Thông tư 01/2012/TT-BXD

CIRCULAR

GUIDANCE ON CONTRACTUAL LICENSING PROCEDURES AND MANAGEMENT OF FOREIGN CONTRACTORS OPERATING CONSTRUCTION IN VIETNAM

Pursuant to Decree No. 17/2008/ND-CP dated February 04, 2008 of the Government stipulating functions, duties, powers and organizational structure of the Ministry of Construction;

Pursuant to Decision No. 87/2004/QD-TTg dated May 19, 2004 of the Prime Minister promulgating the Regulation on the management of operations of foreign contractors in the constructional sector in Vietnam;

Pursuant to Decision No. 03/2012/QD-TTg dated January 16, 2012 of the Prime Minister on amendment and supplement of some articles of the Regulation on management of operations of foreign contractors in the constructional sector in Vietnam, promulgated together with Decision No. 87/2004/QD-TTg dated May 19, 2004 of the Prime Minister;

The Ministry of Construction issues guidelines on procedures for granting the contracting licenses and management of foreign contractors operating their construction in Vietnam as follows:

Article 1. Dossier for granting the contracting license for organizations

The contractors shall submit in person or by mail of 01 set of original dossier and 01 set of copied dossier at the contracting licensing agency; each set of dossier consists of:

1. An application for contracting license in the form in Appendix 1 of this Circular.

2. A certified copy of documents on the bidding result or contractor selection decision or legal contract of contracting delivery.

3. The certified copy of the Certificate of establishment (or Certificate of Business Registration of Organization) and the Certificate of practice (if any) granted in the country where the foreign contractor has citizenship.

4. The report on experience in construction operation related to the contracting work in the form in Appendix 2 of this Circular and report on the annual audit result of the last 3 years ( For the case the contractor receives the performance of the tender package not subject to required application of the regulations of the Vietnamese law on tender.

5. Contract or joint-venture agreement with Vietnamese contractors for the case the joint-venture contract has been signed upon tendering or tender offering. The contract with Vietnamese sub-contractors in case the list of Vietnamese sub-contractors was identified upon tendering or tender offering.

In case the sub-contractors have not been identified upon tendering or contractor selection, there must be a contract or agreement in principle with Vietnamese sub-contractors attached to a written consent of the investor.

6. The legal Power of attorney with respect to persons who are not legal representative of the contractor in the form in Appendix 3 of this Circular.

The application for contracting license must be written in Vietnamese, the Certificate of establishment or the Certificate of Business Registration of foreign countries must be legalized consular except for the case international Convention in which Vietnam and the concerned countries are members has regulations on exemption from consular legalization. The documents and materials as prescribed in clause 2, 3, 5 and 6 of this Article if written in foreign language, they must be translated into Vietnamese and the translation version must be notarized and certified in accordance with the laws of Vietnam.

For dossier for granting contracting license arising in the same year, the dossier is not necessary to include the documents stated in clause 3 and 4 of this Article.

Article 2. Dossier for granting contracting license for individuals

The contractors shall submit in person or by mail of 01 set of original dossier and 01 set of copied dossier at the contracting licensing agency, each set of dossier consists of:

1. An application for contracting license in the form in Appendix 4 of this Circular.

2. A certified copy of documents on the bidding result or contractor selection decision or legal contract of contracting delivery.

3. The certified copy of the Certificate of operation or the Certificate of consultancy practice granted in the country where the foreign contractor has citizenship and copy of individual passport.

4. Personal resume and occupation (self-declared) together with the copy of contract on relevant works performed in the past 3 years.

The application for contracting license must be written in Vietnamese, the copy of Certificate of operation or the Certificate of consultancy practice issued by foreign country must be consular legalized except for the case international Convention in which Vietnam and the countries concerned are members has regulations on exemption from consular legalization. The documents and materials in foreign language must be translated into Vietnamese and the translation version must be notarized and certified in accordance with the laws of Vietnam.

For dossier for granting contracting license arising in the same year, the dossier is not necessary to include the documents stated in clause 3 and 4 of this Article.

Article 3. Process of granting the contracting license

1. Within 5 days from the date of receiving the dossiers, the licensing agency is responsible for reviewing the dossier. In case the dossier is not proper and insufficient as prescribed, the contractors must be noticed and guided one time in writing for supplement and completion of dossier as prescribed.

