Thông tư 07/2012/TT-BXD

CIRCULAR

GUIDING THE DETERMINATION AND THE MANAGEMENT OF THE EXPENDITURE ON FOREIGN CONSULTANTS ON CONSTRUCTION IN VIETNAM

Pursuant to the Government's Decree No. 17/2008/NĐ-CP dated February 04^th 2008, defining the functions, tasks, powers and organizational structure of the Ministry of Construction;

Pursuant to the Government's Decree No. 112/2009/NĐ-CP dated December 14^th 2009 on the management of construction cost;

Pursuant to the Prime Minister’s Decision No. 131/2007/QĐ-TTg dated August 09^th 2007 promulgating the Regulation on hiring foreign consultant on construction in Vietnam

The Minister of Construction promulgate a Circular to guide the determination and management of the expenditure on hiring foreign consultants on construction in Vietnam

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

1. This Circular guides the determination and management of the expenditure on hiring foreign consultants that provide counseling for the construction in Vietnam, including: construction planning, urban planning (hereinafter referred to as making construction planning) constructions surveys, making projects of investment in constructions, construction design, managing projects of investment in constructions, constructions supervision, selecting contractors, and other counseling for construction.

2. If the International Agreements to which Vietnam is a signatory is inconsistent with this Circular, such International Agreements shall apply.

Article 2. Subjects of application

1. This Circular is applicable to the organizations and individuals related to the hiring of foreign consultants that provide the counseling for construction planning, and the counseling for the projects of investment in the constructions of which the State capital makes up at least 30%.

2. This Circular is applicable to the organizations and individuals related to the hiring of foreign consultants to provide the counseling for construction planning, and the counseling for projects of investment in constructions of which the State capital makes up at least 30%.

Article 3. Interpretation of terms

The terms in this Circular are construed as follows:

1. “Foreign consultants” are advisory organizations established under foreign laws, with or without permanent offices in Vietnam, or foreign individuals that provide counseling for construction in Vietnam.

2. “The organizer of construction planning” is the agency appointed to manage the progress of the construction planning;

Article 4. Principles of determining and managing the expenditure on hiring foreign consultants

1. The expenditure on hiring foreign consultants are determined based on the method and characteristic of the works that need consultancy and the cost management requirements of the investors and the organizer of construction planning.

2. The expenditure on hiring foreign consultants must be determined correctly, sufficiently, and must be suitable for the capital or the solvency of the investors and the organizer of construction planning.

3. The expenditure on hiring foreign consultants must be suitable for the counseling services, the consultants’ credentials, the salaries of consultants in their country or their area, and must ensure the competitiveness and the efficiency of the project of investment in construction, and the feasibility of the construction planning.

4. The expenditure on hiring foreign consultants must be conformable with Vietnam’s laws and international practice.

5. The expenditure on hiring foreign consultants must be managed on the basis of the agreement reached by the investor or the organizer of construction planning with the foreign consultants vie the selection of contractors and the consulting contract.

6. The investors and organizer of construction planning must be responsible for the thriftiness and efficiency when hiring foreign consultants.

Chapter II

DETERMINING THE EXPENDITURE ON HIRING FOREIGN CONSULTANTS

Article 5. Estimating the expenditure on hiring foreign consultants in the total investment and construction planning

1. When making the project of investment in construction and construction planning, the investor and the organizer of construction planning must estimate the expenditure on hiring foreign consultants based on the amount of work and the kind of work that need foreign consultancy.

2. Depending on the particular condition of the project of investment in investment and  the construction planning, the expenditure on hiring foreign consultants shall be estimated in one of the following ways:

a) According to a similar counseling for a project of investment construction and the construction planning that was or has been provided in Vietnam by such foreign consultants.

b) According to the percentage of the cost of construction and equipment (or the construction cost) on a unit of area (or population) of a similar planning that was or has been provided in Vietnam by such foreign consultants.

c) The estimate of the bid package on foreign counseling that is calculated according to the man-month (or man-day) estimate based on the structure and quantity of each kind of experts, their salaries, and other expenditures on counseling.

d) Combining the methods above.

