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Decree No.12/2009/ND-CP dated February 12, 2009 of the Government on management of investment projects on the construction of works
22/04/2011
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THE GOVERNMENT
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No. 12/2009/ND-CP

Hanoi, February 12, 2009

 

DECREE

ON MANAGEMENT OF INVESTMENT PROJECTS ON THE CONSTRUCTION OF WORKS

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the November 26, 2003 Construction Law;

At the proposal of the Minister of Construction,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree guides the implementation of the Construction Law regarding the formulation, evaluation and approval of investment projects on the construction of works; the implementation of investment projects on the construction of works; and capability conditions of organizations and individuals engaged in construction activities.

The formulation, evaluation and approval of investment projects on the construction of works funded with official development assistance (ODA) comply with the laws on construction and ODA management and use.

Article 2. Categorization and stale management of investment projects on the construction of works

1. Investment projects on the construction of works (below collectively referred to as projects) shall be categorized as follows:

a/ By size and nature: national important projects in which investment is considered and decided by the National Assembly; other projects which are categorized into groups A, B and C as specified in Appendix I to this Decree;

b/ By investment capital source:

- State budget-funded projects;

- Projects funded with state-guaranteed credit or the State's development investment credit;

- Projects funded with development investment capital of state enterprises;

- Projects funded with capital of other sources, including private capital or capital of mixed sources.

2. Investment in the construction of works must be in line with the socio-economic development master plan, branch plannings or construction plannings, ensure security, social and environmental safety, and comply with the land law and other relevant laws.

3. In addition to the provisions of Clause 2 of this Article, depending on sources of capital used for projects, the State shall also manage projects under the following regulations:

a/ For state budget-funded projects, including component projects, the State shall manage the entire process of construction investment, from identification of investment policies, project formulation, investment decision, designing, estimation, contractor selection, construction to test, take-over and putting of works into operation or use;

b/ For enterprises' projects funded with state-guaranteed credit, the State's development investment credit or development investment capital of state enterprises, the State shall manage them in terms of investment policy and scope. Enterprises having these projects shall themselves organize the implementation and management of the projects in accordance with this Decree and other relevant laws;

c/ For projects funded with capital of other sources, including private capital, investors shall decide by themselves on forms and contents of project management. For projects funded with capital of mixed sources, capital contributors shall reach agreement on methods of management, or manage these projects under regulations applicable to the capital source which accounts for the highest percentage (%) in the total investment.

4. For projects or group-A projects of national importance consisting of different component projects, if each component project can be independently operated or implemented in different investment phases, it may be managed and implemented like an independent project. The investment decider may decide on the division of a project into component projects.

Article 3. Investors in the construction of works

Construction investors are owners of capital or persons assigned to manage and use capital for investing in the construction of works, specifically:

1. For state budget-funded projects, their investors shall be decided by investment deciders in accordance with the State Budget Law before formulating investment projects on the construction of works.

a/ For projects in which investment is decided by the Prime Minister, their investors may be any of the following agencies and organizations: ministries, ministerial-level agencies, government-attached agencies and other central agencies (collectively referred to as ministerial-level agencies). People's Committees of provinces and centrally run cities (collectively referred to as provincial-level People's Committees) and state enterprises:

b/ For projects in which investment is decided by ministers, heads of ministerial-level agencies or presidents of People's Committees at all levels, their investors may be managers or users of works.

In case managers or users of works cannot be identified yet or managers or users of works are ineligible for acting as investors, investment deciders may assign eligible units to act as investors. In case managers or users of works are ineligible for acting as project investors, units assigned to manage or use works shall appoint persons to join investors in formulating projects, designing, monitoring, managing, testing, receiving and putting works into operation or use:

c/ In case investors cannot be identified under Point b of this Clause, investment deciders may authorize other eligible units to act as investors or may concurrently act as investors.

2. For credit-funded projects, borrowers may act as investors.

3. For projects funded with capital of other sources, investors may be owners of capital or representatives as prescribed by law.

Article 4. Investment supervision and assessment for investment projects on the construction of works

1. Projects with state capital accounting for over 50% of their total investment are subject to investment supervision and assessment. For projects funded with capital of other sources, the investment supervision and assessment shall be decided by investment deciders.

2. Investment supervision and assessment requirements and contents include:

a/ Assessment of the project efficiency and feasibility;

b/ Supervision and assessment of the project implementation by investors against the contents approved by competent authorities, and of the observance of regulations on construction investment:

c/ Identification, through investment supervision and assessment, of problems, and adjustment of projects and submission of proposals or recommendations to competent authorities for handling to ensure the project efficiency and feasibility.

3. Organization of investment supervision and assessment:

a/ Investment deciders or persons authorized to issue investment decisions shall organize investment supervision and assessment. Particularly for projects in which investment is decided by the Prime Minister, line ministries shall organize investment supervision and assessment. For projects of which investment supervision and assessment are organized by ministers, heads of ministerial-level agencies or presidents of provincial-level People's Committees, their implementation must be reported to the Ministry of Planning and Investment for synthesis and further reporting to the Prime Minister;

b/ The Ministry of Planning and Investment shall guide the investment supervision and assessment of projects; synthesize the investment supervision and assessment situation nationwide and periodically report thereon to the Prime Minister.