2. Within 15 working days after receiving valid dossiers as prescribed, the licensing agency will review and grant the contracting license to the contractor, If the dossier is not qualified as prescribed to be licensed, the licensing agency must notify in writing to the contractor.

3. The contracting license granted to the contractor being organization is in the form in Appendix 5 and to the contractor being individual is in the form in Appendix 6 of this Circular.

4. The contractor is responsible for paying the fee upon receipt of contracting License and adjusting License as prescribed in Circular No. 33/2012/TT-BTC dated March 01, 2012 of the Ministry of Finance guiding the collection, remittance and management of fee using in the sector of construction.

Article 4. Adjusting the contracting license

1. After being granted contracting license, if there is any change on the contractor’s name and address, change of partners in the joint venture or subcontractors or other contents written in the contracting license granted, the contractor must send in person or by mail 01 set of dossier to the agency granting the contracting license for consideration and adjustment of the contracting license.

The contracting license is adjusted in the form in Appendix 07 of this Circular.

2. Dossier requesting for adjustment consists of:

a) An application for adjustment of the contracting license in the form in Appendix 8 of this Circular.

b) The documents evidencing the contents requested for adjustment. The documents must be translated into Vietnamese and certified in accordance with the regulations of Vietnamese law.

3. The time for adjustment of contracting license is realized within 15 working days from the time receiving valid dossier.

Article 5. Authority to issue, modify and revoke contracting license

1. The Ministry of Construction will grant contracting license to the foreign contractors being organizations undertaking bidding packages under projects of Group A and other bidding packages under projects in the area of two or more provinces; adjust and revoke contracting license granted by the Ministry; request the Department of Construction to revoke the contracting license if the bidder violates or the contracting license granted by the Service is not in conformity with regulation.

2. The local Department of Construction will grant contracting license to the foreign contractor being organizations undertaking bidding packages under projects of Groups B, C at the locality in local and foreign contractors being individuals in the implementation of construction investment advisory works in the locality where the project shall be performed or where the project investor registers its head office. At the same time, modify, revoke contractor licenses issued by the Department.

Article 6. Regulations on report

1. Periodically on June and December 20 annually, the contractor has responsibility to send report to the licensing agency and the Department of Construction where the project is being implemented, on the situation of contract implementation in the form in Appendix 9 of this Circular.

2. Periodically on June and December 20 annually, the Department of Construction will make report to the Ministry of Construction on the situation of granting, adjustment and revocation of contracting license and operation of foreign contractor in locality in the form in Appendix 10 of this Circular.

Article 7. Regulations on management office

1. After being granted contracting license, the contractor is responsible for establishing the management office( office lease contract or establishment of management office at the place where the project is being implemented); registering address, phone and fax number, email of the management office with managing agencies of these areas.

For contracts making constructional plan and project of constructional investment, constructional survey, design of work construction, the contractor may set up management office at the place where the project owner’s head office is registered.

For a contract performing construction, supervision of work construction going through many provinces, the contractor can set up management office at a locality where the work is performed for operating the implementation of the work.

2. After the completion of the registration of the contents of the management office, the contractor shall notify in writing to the Department of Construction where the management office is set up, the Ministry of Construction and agencies concerned as prescribed in Article 7 of Decision No. 87/2004/QD-TTg and Decision No. 03/2012/QD-TTg in the form in Appendix 11 of this Circular. In case there is change on information of the management office, the contractor must notify these above agencies.

Article 8. Cases of not allowed to grant contracting license

1. The contractor will not be considered for contracting license when:

a) Failing to use the Vietnamese subcontractors as stated in the dossier previously-granted contracting license

b) Failing to performe regulation on report from 3 periods or more as prescribed in this Circular for the works of tendering receipt under the contracting license previously-granted.

c) Violating provisions of concerned law, such as regulations on employment, occupational safety, tax payment and work quality, ... and has been penalized for violating these regulations from two or more times.

2. The contractor is suspended the work being carried out when:

a) Failing to use Vietnamese subcontractor under contract signed in the dossier requesting for contracting license and only entitled to keep on implementing project upon using Vietnamese subcontractor as signed in contract.

b) Failing to comply with regulations of the concerned law;

Article 9. Cases being revoked contracting license

The contractor is revoked contracting license when:

1. Failing to remedy violations after received the written requests of the involved State management agencies from 2 times or more.

