain period as decided by the competent authority.

b. Individual:

- Those directly supervising, accepting, and directly responsible for leadership: Based on their responsibilities and tasks, they may face similar penalties as stipulated in point b, Clause 1, Article 5.

PART B:

DURING THE BIDDING PROCESS

Article 6. PROVISIONS ON VIOLATIONS AND PENALTIES:

1. If it is discovered that the bidder's declaration of capacity and experience is not truthful, they will be removed from the list of participants or disqualified at the preliminary evaluation stage and will not be considered for detailed evaluation steps.

2. In cases where it is found that the bidder's declaration of capacity and experience is intentionally false, they will be reprimanded in writing and will not be allowed to participate in any tender for a period of six months to one year from the date of reprimand.

3. If a bidder violates the provisions of Clause 1 and Clause 2 of this Article for the second time in another tender, they will be warned in writing and will not be allowed to participate in any tender for a period of one to three years from the date of warning.

4. If it is discovered that the bidder engages in subcontracting, the bidder will be warned; the tender result will be revoked, and they will not be allowed to participate in tenders of the Industry for a period of one to three years.

5. If the Project Management Board fails to detect violations as stipulated in Clause 1, Clause 2, and Clause 3 of this Article or shows collusion with the bidder, depending on the severity of the violation, relevant individuals will be subject to penalties as prescribed in Clause 3, Article 5 of these Provisions.

PART C:

DURING THE CONSTRUCTION AND COMPLETION OF THE PROJECT.

, Clause 1, Clause 2 Article 7a of this Regulation.VIOLATIONS:

1. Construction work deviating from design, technical instructions, contractual conditions, and current procedures and regulations.

2. Inaccurate, untruthful testing and inspection during construction by the contractor, inaccurate quality assessment testing and inspection by the supervising consultant or retesting consultant, purchasing test results, or influencing test results.

3. Violations concerning traffic safety, environmental hygiene, and labor safety.

Inaccurate quantity and quality acceptance work at each construction phase by the supervising consultant; incomplete or improperly sequenced handover procedures by the Project Management Board; incorrect completion documentation not reflecting actual construction or lacking required content.

Article 8. Depending on the severity of the violations stipulated in Article 7, relevant organizations and individuals will be penalized as follows:

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. During construction, if it is found that the contractor uses insufficient, inappropriate, or inferior equipment and machinery in terms of quantity, type, performance, and power; or if the staff level is lower than declared in the winning bid documents, they will be reprimanded in writing; in severe and repeated cases, construction may be suspended, contracts terminated, or participation in future tenders prohibited for a period of one to three years from the date of contract termination.

b. For violations as stipulated in Clause 1 and Clause 3 of Article 7, in addition to compensating for losses according to the law, contractors will face penalties ranging from reprimands to suspension of construction and contract termination.

For Group A projects:

- If the deviation is ≤1.5% from technical specifications (for example, compaction K≥98 when deviation =1.5%, then K=96.5) in the tender documents, the main penalty will be a reduction in payment amount. The discount value will be proposed by the supervising consultant and decided by the Project Owner but must not be less than 15% of the corresponding item value.

- If the deviation exceeds 1.5% from technical specifications in the tender documents for general items and ≤1.5% for critical or special requirement items, the main penalty will be demolition and reconstruction at the contractor's expense.

For other group projects:

- If the deviation is ≤3% from technical specifications in the tender documents, the main penalty will be retention, with the discount value proposed by the supervising consultant and decided by the Project Owner but must not be less than 20% of the corresponding item value.

- If the deviation exceeds 3% from technical specifications in the tender documents, the main penalty will be demolition and reconstruction.

e. If quality violations as stipulated in Point b, Clause 1 of this Article occur, or if a single tender package is delayed by ≥3 months (not due to external factors), the contractor will be barred from participating in the next tender package.

f. If quality violations occur in two tender packages, the contractor will be barred from tendering for one year.

g. For individual violations: apply similar penalties as specified in Point b, Clause 1, Article 5.

h. For individuals: apply similar penalties as specified in Point b, Clause 1, Article 5.

2. Supervising Consultant (SC):

a. Collective:

- Notified in writing of the penalty form.

- Payment for SC services corresponding to the faulty construction volume will be reduced, and an additional 100% fine will be imposed when the faulty construction requires demolition and reconstruction.

b. Individual:

- The chief engineer of the SC will be reprimanded, warned, or refused further engagement.

- Direct supervisors will be warned, have their certificates revoked, and be barred from practice for 1-5 years.

3. Project Management Board:

a. Collectively: criticized, reprimanded, or warned.

b. Individual:

- Directly responsible persons will be criticized, reprimanded, or warned.

- Partner engineers will be reprimanded or warned in writing, replaced, or demoted.

c. If the violation is serious and recurring, the Project Management Board will not be allowed to manage subsequent projects.