Chapter II

FORMULATION, EVALUATION AND APPROVAL OF INVESTMENT PROJECTS ON THE CONSTRUCTION OF WORKS

Article 5. Making of investment reports on the construction of works (pre-feasibility study reports) and application for investment licenses

1. For projects of national importance, investors must make investment reports on the construction of works and submit them to the National Assembly for consideration of and decision on investment policies. For other projects, investors are not required to make investment reports.

2. An investment report on the construction of works covers:

a/ The necessity to invest in the construction of the work, advantages and disadvantages; regulations on exploitation and use of national resources, if any;

b/ The projected investment scope: capacity, construction area; work items; the projected location of the work and land use demand;

c/ Analysis and preliminary selection of technologies and technical specifications; conditions of the supply of supplies, equipment, raw materials and energy, the provision of services, and technical infrastructure; the ground clearance and resettlement plan, if any; the project's impacts on the environment and ecology, fire and explosion prevention and fighting, security and defense;

d/ The form of investment, initial projection of the total investment, the project implementation duration, the capital-raising plan according to implementation schedule, the project's socio-economic benefits, and investment phases, if any.

Article 6. Formulation of investment projects on the construction of works (feasibility study reports)

1. When investing in the construction of works, investors shall formulate and submit investment projects to investment deciders for evaluation and approval, except the following

cases:

a/ Works only subject to formulation of econo-technical reports on the construction of works as specified in Clause 1, Article 13 of this Decree;

b/ Construction works which are people's individual houses as specified in Clause 5, Article 35 of the Construction Law.

2. A project is composed of explanations as specified in Article 7, and a basic design as specified in Article 8, of this Decree.

3. For projects not included in branch plannings already approved by competent authorities, before formulating investment projects on the construction of works, investors shall report them to line ministries or localities as decentralized for consideration and approval of planning supplementation according to their competence, or submit the planning supplementation to the Prime Minister for approval.

The location and size of a work must conform with the approved construction planning. For a project not included in any construction planning, its location and size must be approved in writing by the provincial-level People's Committee, for group-A projects, or an agency with the planning competence, for projects of groups B and C. The time limit for considering and approving branch or construction planning compliance is 15 working days.

Article 7. Details of explanations of an investment project on the construction of works

1. The investment necessity and objective; assessment of the market demand, sale of products, for production and business projects; product competitiveness; social impacts (if any) on the locality or region; the form of construction investment; the construction location and land use demand: conditions of the supply of raw materials, fuel and other input elements.

2. Description of the work's size and construction area, work items; analysis and selection of technical plans, technologies and capacity.

3. Implementation solutions, including:

a/ The general plan on ground clearance and resettlement and the plan to support technical infrastructure construction, if any;

b/ Architectural design plans, for works in urban centers and works subject to architectural requirements;

c/ The plan on the project operation and labor use;

d/ Implementation phases and schedules and the form of project management.

4. Assessment of environmental impacts, fire and explosion prevention and fighting measures, and security and defense requirements.

5. The project's total investment; the capital arrangement capacity, capital sources and the capacity to allocate capital according to implementation schedule; the capital repayment plan, for projects with capital recovery requirements, and analysis and assessment of the project's economic-financial and social benefits.

Article 8. Details of the basic design of an investment project on the construction of works

1. Basic design means a design made during the formulation of an investment project on the construction of works on the basis of the selected design plan, which must indicate major technical specifications conformable with applicable regulations and standards, as a basis for carrying out subsequent designing steps.

A basic design consists of explanations and drawings.

2. A basic design's explanations cover:

a/ A brief description of the construction location, the design plan: the work's general plan or the plan on work lines, for works to be constructed in lines; locations and sizes of work items; connection among work items and to the region's technical infrastructure;

b/ The technological plan and chain, for works subject to technological requirements;

c/ The architectural plan, for works subject to architectural requirements;

d/ The work's major structure plan, technical and technical infrastructure systems;

dd/ Environmental protection and fire prevention and fighting plans as prescribed by law;

e/ A list of applicable major regulations and standards.

3. A basic design's drawings cover:

a/ The drawing of the work's general plan or the drawing of the plan on work lines, for works to be constructed in lines;

b/ The technological plan and the technological chain drawing, for works subject to technological requirements:

c/ The architectural plan drawing, for works subject to architectural requirements;

d/ Drawings of the work's major structure plan, technical and technical infrastructure systems, connection to the region's technical infrastructure.

Article 9. Dossiers of investment projects on the construction of works to be submitted for evaluation

A dossier of an investment project on the construction of works to be submitted for evaluation comprises:

1. A report of project evaluation, made according to a set form {not printed herein);

2. The project, comprising explanations and a basic design.

3. Relevant legal documents.

Article 10. Competence to evaluate investment projects on the construction of works

1. Investment deciders shall evaluate projects before approving them. In charge of project evaluation are professional units under investment-deciding authorities. Project evaluation units shall seek opinions of state management agencies on basic designs under Clause 6 of this Article and of other concerned agencies in order to evaluate projects. Investment deciders may hire consultants to verify a number or all of the contents specified in Clauses 1 and 2, Article 11 of this Decree.

