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MINISTRY OF CONSTRUCTION OF VIETNAM |
SOCIALIST REPUBLIC OF VIETNAM |
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No. 02/2023/TT-BXD |
Hanoi, March 03, 2023 |
GUIDING CERTAIN CONTENTS OF CONSTRUCTION CONTRACTS
Pursuant to the Construction Law dated June 18, 2014; the Law amending certain Articles of the Construction Law dated June 17, 2020;
Pursuant to Decree No. 52/2022/ND-CP dated August 08, 2022 of the Government on functions, tasks, powers and organizational structure of the Ministry of Construction of Vietnam;
Pursuant to Decree No. 37/2015/ND-CP dated April 22, 2015 of the Government elaborating construction contracts;
Pursuant to Decree No. 50/2021/ND-CP dated April 01, 2021 on amendments to Decree No. 37/2015/ND-CP dated April 22, 2015 of the Government elaborating construction contracts;
At the request of the Director of the State Authority of Construction Economics;
The Minister of Construction hereby promulgates a Circular guiding certain contents of construction contracts.
This Circular provides detailed guidance on certain contents of the construction contract; provides model performance contracts, consulting contracts, engineering, procurement, and construction (EPC) contracts.
1. This Circular applies to entities involved in setting and management of the execution of construction contracts applicable to investment and construction projects funded by public investments and non-public investment state funds, and construction contracts between project enterprises and contractors for performing tasks of contract packages of the public-private partnership (PPP) projects.
Organizations and individuals may apply regulations in this Circular to preparation and management of construction contracts for other financed projects.
2. In case construction contracts of projects financed by official development assistance (ODA) capitals and concessional loans arising from International Treaties to which Vietnam is a signatory are constituted by provisions different from the provisions specified in this Circular, such international treaties shall be applied.
Article 3. Payment, advance payment and dossiers on advance payment for construction contracts
1. The payment for a construction contract shall comply with the regulations in Article 19 of Decree No. 37/2015/ND-CP.
2. In case production of structural elements and semifinished products with great values and building materials reserved by season is eligible for advance payment as prescribed in Clause 7 Article 18 of Decree No. 37/2015/ND-CP, the application for advance payment must list names, unit prices and total values of each type of materials, structural elements and semifinished products. When payment is made, the value of completed quantity which has been inspected and accepted must be reduced by an amount corresponding to the advanced value under the contract.
3. The advance payment as prescribed in Clause 4 Article 19 of Decree No. 37/2015/ND-CP shall be based on specific conditions of each advance payment to decide the advance payment value and guarantees for advance payments, thereby ensuring the efficiency and avoiding loss of capital. Some specific cases:
a) As for a contract based on adjusted unit prices, when the payment period begins but data on adjustments to unit prices and prices of the contract is not provided, the unit prices stated in the contract shall be used for making the advance payment.
b) For products and works which are in progress or unfinished as agreed upon in the contract, the degree of completion of each specific case and detailed unit prices of such products and works specified in the contract shall be bases for making advance payment.
4. For products and works which are unfinished due to reasons including termination of their contracts or failure to check and take over products by one of parties to the contract, responsibilities and obligations of each relevant entity must be specified before making payment.
5. An advance payment dossier includes: Final Acceptance Certificate (FAC) or workload confirmation record (if products or works fail to satisfy requirements for acceptance), Valuation table of workload generated out of contract for payment (increase or decrease); Valuation table of workload generated out of contract for advance payment and Request for advance payment.
Article 4. Adjustments to workloads prescribed in construction contracts
1. Adjustments to workloads specified in construction contracts shall comply with the regulations in Article 37 of Decree No. 37/2015/ND-CP which are amended by Clause 13 Article 1 of Decree No. 50/2021/ND-CP.
2. If adjustments to workloads between members of a consortium of contractors of a contract do not affect prices of the contract, the investor shall make a decision on the basis of the agreement and unification of members of the consortium and qualifications of each member in a manner that ensures safety, quality, efficiency and progress of the contract.
Article 5. Adjustments to progress of construction contracts
1. Adjustments to progress of construction contracts shall comply with regulations in Article 39 of Decree No. 37/2015/ND-CP.
2. When adjustments to progress of construction contracts prescribed in Point a Clause 2 Article 39 of Decree No. 37/2015/ND-CP are made, contracting parties and contractors shall be responsible for evaluating impacts of cases of force majeure on the progress of construction contracts for determining and deciding adjustments accordingly.
3. In case there are requests for suspension from performing works of state competent authorities according to the regulations in Point d Clause 2 Article 39 of Decree No. 37/2015/ND-CP, the following tasks must be performed:
a) Contracting parties and contractors shall, on the basis of the requests for suspension of state competent authorities, evaluate impacts on the progress of construction contracts to be the basis for determining and coming to agreements to adjust the progress of such contracts.
b) If there are incurred expenses due to an extension of contract period, contracting parties and contractors shall, based on terms of their contracts and instructions of state competent authorities on events leading to the suspension from execution of construction contracts, reasonably determine and come to agreements concerning items of incurred expenses.
Article 6. Adjustments to unit prices and prices of construction contracts
1. Adjustments to unit prices of construction contracts shall comply with the regulations in Article 38 of Decree No. 37/2015/ND-CP which are amended by Clause 14 Article 1 of Decree No. 50/2021/ND-CP.
2. If adjustments to prices of construction contracts result in adjustments and additions to such contracts, appendices must be signed as the basis for adjusting prices of such contracts. Investors shall be responsible for approving or appealing to approve revised and supplementary estimates according to regulations of law on management of work construction investment expenses and construction contracts to be the basis for addition of the signed appendices to such contracts.
3. Methods for adjusting prices of construction contracts
a) Methods for adjusting prices of a construction contract shall comply with the instructions in Appendix I enclosed herewith. The application of methods for adjusting prices must be satisfactory to nature of works, types of prices of the contract, currencies and must be agreed upon in the contract.
b) For time-based consulting contracts (months, weeks, days and hours), adjustments to salary levels for experts shall be made on the basis of the formula for adjusting labor costs specified in section I Appendix I enclosed herewith.
Article 7. Instructions for using and applying model construction contracts
1. The model construction contracts enclosed herewith shall be applied to organizations and individuals to refer and apply in establishing and managing contract performance for construction contract packages, ensuring that contents of construction contracts meet the regulations in Clause 1 Article 141 of the Law on Construction No. 50/2014/QH13.
2. The model construction contracts enclosed with this Circular shall be applied to investors and contractors. If contracting parties are the general contractors or prime contractors, parties shall study and apply necessary contents of these model contracts to establish and manage the contract performance.
3. The model construction contracts enclosed herewith includes:
a) Model consulting contract specified in Appendix II enclosed herewith which is applied to consulting contracts for preparation of feasibility study reports, construction surveys, construction designs and construction supervision.
b) Model performance contract specified in Appendix III enclosed herewith.
c) Model EPC contract specified in Appendix IV enclosed herewith which is applied to lump-sum contracts. If prices of a contract are based on fixed unit prices, adjusted unit prices or combination of types of prices of the contract, parties shall, on the basis of regulations of law and this Circular, amend terms of their EPC contract templates for establishing the contract.
4. For simple and small-scale contracts, types of consulting contracts and other combined contracts, parties shall refer and apply the model construction contracts enclosed with this Circular for adjusting and amending terms of their contract templates for establishing contracts.
5. When using the model construction contracts enclosed herewith for dealing and signing construction contracts, specific requirements and conditions of packages, projects and the regulations of Decree No. 37/2015/ND-CP which are amended by Decree No. 50/2021/ND-CP, other regulations of law and the instructions in this Circular shall be based on. For contents of a contract, the following contents must be agreed specifically:
a) Specific regulations on time limit for payment, time limit for contract execution, deadline for response, expiry date of the contract and similar cases must be agreed upon.
b) If the contractor is a consortium, the performance guarantee – advance payment guarantee must be agreed upon as prescribed by law.
c) Specific regulations on types of currencies and forms of payment in the contract must not be contrary to requirements prescribed in bidding documents and regulations of law on foreign exchange.
d) If the price of the construction contract is based on adjusted unit prices, methods for price adjustments, price data sources and pricing basis must be agreed upon but not be contrary to bidding documents and law on construction contracts.
dd) The contents of the contract shall be adjusted and supplemented accordingly on the basis of the nature and conditions of the package.
Article 8. Transition provisions
1. Construction contracts which have been signed and executed before the date on which this Circular comes into force shall comply with regulations on construction contracts which are applicable before the date on which this Circular takes effect.
2. For construction contracts that are under negotiation and have not been signed, any contents that are not conformable with the regulations of this Circular should be reported to the persons competent to decide investment for consideration and decision on the principle of ensuring the quality, progress and efficiency of construction investment projects and not prejudicing legitimate rights and interests of the parties.
3. Contents of construction contracts in bidding documents and requests for proposals which are approved but not issued must be adjusted in conformity with the regulations of this Circular. If the bidding documents and requests for proposals have been issued, any adjustments to contents relating to the contracts must be notified to all contractors that have purchased such bidding documents and requests for proposals. Clause 2 of this Article shall be applied in case of bid closing.
1. This Circular comes into force from April 20, 2023.
2. This Circular replaces Circular No. 07/2016/TT-BXD dated March 10, 2016 of the Minister of Construction guiding adjustments to prices of construction contracts, Circular No. 08/2016/TT-BXD dated March 10, 2016 of the Minister of Construction guiding certain contents of consulting contracts, Circular No. 09/2016/TT-BXD dated March 10, 2016 of the Minister of Construction guiding performance contracts and Circular No. 30/2016/TT-BXD dated December 30, 2016 of the Minister of Construction guiding engineering – procurement and construction contracts./.
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PP. MINISTER Bui Hong Minh |
APPENDIX II
FORM OF CONTRACT FOR CONSTRUCTION CONSULTING SERVICES
(Enclosed with the Circular No. 02/2023/TT-BXD dated March 03, 2023 of the Minister of Construction of Vietnam providing guidelines on construction contracts)
SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
———–
(place and date]
CONTRACT
For consulting services for preparation of feasibility study report/construction survey/construction design/construction supervision
No.: ……/(year) /… (Contract symbol)
Project or construction work or contract package
No.: ………
of project…………………….
between
(Business name of the main investor)
and
(Business name of the consultant)
TABLE OF CONTENTS
ABBREVIATIONS
PART 1. TRANSACTION INFORMATION
PART 2. GROUNDS FOR SIGNING CONTRACT
PART 3. GENERAL CONDITIONS OF CONTRACT
Article 1. Interpretation
Article 2. Type of contract
Article 3. Contract documents and order of priority
Article 4. Communications
Article 5. Applicable law and language
Article 6. Performance security (if any) and advance payment bond (if required as agreed upon by the parties)
Article 7. Contents, work volume and products of the consulting service contract for construction survey
Article 8. Contents, work volume and products of the consulting service contract for preparation of feasibility study report
Article 9. Contents, work volume and products of the consulting service contract for construction design
Article 10. Contents and work volume of the consulting service contract for construction supervision
Article 11. Quality and quantity of consulting products
Article 12. Grounds for acceptance of consulting products
Article 13. Contract price
Article 14. Modification of contract
Article 15. Rights and obligations of the consultant
Article 16. Rights and obligations of the main investor
Article 17. Subcontracting (if any)
Article 18. Consultant’s personnel
Article 19. Copyright and ownership of documents
Article 20. Insurance
Article 21. Risks and force majeure
Article 22. Suspension of contract
Article 24. Termination of contract
Article 25. Settlement and finalization of contract
Article 26. Acceptance of consulting products
Article 27. Contract duration and execution schedule
Article 28. Advance payment and payment
Article 29. Complaints, conciliation and settlement of disputes
Article 30: Bonuses, penalties and indemnification
Article 31. General provisions
PART 4. SPECIAL CONDITIONS OF CONTRACT
Article 1. Type of contract
Article 2. Applicable law and language
Article 3. Performance security (if any) and advance payment bond (if required as agreed upon by the parties)
Article 4. Quality and quantity of consulting products
Article 5. Contract price
Article 6. Modification of contract
Article 7. Consultant’s personnel
Article 8. Termination of contract
Article 9. Acceptance of consulting products
Article 10. Contract duration and execution schedule
Article 11. Advance payment and payment
Article 12. Complaints, conciliation and settlement of disputes
Article 13: Bonuses, penalties and indemnification
Article 14. General provisions
ABBREVIATIONS
| GCC | General conditions of contract |
| SCC | Special conditions of contract |
| Bidding documents | Bidding documents |
| RFP | Request for proposals |
| Bid | Bid |
| Proposals | Proposals |
| Construction Law No. 50/2014/QH13 | The Law on construction No. 50/2014/QH13 dated June 18, 2014 of the National Assembly. |
| Law No. 62/2020/QH14 | The Law No. 62/2020/QH14 dated June 17, 2020 of the National Assembly providing amendments to the Construction Law. |
| Decree No. 37/2015/ND-CP | The Government’s Decree No. 37/2015/ND-CP dated April 22, 2015 on detailed regulations on construction contracts. |
| Decree No. 50/2021/ND-CP | The Government’s Decree No. 50/2021/ND-CP providing amendments to the Government’s Decree No. 37/2015/ND-CP dated April 22, 2015 on detailed regulations on construction contracts. |
| Decree No. 06/2021/ND-CP | The Government’s Decree No. 06/2021/ND-CP dated January 21, 2021 on elaboration of regulations on quality control, construction execution and maintenance of construction works. |
| Decree No. 15/2021/ND-CP | The Government’s Decree No. 15/2021/ND-CP dated March 03, 2021 on elaboration of regulations on management of construction projects. |
PART 1. TRANSACTION INFORMATION
Today, on………………….[date], at………………………..[place], we consist of:
1. The main investor:
Business name: ………………………………………………………………………………………
Representative (or authorized person): Mr. (Mrs.): ……………………………. Position: …………………………..
Address: …………………………………….
Account number: …………………………………
TIN: ………………………………..
Enterprise registration (if any): ……………………
Telephone number: ……………………………… Fax: ………………………………
E-mail: …………………………………….
And the other party:
2. The consultant:
Business name: ………………………………………………………………………………………
Representative (or authorized person): Mr. (Mrs.): ……………………………. Position: …………………………..
Address: …………………………………….
Account number: …………………………………
TIN: ………………………………..
Enterprise registration (if any): ……………………
Telephone number: ……………………………… Fax: ………………………………
E-mail: …………………………………….
Power of attorney No.……………………. dated……………. (in case of authorization to sign the contract)
(If the consultant is a consortium, information about all consortium members shall be provided, and a member of the consortium shall be appointed to sign the contract)
Two parties have unanimously agreed to enter into the consulting service contract …… for the contract package….. of the project/construction work (name of the project/work) with the following contents:
PART 2. GROUNDS FOR SIGNING CONTRACT
Pursuant to the Civil Code dated November 24, 2015;
Pursuant to the Law on Construction dated June 18, 2014; the Law on amendments to the Law on Construction dated June 17, 2020;
Pursuant to the Law on Bidding No. 43/2013/QH13 dated November 26, 2013;
Pursuant to the Government’s Decree No. 37/2015/ND-CP dated April 22, 2015 on detailed regulations on construction contracts;
Pursuant to the Government’s Decree No. 50/2021/ND-CP dated April 01, 2021 providing amendments to the Government’s Decree No. 37/2015/ND-CP dated April 22, 2015 on detailed regulations on construction contracts;
Pursuant to the Government’s Decree No. 06/2021/ND-CP dated January 26, 2021 on elaboration of regulations on quality control, construction execution and maintenance of construction works;
Pursuant to the Government’s Decree No. 15/2021/ND-CP dated March 03, 2021 on elaboration of regulations on management of construction projects;
Pursuant to the Government’s Decree No. 99/2021/ND-CP dated November 11, 2021 prescribing management, payment and final statement of investment funds for projects funded by public investment capital;
Pursuant to the Circular No. ……/……/TT-BXD dated…………. of the Minister of Construction providing guidelines on construction contracts;
Pursuant to……………………………….. (other grounds, if any);
Based on the contractor selection result specified in the document No……………………….
PART 3. GENERAL CONDITIONS OF CONTRACT (GCC)
Article 1. Interpretation
The terms and phrases used in this contract shall be construed according to the following definitions and interpretation:
1. “main investor” is……. (business name of the main investor).
2. “consultant” is….. (name of the consultant).
3. “project” is….. (Name of the project).
4. “work” is….. (name of the construction work for which the consultant provides consulting services under this contract).
5. “contract package” is….. (name of the contract package for which the consultant provides consulting services under this contract).
6. “representative of the main investor” means the person who is mentioned in the contract or authorized by the main investor to act on behalf of the main investor to perform its tasks.
7. “representative of the consultant” means the person who is mentioned in the contract or appointed by the consultant to act on behalf of the consultant to perform its tasks.
8. “subconsultant” means an organization or individual to whom the consultant subcontracts one or some tasks of the contract.
9. “contract” includes all documents constituting the contract for construction consulting services as prescribed in Article….. [Contract documents and order of priority].
10. “bidding documents (or RFP) of the main investor” includes all documents specified in the Appendix No…… [Bidding documents (or RFP) of the main investor].
11. “bid (or proposal) of the consultant” includes all documents specified in the Appendix No…… [bid (or proposal) of the consultant].
12. “letter of bid” means the consultant’s proposal which indicates the bid price for performing tasks according to the requirements laid down in the bidding documents (or RFP).
13. “party” means the main investor or the consultant, as the case may be.
14. “day” means a calendar day and “month” means a calendar month.
15. “business day” means any calendar day, except Sunday, public holidays and New Year’s Festival as prescribed by law.
16. “law” means the entire legal system of the Socialist Republic of Vietnam.
Article 2. Type of contract
Type of contract: [specified in the SCC]
Article 3. Contract documents and order of priority
1. Contract documents include the contract for construction consulting services and the documents specified in Clause 2 hereunder.
2. The documents attached to the contract for construction consulting services shall be deemed to form an integral part of this contract. Documents attached to the contract and the order of priority in the event of any inconsistency between the documents are as follows:
a) Notice of contract award or direct contracting;
b) Special conditions of contract or terms of reference for a consulting contract;
c) General conditions of contract;
d) Bidding documents or RFP of the main investor;
dd) Design drawings and technical instructions;
e) Bid or proposal of the consultant;
g) Records of contract negotiation, documents concerning contract modification;
h) Appendices to the contract;
i) Other relevant documents.
3. The order of priority in applying the documents attached to the contract shall be the order of the documents specified in Clause 2 of this Article.
Article 4. Communications
1. Any notice, consent, certificate or decision, etc. shall be given or made in writing and delivered by post, facsimile or email to the parties’ addresses specified in the contract.
2. A party may change its address for communication by giving the other party a notice of such change in order to serve the communication. A party shall be responsible for its failure to give a notice of change to the other party when changing its address.
Article 5. Applicable law and language
1. This contract shall be governed by the legal system of Vietnam.
2. This contract shall be written in the language [specified in the SCC].
Article 6. Performance security (if any) and advance payment bond (if required as agreed upon by the parties)
1. The performance security and advance payment bond shall be furnished in accordance with the provisions of Article 16 and Article 18 of the Decree No. 37/2015/ND-CP, as amended by the Decree No. 50/2021/ND-CP.
2. The consultant shall furnish the performance security of ___ [as specified in the SCC].
3. The performance security shall be forfeited if the consultant refuses to execute the contract when it becomes effective and commits other violations as specified in the contract.
4. The performance security shall be returned to the consultant after it has completed all tasks as agreed upon in the contract.
5. When the main investor makes advance payment, the consultant shall be required to provide the advance payment bond for the amount advanced by the main investor. In case the consultant is a consortium, each consortium member shall be required to provide the advance payment bond for the amount of advance payment it receives.
6. The value of the advance payment bond shall be set off in equal portions of the advance payment against the installments.
