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MINISTRY Of CONSTRUCTION SOCIALIST REPUBLIC Of VIETNAM
Independence-freedom-Happiness
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Hanoi, 14 December 1994.
- Based on Decree 177/CP dated 20 October 1994 of the Government on the promulgation of Rules for Management of Investment and Construction;
- With the purpose to make a guidance on the implementation of Article 40 of Rules for the Management of Investment and Construction which provides for the maintenance of construction works;
DECIDES
Article 1
To promulgate in conjunction with this Decision "Rules for Maintenance of Construction Works" to replace Rules for the Maintenance of Construction Works which was issued by the State Committee for Capital Construction along with Decision 13/ BXD dated 17 January 1986 of the Ministry of Construction.
Article 2
This Decision shall come into force from the signing date
Article 3
Ministry level authorities managing specific branches of construction (including industrial construction, civil construction, communication construction, water conservancy works, mining sites, electric power supply lines and tran sforming stations and post office structures etc.) shall give detailed guidance for the maintenance of construction works in conformity with each branch's specific features and shall study and work out maintenance terms for each specific works of their respective Branch but these shall in any event not be lower than those stipulated in these Rules.
for the Ministry of Construction Minister
NGO XUAN LOC (Signed)
Article 1
Definitions
Wordings in these Rules shall have the following meanings:
1. "Maintenance of construction works" means the maintenance in respect of the construction of such works the development of which has been completed and which have been put into exploitation or use for pre-determined purposes.
2. "Maintenance duration" means in respect of construction works such duration which is determined by State agencies to be necessary to ensure the stable exploitation, usage and operation of the works, satisfying required specifications and standards determined for such works (as approved by the competent State authorities).
3. "Responsibility for the maintenance of construction works" means responsibility of construction organizations or companies in relation thereto, according to which, construction organizations/companies are obliged to repair within t he maintenance term any defect caused by them to the given works(s).
Responsibility of surveying and designing organizations/companies are not provided for in these Rules for the quality maintenance of their product but they are wholly responsible within the law for the quality of their product and res ults of work done by them. Maintenance in respect of materials and equipment which are listed as industrial product shall be provided for by the Ministry of Science, Technology and Environment in another regulatory document.
4. "Classification of construction works" means the classification of construction projects in A, B, C groups in accordance with Article 5 of the Rules for the Management of Investment and Construction promulgated along with the Gove rnment's Decree 177/CP dated 20 October 1994.
Group A projects: See section I of the Schedule of classification of Investment Projects;
Group B projects: See Section II of the same;
Group C projects: These are projects which do not belong to Groups A or B
5. "Expenses for the maintenance of construction works " means the expenses representing the percentage value deducted from the total value of the construction work, which is used for the purpose of repairing all the defects caused to the works by construction organizations during the relevant maintenance term.
Article 2
Purpose of the maintenance The maintenance of construction works is an obligation based on the law and the economic contract entered into between the project investor and contracting organization, which aims to protect the project investor's intere sts and to determine the contracting organization's obligations under the law in relation to the quality of their work. The contracting organization has an obligation to repair all defects caused by it to the construction works during the m aintenance term.
Article 3
Determining the maintenance terms
All construction works shall have to be maintained for a certain term which is called the maintenance term. The maintenance term is calculated from the date of which the works is completely transferred to the project investor (or the users) and on which all construction activities are completed, to the expiration of the maintenance term. The maintenance term has to be indicated in the economic contract signed by the project investor and other parties thereto.
Article 4
Duration of maintenance terms
The maintenance term shall be 24 months for Group A projects, 18 months for Group B projects, and 12 months for Group C projects.
Ministry level authorities managing specific branches of construction (including industrial construction, civil construction, communication construction, water conservancy works, mining sites, electric power supply lines and trans forming stations, post office structures, agriculture and forestry projects etc.) shall specify the maintenance terms for each specific work of their respective Branch but these terms shall in any event not be lower than those stipulated in these Rules.
Article 5
Maintenance expenses
Maintenance expenses for construction works are calculated at 5% of the total value of that construction work. The project investor and the construction organization shall, upon signing the economic contract, decide at which bank the mai ntenance expenses shall be deposited. The payment of the maintenance expenses shall be made in two installments:
*first installment: payment of an amount equal to 2% of the total value of the construction work shall be made to the bank upon payment of 50% of such value.
*Second installment: payment of the remaining 3% shall be made to the bank upon payment of the remaining 50% of the total value of the construction work.
Article 6
Repayment of maintenance expenses
The maintenance expenses deposited at the bank shall be repaid to the construction organization as follows:
- In the middle of the maintenance term, provided there is no defect caused by the construction organization to the construction work, the amount equal to 2% of the total value of the construction work shall be paid to the construction org anization together with any interest thereon;
- On the expiration of the maintenance term, provided there is no defect caused by the construction organization to the construction work, the amount equal to 3% of the total value of the construction work shall be paid to the construction org anization together with any interest thereon.
Article 7
Exemption from responsibility for the maintenance of construction work
The construction organization shall not be responsible for quality maintenance in respect of the construction work in the following cases:
1. A measure has been taken by the competent State authorities during the maintenance term, requiring that the work be demolished in whole or in part, reasons for which are justified not by the bad quality of the work but by Ma ster planning requirements or otherwise by the change of usage of the land on which the work has been developed;
2. A defect is identified which is not caused by the construction organization.
Article 8
Maintenance documentation
Maintenance documentation shall comprise:
- A certificate from the bank confirming that a relevant amount of maintenance expenses has been deposited at the bank;
- (Copy) economic contract entered into by the project investor and the construction/contracting organization;
- Consultation opinion on the results of the quality examination carryout out by the relevant State quality examination agency (if any) in respect of any defect caused to the work during the maintenance term of such work;
- The project investor's acceptance made in respect of the work or part of it as repaired or restored to the previous state by the construction organization;
- A balance sheet of expenses spent on the repair work carried out in the maintenance term;
- Other documents relating to the maintenance of the construction work.