Article 6. Determining the expenditure on hiring foreign consultants as the basis for selecting foreign consultants

1. Determining the bid package on foreign counseling when making the bidding plan:

a) The price of the bid package on foreign counseling is determined based on expenditure on hiring foreign consultants calculated in the total investment in the construction and the construction planning.

b) In case the investors and the organizer of construction planning need to determine the price of the bid package more accurately (that has been determined using the method provided in Point a) as the basis for assessing and choosing a contractor at the time of bidding, the investors and the organizer of construction planning may make and approve the estimate of the bid package on foreign counseling as the basis for considering the selection of consultants, depending on the conditions in the invitation for bid and relevant information.

2. Estimating the bid package on foreign counseling:

a) For the bid packages on foreign counseling participating in direct procurement, the investors and the organizer of construction planning must estimate the bid package on foreign counseling.

c) The bid packages on foreign counseling are estimated according to the man-month (or man-day) estimate based on the structure and quantity of each kind of experts, their salaries, and other expenditures on counseling.

The investors must determine the structure and quantity of experts that suit the requirements for foreign counseling, and ensure the efficiency of construction investment. If the investors are not capable, they may hire consultants. The man-month (or man-day) estimate is guided in the Annex promulgated together with this Circular.

3. In case the foreign consultant is the creator of the plan for selecting construction designs or the plan for construction planning that is selected and appointed to provide other counseling for the project of investment in construction or the construction planning, such foreign consultant must propose and make the bid package estimate according to the man-month (or man-day) estimate so that the investors and the organizer of construction planning may appraise and approve it. The estimate of the bid package must not exceed the proposed prices in the plan for selecting construction designs or the selected plan for construction planning (if any)

Article 7. Determining the price of the contract for foreign counseling

1. The price of the contract for foreign counseling are calculated based on the financial proposal (proposing the cost of counseling) of the contracted foreign consultant, the results of the contract negotiation between the investors, the organizer of planning and the contracted foreign consultant, and the price or the estimate of the bid package that has been approved.

2. The contracted foreign consultant shall propose the cost of counseling based on the conditions, provisions, and instructions in the terms of reference, and the provisions and instructions in the invitations. If the contracted consultant is a joint-venture between a Vietnamese contractor and a foreign contractor, the counseling cost is also calculated based on the amount of work that is assigned to each contractor.

3. During the contract negotiation, if the contracted price exceed the bid winning price due to additional and reasonable work, the investors and the organizer of planning must consider and decide, but must not exceed the bid package price or estimate that has been approved. If the approved bid package price or estimate is exceeded, but the total investment does not increase, then the investors and the organizer of planning may consider and decide without following the procedures for adjusting the approved bid package price or estimate. If the total investment increases, the person that decides the investment (or the person authorized by the Prime Minister), the authority that approves the planning (or the organizer of the construction planning approved by the Minister) must be informed, so that they can adjust the total investment as prescribed by law.

Chapter III

MANAGING THE EXPENDITURE ON HIRING FOREIGN CONSULTANTS

Article 8. The management of the expenditure on foreign consultants when estimating the expenditure on hiring foreign consultants within the total investments and the construction planning.

1. The investors and organizer of construction planning shall determine the works that need foreign counseling when making the project of investment in investment or construction planning, as the basis for determining the expenditure on hiring foreign consultants.

2. The expenditure on hiring foreign consultants must be estimated in the total investment of the project, in the construction planning as the basis for calculating the price of the bid package on foreign counseling when making the bidding plan, when preparing and managing capital as prescribed.. When hiring foreign consultants in making the project of investment in construction, the expenditure on hiring foreign consultants shall be determined by the person in charge of preparing the project, and mist be written in the bidding plan of the bid package on foreign counseling for making the project of investment in construction.