Article 7. Contents, work volume and products of the consulting service contract for construction survey
1. Contents and quantity of work items performed by the consultant are specified in the Appendix No…… [bidding documents (or RFP) of the main investor] and agreements in records of contract negotiation made between the parties, including the following primary work items:
a) Preparation of the technical construction survey plan as prescribed in Article 27 of the Decree No. 15/2021/ND-CP.
b) Collection and analysis of existing data and documents.
c) Site survey.
d) Establishment of control network, measuring and drawing up of topographic maps.
dd) Drawing underground works.
e) Establishment of geodetic control networks for linear construction works.
g) Carrying out hydrographic survey, site geological survey and hydrogeological survey.
h) Geophysical survey.
i) Drilling, sampling, testing and defining chemical and physical properties of soil, rock and water.
k) Carrying out meteorological, hydrographic, geological and hydrogeological monitoring.
l) Surveying the actual conditions of the construction works.
m) Processing data and making the construction survey report.
n) Performing other construction survey tasks.
2. The products of the consulting service contract for construction survey include:
a) The construction survey report which is made according to Article 29 of the Decree No. 15/2021/ND-CP.
b) Topographic maps, site geological maps, hydrogeological maps, drawings of current conditions of the construction works, topographic and geological cross-section drawings.
Article 8. Contents, work volume and products of the consulting service contract for preparation of feasibility study report (FSR)
1. Contents, quantity of work items and products provided by the consultant are specified in the Appendix No…… [bidding documents (or RFP) of the main investor] and agreements in records of contract negotiation made between the parties, including the following primary work items:
a) Studying the tasks of the FSR preparation.
b) Studying existing documents concerning the FSR preparation.
c) Surveying the project site, carrying out market research and investigation, collecting data on natural, social, economic and environmental conditions serving the FSR preparation.
d) Preparing the FSR according to Article 54 of the Construction Law 2014 as amended by Clause 12 Article 1 of the Law No. 62/2020/QH14.
dd) Modifying and finishing the FSR after obtaining opinions from authorities in charge of appraising the project and fundamental design (if any).
2. The products of the consulting service contract for preparation of feasibility study report include:
a) Fundamental design.
b) Other contents of the FSR, including total investment.
Article 9. Contents, work volume and products of the consulting service contract for construction design
1. Contents, quantity of work items and products provided by the consultant are specified in the Appendix No…… [bidding documents (or RFP) of the main investor] and agreements in records of contract negotiation made between the parties, including the following primary work items:
a) Studying approved FSR, construction survey report, and design tasks.
b) Carrying out field surveys.
c) Creating the construction design according to the provisions of Clause 23 Article 1 of the Law No. 62/2020/QH14; Articles 79, 80 of the Construction Law No. 50/2014/QH13.
d) Modifying and finishing the construction design at the request of appraising authority (if any).
dd) Carrying out the designer’s supervision as prescribed in Article 20 of the Decree No. 06/2021/ND-CP.
2. The products of the consulting service contract for construction design of each construction work include:
a) Drawings, descriptions of the construction design, and attached worksheets.
b) Technical instructions.
c) Estimate of construction costs.
d) Procedures for maintenance of construction works.
Article 10. Contents and work volume of the consulting service contract for construction supervision
1. Contents, quantity of work items and products provided by the consultant are specified in the Appendix No…… [bidding documents (or RFP) of the main investor] and agreements in records of contract negotiation made between the parties, including the following primary work items:
a) Contents of work of the consulting service contract for construction supervision include supervision of quality, quantity, execution progress, occupational safety and environmental protection during the execution of the construction works.
b) Specific construction supervision tasks shall comply with Clause 1 Article 19 of the Decree No. 06/2021/ND-CP.
2. The products of the consulting service contract for construction supervision include:
a) Periodical reports or construction stage-based reports which are made according to the Appendix IVA of the Decree No. 06/2021/ND-CP. Type of report and submission deadline shall be subject to the main investor’s decision.
b) Report on completion of construction supervision tasks of the contract package, construction stage, work item or construction works which is made according to the Appendix IVB of the Decree No. 06/2021/ND-CP.
c) Ad hoc reports as requested by the main investor.
Article 11. Quality and quantity of consulting products
1. Quality of the consulting products must be conformable with the contract for construction consulting services signed by and between the parties; comply with law regulations on management of construction projects and quality control of construction works, technical regulations and standards for the contract for construction consulting services. Any errors in products of the contract for construction consulting services must be rectified by the consultant in accordance with terms and conditions of the contract.
2. The quantity of documents of consulting products is [specified in the SCC].
Article 12. Ground for acceptance of consulting products
1. The contract for construction consulting services signed by and between the parties.
2. Construction survey report dossier (for the consulting service contract for construction survey); FSR dossier (for the consulting service contract for FSR preparation); construction design dossier (for the consulting service contract for construction design); construction supervision report dossier (for the consulting service contract for construction supervision).
3. Approved tasks and technical plan for construction survey (for the consulting service contract for construction survey); approved consulting tasks for FSR preparation (for the consulting service contract for FSR preparation); approved design tasks, approved designs (for the consulting service contract for construction design); approved construction supervision tasks and procedures (for the consulting service contract for construction supervision).
4. Regulations of law, technical regulations and standards applicable to the contract for construction consulting services.
Article 13. Contract price
1. Contract price
a) The contract price is: [specified in the SCC].
b) The contract price shall be adjusted adopting the method specified in Article….. [Price adjustment method].
2. Contents of the contract price
a) The price of the consulting service contract for construction survey includes costs of materials, labour, construction vehicles, overheads, temporary accommodation works, costs of preparation of construction survey plan and report, surveyors’ travel costs, estimated taxable incomes and VAT.
b) The price of the consulting service contract for preparation of feasibility study report, construction design or construction supervision includes:
– Expert costs (including salaries and relevant costs), costs of materials and machinery, overheads, professional liability insurance premiums, estimated taxable incomes and VAT.
– Costs of completing consulting products after meetings, reports, appraisal and approval results.
– Costs of field surveys.
– Travel costs incurred during the test acceptance as requested by the main investor.
– Costs of designer’s supervision (for consulting service contract for construction design).
– Other relevant costs.
c) The contract price is exclusive of:
– Costs of meetings of the main investor.
– Costs of investigation and approval of consulting products.
– Costs which are not yet included in the contract price as agreed upon by the parties, and should be conformable with regulations of law on management of construction costs.
Article 14. Modification of contract
1. Price adjustment method
– The contract price shall be adjusted adopting the price adjustment method in Appendix I enclosed with the Circular providing guidelines on construction contracts. The application of the price adjustment method must be conformable with the nature of work, type of contract price, payment currency, and agreed upon in the contract.
– In case of time-based payment (monthly, weekly, daily or hourly payments), the salaries paid to experts shall be adjusted adopting the price adjustment formula for labour cost factor specified in Section I Appendix I enclosed with the Circular providing guidelines on construction contracts.
2. Modification of the volume of work
Any modifications to the volume of work of the signed contract shall be made in compliance with Article 37 of the Decree No. 37/2015/ND-CP, as amended by Clause 13 Article 1 of the Decree No. 50/2021/ND-CP and Article 4 of the Circular providing guidelines on construction contracts.
Cases in which the volume of work is modified [specified in the SCC].
3. Modification of contract execution schedule
– The contract execution schedule shall be modified in accordance with Article 39 of the Decree No. 37/2015/ND-CP.
– When the contract execution schedule is modified as prescribed in Point a Clause 2 Article 39 of the Decree No. 37/2015/ND-CP, the main investor and the consultant shall assess the impact of the force majeure event on the contract execution so as to consider and decide to modify the contract execution schedule in appropriate manner.
– If the execution of the contract is suspended at the request of a competent regulatory authority as prescribed in Point d Clause 2 Article 39 of the Decree No. 37/2015/ND-CP, the following provisions shall apply:
+ Based on the request for suspension given by the competent regulatory authority, the main investor and/or consultant shall carry out an assessment of the impact of such suspension on the contract execution which shall be then used as the basis for considering and reaching agreements on modification of the contract execution schedule.
+ If there are any costs incurred from the unexpected extension of the contract duration, the main investor and/or consultant shall determine and reach agreements on payment of such costs according to the signed contract and guidelines given by the competent regulatory authority on the event which causes the suspension.
Cases in which the contract execution schedule is modified [specified in the SCC].
Article 15. Rights and obligations of the consultant
1. Rights of the consultant:
a) Request the main investor to provide information and documents relevant to the provision of the consulting services as well as working equipment as agreed upon in the contract (if any).
b) Propose changes in the conditions for provision of consulting services in favor of the main investor’s interests or upon detection of factors or events that may affect the quality of the consulting products.
c) Refuse to perform unreasonable tasks beyond the scope of the contract and unlawful requests of the main investor.
d) Have the copyright protected as prescribed by law (if any).
dd) Request the main investor to make payments on schedule and pay loan interests incurred from its late payment as prescribed.
e) Regarding the consulting service contract for construction supervision: Request the main investor to suspend the construction contract signed with the construction contractor if it finds that the construction quality does not meet relevant technical requirements or the construction method is founded unsafe.
2. Obligations of the consultant:
a) Ensure the completion schedule and quality of work items as agreed upon in the contract.
b) Regarding the consulting service contract for construction design: Participate in the acceptance of construction works with the main investor in accordance with regulations of law on quality control of construction works, carry out designer’s supervision, and respond to questions about the design dossier as requested by the main investor.
c) Retain, maintain and return to the main investor all documents and working equipment provided by the main investor under the contract upon completion of all work items of the contract (if any).
d) Promptly notify the main investor in writing of inadequate information and documents or working equipment that does not meet quality requirements.
dd) Keep confidentiality of information concerning the consulting service as prescribed in the contract and law.
e) Collect information necessary for the provision of consulting services under the contract. To be specific:
The consultant must collect information concerning the matters or events that may affect the contract execution schedule, the contract price or responsibilities of the consultant under the contract, or any risks to the consultant during the provision of consulting services under the signed contract.
The consultant shall assume responsibility for its mistakes in collecting information, or any other matters serving the completion of consulting tasks under terms and conditions of the contract.
g) Provide consulting services in accordance with regulations of law, technical regulations and standards applicable to the contract, and ensure that the subconsultant(s) (if any), and personnel of the consultant and subconsultant(s) shall always comply with the law.
h) Provide the main investor with reports and documents in quantities and within time limits specified in the contract. The contractor shall notify in an adequate and timely manner all information relating to the consulting tasks which may delay or hinder the completion of tasks according to the proposed schedule and solutions.
i) The consultant shall state, explain and protect its opinions about consulting services in review meetings of competent authorities held by the main investor.
k) Consulting products must be produced by qualified experts as prescribed by law. The consultant shall employ and provide its personnel or subconsultants’ personnel who must meet qualification and experience requirements according to the list of key personnel approved by the main investor.
l) Appoint competent and qualified representatives to deal with any unsolved tasks or difficulties at any time as requested by the main investor until the day on which the acceptance of consulting products is completed (with regard to the consulting service contract for FSR preparation) or the date of completion and transfer of the construction works (with regard to the consulting service contract for construction design).
m) Provide documents serving meetings, reporting and appraisal, etc. in quantities and within the time limits as agreed upon in the signed contract for construction consulting services.
n) Comply with the requests and instructions given by the main investor, unless such instructions or requests are unlawful or cannot be implemented.
q) Regarding the consulting service contract for construction supervision: Participate in stage-based acceptance, acceptance of trial operation of equipment, acceptance of finished work items and the entire construction work at the request of the main investor with regard to the consulting services for construction supervision and construction design.
s) Pay compensation for any damage resulting from its failure to implement terms and conditions of the signed contract.
Article 16. Rights and obligations of the main investor
1. Rights of the main investor:
a) Have the rights to own and use consulting products.
b) Refuse to accept the consulting products which do not meet quality requirements laid down in the signed contract.
c) Inspect quality of work items performed by the consultant provided that the inspection shall not cause obstruction to normal activities of the consultant.
d) Request the consultant to modify its consulting products which do not yet meet quality requirements laid down in the signed contract.
dd) Request the consultant to replace unqualified personnel.
2. Obligations of the main investor:
a) Provide the consultant with all information on consulting service requirements and necessary documents, make payments and provide other equipment and devices necessary for performing its tasks under the signed contract (if any).
b) Ensure the copyright on consulting products which are protected by the copyright as agreed upon in the contract.
c) Settle complaints, within its competence, filed by the consultant during the contract execution within the time limit agreed upon by the parties in the contract.
d) Make payments to the consultant in full and on payment schedule agreed upon in the contract.
dd) Give instructions to the consultant on contents of the project and the bidding documents (or RFP); facilitate the consultant’s access to the project site and field surveys.
e) Appoint qualified representative to work with the consultant.
g) Facilitate the consultant’s provision of consulting services and completion of customs procedures (if any).
h) Assume responsibility for the accuracy and adequacy of its provided documents. The main investor shall indemnify the consultant against any damage resulting from its provision of inaccurate or inadequate information.
Article 17. Subcontracting (if any)
1. If a subconsultant is not yet included in the list of subconsultants attached to the contract, before entering into a subcontract, the consultant shall be required to provide the list of subconsultants, documents proving the subconsultant’s capacity and experience, and on the work items to be subcontracted to the main investor for considering and giving its approval.
2. The consultant shall entirely assume responsibility before the main investor for quality and progress of subcontracted work items as well as the subconsultant’s mistakes.
3. The consultant has agreed with the main investor that it shall make payments in full and on schedule to the subconsultant(s) under terms and conditions of the signed subcontract(s).
Article 18. Consultant’s personnel
1. Personnel of the consultant and the subconsultant(s) must meet qualification requirements, possess valid practicing certificates as prescribed, have appropriate professional qualifications and experience which should meet qualification requirements laid down in the construction law and in the Appendix No……. [Consultant’s personnel].
2. The titles, agreed job description, minimum qualifications and estimated period of engagement in provision of consulting services of the consultant’s personnel are specified in Appendix No…… [Consultant’s personnel]. In case of replacement of personnel, the consultant shall provide the main investor with justifiable reasons for such replacement, and curriculum vitae (CV) of the substitute personnel who must have equivalent or better qualifications and experience. If the main investor does not object in…… day(s) from the date of receipt of the consultant’s request for approval of substitute personnel, such substitute personnel shall be deemed to have been approved by the main investor.
3. In the event that any of the consultant’s personnel is found by the main investor to be disqualified or not to be included in the list of key personnel attached to the signed contract, the main investor may request the consultant to provide a replacement. In this case, the consultant shall give a written response to the main investor within….. days [specified in the SCC] from the date of receipt of the main investor’s request for replacement. Unless otherwise agreed, any costs associated with this replacement of personnel shall be covered by the consultant. The remuneration paid to the substitute personnel shall not exceed the remuneration which would have been payable to the one replaced.
4. Adjustments with respect to the estimated periods of engagement of personnel may be made by the consultant if they are deemed necessary and shall not cause any increase in the contract price. Any other such adjustments shall only be made with the main investor’s prior approval.
5. In the event the originally estimated period of engagement of personnel is prolonged or additional personnel are provided to perform additional work items as agreed upon between the main investor and the consultant, additional costs arising from such event shall be paid according to the provisions of the Appendix No….. [Consultant’s personnel].
6. The consultant shall organize the performance of work items according to the agreed-upon schedule. Working hours, overtime, working period, leaves, etc. shall comply with the Labor Code. The consultant shall not be entitled to claim payment for overtime work (which is already included in the contract price).
Article 19. Copyright and ownership of documents
The consultant shall hold the copyright on consulting products it provides. The main investor shall be entitled to use all documents which are consulting products for the purposes defined in the contract without the prior consent of the consultant.
The consultant undertakes that the consulting products it produces and provides for the main investor do not infringe upon the copyright or intellectual property rights of any individual or third party.
The main investor shall neither assume responsibility for nor bear consequences of complaints filed by another individual or third party against infringement of copyright or intellectual property rights relevant to the consulting products.
Article 20. Insurance
The consultant shall purchase professional liability insurance as prescribed.
Article 21. Risks and force majeure
1. Risk means the possibility of negative impact on the execution of the contract in the future. Responsibility of each party to manage and control risks as well as to take remedial actions must be specified in the contract.
2. Force majeure event means a risk event which occurs in an objective manner, is not foreseeable when entering into the construction contract, cannot be overcome even though all necessary and possible measures have been taken, meets the criteria laid down in Clause 2 Article 51 of the Decree No. 37/2015/ND-CP and Clause 1 Article 156 of the Civil Code.
3. Notification of force majeure events:
a) A party affected by a force majeure event shall notify the other party in writing of such event as soon as possible, indicating obligations and actions taken to minimize the consequences of such event.
b) The party notifying the force majeure event shall be exempted from liability to fulfill its obligations during the period of such event.
4. Responsibility of the parties in case of risks:
a) If a risk which has been covered by the contract price occurs, costs of remedial actions taken shall be covered by the consultant.
b) If a risk for which insurance has been purchased occurs, costs of remedial actions taken shall be covered by the insurer and shall not be included in the contract price.
c) The consultant shall indemnify and hold harmless the main investor against damage, loss and all costs (including legal fees and expenses) arising due to its fault.
d) The main investor shall indemnify and hold harmless the consultant against damage, loss and all costs (including legal fees and expenses) arising due to its fault.
5. Responsibility of the parties in case of force majeure events:
a) If the consultant is unable to perform its tasks under the contract due to an event of force majeure, which has been notified under terms and conditions of the contract, resulting in delayed completion of tasks and additional costs, the consultant shall be entitled to:
– request an extension of period of time to perform the tasks under the contract (extension of completion date).
– receive payment of additional costs under terms and conditions of the contract.
b) The main investor shall consider and respond to the consultant’s requests.
c) Implementation of reasonable measures to minimize the consequences of any event of force majeure shall not affect a party’s obligation to make payment to the other under the contract.
6. Termination and settlement of contract in case of force majeure events (if any):
a) As a result of a force majeure event, if the performance of tasks of the contract has been suspended for a period exceeding the total number of days of suspension notified, either party shall be entitled to notify the other party of termination of the contract.
b) Upon termination of contract in this case, the main investor shall make the following payments to the consultant:
– payment for work items satisfactorily performed at the price specified in the contract.
– payment of costs of equipment and materials ordered to perform tasks of the contract and delivered to the consultant, or other articles the delivery of which must be accepted by the consultant; these equipment, materials and articles shall be considered as the property (and also risks) of the main investor since the main investor has made payment for them, and the main investor shall be entitled to use them.
Article 22. Suspension of contract
1. Suspension by the main investor
If the consultant fails to fulfill its obligations under the contract, the main investor may suspend the entire or portion of the contract by giving a written notice of suspension to the consultant. Such notice of suspension shall specify the consultant’s failure and request the consultant to perform its obligations and remedy such failure within a reasonable period of time, and also request the consultant to pay compensation for damage incurred by the main investor from such suspension.
2. Suspension by the consultant
a) If the main investor fails to fulfill its obligations under the contract or fails to make payments as agreed upon in the contract within 28 days after the payment becomes due, by giving a written notice to the main investor, the consultant may suspend services (or portion of services).
b) After the main investor has fulfilled its obligations under the contract, the consultant shall resume its provision of services as soon as possible.
c) The consultant shall notify the main investor of any additional costs arising from the suspension of services (or portion of services) as prescribed in this Clause for consideration. The main investor shall consider and respond to the consultant’s requests upon receipt of the notice.
3. Before any suspension, a party must give a written notice of suspension to the other party, indicating the reasons for such suspension. Two parties shall conduct negotiation and reach amicable agreement to continue performing the contract.
Article 24. Termination of contract
1. Termination by the main investor
The main investor may terminate the contract after…..[specified in the SCC] days after sending a written notice of termination to the consultant. The main investor shall be entitled to terminate the contract in the following cases:
a) The consultant fails to furnish performance security as specified in Article…. (if the performance security is required as agreed upon by the parties).
b) The consultant fails to remedy a serious failure in the performance of its obligations within…. [specified in the SCC] days acceptable to the main investor from the date of receipt of the main investor’s notice of such failure.
c) The consultant, without plausible reasons, fails to continue performing its tasks as specified in Article…. [Contract duration and execution schedule], or [as specified in the SCC] continuously fails to perform the tasks under the contract.
d) The consultant transfers the contract without the main investor’s approval.
dd) The consultant becomes insolvent or bankrupt, is shut down, has its assets managed by others, must enter into agreements with its creditors or go into receivership by a person who is competent or authorized to manage assets for the interests of such creditors, or has engaged in any other act or event analogous to the foregoing (as prescribed in applicable law).
e) The consultant fails to comply with any final decision reached as a result of arbitration proceedings pursuant to Article….. [Complaints and settlement of disputes].
g) The consultant has intentionally provided the main investor with false or inaccurate documents which thus adversely affect rights and interests of the main investor.
h) The contract is terminated as the result of the force majeure event pursuant to Article…. [Risks and force majeure].