2. Having been penalized for administrative violations for work under the contracting license granted from the 3rd time or more.

Article 10. Implementation organization

1. This Circular will supersede the Circular No. 05/2004/TT-BXD dated September 15, 2004 of the Ministry of Construction and will take effect on June 26, 2012.

2. The concerned the agencies, organizations and individuals are liable to execute this Circular. During the course of implementation, if there is any problem and difficulty arising, promptly report to the Ministry of Construction for settlement.

ANNEX 1

THE APPLICATION OF REQUEST FOR CONTRACTOR’S LICENSE

 (Applicable to contractors being organizations)

 (Promulgated together with the Circular No. 01/2012/TT-BXD dated May 08, 2012 of the Ministry of Construction)

Document No. : ...................

.........., date ...... month ...... year........

I am : (Full name)                                       Position :

Authorized by Mr. (Mrs) :            Under the power-of-attorney (attached to this application)

Represented for :

Address registered in original country :

Tel. No.:                                                    Fax:                              Email:

Address of representative office in Vietnam:

Tel. No.:                                                   Fax:                              Email:

Our company is announced by the investor (or prime contractor, in case subcontractor making application) named ……………..of the tender win (or being selected as contractor) and become the prime contractor (or subcontractor) to perform the work of…….under the Project………..at…………….during the time from …………….to…………

We would like to request the Ministry of Construction of the Socialist Republic of Vietnam (or Service of Construction) to consider and grant us the contractor’s license for performing the above tender.

The attached dossier including:

1- The documents prescribed in Article 1 of this Circular

2- The copy of Decision on project approval (for the case to request the grant of contractor’s license for the performance of work of project deployment phase) or certificate of investment or document of investment policy approval (for the case to request the grant of contractor’s license for project and constructional planning formulation).

If our dossier needs supplementing or clarifying additional information, please inform Mr. (Mrs.) ………with address in Vietnam………………Tel.No…………………..Fax…………..

Email ................

Upon being granted the contractor’s license, we undertake to fully implement all provisions in the license and relevant regulations of Vietnam’s law

ANNEX 2

Company .................

REPORT

THE WORKS / PROJECTS IMPLEMENTED IN THE LAST 3 YEARS

 (Promulgated together with the Circular 01/2012/TT-BXD dated May 08, 2012 of the Ministry of Construction)

ANNEX 3

(Promulgated together with the Circular 01/2012/TT-BXD dated May 08, 2012 of the Ministry of Construction)

POWER-OF-ATTORNEY

Based on the tender winning announcement (or contract) No…..date……month…..year………between the investor (or the prime contractor) is………….with the company……………..

I am :

Position :....................

Hereby authorizing Mr/Mrs.............................

Position :…………………………..

Passport No.: …………………….. Nationality: ………………..

Mr/Mrs............      is entitled to sign the papers and make procedures for the request of the bid package licensing.

ANNEX 4

REQUEST APPLICATION FOR CONTRACTOR’S LICENSE 

 (Applicable to the contractor being individuals)

 (Promulgated together with the Circular 01/2012/TT-BXD dated May 08, 2012 of the Ministry of Construction)

To: Mr. Director of Service of Construction................

I am : (Full name)                                                       Occupation :

Passport No.:                                                 (copy attached to this application)

Address registered in original country 

Tel.No.:                                        Fax:                                          Email:

Address in Vietnam (if any)

Tel.No.:                                        Fax:                                          Email:

I am notified by the investor (or prime contractor) who is ………..of tender win (or being selected as contractor) for the work of…………..under the project ……………………….at…………..

During the time from……………..to………………..

I would like to request the Service of Construction …………….to consider and grant me the contractor’s license for performing the work above mentioned.

The attached dossier including:

1- The documents prescribed in Article 2 of this Circular

2- The copy of Decision on project approval (for the case to request the grant of contractor’s license for the performance of work of project deployment phase) or certificate of investment or document of investment policy approval ( for the case to request the grant of contractor’s license for project and constructional planning formulation).