For projects of which investment decision has been decentralized or authorized, decentralized or authorized persons shall evaluate these projects.

2. The Prime Minister shall set up the State Council for Evaluation of Investment Projects to evaluate projects falling under his investment-deciding competence, and other projects, when finding it necessary. The Minister of Planning and Investment shall act as the chairman of the State Council for Evaluation of Investment Projects.

3. For state budget-funded projects:

a/ Ministerial-level agencies shall evaluate projects falling under their investment-deciding competence. In charge of project evaluation are professional units under investment deciders;

b/ Provincial-level People's Committees shall evaluate projects falling under their investment-deciding competence. Provincial-level Planning and Investment Services shall take charge of project evaluation.

District- or commune-level People's Committees shall evaluate projects falling under their investment-deciding competence. In charge of project evaluation are units with the budget plan-managing function under investment deciders.

4. Investment deciders may themselves evaluate other projects.

5. The evaluation of investment projects on the construction of specific works complies with the Government's Decree on management of investment in the construction of specific works.

6. The evaluation of a basic design shall be conducted simultaneously with but not separately from the evaluation of an investment project.

State management agencies responsible for giving opinions on basic designs include:

a/ Ministries managing specialized construction works, for projects of national importance and group-A projects;

b/ Provincial-level Services managing specialized construction works, for projects of groups B and C.

The Ministry of Construction shall issue a circular defining the competence and responsibility of the above agencies to give opinions on basic designs.

7. The time limit for evaluating a project is counted from the date of receipt of a complete and valid dossier, specifically:

a/ 90 working days, for projects of national importance;

b/ 40 working days, for group-A projects;

c/ 30 working days, for group-B projects;

d/ 20 working days, for group-C projects.

Article 11. Contents of evaluation of an investment project on the construction of works

1. Examination of elements assuring the project efficiency, such as the necessity of investment; input elements; size, capacity, technologies, implementation duration and schedule; financial analysis, total investment, and socio-economic benefits.

2. Examination of elements assuring the project feasibility, such as compliance with planning: demands for use of land or natural resources (if any); ground clearance and capital-raising capabilities according to the project schedule; the investor's managerial experience: loan repayment ability; fire prevention and fighting measures; factors affecting the project, such as defense, security and environment, and other relevant regulations.

3. Examination of the basic design, covering:

a/ The basic design's conformity with the approved detailed construction planning general plan; the basic design's conformity with the plan on selected work lines, for works to be constructed in lines; the basic design's conformity with the approved construction location and size and planning criteria, for works to be constructed in areas without approved detailed construction plannings;

b/ The compatibility of the connection to the region's technical infrastructure;

c/ The rationality of the technological plan or chain, for works subject to technological requirements;

d/ The application of regulations and standards on construction, environment and fire prevention and fighting;

dd/ Construction capability conditions of consultants or practicing capability of basic design makers as required.

Article 12. Competence to decide on investment in the construction of works

1. For state budget-funded projects:

a/ The Prime Minister shall decide on investment in projects of national importance under the National Assembly's resolutions and other important projects;

b/ Ministers or heads of ministerial-level agencies shall decide on investment in projects of groups A, B and C and may authorize or decentralize their subordinates to decide on investment in projects of groups B and C;

c/ Presidents of People's Committees at all levels shall decide on investment in projects of groups A. B and C within the limits and balancing capacity of local budgets after consulting People's Councils of the same level. Provincial-or district-level People's Committee presidents may authorize or decentralize their subordinates to decide on investment in projects of groups B and C;

d/ Depending on local practical conditions, provincial-level People's Committee presidents shall assign district- or commune-level People's Committee presidents to decide on investment in projects funded with budgets of superior levels.

2. Investors shall themselves decide on investment in. and take responsibility for. Projects funded with capital of other sources or mixed sources.

3. Persons with the investment-deciding competence may issue investment decisions only when project evaluation results are available. Particularly for credit-funded projects, capital lenders shall, before competent persons issue investment decisions, appraise financial and debt payment plans before approving or disapproving the provision of loans.

4. A decision on investment in the construction a work shall be made according to a set form (not printed herein).

Article 13. Econo-technical reports on the construction of works

1. When investing in the construction of the following works, investors are not required to formulate investment projects but shall make only econo-technical reports on the construction of works for submission to investment deciders for approval:

a/ Works constructed for religious purposes;

b/ Construction, renovation, repair or upgrading works capitalized at under VND 15 billion (excluding land use levies) in compliance with socio-economic development, branch or construction plannings. unless investment deciders require the formulation of investment projects.

2. Details of an econo-technical report on the construction of a work are specified in Clause 4, Article 35 of the Construction Law.

 

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