Upon termination of contract, the main investor may hire other qualified consultants to perform remaining consulting tasks. The main investor and these consultants may use all existing documents.
2. Termination by the consultant
The consultant may terminate the contract by giving a prior written notice to the main investor at least …..[specified in the SCC] days in the following cases:
a) The provision of services is suspended at the main investor’s fault for a period of…. [specified in the SCC].
b) The main investor fails to make payments to the consultant under terms and conditions of the contract within………. [specified in the SCC] days from the date of receipt of adequate and valid documents supporting such payments, provided that this failure is not the subject of a dispute specified in Article…. [Complaints, conciliation and settlement of disputes].
c) The main investor fails to comply with any final decision reached as a result of arbitration proceedings pursuant to Article….. [Complaints and settlement of disputes].
d) As the results of a force majeure event, the consultant is unable to perform a material portion of the services for a period of……[specified in the SCC].
dd) The main investor becomes insolvent or bankrupt, is shut down, has its assets managed by others, must enter into agreements with its creditors or go into receivership by a person who is competent or authorized to act for the interests of such creditors, or has engaged in any other act or event analogous to the foregoing (as prescribed in the applicable law).
3. Upon termination of the contract, all rights and obligations of the parties shall also cease, except provisions on dispute settlement.
4. Upon termination of the contract by notice of either party to the other, the consultant shall, immediately upon dispatch or receipt of such notice, take all necessary steps to bring the consulting services to a close in a prompt and orderly manner, and shall make ever reasonable effort to keep expenditures for this purpose to a minimum.
5. Payment upon termination: Payments shall be made pursuant to Article….. [Contract price] and Article… [Advance payment and payment] for the services satisfactorily performed prior to the effective date of termination (including expert remuneration, costs of equipment and materials purchased, and other costs, etc.).
Article 25. Settlement and finalization of contract
1. Contract settlement
a) The settlement of the construction contract shall comply with the provisions of Article 22 of the Decree No. 37/2015/ND-CP as amended by Clause 7 Article 1 of the Decree No. 50/2021/ND-CP.
b) Within…. days from the date of acceptance of completion of all consulting tasks under the contract, and upon receipt of the acceptance record and certification of the main investor that the consultant has fulfilled all of its obligations under the contract, the consultant shall submit to the main investor…. set(s) of contract settlement dossier, including:
– The record of acceptance of completed consulting tasks.
– The certificate of value of additional work items (if any).
– The breakdown of the contract price, indicating amounts paid and to be paid by the main investor to the consultant.
c) If the main investor is not satisfied with, or finds that there are insufficient grounds for approval of, one or certain parts of the contract settlement dossier, the consultant shall provide additional information at the reasonable request of the main investor, and necessary corrections will be made as agreed upon between the parties. The consultant shall prepare and submit the contract settlement dossier to the main investor as agreed upon between the parties.
d) After the contract settlement procedures have been completed as prescribed, the main investor shall make final payment of the remaining amount to the consultant.
2. The finalization of contract must be completed within…. days from the date on which the parties have fulfilled their respective obligations under the contract or the contract is terminated pursuant to Article…. [Termination of contract].
Article 26. Acceptance of consulting products
The acceptance of consulting products shall be carried [as specified in the SCC]:
First acceptance: after the consultant has completed [as specified in the SCC].
Second acceptance: after the consultant has completed [as specified in the SCC].
Final acceptance: upon receipt of adequate documents which are consulting products provided by the consultant, the main investor shall organize acceptance of consulting products pursuant to terms and conditions of this contract, relevant technical regulations and standards. Any errors in consulting products must be rectified by the consultant in accordance with terms and conditions of the contract.
The record of acceptance of completed work volume is also the record of acceptance of quality, indicating volume of completed work items (pursuant to regulations on quality control of construction works).
Article 27. Contract duration and execution schedule
1. The contract execution schedule is elaborated in the Appendix No….. [Schedule of completion of services] with total duration of… [specified in the SCC].
2. Detailed schedule:
Work items and expected completion dates [specified in the SCC].
3. During the contract execution, if either party faces difficulties resulting in failure to meet the intended completion date of the contract, that party shall give a notice, indicating reasons for such failure and period to be extended, to the other. The receiving party shall give due consideration to the notice of extension. If two parties have unanimously agreed to the extension of the contract duration, they shall conduct negotiation and enter into an Appendix to the contract.
4. The extension of the contract duration shall not cause any increase in the contract price if such failure to meet the intended completion date is caused by the consultant’s default.
Article 28. Advance payment and payment
1. Advance payment:
Within…..[specified in the SCC], the main investor shall pay to the consultant an advance payment [as specified in the SCC] of an amount of [specified in the SCC].
2. Payment schedule:
Number of installments is [specified in the SCC].
Specific amount of each installment paid by the main investor is___ [specified in the SCC].
The final payment shall be made after the consultant has completed all tasks and fulfilled all of its obligations under the contract.
Within….[specified in the SCC] after the receipt by the main investor of the valid request for payment and supporting documents from the consultant, the main investor shall make payment to the consultant.
3. Payment documents include:
a) For a lump-sum contract:
– The record of acceptance of completed work volume made according to Appendix No…. [Record of acceptance].
(The record of acceptance of completed work volume is also the record of acceptance of quality, indicating volume of completed work items (pursuant to regulations on quality control of construction works)).
– The breakdown of value of additional work items (if any) beyond the scope of services of the contract made according to Appendix No…. [breakdown of value of additional work items].
– The consultant’s request for payment, including: payment for completed work items under the contract, payment for additional work items (if any), deduction of advance payments (if any), requested amount of payment after these amounts have been fully set off according to the Appendix No…. [Request for payment]
b) For a fixed-price contract (applied in case of construction survey):
– The record of acceptance of actually completed work volume made according to Appendix No…. [Record of acceptance].
– The breakdown of value of work items for which unit prices are not specified in the contract (if any) made according to Appendix No…. [breakdown of value of additional work items].
– The consultant’s request for payment, including: payment for completed work items under the contract, payment for additional work items (if any), deduction of advance payments (if any), requested amount of payment after these amounts have been fully set off according to the Appendix No…. [Request for payment].
c) For a variable-price contract (applied in case of construction survey):
– The record of acceptance of actually completed work volume made according to Appendix No…. [Record of acceptance].
– The breakdown of unit prices which have been adjusted due to inflation (payment unit price) as agreed upon in the Appendix No…. [Breakdown of adjusted unit prices].
– The breakdown of value of work items for which unit prices are not specified in the contract (if any) made according to Appendix No…. [Breakdown of value of additional work items].
– The consultant’s request for payment, including: payment for completed work items under the contract, payment for additional work items (if any), deduction of advance payments (if any), requested amount of payment after these amounts have been fully set off according to the Appendix No…. [Request for payment].
4. For simple and small-scale contract, the main investor and the consultant shall consider and reach an agreement on whether or not the advance payment is allowed at the request of the consultant, ensuring the satisfaction of requirements of the contract package and removing unnecessary procedures.
5. The currency of payment shall be VND.
(If a party of the contract is a foreign entity, the currencies of payment shall be VND and foreign currency(ies). The currency(ies) of payment shall be agreed upon between the parties in each case in conformity with the bidding documents or RFP and regulations of law).
Article 29. Complaints, conciliation and settlement of disputes
1. When a party finds that the other party fails to comply with or to fulfill its obligations under the contract, it shall be entitled to request the other party to comply with the signed contract. A complaint about this matter may be also made. The complainee shall be required to provide specific grounds and evidences for clarifying the complaint within…. [specified in the SCC], or accept the complaint if such grounds and evidences are not persuasive.
Within 30 days from the date on which a party detects any difference in connection with the signed contract, it shall promptly notify the other party of such difference and make complaint about such difference. If no complaint is made within this period, two parties shall strictly comply with the signed contract.
Within 30 days from the receipt of a complaint, the complainee shall either accept the complaint or must provide grounds and evidences that the complaint has been made against the signed contract. If the complainee gives no response within this period, it shall be considered to have accepted the complaint.
2. If any dispute arises during the execution of this contract, the parties shall make every effort to resolve amicably such dispute by conciliation.
Time for conducting conciliation: [specified in the SCC].
In case of unsuccessful conciliation, the matter shall be referred to an arbitration tribunal for dispute settlement in accordance with Vietnam’s rules (or to the People’s Court) in accordance with regulations of law within…… days [specified in the SCC] from the date of occurrence of the dispute which cannot be settled amicably by conciliation. The decision issued by the arbitration tribunal (or People’s Court) shall be final and binding on both parties.
Settlement of dispute: [specified in the SCC].
3. Neither invalidation nor termination of contract will affect the effectiveness of provisions on settlement of dispute.
Article 30: Bonuses, penalties and indemnification
1. Bonuses: In case the consultant fulfills all of its obligations under the contract prior to the intended completion date specified in the contract, the main investor shall pay bonus to the maximum amount of [specified in the SCC] for the period of [specified in the SCC].
2. Penalties for breach of contract:
Penalties imposed upon the consultant: If the consultant fails to meet the contract execution schedule [specified in the SCC], it shall incur a penalty of [specified in the SCC] which shall not exceed….[specified in the SCC].
Penalties imposed on the main investor: If the main investor fails to make payments on schedule to the consultant pursuant to Article….. [Contract price] and Article …. [Advance payment and payment], it shall indemnify the consultant with the amount calculated at the overdue interest rate quoted on the first day of late payment by the commercial bank at which the main investor’s account is opened for the period commencing on the first date of late payment until the main investor has make payments in full to the consultant.
3. Indemnification
– Indemnification: [specified in the SCC].
Article 31. General provisions
All terms, conditions and provisions of this contract have been agreed by the parties. No agency or representative of either party has authority to make, and the parties shall not be bound by or be liable for, any statement, representation, promise or agreement not set forth herein.
The parties undertake to act in good faith, to ensure fairness, and to adopt all reasonable measures to ensure the realization of the objectives of this contract.
This contract comes into force and effect from the date [specified in the SCC].
(Effectiveness conditions of the contract shall be agreed upon by the parties)
The number of pages, appendices, copies of the contract, language of the contract, legal effect, number of copies of the contract kept by the main investor and those kept by the consultant are [specified in the SCC].
PART 4. SPECIAL CONDITIONS OF CONTRACT (SCC)
Article 1. Type of contract
Type of contract: ___ [insert one of the following types of contract: lump-sum contract; fixed-price contract; variable-price contract; time-based contract; cost-plus-fee contract; other construction contract; combined price contract].
Article 2. Applicable law and language
2. Language of contract [clearly specify: the language of contract shall be Vietnamese. If the contract involves foreign elements, the language of the contract shall be Vietnamese and the foreign language agreed upon between the parties; in case of failure to reach an agreement, English shall be used; the parties shall reach an agreement on the languages used during the contract execution and order of priority of languages used for settlement of disputes (if any)].
The language of this contract shall be Vietnamese.
(If the contract involves foreign elements, the language of the contract shall be Vietnamese and a foreign language agreed upon between the parties; in case of failure to reach an agreement, English shall be used (the parties shall reach an agreement on the languages used during the contract execution and order of priority of languages used for settlement of disputes (if any)).
Article 3. Performance security (if any) and advance payment bond (if required as agreed upon by the parties)
The performance security is equivalent to ___ [insert the specific percentage (%) of the contract price].
Article 4. Quality and quantity of consulting products
2. The quantity of consulting products is ___ [insert specific number of sets].
Article 5. Contract price
1. Contract price
a) The contract price is: [insert total amount (inclusive of VAT), currency (such as VND, USD, etc.), and amount in words].
Article 6. Modification of contract
2. Cases in which the volume of work is modified, scope and procedures for modification ___ [insert the cases in which the volume of work can be modified, scope of work and procedures for modification as agreed upon between the parties].
3. Cases in which the contract execution schedule is modified ___ [insert the cases in which the contract execution schedule can be modified as agreed upon between the parties].
Article 7. Consultant’s personnel
3. The consultant shall send a notice to the main investor within ___ [insert the specific number of days].
Article 8. Termination of contract
The main investor may terminate the contract after___ [insert specific number of days].
The consultant fails to remedy a serious failure in the performance of its obligations within___ [insert specific number of days].
The consultant, without plausible reasons, fails to continue performing its tasks as specified in Article…. [Contract duration and execution schedule], or ___ [insert specific number of days] continuously fails to perform the tasks under the contract.
The consultant may terminate the contract by giving a prior written notice to the main investor at least ___ [insert specific number of days].
The provision of services is suspended at the main investor’s fault for a period of ___ [insert specific number of days].
The main investor fails to make payments to the consultant under terms and conditions of the contract within ___ [insert specific number of days] from the date of receipt of adequate and valid documents supporting such payments, provided that this failure is not the subject of a dispute specified in Article…. [Complaints, conciliation and settlement of disputes].
As the results of a force majeure event, the consultant is unable to perform a material portion of the services for a period of [clearly indicate: not less than a specific number of days].
Article 9. Acceptance of consulting products
The acceptance of consulting products shall be carried ___ times [insert the specific times of acceptance and consulting products to be considered in each acceptance].
First acceptance: after the consultant has completed ___ [insert specific consulting products to be considered].
Second acceptance: after the consultant has completed ___ [insert specific consulting products to be considered].
Article 10. Contract duration and execution schedule
1. The contract execution schedule is elaborated in the Appendix No….. [Schedule of completion of services] with total duration of ___ [insert specific number of days, from the effective date of the contract, including public holidays, New Year’s festival and days off (excluding periods of time for appraisal, approval, designer’s supervision and force majeure events)].
2. Detailed schedule:
Work items and expected completion dates ___ [insert each work item and the date in which it will be completed].
Article 11. Advance payment and payment
1. Advance payment:
Within___ [insert the specific number of days from the effective date of the contract], the main investor shall pay to the consultant an advance payment of [insert a specific percentage (%) of the contract price, amounts in figures and in words].
2. Payment schedule:
Number of installments is ___ [insert the specific number of installments].
Specific amount of each installment paid by the main investor is___ [insert the time of installment (e.g. 1st installment, 2nd installment, etc.) and payment amount expressed as a percentage (%) of the contract price].
The main investor shall make payment to the consultant within ___ [insert the specific number of days] after the receipt by the main investor of the valid request for payment and supporting documents from the consultant.
Article 12. Complaints, conciliation and settlement of disputes
1. Period for clarifying a complaint is___ [within a specific number of days].
2. If any dispute arises during the execution of this contract, the parties shall make every effort to resolve amicably such dispute by conciliation.
Time for conducting conciliation: ___ [insert maximum number of days for completing conciliation].
The matter shall be referred to an arbitration tribunal for dispute settlement in accordance with Vietnam’s rules (or to the People’s Court) in accordance with regulations of law within…… [insert specific number of days].
Settlement of dispute:________[insert the period of time and mechanism for settlement of dispute depending on the scale and nature of the contract package, including the time for sending a request for dispute settlement, authority competent to settle the dispute, costs of dispute settlement, etc.].
Article 13: Bonuses, penalties and indemnification
1. Bonuses:
Bonus shall be paid for a period of ___ [insert specific number of months].
Maximum amount of bonus is ___ [insert a specific percentage (%) of the profits generated due to early completion].
2. Penalties for breach of contract:
Failure to meet the contract execution schedule for___ [insert specific number of late completion].
Amount of penalty ___ [insert specific percentage (%) of the contract price].
Maximum amount of penalty incurred ___ [insert specific percentage (%) of the contract price].
3. Indemnification
– Indemnification: [insert “applies” or “does not apply”. If the indemnification applies, depending on the scale and nature of the contract package, indemnification shall be made adopting one of the following options:
– Indemnification shall be paid for the entire damage actually incurred;
– A fixed amount of indemnification shall be paid. In this case, the indemnification amount and payment method, etc. shall be specified in accordance with the civil code and relevant laws.]
Article 14. General provisions
This contract comes into force and effect from [insert the specific date of effectiveness of the contract].
This contract comprising ___ pages [insert specific number of pages of the contract], and ___ Appendices [insert specific number of appendices to the contract] is made into ___ copies [insert specific number of copies of the contract made] in Vietnamese (or another language or bilingual contract) of the same legal effect. The main investor keeps ___ copies [insert the number of copies to be kept by the main investor] and the consultant keeps ___ copies [insert the number of copies to be kept by the consultant].
|
THE MAIN INVESTOR |
THE CONSULTANT |
APPENDIX III
Construction contract
(enclosed with Circular No. 02/2023/TT-BXD dated March 03, 2023 of the Minister of Construction providing instructions on construction contracts)
SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
—————
….(location)…, ……(date)……….
Construction contract
No. ……/….. (year)/…(contract symbol)
Project or construction or contract package (name of the project or construction or contract package) of project (name of the project)………………….
BETWEEN
(BUSINESS name of investor)
and
(BUSINESS NAME OF CONTRACTOR)
TABLE OF CONTENTS
List of abbreviations
PART 1. information of investor and contractor
Part 2. Bases of contract
Part 3. General conditions of contract
Article 1. Definitions
Article 2. Contract documents and order of priority
Article 3. Applicable laws and languages
Article 4. Notice
Article 5. Contract performance guarantees and advance payment guarantees
Article 6. Scope of work and workloads
Article 7. Requirements for construction quality, acceptance and transfer of construction works
Article 8. Contract duration and schedule
Article 9. Contract prices, advances and payment
Article 10. Adjustments to unit prices, workloads, other contents in construction contract and contract prices
Article 11. Rights and obligations of the investor
Article 12. Rights and obligations of the contractor
Article 13. Rights and obligations of consultant (where the project management consultant is employed by the investor)
Article 14. Rights and obligations of consultant (where the construction supervision consultant is employed by the investor)
Article 15. Subcontractors
Article 16. HSE and fire and explosion prevention
Article 17. Water and electricity supply, and site security
Article 18. Construction suspension and termination by the investor
Article 19. Construction suspension and termination by the contractor
Aticle 20. Insurances and warranties
Article 21. Risks and force majeure
Article 22. Compensation events
Article 23. Rewards and penalties
Article 24. Complaints and settlement of disputes
Article 25. Contract settlement and finalization
Article 26. Entry into force
Article 27. General provisions
PART 4. SPECIAL CONDITIONS OF CONTRACT
Article 1. Definitions
Article 2. Contract documents and order of priority
Article 3. Applicable laws and languages
Article 4. Notice
Article 5. Contract performance guarantees and advance payment guarantees
Article 6. Scope of work and workloads
Article 7. Requirements for construction quality, acceptance and transfer of construction works
Article 8. Contract duration and schedule
Article 9. Contract prices, advances and payment
Article 10. Adjustments to unit prices, workloads, other contents in construction contract and contract prices
Article 15. Subcontractors
Article 22. Compensation events
Article 24. Complaints and settlement of disputes
Article 25. Contract settlement and finalization
Article 26. Entry into force
LIST OF ABBREVIATIONS
| ĐKC | GCC |
| ĐKCT | SCC |
| HSMT | Bidding documents |
| HSDT | Bids |
| Decree No. 37/2015/ND-CP | Decree No. 37/2015/ND-CP dated April 22, 2015 of the Government elaborating construction contracts |
| Decree No. 50/2021/ND-CP | Decree No. 50/2021/ND-CP dated April 01, 2021 of the Government on amendments to Decree No. 37/2015/ND-CP dated April 22, 2015 of the Government elaborating construction contracts |
| Decree No. 06/2021/ND-CP | Decree No. 06/2021/ND-CP dated January 26, 2021 of the Government elaborating certain contents of quality control, construction and maintenance of construction works |
| Decree No. 15/2021/ND-CP | Decree No. 15/2021/ND-CP dated May March 03, 2021 of the Government elaborating certain contents of management of construction investment projects |
| VND | Vietnamese dong |
| Portable document format in accordance with standards of Adobe Systems for the purpose of displaying documents in the same format on any device | |
| Excel | A document format using spreadsheets, created by Microsoft and used for data calculation and entry. |
| Word | A document format using documents, generated by Microsoft and used for data presentation and entry |
PART 1. INFORMATION OF INVESTOR AND CONTRACTOR
This contract is made as of ………… [date] ……..in………….. [location]…… between:
1. The investor:
Business name………………………………………..
