Thông tư 11/2005/TT-BXD

CIRCULAR

ON GUIDING CHECKING AND CERTIFICATION OF THE CONSTRUCTION QUALITY COMPLIANCE

- Pursuant to Decree No 36/2003/ND-CP dated April 4, 2003 of the Government regulating function, task, right and organization of Ministry of Construction

- Pursuant to Decree No. 209/2004/ND-CP dated December 16, 2004 of the Government on checking the construction quality compliance

- Pursuant to Decree No. 179/2004/ND-CP dated November 21, 2004 of the Government regulating the State checking of goods.

Ministry of Construction guides checking and certificating the construction quality compliance as follows:

I. GENERAL REGULATION

1. Adjustment scope:

This circular guilds checking and certification the construction quality compliance specified in clause 28 in the Decree No. 209/2004/ND-CP dated December 16, 2004 of the Government on checking the construction quality.

Clients, contractors, internal and external organizations who are involved in checking and certifying the construction quality compliance in Vietnam must follow the regulation specified in this circular.

2. Applicable Object

a. Construction works which must receive the construction quality compliance before being used are ones, which can be dangerous for people, environment including crowded places when occurrences happened such as cinema, circus, hall, school, stadium, supermarket and other construction works with the same function; apartment, hospital, office, hotel, chemical works, gas processing plant, oil store, air at all levels, dyke, bridge, channel over class-2 group;

b. Works shall get the quality certificate when they are requested by competent authorities, insurance companies, organizations or individuals who use or manage the construction work (hereinafter called requester)

3. Contents of checking and certificating the construction quality compliance

a. For the objects specified in point a, clause 2, section I in this circular, based on safety criteria applied for the construction work, contents can be one, some or all the followings:

- Safety of load bearing capacity of the construction works;

- Safety of use, exploitation and operation of the construction works

- Safety of prevention and firefighting

- Safety of environment

b. For the objects specified in point b, clause 2, article I in this circular, the scale of checking and certificating the quality compliance is one, some or all the construction work based on the specific criteria required by the requester.

4. Interpretation of Term

a. Certifying the construction quality compliance (hereinafter called construction quality certificate) is the certification that the quality of completed construction is appropriate with use requirement, norms, standards applied for the construction work, its approved design and other legal documents relating to checking construction quality.

b. Construction quality certificate-issuing organization (hereinafter called quality certificate-issuing organization) is the one who has capability to check the construction works in accordance with level and type.

II. CHECKING AND CERTIFICATING THE CONSTRUCTION QUALITY COMPLIANCE

1. Selecting the certificate-issuing organization

a. For the construction work which must get the certificate, the Client shall select and sign a contract with the certificate-issuing organization as described in clause 5, section II in this Ordinance according to the type and level of the construction work in order to check and certify the quality. For the specialized items such as prevention and firefighting, labor safety, environmental impact, the certificate-issuing organizations are selected in accordance with the current regulation.

Certificate-issuing organizations have to work independently, have no economic tie, mechanism relation and other tie with Client, Design Company, Contractor or Suppliers, Construction consultant and management unit, consulting and supervising unit of the construction work getting the certificate.

b. For the works requested to get the certificate, the Client shall select the certificate - issuing organization to checking and certify. The content of the certificate depends on the requirement of the requester. Certificate-issuing organizations have to work independently and objectively as described in point a and shall be selected by the body requesting to certify the construction quality.

2. Procedure and method to check the construction quality

a. Depending on the content of checking and certifying construction quality compliance specified in the clause 3, section I in this Ordinance, certificate issuing-organizations make the procedure and method to check and certify the quality and negotiate with the Client.

b. The procedure can be divided into: design dossier, material, construction steps and construction work after completion. Based on the content of certifying quality requirement, checking can be followed one, some or all the above steps.

c. Method is to check the Request for Inspection of the Client and check the construction quality probability. During the checking time, if the construction quality is doubted, the Client shall be requested to make it clear. If necessary, certificate - issuing organizations are eligible to request the Client to check the design again and construction quality to collect proper proofs for making the final conclusion.

3. Certifying the construction quality

a. Certificate - issuing organization grants the certificate in accordance with the content, which they check.

b. As for the construction works requested to check, the construction quality certificate is the basis to use and exploit them. Content and form of certificate are referred in the appendix of this Ordinance. The Client is responsible for submit one copy of the quality certificate and quality checking report to the local construction department to check and control.

c. As for the construction works requested to check, the construction quality certificate is to determine that the Client satisfies all the construction quality certification requirement of the requester.

d. Quality certification shall not be replaced and reduce the responsibility of parties who are related to the construction quality under the law.

4. Settling the complaint relating to the construction quality certificate:

Certification result can be checked again when one involving party complaints. Unless otherwise agreed, the complaint shall be submitted to the local construction competent authority for settlement.

5. Capacity of certificate - issuing organization

a. Certificate issuing – organization must satisfy the conditions on capacity appropriate for the type and level of construction works and certified content under the law. Besides, this organization must have the experience in one of the construction consulting activities as follows: managing project, design, supervising construction, certifying the construction quality in the last 5 consecutive years and have no violation in construction activities.

b. Individuals who check directly the construction quality must have the practicing certificate in architect, engineer and construction supervisor in accordance with their assigned work. These individuals have no violation of construction activities in the last 3 consecutive years. The individual who is assigned to be the certificating leader has at least 10 experience years in the proper specialized field.