3. The investors and the organizer of construction planning must estimate the expenditure on hiring foreign consultants. If the investors and the organizer of construction planning are not experienced in or not capable of estimating the expenditure on hiring foreign consultants, they may hire a competent advisory organization to do it.  The advisory organization that estimates the expenditure on hiring foreign consultants must be responsible before the investors, the organizer of construction planning, and the law for the results.

Article 9. Determining the expenditure on hiring foreign consultants when selecting foreign consultants

1. The investors and the organizer of construction planning must calculate the price or the estimate of the bid package, then appraise and approve the estimate of the bid package on foreign counseling. If the investors and the organizer of construction planning are not experienced or not capable, they may hire a competent advisory organization to do it.  The advisory organization that estimates or verifies the expenditure on hiring foreign consultants must be responsible before the investors, the organizer of construction planning, and the law for the work results.

2. The investors and the organizer of construction planning must appraise the estimate of the bid package in case the contracted foreign consultant is allowed to make the bid package estimate according to the man-month estimate (or man-day). The person that decides the investment (or the authorized person, applicable to the projects and schemes for construction planning decided by the Prime Minister) shall approve the estimate of the bid package as the basis for the negotiation and the contract conclusion; the bid package estimates of the schemes for construction planning in central-affiliated cities and provinces shall be approved by People’s Committees of central-affiliated cities and provinces.

3. In the invitation for counseling, the investors and the organizer of construction planning must specify the requirements and documents that the contracted foreign consultant must provide to serve the inspection and the assessment of the financial proposal of the contractor.

4. The investor or the organizer of construction planning may request a contracted foreign consultant in a joint-venture, or employ a Vietnamese sub-contractor to reduce the cost of counseling. The Vietnamese consultant must provide the necessary documents stated in the invitation to serve the inspection and the assessment of the financial proposal.

Article 10. Managing the expenditure on the hired advisory organizations

1. The contracted foreign consultant (and the contracted Vietnamese consultant in the joint-venture or appointed as a sub-contractor by the contracted foreign consultant) must provide the documents related to the quotation in the bidding documents and proposal documents in accordance with the requirements of the investors and the organizer of construction planning prescribed in the invitations.

2. The documents provided by the contracted consultant must be accurate and must satisfy all the requirements of the investors and the organizer of planning. If necessary, the investors and the organizer of planning may request the contractor to provide additional documents and explanation.

3. The monthly salary (or daily, hourly) of the foreign consultants proposed by the contractor must suit the average consultancy fee in their region or their home country, and corresponding to their capability. The contracted consultant must prove the proposed salary by appropriate documents (certifications from auditors, equivalent contracts…).

4. Other expenses of foreign experts in Vietnam must be determined based on the market price and Vietnam’ law provisions, an suitable for serving the counseling provision.

5. The monthly salary (or daily, hourly) of the Vietnamese consultants (in a joint-venture or appointed as a sub-contractor by the contracted foreign consultant) is based on the actual salary, the social expenses, the managerial expenses, profit, and other benefits in the financial statement audited or certified by tax authority or a financial institution, or an equivalent contract that was or has been performed lately, and the annual devaluation, but must not be lower than that of the Vietnamese experts working under contracts with successful international contractors in Vietnam, or the salary of Vietnamese consultants working for the projects funded by ODA as guided by the State.

Article 11. Managing the expenditure on hiring independent foreign consultants

1. The investors and the organizer of construction planning must calculate and approve the estimate of the expenditure on hiring independent consultant as the basis for the assessment and selection. The estimate of the expenditure on hiring independent consultants are determined according to the man-month (or man-day) estimate after estimating their working period, monthly salary (or daily salary) and other expenses related to their work.

2. The independent foreign consultant must provide the documents proving the proposed salary (certifications from auditors, equivalent contracts…) and other relevant documents to the investors and the organizer of construction planning, as the basis for the assessment and selection of independent consultants.