Representative(s) (or authorized person(s)): Mr/Mrs……………………………Title:……………………………..
Address:…………………………………………………..
Account No:……………………………………………..
TIN:…………………………..
Business registration (if any) ………………………………….
Tel:…………………….. Fax:…………………..
E-mail:………………………………..
Power of attorney (POA) to sign the contract No. ________ dated________(In case the investor is authorized)
And:
2. Contractor:
Business name:
Representative(s) (or authorized person(s)): Mr/Mrs……………………………Title:……………………………..
Address:…………………………………………………..
Account No:……………………………………………..
TIN:…………………………..
Business registration (if any) ………………………………….
Tel: ……………………….Fax:……………………
E-mail:………………………………..
Power of attorney (POA) No. ………….. dated……………… (in case the contract is signed by the authorized person)
(In case of a consortium of contractors, full information on the members of the consortium must be specified and a representative shall be appointed)
Both parties mutually agree to sign the construction contract of the contract package …. under the project (project name) as follows:
PART 2. BASES OF CONTRACT
Pursuant to the Civil Code dated November 24, 2015;
Pursuant to the Construction Law dated June 18, 2014; the Law amending certain Articles of the Construction Law dated June 17, 2020;
Pursuant to the Law on Procurement dated November 26, 2013;
Pursuant to Decree No. 37/2015/ND-CP dated April 22, 2015 of the Government elaborating construction contracts;
Pursuant to Decree No. 50/2021/ND-CP dated April 01, 2021 on amendments to Decree No. 37/2015/ND-CP dated April 22, 2015 of the Government elaborating construction contracts;
Pursuant to Decree No. 06/2021/ND-CP dated January 26, 2021 of the Government elaborating on implementation of several regulations on quality management, construction and maintenance of construction works;
Decree No. 15/2021/ND-CP dated May March 03, 2021 of the Government elaborating certain contents of management of construction investment projects;
Pursuant to Decree No. 99/2021/ND-CP dated November 11, 2021 prescribing management, disbursement, payment and final settlement of investment funds for publicly-funded projects;
Pursuant to 1_____________
Pursuant to Decision No. ___ dated _______ of __________on the approval for contractor selection results for the package _________[name of the package] and notification of contract award No. ____ dated_________ of the procuring entity;
Pursuant to Document No. ____dated__________ of _____ on the notification of acceptance of bid and award of contract;
Other relevant documents.
PART 3. GENERAL CONDITIONS OF CONTRACT
Article 1. Definitions
For the purposes of this contract, the terms below shall be construed as follows:
1.1. “Party” refers to the investor or the contractor, contextually.
1.2. “Bill of quantities (BOQ)” refers to a detailed document specifying quantities and prices of the works defined in the contract.
1.3. “Design documentation” refers all drawings, design calculation sheets and specifications that are provided by the investor, or prepared by the contractor and approved by the investor.
1.4. “Acceptance Record” refers to any record released under Article 7 [Quality Requirements, Acceptance and Transfer of Works].
1.5. “Technical specifications” refers to a set of technical requirements and technical instructions on building materials, construction vehicles/machines/equipment that will be used for construction, and supervision and acceptance according to applicable construction project technical standards and regulations.
1.6. “The investor” refers to ……….(the investor’s business name) [prescribed in SCC].
1.7. “Works” refers to both temporary works and main works or either of them [prescribed in SCC].
1.8. “Main works” refers to …..………(name of the main works) constructed by the contractor under the contract.
1.9. “Temporary works” refers to part of works that facilitates the construction of the main works or work items.
1.10. “Construction site” refers to a land lot where the construction is carried out and any other places specified in the contract. [prescribed in SCC].
1.11. “Project” refers to ………….. (name of project).
1.12. “Investor’s representative” refers to the person that is named in the construction contract by the investor or is authorized to execute the work on behalf of the investor.
1.13. “Contractor’s representative” refers to the person who is named in the construction contract by the contractor or is authorized in writing to execute the work on behalf of the contractor.
1.14. “Consultant’s representative” refers to any person who is authorized to perform the consulting service by the consultant.
1.15. “Work item” refers to the main works or part of the main works.
1.16. “bid” (or proposal) of the contractor refers to all documents prepared by the contractor according to requests in the bidding document (request for proposal) and submitted to the procuring entity under the Appendix No…… [Bid (or proposal) by the contractor].
1.17. “Bidding document” (or request for proposal) by the investor refers to all documents specified in the Appendix No……. [Bidding document (or request for proposal) by the investor].
1.18. “Contract” refers to a written agreement between the investor and the contractor which is signed by both parties, including both Appendix and attached documents specified in Article 2 [Contract documents and the order of priority].
1.19. “Law” refers to laws of the Socialist Republic of Vietnam.
1.20. “Day” means the calendar day and “month” means calendar month.
1.21. “Commencement Date” refers to the date defined in Clause 8.2 [Commencement date and contract duration] [prescribed in SCC].
1.22. “Working day” means calendar days, excluding Sundays, holidays and Tet holidays under provisions of laws.
1.23. “The contractor” refers to ……….(the contractor’s business name) [prescribed in SCC].
1.24. “Subcontractor” refers to any entity entering into subcontracts to perform part of the contractor’s work.
1.25. “Consultant” refers to any organization or individual who enters into the consulting contract with the investor to perform at least one task related to the contract performance management (the consultant may be a project management consultant or a construction supervision consultant).
1.26. “Risk and force majeure” is defined in Article 21 [Risks and Force majeure].
1.27. “Adjustment” refers to any change or alteration in the scope of work, technical specifications, design documents, contract price, construction schedule or other contents of the contract approved by the investor in writing.
1.28. “investor’s equipment” refers to all construction vehicles, machines and equipment provided by the investor as stipulated in the Appendix No…….[The investor’s bidding documents (request for proposals).
1.29. “Contractor’s equipment” refers to all construction vehicles, machines and equipment owned by the contractor for the execution of the construction works or defect remedy (if any).
1.30. “Design consulting” refers to the consulting service for the purpose of project design.
Article 2. Contract documents and order of priority
2.1. A contract document shall include this contract and all enclosed documents [prescribed in SCC]
2.2. All the enclosed documents mentioned in Clause 2.3 of this Article (including parts of such documents) will form a cohesive contract with reciprocal, complementary and explanatory components.
2.3. Attached documents of the contract form an integral part of the contract, including:
a) The contract, attached documents of the contract and Appendixes of the contract (technical specifications, design document, description specified in the in the quotation, etc.);
b) Letter of acceptance and notification of contract award;
c) Negotiation records;
d) Contract finalization record;
dd) Decision on approval for contractor selection results;
e) Bid and documents setting out the bid of the contractor;
g) Bidding document and additional documents of the bidding document (if any);
h) Other relevant documents.
2.4. The order of priority of the foregoing documents shall follow the order agreed upon by the parties, or the order prescribed in Clause 2.3 of this Article [prescribed in SCC] if the parties cannot reach an agreement.
Article 3. Applicable laws and contract languages
3.1. This contract shall be governed by the laws of the Socialist Republic of Vietnam [prescribed in SCC].
3.2. The contract is made in Vietnamese. Where at least 02 languages are used in the contract, both parties shall decide the transaction languages and the prevailing language for settlement of contract disputes..
Article 4. Notice
4.1. Any notice of a party sent to the other(s) relating to the contract must be specified in writing. The phrase “bằng văn bản” (“in writing/written”) or “văn bản” (“document”) is used to indicate manual records, typescripts, which are printed or sent through electronic means in the form of data messages according to regulations of law on electronic transactions and then stored permanently.
4.2. The notice of a party must be signed by a competent representative or authorized person and it will be considered effective at …….(as prescribed by both parties on the basis of the regulations in Clause 2 Article 388 of the Civil Code) [prescribed in SCC].
Article 5. Contract performance guarantees and advance payment guarantees
5.1. Contract performance guarantee
The contractor shall submit ….% of the contract value as the guarantee for contract performance to the investor within ………days before the date on which the contract takes effect according to the regulations in Clause 2 Article 16 of Decree No. 37/2015/ND-CP [prescribed in SCC]. The performance guarantee must be approved by the investor and must be made using the From in the Appendix No…… (or using different Forms approved by the investor). The consortium of contractors shall comply with the regulations in Clause 3 Article 16 of Decree No. 37/2015/ND-CP dated April 22, 2015 of the Government.
The performance guarantee shall be valid until the date on which the contractor completes the construction works or work item as prescribed in the signed contract, and the investor has accepted the construction work or item and assumes the warranty obligations. If the performance guarantee expires for……….days before the date on which the contractor fulfills his/her obligations, the contractor shall extend the duration of the performance guarantee to the date of completion.
The contractor shall not receive the performance guarantee back if he/she refuses to execute the contract or………(other cases agreed by both parties). The investor shall return the performance guarantee to the contractor when all the contractual tasks are completed and the contractor assumes the warranty obligations.
5.2. Advance payment guarantee (where it is agreed by both parties)
The contractor shall submit an advance payment guarantee to the investor as prescribed in Clause 4 Article 18 of Decree No. 37/2015/ND-CP amended by Point a Clause 6 Article 1 of Decree No. 50/2021/ND-CP [prescribed in SCC] before receiving an advance from the investor.
The advance payment guarantee must be issued by a bank or a credit institution operating legally in Vietnam and be valid until the date on which the advance is fully paid; the value of the advance payment guarantee will be decreased in accordance with the advance that the contractor has paid. Interest need not be charged on the advance payment.
When advance payments are reimbursed, the value of the advance payment guarantee including provisions (if any) will reduce accordingly. Regulations in Point dd Clause 4 of Article 18 of Decree No. 37/2015/ND-CP must also be complied with.
5.3. The advance payment shall be the maximum permissible amount prescribed by contract laws
Article 6. Scope of work and workloads
6.1. The contractor shall follow the design documentation (including amendments approved by the investor), technical specifications in the Appendix No. ………….[bidding document (or request for proposals) of the investor]; Appendix No. ………….[Bid (or proposal) of the contractor] approved by the investor and negotiation records, thereby ensuring construction progress, estimates, HSE and other arrangements in the contract.
6.2. The scope of work and workloads of the construction contract are prescribed in Clause 1 Article 12 of Decree No. 37/2015/ND-CP. To be specific, some or all of the following tasks may be included:
a) Transfer, receive and manage construction sites, receive and preserve construction site centerline, boundaries, markers;
b) Supply building materials, provide personnel, construction vehicles/machines/equipment as prescribed in the contract;
c) Construct the construction works according the approved design documentation and applicable construction regulations and standards;
d) Carry out geodetic survey and monitoring at requests of designers. Carry out off-line testing and on-line testing according to the commissioning plan prior to request for acceptance;
dd) Control the quality of construction and installation of equipment, supervise sub-contractors’ performance if the contractor is the prime contractor or the general contractor;
e) Remedy quality defects occurring in the construction (if any)
g) Test the quality of building materials and structures;
h) Carry out commissioning serving transition of construction tasks, upon completion of a construction stage or part, upon completion of a construction item or construction work;
i) Perform HSE activities and fire/explosion prevention;
k) Protect the construction site within the scope of contract;
l) Ensure the construction site security;
m) Cooperate with other contractors in the construction site (if any);
n) Clear construction site and transfer construction works after the completion;
o) Carry out other tasks as agreed upon in the contract, attached documents and provisions of laws.
6.3. The scope of work of the construction contract refers to the provision of construction materials, personnel, construction machines and equipment and the construction of works according to the approved design documentation [prescribed in SCC].
Article 7. Requirements for construction quality, acceptance and transfer of construction works
7.1. Requirements for construction quality of construction works
Requirements for construction quality of construction works prescribed in Clause 1 Article 13 of Decree No. 37/2015/ND-CP are as follows:
a) The construction shall be carried out in accordance with design document (including amendments approved by the investor), technical specifications in the bidding document (or request for proposals)] applicable to standards and regulations applied to the project and regulations on the construction quality of the relevant authorities; the contractor shall prepare the description of its quality control and supervision plans.
b) The contractor must provide the investor with testing results of materials and all completed work. These testing results must be provided by accredited laboratories.
c) The contractor shall commit that his/her material/equipment origin is conformable to the contract.
7.2. Inspection and supervision by the investor
a) The investor has the right to access and inspect the construction site and other sites where natural resources are extracted for the construction;
b) The investor has the right to inspect, examine, measure, test materials and inspect the equipment and material manufacturing and processing on the construction site and in other places stipulated in the contract.
The contractor shall facilitate the manufacturing and processing by the investor’s personnel by giving permission for site access, provision of construction vehicles and protective equipment, and issuance of necessary permits. No contractor’s obligations shall be affected by such actions.
The contractor shall notify the investor of the completion of tasks subject to inspection and measurement by the investor’s personnel before moving onto the next step. The investor shall immediately carry out the inspection, testing or measuring without explanations, or promptly notify the contractor of the investor’s failure to inspect, test or measure in order that the contractor can carry on the next tasks. In case the investor fails to participate in the manufacturing and processing, his/her complaints about the above-mentioned issues shall not be considered.
7.3. Acceptance of the completed work: the regulations in Clause 2 Article 13 of Decree No. 37/2015/ND-CP of Decree No. 06/2021/ND-CP shall be applied. Documents for acceptance of the completed work include the design documents (including amendments approved by the investor); technical descriptions, relevant standards and regulations, Certificates of testing results; form of the document on acceptance and transfer and other relevant regulations.
7.4. Project commissioning (if any)
Prior to the commissioning, the contractor shall submit all as-built documents, operating and maintenance manuals which specify specifications and instructions on operation, maintenance, re-installation, adjustment and repair.
The contractor shall provide necessary machinery, documents, equipments, fuel, instrument, qualified personnel, etc. for the commissioning. The contractor and investor shall decide a place and time of commissioning.
The investor shall send a notice of his/her participation in the commissioning to the contractor …… days [prescribed in SCC] ahead of the date of commissioning. If the investor fails to attend the commissioning at the designated time and place, the contractor may carry out the commissioning himself/herself and it is considered that the commissioning has been carried out in the presence of the investor, unless otherwise agreed by both parties.
If the contractor incurs any expense due to the compliance with the investor’s instructions or if the commissioning is delayed by the investor’s default, the contractor shall send a notice to the investor and request:
a) An extension if the commissioning is delayed;
b) Payment for all additional expenses.
The contractor shall submit reports with confirmation of the commissioning to the investor and the two parties shall sign a commissioning record as the basis for liquidation of the contract according to regulations.
7.5. Acceptance and transfer of work items and construction works
The regulations in Decree No. 06/2021/ND-CP dated January 26, 2021 of the Government elaborating on certain contents on quality management, construction and maintenance of construction works [prescribed in SCC] shall be applied;
7.6. Responsibilities for defects by the contractor
a) The contractor shall finish all unfinished works at their own expense by the date stipulated in the acceptance record and transfer such works to the investor within the required period but not later.
b) In case of failure to remedy defects,
– If the contractor fails to remedy such defects on the designated date, the investor or the representative of the investor may select a date to remedy the defects and notify the contractor of the selected date.
– If the contractor fails to remedy such defects by the selected and notified date, the investor may remedy such defects on his/her own or hire a third party to remedy such defects, and all additional expenses shall be paid by the contractor (the contractor shall not have the right to complain about the additional expenses if he/she is unable to prove the inaccuracy of such expenses).The contractor may relieve from the remedy but shall be liable for their obligations to the construction contract.
c) If the defects affect the operation of project or majority of the project, the investor will terminate the contract, and the contractor shall compensate the investor for all damage under terms of the contract.
d) If it is unable to remedy the defects at the construction site, the contractor may carry out the remedy in another location outside the construction site, if it is approved by the investor.
7.7. Additional tests
If the remedy affects the project operation, the investor may request re-conduct of any test mentioned in the contract, including tests before and after completing the construction. The request for re-testing shall be noticed within 30 days from the date on which the defects are remedied.
The re-testing shall conform to testing requirements but its cost shall be paid by the contractor.
7.8. Unfulfilled obligations
After the record of work acceptance and transfer is issued, both parties shall be responsible for their unfulfilled obligations. Unfulfilled obligations are still governed by the contract.
Article 8. Contract duration and schedule
8.1. Construction contract duration and schedule shall comply with the regulations in Article 14 of Decree No. 37/2015/ND-CP.
8.2. Commencement date and contract duration
Commencement date is…………….[date] [prescribed in SCC].
The contractor shall start the construction (right after the commencement date) and shall stick to the construction schedule.
The contractor shall fulfill his/her obligations within …………….days from the commencement date [prescribed in SCC].
8.3. Construction schedule
According to the contract duration, the contractor shall submit a detailed construction schedule to the investor within………..days [prescribed in SCC] after the commencement date. If the construction schedule does not match the actual construction progress or is inconsistent with the contractor’s obligations, the contractor shall submit the adjusted schedule to the investor. Unless otherwise prescribed in the contract, each construction schedule shall include:
a) The order of work execution of the contractor and construction duration for main phases;
b) Inspection procedures and date of inspection;
c) Each construction progress report shall specify:
– Construction methods and main phases of the construction;
– The weekly or monthly construction schedules may be adjusted by the contractor as long as they still conform to the overall construction schedule.
The contractor shall stick to the construction schedule and fulfill his/her obligations under the contract. Any difference between the construction schedule and the construction progress shall be noticed to the contractor within ….. days from the date of receipt of the contractor’s construction schedule and both parties shall reach an agreement on the appropriate construction schedule. The investor has the right to request the contractor to follow the construction schedule.
If the contractor notify the investor of the potential situations that may affect or hinder the construction or increase the contract price, the investor or the consultant may request the contractor to report the effects caused by such potential situations and submit a proposal according to Clause 8.4 [Adjustment of the construction schedule]. The contractor shall submit to the investor an adjusted construction schedule in accordance with this Clause.
8.4. Adjustments to the construction schedule
a) Adjustments to the construction schedule shall comply with the regulations in Article 39 of Decree No. 37/2015/ND-CP [prescribed in SCC] and Article 5 hereof.
b) The investor and the contractor shall enter into a negotiation on the extension of the contract duration in the following cases:
– The contractor fails to grant the right to access and use the entire construction site or some areas in the construction site according to the prescribed time;
– The investor delays the issuance of the acceptance record without any explanation;
– The contractor follows the investor’s instructions that are in accordance with the regulations, arise and are not agreed previously.
c) The contractor has the right to extend the deadline for completion of the contract according to Article 24 [Complaints and settlement of disputes] if one of the following cases is the reason:
– Any change in the scope of work, design and construction methods at the request of the investor affects the construction progress;
– Any force majeure event occurs;
– Any work is delayed or hindered by the investor, investor’s personnel or other contractors such as: failure to comply with regulations on transferring of construction site under the contracts and relevant procedures, which affects the construction progress but it is not caused by the contractor;
– The investor fails to pay or punctually pay for the completed tasks according to the regulations of the contract.
8.5. Speeding up progress
In case the investor needs the contractor to complete the construction before the scheduled completion date, the investor shall request the contractor to propose additional expenses in order to speed up the construction progress. In case the investor approves the expenses proposed by the contractor, the scheduled completion date shall be adjusted accordingly and confirmed by both investor and contractor.
If the additional expenses proposed by the contractor to speed up the construction progress are approved by the investor, the contract price shall be adjusted and the additional expenses shall be considered as a change of the contract.
8.6. Remedies for delays
Once the construction progress fails to meet the schedule agreed by both parties and specified in the construction contract but the delay is not caused by the reasons specified in Clause 8.4 of this Article, the investor shall request the contractor to submit an adjusted construction schedule and complete the construction within the new schedule.
Article 9. Contract prices, advances and payment
9.1. Contract types shall comply with Article 3 of Decree No. 37/2015/ND-CP dated April 22, 2015, which is amended by Point a Clause 2 Article 1 of Decree No. 50/2021/ND-CP.