The maintenance documentation shall be made in three copies, one of which is kept by the project investor, one kept by the construction organization, and one by the bank at which the maintenance expenses are deposited.
Article 9
Overpayment of maintenance expenses
In the cases where expenses for repairing construction works during the maintenance term exceed 5% of the total value of the construction works, the project investor has the right to refer the matter to the relevant jurisdiction for res olution and compensation.
Chapter II RIGHTS AND OBLIGATIONS Of THE PARTIES RELATING TO THE MAINTENANCE Of CONSTRUCTION WORKS
Article 10
Rights and obligations of the parties relating to the maintenance of construction works
Rights and obligations of the parties relating to the maintenance of construction works are determined in the economic contract entered into between them in conformity with the stipulations of these Rules.
1. Rights and obligations of the project investor
a/ To ask the construction organization to carry out the maintenance in respect of the construction works as agreed upon in the economic contract signed between them;
b/ to comply with all necessary guidance on the exploitation and usage of the work given by those who surveyed, designed, and developed the work;
c/ Where there is a serious defect of any part of the work during the maintenance term, to take any measures as may be relevant and in his capability to minimize the defect and promptly serve a notice of the case to all relevant surveyor s, design and construction organizations so that the latter shall be present at the site as soon as practicable and, together with the project investor, set up a process verbal on the case.
d/ Not to hire, at his own discretion and during the maintenance term, any organization other than that responsible for the maintenance of the work, for the purpose of carrying out the maintenance in respect of the work, excep t as otherwise agreed upon in writing by the organization responsible for that.
2. Rights and obligations of the organization responsible for the maintenance
a/ To perform duly and in full all their obligations stipulated in the economic contact entered into between it and the project investor and in these Rules;
b/ To co-operate with and assist the project investor in taking measures for minimizing any possible while exploiting or using the work'
c/ To repair any defects caused by themselves during the maintenance term;
d/ To refuse to repair any defects not caused by themselves and refer the issue to relevant State quality examination agencies for settlement;
e/ To perform their maintenance obligations as stipulated in the bankruptcy laws and other related regulations in cases where the construction organizations go bankrupt.
Article 11
Responsibilities of the parties after expiration of the maintenance term
If after expiration of the maintenance term a break down or defect is identified which resulted from a serious technical error in engineering work which considerably reduced the quality of the work or caused the work to be seriously def ective or collapse in part or in whole, then the constructing/contracting organizations shall nonetheless be responsible under the law for the matter in accordance with Clause 1 Article 40 of the rules for the Management of Inves tment and Construction issued along with decree 177/CP of the Government dated 20 October 1994.
Chapter III PROCEDURE fOR THE PERfORMANCE Of RIGHTS AND OBLIGATIONS RELATING TO THE MAINTENANCE Of CONSTRUCTION WORKS AND SETTLEMENT Of DISPUTES ARISING IN CONNECTION THEREWITH.
Article 12
Procedure for carrying out the maintenance of construction works
1. When during the maintenance term defect is identified, the project investor shall:
a/ Set up the documentation (for instance, making a picture or photograph) as necessary to record the situation of the work at that moment;
b/ Identify (on his own or through a constancy organization hired for that purpose) what are the reasons for the defect, and who will be responsible for the same;
c/ if the responsibility is on the part of the construction organization ,serve a notice of the case to the construction organization and the bank where the maintenance expenses are deposited, requesting that the maintenance be carried out.
2. The construction organization and the bank shall, after receipt of the project investor's notice, promptly sent its technician (s) to the site who will examine the situation and together with the project investor set up a process verbal on th e occurrence.
After the parties, based on the economic contract entered into between them, have agreed on the carrying out the maintenance, the construction organization shall commence the repairs. The bank shall confirm assumption of expenses for the repair and then, after confirmation by the project investor, pay the maintenance expenses together with all interest thereon to the construction organization.
3. After the repair is completed, the project investor, the construction organization and the bank shall set up a process verbal confirming their acceptance in respect of the work done. One copy each of this process verbal shall be kept one b y the project investor, the bank and the construction organization.
4. The time limit for the repair work in respect of defects caused to construction works during the maintenance term to commence, beginning from the date the carrying out of repair is agreed upon, is stipulated as follows:
a/ No later than 15 days for non-serious defects;
b/ No later than 30 days serious defects not threatening to cause a danger to persons and estate;
c/ As soon as possible if the defects are serious and an imminent chance of causing danger;
d/ In the event of any breach of such time limits by the construction organization responsible for the maintenance, the project investor has the right to hire another organization for that purpose, of which he has to give a not ice to the bank, and expenses for such work shall be covered by deducting from the maintenance expenses paid to the bank by the construction organization responsible for the maintenance of the work.
Article 13
Dispute settlement and rights and obligations of organizations carrying out the maintenance works
1. Any disputes arising in connection with identifying the reasons for any defects caused to the construction works shall be referred for settlement to the competent State authorities, namely:
- Ministry of Construction, who are in charge for Group A projects; and
- Municipal/Provincial department of construction, who are in charge for Group B and Group C projects which have been built up in the territory of such city/province.
2. In the event expenses for repairing work exceed the maintenance expenses the project investor may file his application to a relevant justice department for settling and resolving.
for the Ministry of Construction
NGO XUAN LOC (Signed)