III. RIGHTS AND RESPONSIBILITIES OF THE ORGANIZATIONS AND INDIVIDUALS INVOLVING TO CHECK AND CERTIFYING THE CONSTRUCTION QUALITY:

1. Rights and responsibilities of the Client:

a. Rights:

- To select the certificate-issuing organization compliance with the type and level of construction work

- To complain about the certificating result

- To comply with the other rights agreed with the certificate-issuing organizations and in accordance with the law

b. Responsibilities:

- To get the certificate for the construction work, which is compulsory to have under the law

- To approve the BOQ and signing the contract with certificate-issuing organization

- To provide all the necessary document, dossier and related certificates and create favorable conditions to certify.

- To inform to the local construction competent authorities the schedule to check and certify the construction work after signing the checking contract. To submit the document and quality certificate to this competent authority after receiving the certificate for their inspection and management.

- To be allowed to use the construction work when it gets all the requested certificate

- To settle the certifying payment for the certificate-issuing organization even when not receive the certificate due to the poor construction quality.

- To comply with other responsibilities specified in the contract

2. Rights and responsibilities of the certificate - issuing organization

a. Rights:

- To request the Client and Contractor to provide necessary documents for check and certify the construction quality

- To refuse to issue the certificate if the construction fails to follow the design and meet the specification requirement

- To comply with other rights as described in the agreement with the Client and under the law

b. Responsibilities:

- To ensure the trust and objectiveness during the checking and certifying time

- To take the responsibilities before the Client, law on the checking and certifying result

3. Rights and responsibilities of the Contractor

a. Rights

- To complain the checking and certifying result of the construction work

- To comply with other rights under the law

b. Responsibilities

- To provide all the relating document for the checking and certifying as the request of the certificate-issuing organization

- To facilitate the activities of the certificate-issuing organization

- To comply with other responsibilities under the law

IV. STATE MANAGEMENT ON CHECKING AND CERTIFYING ACTIVITIES

1. Ministry of Construction

a. To managing and guide certifying activities and certificate-issuing organization nationwide

b. Checking the certifying activities. To cooperate with local construction competent authorities to check the certifying activities for the civil construction works, industrial ones and infrastructure ones level 1 and special level when necessary or local construction competent authorities request.

c. To settle the complaint about the checking result of construction works which are requested by local construction competent authorities

d. To have the right to suspend the certifying activities if violation is found and assign another certificate-issuing organization.

The State Department of survey on construction work quality under the Ministry of Construction is the unit supporting the Ministry of Construction to carry out the above activities.

2. Ministry of specialized construction work management

a. To guide certifying activities for the specialized construction work managed by the ministry

b. Checking the certifying activities for the specialized construction works. To cooperate with the Ministry of Construction and the local construction competent authorities to check the certifying activities for the civil construction works, industrial ones and infrastructure ones level 1 and special level when necessary or local construction competent authorities request

c. To have the right to suspend the certifying activities if violation is found and assign another certificate-issuing organization.

d. To report on certifying for the specialized construction works to the Ministry of Construction once every six months.

3. People’s Committee of provinces and cities under the central authority:

a. To guide certifying activities for the construction works in their management area.

b. To check the certifying activities for the construction works in their management area. To receive and keep the certificates submitted by the Client and to send the summary report to the Ministry of Construction and ministry of specialized construction work management

c. To settle the complaint about the checking result of construction works in the management area. For the complicated cases, it is necessary to inform to the Ministry of Construction and ministry of specialized construction work management

d. To have the right to suspend the certifying activities for the works in their management area if violation is found and assign another certificate-issuing organization.

Construction department cooperates with the department of specialized construction work management to support the Chairman of the Provincial People’s Committee to carry out the above activities. To report on certifying for local construction works to the Ministry of Construction once every six months

4. Punishment for violation:

a. Based on the violation scale, certificate-issuing organization shall be punished as follows:

- To be suspended the certifying activities if the organization do not comply with the content and sequence as specified in this ordinance

- To be confiscated the business license, refund the fee and compensate under the law if certifying wrongly compared with the actual construction

b. Organizations and individuals involved the checking and certifying the construction quality shall be punished based on the consequence as violating the regulations in this ordinance. If they cause damage, they have to compensate in accordance with the law

V. COST FOR CHECKING AND CERTIFYING FOR CONSTRUCTION WORKS

1. As for the construction work, which must get the certificate: Cost paid by the Client for the certificate – issuing organization is distributed from project management budget. When the checking and certifying cost is 35 % more than construction consultancy cost of the certified work, the Client will submit this to the investor for approval.

2. As for the construction getting the certificate as being requested: the Client or the party who requests to certify after getting agreement with the Client pays the certifying cost

3. Certificate – issuing organization is responsible for making the quotation for the checking activities in accordance with the checked content and scale,

VI. IMPLEMENTATION

1. Implementation

a. Ministries, Ministerial bodies, Bodies under the Government, People’s Committee of provinces and cities under the central authority, Enterprises, Clients, Organizations and related Individuals are responsible for complying with this ordinance. During the implementation, any difficulties arising can be sent to the Ministry of Construction for solving.

b. As for the on-going constructing or finishing construction works which must get the quality certificate, the Client must employ certificate – issuing organization satisfying the conditions on capacity appropriate for level of construction works for checking the request for inspection. The organization is able to request the Client to check the quality again if necessary before issuing the certificate.

2. Implementation effect

This ordnance is effective after 15 days from the announcement.

APPENDIX

(Issued with the Ordinance No 11/2005/TT-BXD dated 14 July 2005)

Note:

(1). Name of certified construction work, items or parts of construction works

(2). Certified safety criterion as described in the Clause 3, section I in this ordinance

(3). Name of approved design dossier, and name and number of the standard, criteria, legal document used to compare (if any)