9.2. Contract prices shall comply with Article 15 of Decree No. 37/2015/ND-CP dated April 22, 2015, which is amended by Point a Clause 5 Article 1 of Decree No. 50/2021/ND-CP. For general contractor contract, the contract price shall include project management expenses.
Total contract value:…………… VND [prescribed in SCC].
(in letters)
Contract price details are specified in the Appendix No. ………[contract price, advance and payment].
The above-mentioned contract price includes all costs for execution of the contract, royalties, profits of the contractor and taxes in connection with the construction under regulations of law.
The contract price shall only be adjusted in accordance with the regulations in Article 10 [adjustments to contract price].
9.3. Advance
a) The advance [prescribed in SCC] shall be deducted gradually after the payments for the completed workloads of the contract and it shall be completely deducted when 80% of the contract value is paid (unless a larger amount of advance is permitted by a competent person).
b) The advances shall be repaid by deducting the amounts payable to the contractor at a certain ratio according to the document specifying percentages of completed work as the basis for payment. The advance or returned advance shall not be counted until the date on which the value of the completed work, changes in the contract, contract compensation and/or bonuses or indemnities is calculated.
Where the advance has not yet been returned prior to the signature of acceptance record and the termination of the contract according to Article 18 [Contract suspension and termination by the investor], Article 19 [Contract suspension and termination by the contractor] or Article 21 [Risks and force majeure] (if any), the total amount of unreturned advance shall be considered due debt and shall be paid to the investor by the contractor within ……days.
c) The contractor shall use the advance according to the regulations in Clause 6 Article 18 of Decree No. 37/2015/ND-CP. The advance shall only be used for salary payment for employees, purchase or mobilization of equipment, buildings, materials and other mobilization costs necessary for execution of the contract.
9.4. Payment [prescribed in SCC]
a) For lump-sum contracts:
* The payment shall be made in ……… installments:
– The first installment: ………….. % of the contract value (or the value of the completed work item)..………after the contractor completes the work item……….(name of the work item).
– The second installment:………..% of the contract value (or the value of the completed work item)………..after the contractor completes the work item……….(name of the work item).
– The ………………installment:
– The final installment:………..% of the contract value (or the full payable) after the contractor fulfills his/her obligations under contract and issues a guarantee for warrantly obligations to the investor.
b) For fixed-unit price contracts: The payment shall equal (=) the actual completed workload monthly approved (or at a designated time agreed by both parties) multiplied (x) by its unit price stipulated in the contract.
c) For variable unit price contracts: The payment shall equal (=) the actual completed workload monthly approved (or at a designated time agreed by both parties) multiplied (x) by its adjusted unit price under Article 10 [Adjustments to unit prices, workloads, other contents specified in the contract and contract price]
9.5. Time limits for payment
a) The investor shall make payment within ……….working days from the date of receipt of the valid payment document from the contractor.
b) If the investor fails to make payment on time and in full as agreed upon in the contract, he/she must pay the contractor a compensation in accordance with the regulations in Clause 2 Article 43 of Decree No. 37/2015/ND-CP.
9.6. Withholding return
The investor shall return the amount of withholding to the contractor [prescribed in SCC] after the amount of each installment is evidenced and the contractor fulfills his/her warranty obligations as prescribed in Article 19 [Insurances and warranties]
9.7. Currency of payment and methods of payment
a) The payment shall be made in Vietnam dong (VND) and…………(any foreign currency (if any), specify time of payment, name of bank, type of foreign currency and its foreign exchange).
b) Method of payment: transfer (other methods of payment as agreed by both parties).
9.8. Payment document [prescribed in SCC]
a) For lump-sum contracts:
– Record on acceptance of completed work during the payment period (using the quality acceptance record template which specifies the amount of work or specifies the percentage of work completion instead of the amount of work or specifies contents according to requirements of the bidding document and request for proposals) certified by the investor’s representative or consultant’s representative (if any) and contractor’s representative. The acceptance record is considered as a certificate of completion of the construction works, work items and workloads in accordance with the scope of work under the contract.
– A document specifying the volume of additional works (if any, beyond the scope of work under the contract) certified by the investor’s representative or consultant’s representative (if any) and contractor’s representative; and
– The contractor’s payment request which specifies the value of the completed work, value of the additional work (if any), advance deduction, the final amount of payment (after the previously mentioned amounts have been offset) certified by the investor’s representative and contractor’s representative.
b) For fixed unit price contracts:
– Record of acceptance of actually completed work during the payment period certified by the investor’s representative or consultant’s representative (if any) and contractor’s representative (using quality acceptance record template which specifies the workload);
– A document specifying the values of works without unit prices under the contract (if any) which specifies the workload and unit price of the work beyond the scope of contract and is certified by the investor’s representative or contract execution supervision consultant’s representative (if any) and contractor’s representative; and
– The contractor’s payment request which specifies the value of the finished work, value of the additional work (if any), advance deduction, the final amount of payment (after the previously mentioned amounts have been offset) certified by the investor’s representative and contractor’s representative.
c) For adjusted unit price contracts:
– Record of acceptance of actually finished work during the payment period certified by the investor’s representative or consultant’s representative (if any) and contractor’s representative (using quality acceptance record template which specifies the workload);
– A document specifying unit prices adjusted by cost escalation (also known as settlement price) under Article 10 [Adjustments to unit prices, workloads, other contents specified in the contract and contract price] certified by the investor’s representative or consultant’s representative (if any) and contractor’s representative; and
– The contractor’s payment request which specifies the value of the finished work, value of the additional work (if any), advance deduction, the final amount of payment (after the previously mentioned amounts have been offset) certified by the investor’s representative and contractor’s representative.
Article 10. Adjustments to unit prices, workloads, other contents specified in construction contracts and contract prices
10.1. When adjusting unit prices of the construction contract, the regulations in Article 6 of the Circular providing instructions on construction contracts shall be applied.
10.2. Adjustments to workloads and other contents specified in the contract shall comply with the regulations in Article 4, Article 5 and Article 6 of the Circular providing instructions on construction contracts [prescribed in SCC].
10.3. Adjustments to the contract price shall comply with the instructions in Appendix I of the Circular providing instructions on construction contracts [prescribed in SCC].
10.4. The contract price shall be adjusted in several cases prescribed in Article 22 [Compensation events].
Article 11. Rights and obligations of the investor
11.1. Rights of the investor
a) The investor has the right to inspect and supervise but not obstruct the normal operation of the contractor. Any delay caused by the investor during inspection shall not be included in the construction progress of the contractor;
b) If the investor has any complaint about the payment under Articles hereof or relevant laws, he/she shall send the contractor a notice and details of the complaint.
c) In case the investor finds an issue or situation that might lead to complaints, a notice must be sent to the contractor as soon as possible. The details shall specify clauses or grounds for complaining and shall include proofs of the payment and the extension of payment due date. The investor, thereafter, shall determine:
– The amount (if any) that the investor requests the contractor to pay;
– The extension (if any) of time limits for notice of errors;
The investor may offset this amount against any debt or future debt of the contractor.. The investor may only deduct a debt of the contractor that has been confirmed or under another complaint against the contractor according to this clause;
– Other rights according to the regulations of law.
11.2. Obligations of the investor
a) Apply for the construction permit as prescribed;
b) Transfer the construction site, wholly or partly, to the contractor under terms of the contract;
c) Send key personnel and submit a written notification of the list of key personnel managing and executing the contract to the contractor;
d) Fulfill the payment obligations to the contractor according to the payment schedule prescribed in the contract;
dd) Employ a construction supervision consultant according to the regulations in Article 13 or Article 14 of this contract [Rights and obligations of the consultant];
e) Promptly provide design documentation, relevant documents and materials (if any) under terms of the contract and regulations of relevant laws;
g) Timely consider and approve the contractor’s proposals related to the design and construction in writing during the construction phase within ….. days. If there is no response to the contractor’s proposal by the investor in this period, the proposal is deemed to be approved;
h) Provide the contractor with related data required to be available on geological and hydrogeological assessment, construction surveys and reports on surrounding environment related to the contract.
Article 12. Rights and obligations of the contractor
12.1. Rights of the contractor
a) Propose an additional workload not included in the contract prescribed in Article 4 of the Circular providing instructions on construction contracts; refuse tasks beyond the scope of work stipulated in the contract or tasks not agreed by both parties and illegal requirements of the investor.
b) Change construction methods to speed up the construction progress, enhance quality assurance, safety and effectiveness according to the contract price, if the change is approved by the investor.
c) Access the construction site;
– The investor shall transfer the construction site to the contractor for execution of the contract within ….. days.
– If the construction site transfer is delayed or any expense is incurred by the investor’s default, such additional expense shall be included in the contract price and shall be paid by the investor.
If the delay or expense incurs by the contractor’s default, the contractor shall not be reimbursed for the additional expenses by the investor or the contract duration shall not be extended.
12.2. Obligations of the contractor
a) The contractor must mobilize main personnel and use construction equipment listed in the bid/proposal or additionally supplied for construction. The investor only approves the proposal to replace the key personnel and equipment in case the qualifications of new personnel and quality and features of new equipment are equivalent to or higher than those proposed in the bid. The replacement must comply with regulations.
b) If the investor requests the contractor not to employ the contractor’s personnel to execute the contract with convincing reasons, the contractor shall ensure that such personnel will leave the construction site within 07 working days from the date of receipt of the investor’s request and will no longer perform any work related to the contract. If necessary, the contractor shall immediately appoint another person with equivalent or higher qualifications
c) If the investor detects personnel of the contract involving in acts of corruption, fraud, collusion, coercion or obstruction in the construction phase, other illegal acts, such personnel shall be forced to resign.
d) The contractor must carry out the construction in accordance with the design, project standards and regulations, construction standards, quality and progress assurance, HSE and fire and explosion prevention.
dd) The contractor must prepare the construction plan, construction logbook, payment documents, as-built documents, contract settlement, material and equipment testing under the contract.
e) The contractor must ensure the contract confidentiality under provisions of laws on confidentiality.
g) The contractor must respond to the proposals or requests of the investor in writing within………..days. If there is no response in this period, such proposals or requests are deemed to be approved.
12.3. Rights and obligations of the general contractor
a) The general contractor has the rights prescribed in Clause 1 Article 28 of Decree No. 37/2015/ND-CP and the following rights:
– Control all of vehicles and methods for construction in the construction site of the project.
– Select a subcontractor through procurement or direct contracting in accordance with the general contractor contract, Article 47 of Decree No. 37/2015/ND-CP and regulations of law on investment in work construction and construction contract.
– Add or replace subcontractors (if any) to ensure the quality, prices and schedules of the contract after the addition or replacement is approved by the investor.
b) The general contractor has the obligations prescribed in Clause 2 Article 28 of Decree No. 37/2015/ND-CP and the following obligations:
– Manage the construction site, instruct subcontractors in appropriate use of auxiliary works, works serving the construction in order to avoid wastefulness; use and protect the construction site and ensure the construction site security. The subcontractors must comply with the direction and management of the genereal contractor in terms of management of the construction site.
– Prepare and enter into an agreement with the investor on the schedule for construction phases and main work items and a payment plan.
– Organize procurement, manufacture and supply of materials and equipment according to the requirements of the general contractor contract and its schedule; reach an agreement with the investor on the contents of the bidding document on procurement of essential technological equipment and expenses for the procurement of the contract according to results of the procurement of equipment (if an agreement on that is specified in the contract).
– Operate a quality management system, ensure the quality of task performance according to regulations on quality management of construction work and according to contract agreements.
– Organize, regulate and manage activities on the construction site; implement measures to ensure environmental safety, fire/explosion prevention, labor safety and security on the construction site.
– Proactively cooperate with the investor in organizing training for managers and operators of the construction work; transfer technology, handover drawings and technical documents relating to the operation, use and maintenance of the construction work to the investor.
– Perform testing, adjustment and synchronous commissioning of the construction work and transfer the completed construction work to the investor according to the contract agreements and regulations of the state.
– Provide warranties in accordance with regulations of the state.
– Be responsible to the investor and before law for the quality and progress of the work prescribed in the contract, including the work performed by the subcontractor and must compensate for the damage caused by the general contractor.
12.4. Personnel of the contractor
The contractor’s personnel must be qualified in accordance with requirements for their occupations. The investor has the right to request the contractor to dismiss any personnel on the construction site or participating in the construction work, including the contractor’s representative if the personnel has negative attitude or is accused of negligence, incompetence; or unobservance of any term of the
In this case, the contract shall (or must) replace such personnel with another designated one. The contractor shall ensure the safety and security of people and property in the construction site.
12.5. Personnel and equipment reporting by the contractor
The contractor must submit detailed reports on his/her minimum quantity of personnel and essential equipment in the construction site to the investor.
12.6. Collaboration
The contractor shall collaborate with the investor’s personnel and other contractors;
The above-mentioned entities and other contractors may use the contractor’s equipment, temporary works, or accesses the construction site by roads built by the contractor. Charges for the use of the aforesaid equipment, accesses or temporary works shall be included to the contract price.
The contractor shall be responsible for his/her construction work on the construction site and shall collaborate with other contractors to carry out the work within an extent specified in the employer’s bidding document (request for proposals) (if any).
12.7. Boundary marker positioning
The construction site shall be defined by boundary marker and reference elevation stipulated in the contract. The contractor shall be responsible for the accuracy of every work item positioning and shall correct errors in the position, elevation, size or construction alignment.
The contractor shall check the accuracy of boundary markers, alignment and standard elevation before carrying out the construction and shall be responsible for the inaccuracy of the aboved mentioned elements.
Where the delay or expense is incurred due to the other party’s defaults, the contractor shall notify the investor of that fact and apply Article 22 hereof [Complaints and settlement of disputes] to settle such issue.
12.8. Construction site conditions
It is considered that the contractor has carried out site surveys and verified the accuracy of the set forth elements prior to the submission of bid envelope, including:
a) Construction site topography, including geological conditions if a geological survey report has been included in the bidding document (request for proposals) or supporting documents;
b) Hydrogeology and climate;
c) Workloads and nature of work, and materials for construction and correction of defects.
d) Regulations of laws on labor;
dd) The contractor’s requirements for accesses, accommodation, means of transportation, personnel, traffic, water supply and other services.
It is considered that:
If the contractor encounters any geological difficulty beyond his/her anticipation, he/she shall notice the investor of such difficulty as soon as possible. The notice shall clarify the geological difficulty and reasons for failure to anticipate such difficulty. The contractor shall continue to carry out the construction work, apply compatible measures and follow the instructions by the investor. If any event occurs due to the compliance with the instruction, the parties shall consider the criteria for making an unanimous decision according to Article 21 hereof [Risks and force
12.9. Roads and means of transport
The contractor shall pay all charges or fees for the use of specialized roads and temporary roads, including accesses to the construction site. The contractor shall also pay for vehicles serving the construction work outside the construction site.
The contractor should save the roads, accesses or bridges from harm due to the use of the contractor
Unless otherwise prescribed:.
The contractor shall not travel or occupy the whole roads or pavement, regardless of public roads, roads under the contractor administration or other’s;
b) The contractor shall be responsible for repairing the roads that is damaged by himself/herself or his/her personnel;
c) The contractor shall install signposts along the road and shall obtain the relevant authority’s prior consent;
d) The investor shall be free from complaints or issues arising in connection with the road routes;
dd) The investor does not guarantee the compatibility or availability of any specific routes;
e) The contractor shall pay all the cost for the use of his/her on-demand roads.
12.10. Transport of materials and equipment (unless otherwise prescribed)
a) The contractor shall notify the investor of the transport of materials and equipment to the construction site (including the packaging, handling, loading, transport, storage and protection of such materials/equipment) at least ……days in advance;
b) The contractor shall compensate for damage, losses and costs (including legal fees and charges) incurred in connection with the transport of materials/equipment by the contractor.
12.11. Contractor’s equipment
The contractor shall be responsible for his/her equipment. All the contractor’s equipment on the construction site shall be used for the construction only. The contractor shall not be permitted to transport his/her equipment out of the construction site without the prior consent of the investor, except for vehicles for transport of material/equipment and personnel of the contractor.
12.12. Materials and equipment supplied by the investor (if any)
a) The investor shall be responsible for his/her equipment supplied to the contractor.
b) The contractor shall be responsible for each material/equipment of the investor that is run, used, managed or controlled by the contractor’s personnel.
The necessary quantity of equipment of the investor and charges for the use of such equipment (at the mentioned price) shall be specified in the contract. The contractor shall pay charges for the use of such equipment to the investor.
The investor shall complimentarily provide the contractor with materials specified in the “list of materials supplied by the investor” (if any) under the contract. The investor shall supply such materials on the designated date and location prescribed in the contract at his/her account. The contractor shall check the supplied materials and shall promptly notify the investor of any deficieny, inaccuracy or omission of such materials. The investor shall promptly verify the deficiency, inaccuracy or omission of the materials as notified by the contractor, unless otherwise prescribed in the contract.
The contractor shall carefully store and supervise such materials, thereafter. Notwithstanding the supervision, examination and storage of the materials by the contractor, the investor shall be responsible for the deficiency, inaccuracy or omission founded.
12.13. The contractor’s activities on the construction site
The contractor’s operation shall be limited within the perimeter of the construction site and the additional working area provided by the investor. The work carried out by the contractor, his/her equipment and personnel shall be confined to the construction site and other areas approved by the investor. During the construction, the contractor shall keep the construction site tidy. The contractor shall clean the construction site and demolish all temporary works, where unnecessary.
After receipt of the acceptance record, the contractor shall clear or remove his/her equipment, debris, the contractor shall keep the construction site clean and safe. However, necessary materials or equipment used for repairing or correcting defects may be left in the construction site during the remedy process.
If such material or equipment is not removed from the construction site within……..days after the issue of acceptance and transfer record, the investor may get rid of or sell such material or equipment. The earnings shall be returned to the contractor after the additional expense is deducted.
12.14. Other relevant issues
Every antiquity, coin, relics, geological or archeological object founded within the construction site shall be under the protection and control by the investor. The contractor and his/her staff shall not damage to or take above-mentioned object off the construction site.
The contractor shall promptly notify the investor of such object at the time it is founded. Where any delay or expense is incurred due to the compliance with the instructions of the investor,
Article 13. Rights and obligations of project management consultants (where the project management consultant is employed by the investor)
13.1. The consultant shall:
Carry out tasks designated by the investor under the contract. The consultant may include competent individuals qualified for managing the project.
Do not make any amendment to the contract. Exercise rights defined or implied in the contract. The contract shall specify the case in which the exercise of rights by the consultant is required to be approved by the investor (ì any). The investor shall commit not to impose the rights of the consultant, unless otherwise agreed by both parties.
Nevertheless, it is deemed to be approved by the investor where the consultant exercises any specific right required to be approved by the investor (for the purpose of the contract).
Unless otherwise prescribed in the contract, the consultant shall:
a) The consultant shall be considered as the investor’s personnel when he/she exercises any specific right defined or implied in the contract.
b) The consultant must not reduce the obligations or responsibilities of any party under the contract.
c) Notwithstanding the approval, certification, inspection, supervision, request, testing or the similar action by the consultant (including neutral ideas), the contractor shall fulfill his/her obligations under the contract, including responsibilities for defects, omission, inconsistencies or unobservance of terms of contract.
13.2. Authorization by the consultant
The consultant may assign and authorize other individuals to carry out specific tasks if it is approved by the investor. Authorized persons may be resident consultants or independent supervisor designated to supervise or perform work item commissioning. The assignment/authorization or cancellation of assignment /authorization shall be submitted to the investor in writing and it only takes effect after the receipt of such document by the investor. Unless otherwises stipulated in the contract or by the investor, the authorization to make decisions shall not be made.
The authorized person shall be a competent one qualified for carrying out tasks under the authorization.
The assignee or authorized person shall provide the contractor with instructions within the authorization only. Any approval, certification, inspection, supervision, request, testing or the similar action by the authorized person shall be considered as exercising the consultant’s work. Nevertheless:
a) The failure or disapproval for any work, equipment or material shall not affect the consultant’s rights to remove or reject any work, equipment or material;
b) Any suspicion of the authorized person or assignee’s decision or instruction shall be reported to the consultant by the contractor. The consultant has the right to reverse, confirm or change such decision or instruction.