3. In case the investor and the organizer of construction planning employ an Vietnamese advisory organization and allow it to employ foreign consultants to provide counseling, then the expenditure on hiring foreign consultants are calculated similarly to the expenditure on hiring independent consultants stated above. The expenditure on hiring a Vietnamese advisory organization is determined according to the man-month (or man-day) estimate as guided by the state.

Article 12. Managing contractual price of foreign counseling

1. Depending on the nature and content of the work that needs foreign counseling, the investor and the planning organizer may choose a kind of contracts and the method of payment that suit the guidance and provisions of the State.

2. The contract signed with the foreign consultant  must specify the conditions, method of payment, and the payment dossier. The cases of adjusting, adding the amount, or changing the contractual price must be specified in the contract signed with the contracted foreign consultant.

3. The investor and the planning organizer must control the expenses to ensure that the payments to the contracted foreign consultant, the contractor in the joint-venture, and the Vietnamese sub-contractor comply with the stipulations in the contract, and must supervise the performance of the contract for foreign counseling, ensure the progress, amount, and quality of the counseling for construction under the concluded contract.

Chapter IV

IMPLEMENTATION ORGANIZATION

Article 13. Implementation organization

1. This Circular takes effect on December 15^th 2012 and supersedes the Circular No. 09/2007/TT-BXD dated November 02^nd 2007 of the Ministry of Construction guiding the determination and management of the expenditure on foreign counseling for construction in Vietnam. The cases that apply the Circular No. 09/2007/TT-BXD before this Circular takes effect are exempted from applying this Circular.

2. The Ministers, Heads of ministerial-level agencies, the Presidents of People’s Committees of central-affiliated cities and provinces, the Boards of Directors of state-owned general companies, corporations, and heads of relevant organizations are responsible for the implementation of this Circular.

3. Organizations and individuals are recommended to send feedbacks on the difficulties arising during the course of implementation to the Ministry of Construction for consideration and settlement.

ANNEX

(Promulgated together with the Circular No. 07/2012/TT-BXD dated October 26^th 2012 of the Ministry of Construction)

GUIDING THE DETERMINATION OF THE EXPENDITURE ON HIRING FOREIGN CONSULTANTS ACCORDING TO ON MAN-MONTH ESTIMATES

1. The man-month (or man-day, man-hour) estimate comprise:

- The expenditure on the consultants’ salaries.

- Other expenses.

- Tax.

- Expenditure on provision.

2. The expenses above are determined as follows:

2.1. The expenditure on the consultants’ salaries.

The expenditure on consultants’ salaries are determined based on the kind of consultants, the quantity, and the working hours of them (the man-month, day-month, or hour-month) and their salaries. In particular:

2.1.1. The kind, quantity, and working hour of consultants are determined based on the work load and the progress expressed in the Outline of the counseling plan or the invitation.

2.1.2. The salary of the foreign consultant comprises the basic salary and the relevant expenses such as social expenses, managerial expenses, and profit of the advisory organization.

- The basis salary of the consultant is the actual money given to the consultant proportional to their working hours by months, days, or hours. The basic salary of the consultant depends on the audited financial results of the advisory organization in the preceding year, or in the contracts to do similar jobs that were performed, or other relevant provisions.

- Social expenses are the expenses related to the obligation to pay social insurance, health insurance, unemployment insurance, paid leave, sick leave, insurance, and other relevant expenses as prescribed by the advisory organization and its nation. The social expense is expressed in the percentage (%) of the basic salary. The social expense is based on the provisions of the country in which the foreign consultants registered their operation, or based on the similar counseling contracts that were or has been performed.

- The managerial expense is the expenditure on the management of the foreign advisory organization (including the office lease, the salaries of managers, the communication, and other managerial expenses). The managerial expense is expressed in the percentage (%) of the basic salary. The managerial expense depends on the audited financial results of the advisory organization in the preceding year, or in the contracts to do similar jobs that were performed.