If our dossier needs supplementing or clarifying additional information , please inform Mr. (Mrs.) ………with address in Vietnam………………Tel. No..…………………..Fax…………..

Email ................

 Upon being granted the contractor’s license, we undertake to fully implement all provisions in the license and relevant regulations of Vietnam’s law

ANNEX 8

REQUEST APPLICATION FOR ADJUSTMENT OF CONTRACTOR’S LICENSE

(Promulgated together with the Circular 01/2012/TT-BXD dated May 08, 2012 of the Ministry of Construction)

Document No. : ...................

.........., date ...... month...... year ........

I am : (Full name)                                   Position :

Has been authorized by Mr/Mrs :           Under the power-of-attorney  (attached to this application)

Represented for :

Address registered in original country :

Tel. No.:                                                    Fax:                              Email:

Address of representative office in Vietnam:

Tel. No.:                                                    Fax:                              Email:

Our company has been granted the contractor’s license No. ….by the Ministry of Construction (Service of Construction) on date…………to perform the bid package…………under the project…………We hereby request the adjustment of the contractor’s license granted with the content:………………

Reason for adjustment request:

We would like to request the Ministry of the Socialist Republic of Vietnam (or Service of Construction) to consider and adjust the contractor’s license that has been granted to our company with the content above mentioned.

The attached dossier including:

1- The granted contractor’s license

2- Documents proving the content to be adjusted

3- The written approval of the investor (prime contractor in case the contractor requesting adjustment is the subcontractor)

 If our dossier needs supplementing or clarifying additional information, please inform Mr. (Mrs.) ………with address in Vietnam………………Tel.No…………………..Fax…………..

Email ................

Upon being granted the contractor’s license with adjustment, we undertake to fully implement all provisions in the license and relevant regulations of Vietnam’s law

ANNEX 9

REPORT ON OPERATIONAL SITUATION OF THE FOREIGN CONTRACTOR

 (Every 6 months periodically and upon the completion of works)

 (Promulgated together with the Circular 01/2012/TT-BXD dated May 08, 2012 of the Ministry of Construction)

I- Company’s name:

Contact address in Vietnam:

Tel.No.:                                                    Fax:                              Email:

Account No. In Vietnam:

At the bank:

Contractor’s license No. :                                               Date:

Agency granting contractor’s license:

Authorized representative in Vietnam:                                          Position:

II- Contract signed with the investor:

1. Contract No.:                                                 Signing date:

2. Main content of the contracted job:

3. Contract value:

Total contract value:

In which: + Consultation value (design, construction management, supervision....):

+ The value of material and equipment supply:

+ Value of construction:

+ Value of installation (M, E, A, V, C ...):

4. Time for contract performance: From.....................to................................

5. The implementation situation till the time of report: presentation by words and charts

III- Contract signed with subcontractors:

1. The 1st subcontractor’s contract: signed with the company....................

1.1- Contract No.:                                                          Signing date:

1.2- Main content of subcontracted job:

1.3- Contract value:

2. The.... subcontract: (the same as above):

3. .............. etc

IV- Registration of accounting regime, auditing and tax payment:

1. Registered accounting regime at the tax agency:

2. Registration of auditing at the auditing company:

3. Having paid tax for each payment period: (a certified copy of tax bills by the tax authorities attached) ...................... ............................

V- Other issues need to present on the achievement or opinion of assistance request of the Ministry of Construction / Service of Construction.

 ANNEX 11

(Promulgated together with the Circular 01/2012/TT-BXD dated May 08, 2012 of the Ministry of Construction)

......., date…..        month…..     year

ANNOUNCEMENT

Operating room of foreign contractor

1. Contractor’s name: .................................................................. ................................

2. Contractor’s representative: .....................................................................................

3. Legal entity of country: ..............................................................................................

4. Address of company registered in local country: ........................................................

5. Having been granted the contractor’s license No. ..............................

6.Contracting work : .........................................under project...............................

7. Investor:............................................................................................................

8. Prime contractor (if the written announcement is made by the subcontractor): ......................... ...............

9. At: .......................................................................................................................

10. Address of operating office:.............................................................................

11. Representative of operating office: ........................................................

12. Tel. No. of the operating office: .....................................................

13. Fax No.: .............................................................................................................

14. Account No.: ..............................    at: ..............................................................