13.3. Instruction by the consultant
The consultant shall advise the contractor on amendments or addition to the drawings, or defect/error corrections at any time under the contract. The contractor shall follow the instructions provided only by the consultant or authorized person.
The investor shall comply with instructions on any aspect of the contract provided by the consultant or authorized person. The consultant and authorized person shall provide instructions in writing, where applicable. If the consultant or authorized person
a) gives verbal instructions; or
b) is requested in writing to provide instructions but do not response in writing within………..working days from the date of receipt of the request,
such request shall be considered as the consultant’s or authorized person’s instruction (specify in the contract).
13.4. Replacement of the consultant
The investor shall send the contractor the consultant candidate’s profile at least………….days in advance before the intended date of replacement. Candidates rejected by the contractor with persuasive reasons for rejection submitted to the investor shall not be employed.
13.5. Decisions by consultants (apply to the investor, where the consultant is not employed by the investor)
The consultant (on behalf of the investor) shall discuss with both parties before reaching an agreement or a decision on any issue. Where they fail to reach an agreement, the consultant shall make an objective decision in accordance with the contract and on the basis of relevant issues.
The consultant shall notify both parties of the agreement or his/her decision on such issue and reasons for such decision. Each party shall comply with the agreement or decision, unless it is governed by Article 22 hereof [Complaints and settlement of disputes].
Article 14. Rights and obligations of the construction supervision consultants (where the construction supervision consultant is employed by the investor)
14.1. The construction supervision consultant shall:
Carry out tasks designated by the investor under terms of contract and provisions of laws. The construction supervision consultant may be competent individuals qualified for carry out the construction supervision consulting.
Do not make any amendment to the contract. Be entitled to exercise rights defined or implied in the contract. The contract shall specify the case in which the exercise of rights by the consultant is required to be approved by the investor (if any). The investor shall commit not to coerce the rights of the consultant, unless otherwise agreed by both parties.
Unless otherwise prescribed in the contract, the consultant shall:
a) The consultant must not reduce the obligations or responsibilities of any party under the contract.
b) Notwithstanding the approval, certification, inspection, supervision, request, testing or the similar action by the consultant (including neutral ideas), the investor shall fulfill his/her obligations under the contract, including responsibilities for defects, omission, inconsistencies or unobservance of terms of contract.
14.2. Responsibilities of the construction supervision consultants
The consultant shall supervise the construction on the construction site (if the consultant is not employed, the investor shall be responsible for the supervision).
The scope of supervision shall be conformable to laws on construction quality management.
14.3. Replacement of the construction supervision consultant
The investor shall send the contractor the consultant candidate’s profile at least………….days in advance before the intended date of replacement. Candidates rejected by the contractor with persuasive reasons for rejection submitted to the investor shall not be employed.
Article 15. Subcontractors
15.1. When entering into subcontracts [prescribed in SCC], the contractor shall:
a) Request the investor to consider approving subcontractors out of the list of subcontractors [prescribed in SCC];
b) Be responsible to the investor for the workload, construction progress, quality, HSE, his/her errors and subcontractor’s work;
c) Do not assign more than…….% of the contract value to subcontractors.
15.2. Subcontractors designated by the investor (if any)
a) A subcontractor designated by the investor (hereinafter referred to as “designated subcontractor”) refers to a subcontractor who is appointed by the investor to help the contractor carry out high-tech jobs or where the contractor fails to meet requirements for construction schedule at the investor’s request.
b) The contractor has the right to refuse the designated subcontractor if the contractor still complies with terms of the contract or has evidences or proofs of the failure to satisfy the contract requirements by the designated subcontractor.
15.3. The investor may directly settle payment to the subcontractor according to the proposal of the contractor, (unless otherwise stipulated in the contract).
15.4. Collaboration with other contractors.
During the process of execution of the contract, the contractor shall collaborate with other contractors and relevant units working together on the construction site during the working time of such contractors and relevant units according to their schedules. In case the schedules of such contractors are changed, the investor shall send a written notification of the change(s) to the contractor.
According to the regulations in the technical specifications or at the request of the investor, the contractor shall collaborate and enable the investor’s personnel and other personnel to assess the environmental and social impacts. The investor shall send a notice of this fact to the contractor.
15.5. Subcontract shall be executed according to Article 47 of Decree No. 37/2015/ND-CP and other regulations of relevant laws. The model contracts specified in the Appendix enclosed with the Circular providing instructions on construction contracts may be applied in the making of the subcontract.
Article 16. HSE and fire and explosion prevention
16.1. Occupational safety
a) The contractor shall introduce safety measures to ensure the safety of human and works on the construction site, including auxiliary works.
b) The safety measure and occupational safety regulation shall be put up on the construction site; and dangerous areas on the construction site shall be guarded by instructors and shall be sticked with caution signs.
c) Relevant parties shall regularly inspect the compliance with occupational safety regulations on the construction site. Once the violation against the safety regulations is found, the construction shall be suspended. Every organization and individual under whom the violation is committed shall be legally responsible for the violation.
dd) The contractor shall provide training and instruction on occupational safety for his/her workers. For jobs required to strictly comply with occupational safety requirements, the worker shall obtain a Certificate of occupational safety.
dd) The contractor shall provide adequate protective clothing and equipment for his/her workers.
The contractor and relevant parties shall tackle the occupational incidents and submit reports on occupational incidents to the State regulatory authority under provisions of laws, and shall compensate for any damage by the contractor’s default.
16.2. Environmental protection
a) The contractor shall apply noise and dust control measures, debris treatment and construction site cleaning methods.
b) Debris or materials shall be covered to reduce the environmental pollution during the transport.
c) The parties shall supervise and inspect the compliance with the environmental protection regulations and undergo the inspection by the State regulatory authority. Where the contractor disobeys environmental protection regulations, the investor and State regulatory authority have the right to suspend the construction and request the contractor to comply with environmental protection regulations.
d) Every organization and individual under whom the violation against the environmental protection regulations is committed shall be legally responsible and compensate for the damage incurred by their default.
16.3. Fire and explosion prevention
Parties to the contract shall comply with State regulations on fire and explosion prevention.
Article 17. Water and electricity supply, and construction site security
17.1. Electricity and water supply
The contractor shall supply water and electricty and other services to meet his/her demand unless:
The contractor has the right to use on-site water or electricity or other services which are specified in the investor’s requirements for the purpose of construction. The contractor shall protect the electricity and water sources. The contractor shall pay for necessary machinery and equipment for the use of such services and measurement of the consumption. The contractor shall pay for his/her consumption at the price stipulated in the contract.
17.2. Construction site security
Unless otherwises stipulated, the construction site shall be secured as follows:
a)The contractor shall be responbile for the access of non-mission guests;
b) Only the contractor’s personnel, employer’s personnel and persons (or representatives) designated by the investor.
Article 18. Suspension and termination of the contract by the investor
18.1. Suspension of the contract by the investor:
Where the contractor fails to fulfill his/her obligations, the investor may request the contractor to fulfill the obligations under the contract and remedy defects within an acceptable period of time.
The investor shall request the contractor to suspend his/her work and remedy the consequences if he/she fails to meet requirements for construction quality and progress and occupational safety, environmental protection and fire and explosion prevention as stipulated in the contract.
The investor shall send the contractor a written notice of suspension at least……days in advance in which reasons for suspension shall be specified.
18.2. Termination of the contract by the investor
The investor has the right to terminate the contract if the contractor:
a) Fail to execute the contract under the contract performance guarantee or fail to comply with the notice under clause 18.1 hereof [Suspension of the contract by the investor]; or
b) Discontinue to carry out the construction works or intend to give up on the contract; or
c) Stop the work for ……..consecutive days without persuasive reasons;
d) Have subcontractor carry out the amount of work of more than……….% of the construction work value, or transfer the contract to another entity without the investor’s consent; or
dd) Go bankrupt, insolvent, shut down or suffer asset restrictions or operate under asset restrictions or under creditor’s control or face similar events (under applicable laws);
The investor may terminate the contract, after a notice in…..days in advance, and request the contractor to leave the construction site. Nevertheless, if the contractor encounters any of events mentioned in point dd, the investor may immediately release a notice of contract termination.
The contract termination shall not affect rights of the investor.
The contractor shall leave the construction site and transfer all his/her materials, documents and design documents to the investor. The contract shall make efforts to protect people and property or the site security according to the instructions in the notice.
After the contract is terminated, the investor may hire another contractor to complete the construction. The investor and new contractors may use any material or document prepared by the previous contractor or the previous contractor’s representative.
The investor shall send the contractor a notice of the release if the contractor’s equipment and temporary works at the construction site or in the vicinity of the construction site. After receiving the notice, the contractor shall demolish or displace these equipment and temporary works within ……days.
18.3. Pricing at the termination date
Once the notice of contract termination under Clause 18.2 hereof [Termination of the contract by the investor] takes effect, the investor shall consider approving the pricing or shall price the contract value, material and contractor’s documents and the amount payable to the contractor for every work done under the contract.
18.4. Payment after termination of the contract
After the notice of contract termination under Clause 18.2 hereof [Termination of the contract by the investor] takes effect, the investor is permitted to:
a) Refuse to make additional payment to the contractor until the construction cost, repairing fees for defects or damage caused by the delay in the completion of construction (if any) and other expenses are certified true;
b) Collect payment for losses or damage and other additional expenses for the construction before paying debts to the contractor. After these amounts are collected, the investor shall pay the contractor the remainder.
Article 19. Suspension and termination of the contract by the contractor
19.1. Rights to suspend the contract execution by the contractor
Where the investor fails to fulfill his/her payment obligations after……….days under Clause 9.5 hereof [Time limits for payment], the contractor, after notifying the investor not later than……………days, may suspend his/her work (in part or in whole) until the date on which the contractor is paid by the investor in accordance with the terms of the contract, as the case may be and as described in the notice.
The suspension by the contractor under this Clause shall not affect the contractor’s rights to financial expenses and termination of the contract under Clause 19.2 hereof [Termination of the contract by the contractor].
If the contractor receives the investor’s payment prior to the notification of suspension, the contractor shall continue to carry out the construction as soon as possible.
Where any delay or expense is incurred due to the suspension (or due to the reduction of workloads) under this Clause, the contractor shall notify the investor of
19.2. Termination of the contract by the contractor
The contractor has the right to terminate the contract if:
a) The payment is not made within 45 days from the date on which the contractor submits a complete and valid payment document to the investor; or
b) The investor fails to fulfills his/her obligations to the contract; or
c) The construction is suspended more than 45 days; or
d) The employer goes bankrupt, insolvent, shutdown or suffers asset restrictions or operates under asset restrictions or under the creditor’s control or faces similar events (under applicable laws).
If the contractor encounters any of above-mentioned events, he/she may submit a written notice of contract termination to the investor. Nevertheless, if the contractor encounters events mentioned in point d, he/she may immediately release a notice of contract termination.
19.3. Suspension of the work and relocation of equipment by the contractor
After receiving the notice of contract termination, the contractor shall:
a) Suspend all additional work, excluding the work under the investor’s instructions to ensure the safety of people and property on the construction site;
b) Transfer all documents of the contractor, equipment, materials and the work that the contractor has received payment from the investor to the investor;
c) Transport all materials out of the construction site, excluding those necessary for the safety and leaving of the construction site.
19.4. Payment as the contract termination
After the notice of contract termination under Clause 19.2 hereof [Termination of the contract by the contractor] takes effect, the investor shall:
a) Return the contract performance guarantee to the contractor;
b) Fulfill the payment obligations to the contractor.
Article 20. Insurances and warranties
20.1. Insurances and warranties under the construction contract shall comply with the regulations in Article 46 of Decree No. 37/2015/ND-CP and the regulations in Clause 20.2 and Clause 20.3 of this Article.
20.2. Insurances
– The investor shall buy construction works insurances under provisions of laws. The contractor shall carry out procedure for indemnification for any damage to or loss of construction works within the contractor’s scope of work after the construction works insurance is provided by the investor. The investor shall not be liable for getting the loss or damage covered if the contractor refuses to carry out the aforesaid procedure. The indemnification shall be deducted under the insurance contract between the investor and insurer;
– The contractor shall buy insurances for his/her equipment and personnel, and the third party.
20.3. Warranties
After receipt of record of acceptance of the construction works or work item, the contractor shall:
– Provide a warranty for…………months (at least 24 months) for class-1 and special-class construction works and/or……..months (at least 12 months) for the construction works of class 2, 3 or 4;
– Where the withholding warranty fee is returned to contractor, the contractor shall submit a guarantee for warranty obligations to the investor within 21 days prior to the date of receipt of the works/work item acceptance record. The guarantee shall be valid until the warranty period is ended, and shall be issued by a natural person or juridical person using the form in the Appendix…….[forms] or other forms approved by the investor.
– The contractor shall be responsible for the remedy of defects or errors occurring by his/her default during the warranty period and any additional expenses related to the correction shall be paid by the contractor. The contractor shall perform the warranty obligations within 21 days from the date of receipt of notice from the investor during the warranty period; if the contractor refuses to perform his/her obligations within the set forth period, the investor is entitled to hire the other organization or individual to remedy and all additional expenses for the remedy shall be paid by the contractor and shall be deducted from the guarantee of the contractor. The amount payable shall be notified to the contractor and the contractor is required to approve such amount.
Article 21. Risks and force majeure
21.1. Risks and force majeure
Regarding ricks and force majeure, the regulations in Article 51 of Decree No. 37/2015/ND-CP shall be applied.
21.2. Risk consequences
If the risks specified in Clause 21.1 hereof damage the construction works, contractor’s property, equipment or documents, in some extent, the contractor shall promptly send a written notification to the investor and repair such damaged assets or works within the scope required by the investor.
21.3. Responsibilities for risks by the contractor
The contractor shall be totally responsible for protecting the works and commodities from the date of commencement to the date of issue of the acceptance record or the date on which the acceptance record is deemed to be issued under Clause 7.5 hereof [Acceptance, transfer of construction works and work items] if the responsibilities for risks are transferred to the investor. As the time the record of acceptance of a work item is issued or deemed to be issued, the investor shall take all responsibilities for protecting that work item.
After the responsibilities are appropriately transferred to the investor, the contractor shall be responsible for any work that has not been finished yet by the date specified in the acceptance record until the date such work is completed.
In the event of any damage or loss of construction works, material, equipment or contractor’s documents within the period that the contractor is undertaking, specified in Clause 21.3 of the contract [ responsibilities for risks by contractor], the contractor shall be responsible for recovering such damage or loss at their account.
The contractor shall be responsible for the malfunction or losses, within the liability, before or after the acceptance record is issued, and according to the regulations in Clause 1 Article 51 of Decree No. 37/2015/ND-CP.
21.4. Compensation for risks
The contractor shall compensate and suffer from complaints, malfunction, losses and expenses (including legal fees and charges) in connection with:
a) The damage to people health, disease, sickness or death due to the construction, or remedy against defects other than those occurring by the investor’s default or default of the investor’s personnel or representative;
b) Damage or losses of any asset which is an immovable property or is an asset of any individual (other than the construction works) within the following extent:
– Damage or losses incurred from or during the construction or due to the construction or defect remedy;
– Violations or damage or losses accidentally or intentionally caused by the defaults of the contractor, contractor’s personnel or anyone directly or indirectly employed by the contractor.
The investor shall compensate for losses or damage to the contractor and contractor’s personnel and suffer from complaints, damage, losses or additional expenses (including legal fees and charges) in connection with damage to people health, sickness or death as a result of the intentional or negligent act or contract violations by the investor or his/her personnel.
21.5. Notification of force majeure events
In the event that the contract performance by either party is prevented by a force majeure event, such party shall promptly send another party a written notice of the force majeure event in which the work or obligation hindered by such force majeure event shall be specified. The notice must be sent as soon as the party becomes aware of the force majeure or should have become aware of the event.
After the notice, the party encountering force majeure event shall be entitled to delay to perform his/her obligations during the force majeure.
Notwithstanding otherwise provisions, the payment obligations shall not be affected by force majeure events.
21.6. Consequences of force majeure events
If the performance of any obligation of the contractor is prevented by the force majeure event that has been noticed to the other party under Clause 21.5 hereof [Notice of force majeure] and the contractor suffers from delay or additional expenses due to the force majeure event, he/she, under the Article 24 hereof [Claims and settlement of disputes] shall be entitled to:
a) Be granted an extension if the obligation fulfillment is delayed or forecasted to be delayed, under clause 8.3 [Extension of the deadline for completion of the contract];
b) Be indemnified for additional expenses if the event is included in Clause 21.1 hereof [Risks and force majeure events].
After receipt of the notice, the investor shall consider resolving such issue.
21.7. Regarding contract termination due to force majeure events, contract settlement or obligation fulfillment, if the fundamental construction in progress is hindered for ……consecutive days by the force majeure event that has been noticed to another party under clause 20.5 hereof [Notice of force majeure events] or is hindered for various times with the total period of exceeding………..days by force majeure events that has been noticed to another party, either party is entitled to send another party a notice of contract termination. In this case, the contract shall be terminated after…………days from the date of notice.
The employer shall pay:
a) payments for the work that has been completed for which the price has been stated in the contract;
b) costs of equipment and materials sent to the contractor or items that the contractor is delivered (as the time of payment by the investor, such equipment and materials shall be the investor’s assets (and liabilities) and shall be used by the investor);
c) Every expense or liability for the works completion suffered by the contractor during the force majeure (if any);
d) Expenses for removing the contractor’s temporary works or equipment from the construction site;
e) Compensation for personnel and workers employed for the whole contract duration by the contractor at the time of contract termination.
Article 22. Compensation events
22.1. The following events shall be considered as compensation events.
a) The investor fails to transfer a part of the construction site on the date of receipt of the construction site as prescribed;
b) The investor amends the operation schedules of other contractors, thereby affecting the work of the contractor in this contract;
c) The investor notifies the delay of work or fails to provide drawings, technical specifications or instructions necessary for the timely performance of the work;
d) The investor requests the contractor to carry out additional tests but the results found no fault;
dd) The investor refuses to approve the contract with subcontractors without convincing reasons;
e) The condition of the construction site is much worse than expected at the time prior to the approval letter, which is reasonably expected based on the information provided to the contractors (including site survey reports), other available information and site inspection results.
g) The investor requests to settle unexpected situations or arising jobs necessary to ensure construction safety or other reasons;
h) Other contractors and related agencies, units or the investor do not work on the dates stated in the contract and do not work under the conditions stated in the contract, causing delay or incurring costs for the contractor.
i) The advance is late;
k) The investor is affected by the investor’s risks;
l) The investor delays in issuing the certificate of construction completion without a reasonable reason.
22.2. If the compensation event [prescribed in SCC] increases costs or hinders the completion of the work before the expected completion date, the contract price will be adjusted upwards and the contract performance period will be extended. The investor must consider deciding on the adjustment of the contract price and extension of the contract duration.
22.3. After the contractor provides information evidencing the impact of each compensation event on the contractor’s cost estimate, the investor shall review, evaluate and adjust the contract price accordingly. If the contractor’s cost estimate is not reasonable, the Investor shall adjust the contract price based on the appropriate cost estimate in accordance with the regulations prepared by the investor.
The contractor may not be compensated when investor’s interests are severely affected by the contractor’s failure to provide early warning or cooperate with the investor.
Article 23. Rewards and penalties
23.1. Contract rewards
If the contractor fulfills his/her obligations ahead of the schedule, thereby bringing more benefits to the investor, for every month of early completion (period of time), the contractor will receive a bonus………% of the contract value for every…. month(s) and not exceeding……% of the benefit.
– Bonus level: [write the bonus level for early completion of the contractor’s work or initiative. In case the contract reward is not applied, it is specified].
– Maximum bonus amount: [write the maximum bonus total, (if any)].
23.2. Penalties
If the contractor falls …… days behind the schedule, the contractor shall be subject to a penalty of ….. % of the contract value for…. delayed days but not exceeding ….% of the damages by contract violations according to the regulations in Article 42 of Decree No. 37/2015/ND-CP which is amended by Clause 15 Article 1 of Decree No. .50/2021/ND-CP
[Specify the contents of penalty, fines and the maximum total penalty value in accordance with regulations of laws on construction].