4. Testing Units:

a. Collectively: criticized, reprimanded, or warned in writing.

b. Individually: directly responsible persons for testing activities who violate will be penalized as specified in Point b, Clause 1, Article 5 and have their testing certificates revoked.

c. If violations recur, testing units will be barred from participating in subsequent projects for at least one year from the decision of the competent authority.

5. Inspection and Retesting Consultants:

a. Collectively: criticized, reprimanded, or warned in writing.

b. Individually: directly responsible persons for inspection activities who violate will be penalized as specified in Point b, Clause 1, Article 5.

c. If violations recur, inspection and retesting units will be barred from participating in subsequent projects for at least one year from the decision of the competent authority.

PART D:

VIOLATIONS AND FORMS OF DISCIPLINARY ACTION AGAINST THE INVESTOR OR MANAGEMENT AUTHORITIES OF THE INVESTOR.

Article 9. The Investor (or management authorities of the Investor), if failing to comply with the provisions set forth in Clause 7, Article 3 and violating the contents stipulated in Clause 4, Article 4 and Clause 5, Article 6 of this Regulation, shall be subject to disciplinary actions as specified below depending on the severity of the violation:

1. For Departments of Transport (Public Works):

a. Department Director (Deputy Director): shall be criticized up to reprimanded or warned.

b. Head of Division (Deputy Head of Division): shall be criticized, reprimanded up to warned.

c. Direct monitoring officer: shall be reprimanded, warned, delayed in salary increase, demoted in rank.

d. The decision to impose penalties falls within the jurisdiction of the superior authority of the Department of Transport (Public Works).

2. For specialized management agencies (Councils):

a. Director (Deputy Director) or equivalent: shall be criticized up to reprimanded or warned in writing.

b. Head of Division (Deputy Head of Division) or Head of Department (Deputy Head of Department): shall be reprimanded up to warned in writing.

c. Direct monitoring officer: shall be reprimanded, warned, delayed in salary increase, demoted in rank.

3. For the Bureau of Inspection and Quality Control for Transportation Construction Projects:

As both an advisory body to the Ministry of Transport regarding the review and approval of technical designs and a specialized quality management agency, it has the responsibility to continuously monitor, inspect, audit, prevent, and address violations in project management and quality assurance. Therefore, it must bear indirect responsibility for quality breaches. The level of disciplinary action is as follows:

a. Director (Deputy Director), Head of Department (Deputy Head of Department): shall be criticized, reprimanded up to warned, delayed in salary increase, demoted in rank or dismissed from position.

b. Directly responsible officers: shall be reprimanded, warned, delayed in salary increase, demoted in rank or reassigned to other duties.

Article 10: The following agencies have the authority to issue documents to handle violations:

1. The Ministry of Transport:

a. Reprimand or warn groups and individuals (Leaders at the Corporation level, Project Management Board, Bureau or equivalent) for violations.

b. Refuse contracts, recover contract guarantees.

c. Decide to terminate contracts.

d. Order demolition.

e. Impose economic fines.

f. Refuse participation in tendering for projects managed by the Ministry.

2. The Bureau of Inspection and Quality Control for Transportation Construction Projects has the right to inspect and act on behalf of the Ministry of Transport to notify quality violations to relevant sectors, localities, and organizations and individuals inside and outside the sector for handling violations. Specifically:

a. Criticize groups and individuals who violate.

b. Revoke supervision certification.

c. Refuse to assign tasks related to equipment consultancy, supervision consultancy, appraisal consultancy, testing and retesting consultancy.

d. Suspend construction of projects where the Ministry of Transport is the investor.

e. Refuse participation as subcontractors in projects managed by the Ministry.

3. Chairmen of Provincial People's Committees under the central government, Ministers of Ministries, Heads of agencies equivalent to ministries, and agencies under the Government shall handle all cases of violations within their jurisdiction as mentioned above.

Chapter 4:

IMPLEMENTATION

Article 11.

1. Agencies and units falling within the scope of application as stipulated in Clause 1, Article 2 shall be responsible for implementing this Regulation from fifteen days after the date of signing Decision No. 15. Serious violations will be adjusted according to the provisions of the law based on the nature of the violation.

2. Previous regulations of the Ministry of Transport concerning the handling of violations in project management and construction that conflict with this Decision shall be revoked.

Article 12. Provincial People's Committees, agencies and units with transportation construction projects, and specialized management agencies, and General Companies of the Ministry of Transport shall be responsible for disseminating this Regulation to subordinate units for implementation.

Article 13. The Bureau of Inspection and Quality Control for Transportation Construction Projects of the Ministry of Transport shall be responsible for inspecting, urging, and reporting to the Minister on the implementation of this Regulation.

Article 14. During the implementation process, if encountering difficulties, relevant agencies and units shall promptly report to the Ministry of Transport in writing for research, amendment, and supplementation to ensure compliance./.