- The profit of the advisory organization is the amount of money that ensure the development of the advisory organization. The profit is expressed in the percentage (%) of the sum of basic salary, social expense, and managerial expense.

- In case the investor and the planning organizer make the bid package estimate (according to the man-month estimate), then the basic salary of the consultant, the social expense, the managerial expense, and the profit shall be calculated based on the similar projects counseled by foreign partners in Vietnam, or according to other appropriate documents.

- In case the contracted consultant makes and submits the bid package estimate to the investor and the planning organizer for approval, the basic salary of the consultant, the social expense, managerial expense, and the profit shall be calculated as guided in Clause 3 Article 10 of this Circular.

2.1.3. The salary of the Vietnamese consultant comprises the basic salary of the consultant and other expenses, including the social expense, the managerial expense, and the profit of the advisory organization (the calculated taxable income).

- In case the investor and the planning organizer make the bid package estimate (according to the man-month estimate), then the basic salary of the consultant shall be calculated according to the law provisions on experts working with foreign organizations and contractors, the projects funded by ODA, or the similar projects.   In case the contracted consultant make and submit the bid package estimate to the investor and the planning organizer for approval, the basic salary of the consultant shall be calculated as guided in Clause 5 Article 10 of this Circular.

- The social expense comprises the expenditures on social insurance, health insurance, unemployment insurance, and other expenditures as prescribed by current law provisions.

- The managerial expense depends on the provisions and the guidance of the State on making the estimate of counseling expense.

- The  profit of the advisory organization (the calculated taxable income) depends on the provisions and guidance of the State on making the estimate of counseling expense, and is expressed in the percentage (%) of the basic salary, the social expense, and the managerial expense.

2.2. Other expenses:

Comprising the expenditure on the supports given to the consultants, the expenditure on air tickets, transport expense, communication expense, office equipment expense, office lease and other expenses (if any) that are determined as follows:

- The expenditure on the supports for the foreign consultant while they are in Vietnam, including the accommodations and other supports (if any). These expenses are calculated based on the period that the consultant provides counseling, the market prices, or the similar projects.

- The expenditure on air tickets is calculated based on the estimated number of flights. The air ticket prices are determined based on the prices of the economy class of the anticipated flights.

- The transport expense of the consultant in Vietnam is determined based on the anticipated kind of vehicles, the quantity of the vehicles, and the distance that suit the counseling requirements. The hiring cost of the vehicles is based on the market prices.

- The domestic or international communication expense (telephone, fax, internet, post…)  are calculated based on the period of providing the counseling and market price.

- The expenditure on office equipment in Vietnam are calculated based on the depreciation of the office equipment (computers, printers, photocopiers, furniture…) that serve the work of the consultant, and their average market prices.

- The expenditure on office lease in Vietnam (if any) is calculated based on the office area necessary for the consultant to work, the working period, and the average office rent in Vietnam.

- Other expenditures on seminars, training… are based on the requirements for providing counseling. These expenditures are calculated based on the actual requirements for each kind of counseling for each project.

- The liability insurance for counseling: based on the content and payment of insurance depending on each kind of counseling.

2.3. Tax: comply with the current tax regime of the State applicable to foreign organizations and individuals doing business in Vietnam and earn income in Vietnam. The consultant must pay personal income tax as prescribed (excluding the personal income tax in the estimate).

2.3. Expenditure on provision: is the expenditure and devaluation that may arise during the provision of counseling. The expenditure on provision must not exceed 10% of the expenditure on the consultant, tax, and other expense.

3. Depending on the characteristics of each foreign (or Vietnamese) advisory organization, the expenditure on the salary of the consultant may include part or all the expenditure on the basic salary of the consultant prescribed in Point 2.1.2 and 2.1.3 in this Annex.