Article 24. . Complaints and settlement of disputes
24.1. Complaints
Every complaint shall be lodged in accordance Article 44 of the Decree No.37/2015/ND-CP.
24.2. Settlement of disputes
The dispute shall be settled in accordance Article 45 of the Decree No.37/2015/ND-CP.
Any dispute arising in connection with the performance of the contract shall be amicably settled [prescribed in SCC].
If both parties fail to reach an amicable agreement, within………days from the date of dispute, the dispute shall be settled by the arbitration under laws of Vietnam [prescribed in SCC] The arbitration’s decision (or the People’s Court) shall be the final decision and bind both parties.
24.3. This Article shall not be affected even if the contract is invalid or terminated.
Article 25. Contract settlement and finalization
25.1. Contract settlement
The contract settlement shall comply with the regulations in Article 22 of Decree No. 37/2015/ND-CP which is amended by Clause 7 Article 1 of Decree No. 50/2021/ND-CP, regulations of other relevant laws including:
Within……days [prescribed in SCC] after receipt of the record of acceptance of obligation fulfillment, the contractor shall submit ……… sets of contract settlement and detailed documents using forms approved by the investor, including:
– A record of acceptance of completion of all works specified in the contract;
– A document confirming the volume of additional works (if any);
– A document specifying the value of contract settlement in which the paid elements and receivables are specified;
– As-built documents and construction logbooks;
– Other documents specified in the contract (if any).
The contract settlement documents shall be submitted within …………days from the date of acceptance of completion of all works specified in the contract, including additional works (if any).
25.2. Contract finalization
The contract finalization shall comply with the regulations in Article 23 of Decree No. 37/2015/ND-CP which is amended by Clause 8 Article 1 of Decree No. 50/2021/ND-CP and the following regulations:
a) The contract shall be finalized in the following cases:
– Both parties fulfill their obligations under the contract; or
– The contract is terminated (or cancelled) under Article 18 hereof [Contract suspension and termination by the investor], and Article 19 [Contract suspension and termination by the contractor].
b) The contract shall be finalized within ………….days [prescribed in SCC] from the date on which both parties fulfill their obligations or the contract is terminated (or cancelled) under point a, clause 2 of this Article.
25.3. Termination of responsibilities of the investor
After the finalization, the investor shall be free from responsibilities for any issue under or in relation to the contract towards the contractor.
Article 26. Entry into force
26.1. Both parties commit to comply with the regulations of this contract. Number of copies, pages, Appendices and contract languages [specified in SCC].
26.2. This contract comes into effect from the date [prescribed in SCC] and after the investor has received the contract performance guarantee from the contractor.
26.3. Contract legitimacy
a) The valid contract shall be considered as the legal basis under which the investor, contractor and relevant parties shall comply; and
b) The valid contract shall be a legal basis for settlement of disputes or conflicts between the parties Disputes or conflicts beyond the scope of contract shall be dealt with in accordance with relevant regulations of laws.
Article 27. Miscellaneous terms
27.1. Both parties commit to comply with the terms prescribed in this contract. Either party shall respond to the other party’s complaints, proposals or inquiries.
27.2. This contract includes………..pages and……Appendices, and is made into…………. Vietnamese copies. The investor and contractor shall keep……………and……………Vietnamese copies, respectively. (If at least two languages are used, the parties shall decide the number of copies in each language).
Part 4. Special conditions
Article 1. Definitions
For the purposes of this contract, the terms below shall be construed as follows:
1.6. “The investor” refers to_______[investor’s business name].
1.7. “work” includes [A brief summary of the name and location of the contract package, including information on the relationship with other contract packages in the project].
1.10. “Construction site” [address of the construction site] and is located in the drawing No. [specify the number].
Information on the construction site [list information and data on the construction site].
1.21. “Commencement date”: ___________[specify date].
1.23. “contractor” _______[Specify the contractor’s full legal name].
Article 2. Contract dossier and order of priority
2.1. Contract dossier:_______[Specify adequate documents of the contract dossier].
2.4. Order of priority: _____[Specify documents of the contract dossier in order of priority (if any)].
Article 3. Laws and languages
3.1. This contract is governed by the legal system of the Socialist Republic of Vietnam; for projects using official assistance, concessional loans under treaties to which Vietnam is a signatory [Specify sources of official support capital, concessional loans].
Article 4. Notice
4.2. The notice of a party which must be signed by a competent representative or an authorized person will be considered valid at the time [specify the time].
Article 5. Contract performance guarantee and advance payment guarantee
5.1. Performance guarantee
– The value of the contract performance guarantee is________ [Specify the percentage (%) of the contract value] equivalent to ___ [Specify the value and currency].
– The time to send the contract performance guarantee to the investor is ____ [Specify the number of days after both parties have signed the contract].
– The time the contractor must extend the performance guarantee is _____ [Specify the number of days before the expiry date of the performance guarantee].
– The time for debt payment to the investor is____ [Specify the number of days after the agreement or decision to pay].
– The time to defect remedy is_____ [Specify the number of days from the date of receipt of the investor’s notice].
– The time to return the contract performance guarantee to the contractor is____ [Specify the number of days after the issuance of the record of acceptance of completed work and after receipt of the warranty guarantee].
5.2. Advance payment guarantee (in case the parties agree to have an advance payment guarantee)
The time to submit the advance money guarantee is ____ [Specify the number of days after the contract takes effect].
Article 6. Contents and workloads
6.3. In case the investor provides some or all construction materials and machines, the parties need to clearly indicate the volume, quality, time, location of supply of such materials and machines in the contract.
Article 7. Requirements for construction works quality, acceptance and transfer
7.4. Commissioning of works (if any)
Time for commissioning is_____[specify the number of days after the notified date or on the requested date].
7.5. Acceptance and transfer of works and work items
Response time of the contractor is_______ [Specify the number of days after the date of receipt of the contractor’s request for acceptance of the work].
Article 8. Contract duration and schedule
8.2. Commencement date and contract duration
– The start date of the task is_____ [Specify the time including day, month, year].
– Time to notify the contractor in advance of the start date of the task is____ [Specify the number of days].
– The effective date of the contract is_____ [Specify the number of days].
– Time to complete the entire work is_____ [Specify the time including day, month, year].
8.3. Construction schedule
– Time for submitting the detailed construction schedule is_____ [Specify the number of days after the start date of the task].
– Time for response to the contractor in terms of the proposed construction schedule is_____ [Specify the number of days from the day on which the investor receives the construction schedule of the contractor].
8.4. Adjustments to the construction schedule
Other cases: ______[Specify other cases of extension of the contract duration (if any)].
Article 9. Contract price, advances and payment
9.2. Contract price
a) This contract is ________[specify the type of the contract]
b) Contract price includes:
(i) VND:_________.
(ii) Foreign currency:__________[specify the name of the foreign currency which is used].
(iii) Additions or deductions;
9.3. Advance payment guarantee, advances
– Time for submitting advance payment guarantee is ________[specify the number of days after the effective date of the contract]
– Period for advance payment guarantee expires when the investor approves it in writing.
– The investor shall transfer the advance into the bank….(agreed by the contractor and the investor before concluding the contact) within …. days after the contractor submits the advance payment guarantee equivalent to the advance.
– Advance:_______[specify the amount of advance including VAT (if any), documents for advance payment, method of advance….. in accordance with regulations of laws on construction].
– Advance time: ____ day____ month_____ year_____ [specify the advance time].
9.4. Payment
The currency used for the contract payment is Vietnam dong and ___[specify the type of foreign currency used in the payment].
– Method of payment: _______[By bank transfer or by another method agreed upon by the parties in accordance with relevant laws].
9.5. Time limits for payment
The payment progress is divided into____________[specify the number of payments].
9.6. Withholding return
The withholding amount from the payment amount is:_______[specify the percentage]
[The withholding amount is generally appropriately 5% and should not exceed 10% in all cases].
9.8. Payment document
– Payment document__________[specify the number of sets of payment documents],
The payment document includes the following main documents______[specify names of the documents].
– Time limit for payment is ______[specify the number of days after receiving the full valid payment document as prescribed by the contract].
Article 10. Adjustments to unit prices, workloads, other contents specified in construction contracts and contract prices
10.2. Adjustments to workloads and some other contents specified in the construction contract.
The adjusted workloads [specify the cases that adjustments to the workloads or assignment of construction, change, adjustment and addition of designs and scope of work are different from the regulations of the contract].
For adjustments to some other contents in the contract [specify rules for adjustment, methods, formula, data sources and responsibilities of the parties in accordance with regulations of law].
10.3. Adjustments to the contract price
In case of adjustments to the contract price:__________[specify the cases where the contract price is adjusted in association with the content, method, time, formula, data sources of adjustment and relevant contents to ensure consistent with the adjustment rules of each type of contract price as prescribed by law].
Methods for adjustment shall comply with the instructions in Appendix I of the Circular providing instructions on construction contracts.
Article 15. Subcontractors
15.1. List of subcontractors:_______[specify the list of subcontractors in accordance with the list of subcontractors specified in the bid]
The value of the work performed by the subcontractor does not exceed: ______ of the contract price [Based on the size and nature of the contract package, specify the percentage (%) as prescribed by law].
15.5. Specify other necessary requirements for subcontractors [specify other requirements for subcontractors (if any)].
Article 22. Compensation events
22.2. Compensation for the damage:…… [Specify “Applicable” or “Not applicable”]. In case of applying compensation for the damage, based on the size and nature of the contract package, the compensation shall be applied in one of the following cases:
– The compensation is paid according to the actual damage;
– The compensation is a fixed amount; In this case, the compensation amount, method of compensation, etc. shall be specified in accordance with civil laws.
[specify compensation content, compensation amount and maximum total compensation value in accordance with regulations of law].
Article 24. Complaints and settlement of disputes
24.2. Settlement of disputes
– Time for the arbitration is ______[specify the number of days after the date on which the notice of dissatisfaction was given by a party].
– Dispute settlement method ______ [Specify whether the dispute is settled at Court or Arbitration and specific information for the selected method of dispute settlement including but not limited to Arbitrator, Court].
Article 25. Contract settlement and finalization
25.1. Contract settlement
– Time for submitting the contract settlement document is _______[specify the number of days from the day on which the acceptance and certification records of the investor are received].
– The number of contract settlement documents is __________[specify the number of sets of documents].
25.2. Contract finalization
Time for contract finalization is ________[specify the number of days that the finalization is carried out but not exceeds ….days]
Article 26. Entry into force
26.1. This contract includes _______[specify the number of pages] and _____[specify the number of Appendices] which is made into ______[specify the number of copies] in Vietnamese with the same legal force, and _____[specify the number of copies] in ______[specify the language other than Vietnamese that is used in the contract].
The investor shall keep ______ [specify the number of copies] in Vietnamese and ______[specify the number of copies] in _______[specify the language other than Vietnamese that is used in the contract].
The contractor shall keep ______ [specify the number of copies] in Vietnamese and ______[specify the number of copies] in _______[specify the language other than Vietnamese that is used in the contract].
26.2. This contract comes into force from ______[specify day____month____year_____] and after the investor has received the contract performance guarantee according to Article 5 hereof.
|
Investor |
CONTRACTOR |
APPENDIX IV
Model Engineering – Procurement and Construction (EPC) contract
CONSTRUCTION CONTRACT
(enclosed with Circular No. 02/2023/TT-BXD dated March 03, 2023 of the Minister of Construction providing instructions on construction contracts)
SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
—————
….(location)…, ……(date)……….
EPC CONTRACT
No. ……./…..(year)/…(sign of contract)
Project (name of the project) or contract package (name of the package) No………………….
Of project (name of the project)…………………….
BETWEEN
(NAME OF INVESTOR)
AND
(NAME OF CONTRACTOR)
TABLE OF CONTENTS
LIST OF ABBREVIATIONS
PART 1. INFORMATION OF INVESTOR AND CONTRACTOR
PART 2. BASES OF CONTRACT
PART 3 – GENERAL CONDITIONS OF CONTRACT
Article 1. Definitions
Article 2. Contract dossier and order of priority
Article 3. General regulations
Article 4. Scope
Article 5. Design requirements
Article 6. Requirements for procurement and installation of equipment
Article 7. Construction requirements
Article 8. Testing, adjustment and commissioning upon completion of the project
Article 9. Acceptance of the investor
Article 10. Contract execution period and schedule
Article 11. Contract performance guarantees and advance payment guarantees
Article 12. Contract price, advances and payment
Article 13. Rights and obligations of the investor
Article 14. Tasks and entitlements of consultant
Article 15. Rights and obligations of the contractor
Article 16. Price adjustments of contract adjustments
Article 17. Subcontractors
Article 18. Construction suspension and termination by the investor
Article 19. Construction suspension and termination by the contractor
Article 20. Insurances and warranties
Article 21. Responsibilities for defects
Article 22. Rewards and penalties due to breach of contract and responsibilities for compensation
Article 23. Risks and force majeure
Article 24. Complaints and settlement of disputes
Article 25. Contract settlement and finalization
Article 26. Entry into force
PART 4 – SPECIAL CONDITIONS OF CONTRACT
Article 1. Definitions
Article 2. Contract components and order of priority
Article 3. General regulations
Article 5. Design requirements
Article 6. Requirements for procurement and installation of equipment
Article 7. Construction requirements
Article 8. Testing, adjustment and commissioning when completion of the project
Article 9. Acceptance of the investor
Article 10. Construction period and schedule
Article 11. Contract performance guarantees and advance payment guarantees
Article 12. Contract price, advances and payment
Article 13. Rights and obligations of the investor
Article 14. Tasks and entitlements of consultant
Article 15. Rights and obligations of the contractor
Article 16. Price adjustments of contract adjustments
Article 17. Subcontractors
Article 18. Construction suspension and termination by the investor
Article 19. Construction suspension and termination by the contractor
Article 20. Insurances and warranties
Article 21. Responsibilities for defects
Article 22. Rewards and penalties due to breach of contract and responsibilities for compensation
Article 23. Risks and force majeure
Article 24. Complaints and settlement of disputes
Article 25. Contract settlement and finalization
Article 26. Entry into force
LIST OF ABBREVIATIONS
PART 1. INFORMATION OF INVESTOR AND CONTRACTOR
This contract is made as of ………… [date] ……..in………….. [location]…… between:
1. Investor:
Business name: ………………………………………..
Representative(s) (or authorized person(s)): Mr/Mrs……………………………Position:……………………………..
Address:………………..
Account No:…………………….
TIN:…………………
Business registration (if any) ………………………………….
Tel:…………………….. Fax:…………………..
E-mail:………………………………..
And:
2. Contractor:
Business name:
Representative(s) (or authorized person(s)): Mr/Mrs…………………………..…………………………….. Position:………………
Address:…………………………………………………..
Account No:……………………………………………..
TIN:…………………………..
Business registration (if any) ………………………………….
Tel:…………………….. Fax:…………………..
E-mail:………………………………..
Power of attorney (POA) No. ………….. dated……………… (In case the contractor is authorized)
(In case of a consortium of contractors, full information on the members of the consortium must be specified and a representative shall be appointed to consort in trading)
Both parties mutually agree to sign the construction contract of the contract package …. under the project (project name) as follows:
PART 2. BASES OF CONTRACT
Pursuant to the Civil Code dated November 24, 2015;
Pursuant to the Construction Law dated June 18, 2014; the Law amending certain Articles of the Construction Law dated June 17, 2020;
Pursuant to the Law on Procurement No. 43/2013/QH13 dated November 26, 2013;
Pursuant to Decree No. 37/2015/ND-CP dated April 22, 2015 of the Government elaborating construction contracts;
Pursuant to Decree No. 50/2021/ND-CP dated April 01, 2021 on amendments to Decree No. 37/2015/ND-CP dated April 22, 2015 of the Government elaborating construction contracts;
Pursuant to Decree No. 06/2021/ND-CP dated January 26, 2021 of the Government of Vietnam elaborating on a number of contents about quality management, construction and maintenance of works;
Pursuant to Decree No. 15/2021/ND-CP dated March 03, 2020 of the Government of Vietnam elaborating on a number of contents about management of investment and construction projects;
Pursuant to Decree No. 99/2021/ND-CP dated November 11, 2021 prescribing management, disbursement, payment and final settlement of investment funds for publicly-funded projects;
Pursuant to Circular No. ……/…../TT-BXD dated ……………..of the Minister of Construction providing instructions on construction contracts;
Pursuant to the Feasibility research report (or Front-End Engineering Design (FEED)) approved in Decision No. ……;
Pursuant to ……………………….. (other bases (if any));
Pursuant to contractor selection results specified in Document No. ……….and the EPC contract finalization minute dated ………………..
PART 3. GENERAL CONDITIONS OF CONTRACT
Article 1. Definitions
For the purpose of this contract, terms herein shall be construed as follows (unless the context clearly indicates otherwise):
i. “investor” refers to an organization [prescribed in SCC].
ii. “contractor” refers to a successful bidder (may be an individual contractor or a JV’s party) [prescribed in SCC].
iii. “Subcontractor” means a contractor signing the construction contract with the successful bidder.
iv. “Investor’s representative” refers to a person that is named in the contract or designated in a particular time by the investor or is authorized to fulfill the task on behalf of the investor.
v. “Contractor’s representative” refers to the person who is named in the contract or designated in writing by the contractor or is authorized to execute the work on behalf of the contractor.
vi. “Consultant” refers to any organization entering into the contract with the investor to perform at least one task related to the contract performance management.
vii. “Consultant’s representative” refers to any person who is designated to act as a representative to perform the consulting service by the consultant.
viii. “Project” refers to the Project [prescribed in SCC].
ix. “task” refers to the engineering – supply of materials and equipment – construction of the project, which will be performed in a manner that meets requirements of the contract and requirements of the investor for the ultimate purpose of providing the investor with a complete, safe and efficient construction.
x. “Contract documents” are all the documents contained in the contract as prescribed in clause 2 of Article 1.
xi. “Bidding document” (or request for proposals) of the investor refers to all documents specified in the Appendix on [Bidding document (or request for proposal) of the investor].
xii. “bid” (or proposal) of the contractor refers to the bid form signed by the contractor and all other documents submitted to the investor by the contractor specified in the contract according to regulations in the Appendix on [Bid (or proposal) of the contractor].
xiii. “project standards” mean technical regulations, economic-technical norms, order of work performance, criteria, technical indicators and indicators of natural conditions applied to the project/work as described in the Appendix on [Project Standards].
xiv. “Technical specifications” refers to a set of technical requirements and technical instructions on building materials, construction vehicles/machines/equipment that will be used for construction, and supervision and acceptance according to project standards and national technical regulations as described in the Appendix on [technical specifications].
xv. “Design documentation” refers all technical drawings, spreadsheets, technical design documents and other documents related to works that are prepared by the contractor and approved by the investor.
xvi. “FEED” means front-end engineering design, which is made at the stage after the construction project is approved as a basis for detailed design approach for works performed by foreign consultants in accordance with international practice.
xvii. “Bid form” means a proposal of the contractor approved by the investor specifying bid prices for engineering – supply of materials and equipment, construction and completion of works, remedy for defects of works in accordance with agreements in the contract.
xviii. “Party” refers to the investor or the contractor, contextually.
xix. “beginning date” means the date noticed in Clause 1 Article 10, unless otherwise specified in the contract.
xx. “Time for completion” means the period for completing a work or work item (as the case may be) according to Clause 2 Article 10 including extension period as prescribed in Clause 4 Article 10, from the date of commencement (or a specific date agreed upon by the parties).
xxi. “Acceptance record” refers to any record released under Article 9.
xxii. Unless otherwise provided for, “day”, means the calendar day and “month” means calendar month.
xxiii. “Working day” means calendar days, excluding Sundays, holidays and Tet holidays under provisions of Vietnamese laws.
xxiv. “Contractor’s equipment” refers to all construction vehicles, machines and equipment owned by the contractor for construction and completion of works under the contract and defect remedy (if any).
xxv. “main works” refer to the construction works [prescribed in SCC] constructed by the contractor under the contract.
xxvi. “Work item” refers to the main works or part of the main works specified in the contract (if any).
xxvii. “Temporary works” refer to all construction works that facilitate the construction of the main works.
xxviii. “works” refer to both temporary works and main works.
xxix. “investor’s equipment” refers to all construction vehicles, machines and equipment provided by the investor to the contractor to serve the construction as stipulated in the Appendix on [Bidding document (request for proposals) of the investor].
xxx. “force majeure” is defined in Article 23.
xxxi. “Law” refers to laws of the Socialist Republic of Vietnam.
xxxii. “Construction site” refers to a land lot where the construction is carried out and any other places specified in the contract.
xxxiii. “Adjustment” refers to any change or alteration in the scope of work, technical specifications, design drawings, contract prices or contract execution schedule approved by the investor in writing.
Article 2. Contract dossier and order of priority
Contract dossier [prescribed in SCC] includes grounds for signing the contract; terms and conditions of this contract and documents in order of priority as follows;
a) Notification of contract award (or document on direct contracting or acceptance);
b) Special conditions of the contract, general conditions and terms of reference (TOR);
c) Approved investment project (or economic-technical report);
d) Bidding document (or request for proposals) of the investor;
dd) Project standards, technical specifications and design documentation (FEED or basic design);
e) Bid (or proposal) of the contractor;
g) Negotiation record, amendments made in writing;
h) Appendices of the contract;
i) Other relevant documents.
In principle, documents constituting the contract are an integral part of the contract and form a cohesive contract with reciprocal and explanatory components; if any unclear and inconsistent information is provided, the parties shall enter into a discussion and an agreement. In case of change of the above-mentioned order of priority, the parties must reach an agreement [prescribed in SCC] and specify it in the contract.
Article 3. General regulations
3.1. Applicable laws and contract languages
a) This contract shall be governed by the laws of the Socialist Republic of Vietnam and relevant guidelines.
b) The applicable language shall be Vietnamese (In case the contract is signed with a foreign party, the applicable languages shall be Vietnamese and foreign language agreed by the parties. In case of a dispute, the Vietnamese version of the contract shall be considered the original and used for dispute settlement).
3.2. Contract transfer
Neither party may arbitrarily transfer all or part of the contract or any part of the benefits or rights under the contract. However, a party may transfer a part of the contract in accordance with regulations of law if the other party accepts before transfer is made. Each party may use the contract as a guarantee when making transactions with a bank or a financial institution.
3.3. Security
Both parties must ensure the contract confidentiality and their ownership unless otherwise required to fulfill their obligations or comply with regulations of law. The contractor is not allowed to disclose any information on the works to the third party without prior agreement with the investor.
3.4. Compliance with law
When executing the contract, applicable laws of the Socialist Republic of Vietnam must be obeyed and the following obligations must be fulfilled:
a) The investor must provide assurance about conditions for commencement of the works in accordance with regulations of law;
b) The contractor must notice, pay all taxes, fees and charges and apply for all documents (licenses/permits) in accordance with regulations of law related to their works; the contractor shall compensate the investor for incurred losses in connection with defects in non-compliance with law.
3.5. Joint and several liabilities
In case the contractor is a consortium:
a) Every member in the consortium has joint and separate responsibility for this contract.
b) The contractor shall notify the investor of the contractor acting as the leader of their consortium and be responsible for making a link between members of the consortium;
c) The leading contractor of the consortium shall have authority to bind all members of the consortium in all issues relating to the contract.
d) The contractor shall not change their structure or legal status without permission of the investor.
For the avoidance of doubt, joint and several liability of each member of the consortium shall not knowingly be affected by the contents of the Consortium agreement in the Appendix.
3.6. Ways of information exchange
Any content in the terms and conditions of this contract specifies the fact that the parties make requests, suggestions or issue or accept a certain issue, the parties must send a notification to each other in one of the following ways:
a) The written notification is sent in person (attached to receipts), by post, by fax or by email.
b) The notification is sent or transferred to the address of the recipient.
In case the recipient changes address (new address), the notification must be transferred to the new address. Otherwise, any notification or request by one party to the other party shall be sent to the respective addresses of the parties [specified in the SCC].
Article 4. Scope
The contractor shall perform engineering, procurement and construction tasks of the project prescribed in the Appendix on [bidding document (or request for proposals) of the investor] on the basis of contract prices according to Article 12, as generally described, without limitation on the following contents, and remedy all defects for which they are responsible.
The above-mentioned engineering, procurement and construction tasks of the project are collectively referred to as “Tasks”, which will be performed in a manner that meets requirements of the contract and requirements of the investor for the ultimate purpose of providing the investor with a complete, safe and efficient construction. The contractor shall:
a) provide technical design and construction drawing design services and other services relating to the Tasks;
b) provide or arrange all workers, managers, equipment and materials necessary to perform the Tasks except for special cases provided for in the contract;
c) procure, promote, check and arrange all materials and equipment for the project and Tasks, all temporary works and materials necessary to the construction in accordance with the design documentation and the contract to transfer them to the construction site.
d) formulate measures to organize the construction as described in the Appendix on [bidding document (or request for proposals) of the investor];
dd) fully set up procedures and systems for management and reporting to control quality and progress of the Tasks in a close manner and provide the investor with sufficient information to be able independently access the actual quality and progress of the works;
e) construct all temporary works and maintain all such work items in a safe and effective manner to perform the Tasks until they are brought out of the construction site or returned as requested in the contract;
g) recruit, train, manage and supervise subcontractors and workers on the construction site performing the Tasks, ensuring that all of them are instructed in appropriate working methods, occupational safety and environmental sanitation;
h) provide, manage and prescribe the movement in the construction site; ensure safe and ordered access and egress from the construction site of the contractor’s personnel including field workers, management and supervisory staff, site management staff, personnel of suppliers and subcontractors;
i) prepare project commissioning (operation) as prescribed in the Appendix on [Bidding document (or request for proposals) of the investor];
k) carry out project commissioning as prescribed in the Appendix on [Bidding document (or request for proposals) of the investor];
l) supervise and direct the project commissioning;
m) arrange customs procedures including arrangements of types of security, storage and transport in the territory of Vietnam for imported materials, equipment and goods used for the construction;
n) cooperate with subcontractors, suppliers and other parties hired by the contractor relating to the Tasks and technology license provider (if any) to ensure that all materials and equipment used for the construction are in accordance with regulations of the contract;
o) provide all other necessary equipment and services to gain acceptance and transfer of the project in accordance with the contract;
p) always ensure safety while performing the Tasks.
q) provide training and instructions to the investor’s personnel to ensure the project operation and maintenance within the scope specially prescribed in the requests of the investor (if any).
r) carry out an as-built survey in accordance with applicable regulations.
s) any activity that is not specified in this Article but can be interpreted from the contract as necessary to the completion of the Tasks as interpreted in the contract, the contractor shall carry out such activity and expenses for the activity shall be deemed to be included in the contract price, unless otherwise provided for in the contract.
Article 5. Design requirements for a work
5.1. General requirements
The contractor shall be responsible for the technical design, the construction drawing design of the work (or the detailed design on the basis of the FEED) and the accuracy of such designs.
During the process of technical design and construction drawing design, if the contractor detects any error or difference between requests of the investor, the contractor shall immediately inform the investor before following the technical design and construction drawing design and request the investor to clarify if necessary.
In any time that the investor detects errors in the design documentation of the contractor, the investor shall request the contractor to rectify such errors to suit the investor’s requirements.
However, the investor shall be responsible for the accuracy of the following contents provided by the investor or the investor’s representative to the contractor:
a) Documents, data and information specified in the contract which are considered unchanged or under responsibility of the investor;
b) Purposes of use of the work or a certain part of the work stated by the investor;
c) The detailed design and documents provided by the contractor, which must be in accordance with:
i. regulations of laws of the Socialist Republic of Vietnam.
ii. Contract dossier including necessary amendments to satisfy the investor’s requirements.
5.2. Applicable design regulations and standards
The technical design and construction drawing design of the contractor must comply with project standards, technical specifications (if any) and legal system of the Socialist Republic of Vietnam.
5.3. Requirements for design documentation (or design drawings) of the contractor
The design documentation of the contractor must include drawings, technical documents and other necessary documents as prescribed in the bidding document (or request for proposals) of the investor and must satisfy the investor’s requirements or be submitted to competent authorities by the investor for approval as prescribed by law. Unless otherwise provided for, the design documentation of the contractor shall be made in the language(s) prescribed in Clause 1 Article 3.
According to the investor’s requirements or regulations of law, if the design documentation of the contractor must be submitted to the investor for consideration and approval, the design documentation shall be submitted together with the below-mentioned notification. Unless otherwise prescribed according to the investor’s requirements, the period for consideration and approval shall not exceed the number of days [prescribed in SCC] from the day on which the investor receives the valid design documentation of the contractor. During the period of consideration and approval, the investor may notify the contractor of inappropriate contents in the design documentation of the contractor If any document included in the design documentation of the contractor does not in accordance with the contract, the contractor shall amend and submit it again to the investor for consideration and approval according to this Clause and all incurred expenses shall be paid by the contractor.
For all works whose designs must be approved by the investor,
a) The construction of such works shall only be started after the design documentation of the contractor is approved by the investor;
b) The construction of such works shall comply with the design documentation approved by the investor;
c) In case of adjustments to the design, the construction of such works shall only be started after the adjusted design documentation is approved by the investor.
Any such agreement or any other consideration or approval (under this Clause or other Clauses) shall not relieve the contractor of any liability or obligation to the work.
5.4. Responsibilities for design fault by the contractor
If the investor detects that the design documentation of the contractor contains errors, omissions, inconsistencies or are not in accordance with the contract, all incurred expenses for rectification of such design fault as well as remedy of defects in the works or parts of the works which have been constructed by the contractor shall be paid by the contractor, even if the investor has approved the design documentation.
Article 6. Requirements for procurement and installation of equipment
a) All technological materials and equipment shall be verified (if necessary, verification unit is selected by the investor and expenses are paid by the contractor) to ensure quality, categories and origins of such equipment under this contract before transferring them to the construction site.
b) The contractor shall be responsible for the stability and safety of all equipment during the period of construction and completion of the work, during the period of warranty and after-sales service (the contractor shall be responsible for technology and personnel like specialists and repair technicians to assist the investor during the period of operation, troubleshooting and maintenance) with the period [prescribed in SCC] from the expiry date of warranty.
c) The installed machines and equipment in the technological line must match the description in the contract and comply with technical standard requirements approved by the investor (according to technical specifications and standards), be legal and be granted certificates of origin (CO) of manufacturing countries and certificates of quality of manufacturers (CQ). The contractor must issue certificates of quality management systems (QMS) to standards of manufacturing countries or equivalent
d) The equipment being brought into the construction site shall have the certificate of inspection (specified in SCC) issued by the inspecting authority. The certificate must show that the origin, category and quantity of the equipment is conformable with the contract and the bidding document (or request for proposal), the bid (or proposal), commitments and explanatory documents of the bid.
dd) The equipment installed on the work must have the capacity and technical specifications in conformity the design documentation approved by the investor.
e) The equipment and machinery must be installed in an accurate manner to ensure the normal operation and prolong the life of such machinery. The installation must follow the design as well as fabrication drawings and comply with the regulations specified in the instructions on equipment installation and operation and logbook. The installation shall comply with the applicable Vietnamese standards if there is no technical requirement in the design and instructions on equipment installation and operation.
g) The equipment whose technical requirements (its design, instructions on operation of its manufacturer, regulations of applicable technical standards, etc.) are not satisfied shall be refused to make acceptance and be brought out of the construction site within the period [prescribed in SCC].
h) The contractor shall make the site preparation in the area of equipment installation, arrange technical staffs, operator staffs, machinery repair workers, necessary energy sources and materials to serve static testing and single-action idle testing.
i) During the period of no-load multi-action commissioning and test run with load, the contractor must arrange enough technical staffs and workers on duty to promptly handle incurred incidents and shortcomings.
k) The contractor shall be responsible for monitoring and instructing the installation in accordance with technical requirements, designs and technical design documents of the manufacturers, cooperating with the relevant parties in commissioning the equipment in conformity with the designed capacity and assisting the contractor in properly assessing the equipment installation quality.
l) The contractor shall be responsible for self-inspection and completion of installation of the equipment, preparation of adequate acceptance documents (records, as-built maps, logbooks, etc.); The equipment shall be installed in accordance with its technical requirements and be tested to conform that it meets the design requirements.
Article 7. Construction requirements
a) The contractor must comply with applicable technical standards or project standards as prescribed in the Appendix on [project standards] and comply with regulations of law on construction quality management;
b) It is ensured that the work must be effectively operated in conformity with requirements of the bidding document (or request for proposal), commitments of the contractor and explanatory documents of the bid.
c) The contractor must take measures to organize construction, gather equipment and materials; arrange equipment and materials in the construction site so as not to affect surrounding activities; take measures to organize construction in accordance with technological requirements, equipment supply progress, construction progress and actual conditions at the construction site.
d) The contractor shall submit monthly overall and detailed contract execution schedules to the investor (or consultant) for approval as a basis for the contract performance. The contractor shall introduce measures for assurance about occupational safety, environmental sanitation, fire and explosive prevention, security and order during the construction.
dd) On the basis of construction and acceptance standards and the design documentation approved by the investor, the contractor shall prepare process and plans for construction quality inspection, ensuring compliance with regulations of law.
e) The contractor shall construct and complete the work and remedy any defect in construction of the work to be conformable with the design documentation approved by the investor and comply with processes and applicable construction regulations of the State as well as conditions of the work and instructions of the investor (or consultant).
g) During the process of installation and operation of the equipment, requirements of the design documentation approved by the investor and instructions of the manufacturer must be strictly complied with.
h) If any damage or loss is incurred in the process of the contract performance for the work, workers, materials, equipment and machinery, the contractor shall remedy by themselves and compensate at their own expenses.
i) The contractor shall be responsible for organizing construction matching technical requirements and within the time limit for completion of the work specified in the contract.
k) After construction of the work, the contractor shall prepare plans for training and instructing the investor to operate the work; Provide operations manuals, operating procedures and maintenance manuals to the investor.
l) After commissioning the work in the period [prescribed in SCC], if the work effectively operates and meets the requirements, the investor shall carry out check and acceptance of the work to bring it into use.
m) After acceptance of the work, the contractor shall continually supervise the operation of the work during the period [prescribed in SCC] and submit reports on the efficiency of the operation to the investor.
n) It must be ensured that the work is operated effectively and meets requirements of the investor under the contract.
Article 8. Testing, adjustment and commissioning upon completion of the project
8.1. Obligations of the contractor
The contractor shall notify the investor (or consultant) of the day on which the contractor has been ready to carry out tests when the work is completed. Unless otherwise prescribed, the tests when the work is completed will be carried out in the period [prescribed in SCC] after the date of notification or on the date on which the investor (or consultant) submits a request.
8.2. Testing when the completion of the work is delayed
If the delay of the tests is caused by the contractor, the investor (or consultant) may submit a request to the contractor for carrying out the tests when completing the work. After a period from the day on which the notification is received [prescribed in SCC], the contractor shall carry out the tests when completing the work in such period.
If the contractor fails to carry out the tests after the period [prescribed in SCC] from the day on which the notification from the investor (or consultant) of the testing date is received, the investor may carry out the tests and the incurred expenses for the tests shall be paid by the contractor. The tests shall be deemed to be carried out and their results must be agreed upon by the contractor.
8.3. Retesting
If the work or the work item which is subjected to tests when it is completed fails to satisfy the requirements, the investor (or consultant) may submit a request to the contractor for carrying out again the tests and relevant works according to the same procedures and conditions as previously performed.
8.4. Failing to satisfy the requirements of the tests when the work is completed
If the work or the work item fails to satisfy the requirements of the tests carried out again according to Clause 3 Article 8, the investor shall:
a) request the contractor to continue to carry out the tests according to Clause 3 Article 8;
b) If the work or the work item fails to satisfy the requirements of the tests and substantially affects the interests of the investor, the investor shall have the right to reject the work or the work item (as the case may be), in which the investor is entitled to claim compensation from the contractor as specified in Point (c) Clause 4 Article 21.
Article 9. Acceptance of the investor
9.1. Acceptance of the work
After the period [prescribed in SCC] from the day on which the request for acceptance of the work by the contractor is received, the investor shall:
a) submit an acceptance record to the contractor and specify the date on which the work or the work item has been completed under the contract, or
b) express a disagreement and specify reasons and detailed works that the contractor needs to carry out to get the acceptance record. The contractor shall complete such works before giving another notification next to this Clause.
Within the period [prescribed in SCC], the investor shall issue or set out reasons for disagreement on issuance of the acceptance record to the contractor. Outside of this period, if the work or the work item (as the case may be) has been substantially constructed in accordance with the contract by the contractor, and the investor has no response, it will be considered that the acceptance record has been issued.
9.2. Acceptance of the work components
The investor shall issue acceptance records to each part of the main works. The investor shall not use any part of the works (except for temporary use as prescribed in the contract or as agreed upon by both parties) unless and until they are granted acceptance records of such parts of the works. However, if the investor uses any part of the works before the acceptance record of such part is granted,
a) The used part shall be deemed to be accepted from the day on which such part of the works brought into use;
b) The contractor shall not be responsible for such part of the works from that date, and the responsibility lies with the investor, and
c) At the request of the contractor, the investor shall issue an acceptance record to this part of the works.
If the contractor must incur any expense due to the receipt and/ or use by the investor rather than the use specified in the contract and agreed upon by both parties, the contractor (i) shall submit a notification to the investor and (ii) be entitled to pay such expense plus a reasonable profit and be included in the contract price according to Clause 4 Article 24. After receiving the notification, the investor shall concur with or determine the expense and profit prescribed in Clause 4 Article 13.
9.3. Intervening in test runs of the work upon completion
After a period [prescribed in SCC], if the contractor fails to conduct a test run upon completion due to the investor’s fault, it will be considered that the work or the work item has been accepted by the Investor (as the case may be) on the day on which test runs upon completion would have been completed.
Then the investor (or consultant) shall issue an acceptance record and the contractor shall immediately carry out test runs upon completion as soon as possible before the expiry date of the time limit for notifying defects. The investor (or consultant) shall notify prior to the period [prescribed in SCC] of the request for carrying out test runs upon completion according to the terms of the contract.
If the contractor faces a delay or incurs any expense due to the delay in carrying out test runs upon completion, the contractor shall send a notification to the investor or the consultant for information and request:
a) An extension if the completion is delayed or will be delayed in accordance with Clause 4 Article 10 and
b) Payment for all additional expenses and reasonable profits included in the contract price.
After receiving the notification, the investor shall follow the regulations prescribed in Clause 4 Article 13.
9.4. Records of acceptance of bringing the works into use (hereinafter referred to as “acceptance record”)
It will be considered that the contractor has not fullfied their obligations if they have not been granted an acceptance record by the investor, specifying the date on which the contractor has fulfilled their obligations under the contract.
The investor (or consultant) shall issue an acceptance record within the period [prescribed in SCC] after the expiry date of the time limit for notifying defects or immediately after the contractor has provided all their documents and has completed the construction and tested upon completion of all works and work items, including remedies for defects.
9.5. Unfulfilled obligations
After the acceptance record has been issued, both parties shall be responsible for their unfulfilled obligations (specified in the acceptance record).
9.6. Return of premises
When receiving the acceptance record, the contractor shall remove all equipment of the contractor, debris, garbage and temporary works from the construction site.
If such equipment is not removed from the construction site within the period [prescribed in SCC] after the investor issues the acceptance record, the investor may get rid of or sell them. The investor shall be entitled to be paid for all expenses incurred from the sale or disposal or storage of such equipment on the construction site.
The proceeds from the sale of the above equipment after being offset shall be returned to the contractor. If this amount is less than the expenses that have been paid by the investor, the extra expenses shall be paid by the contractor.
9.7. Commissioning of each part of the works
This Clause shall apply to all test runs specified in the contract, excluding commissioning upon completion (if any).
The contractor shall assist and provide necessary machinery, documents, equipment, fuel, instrument, qualified and experienced staff, etc. for the commissioning. The contractor and investor (or the consultant) shall decide a specific place and time of the commissioning.
The investor (or the consultant) may change places or specifications of test runs or instruct the contractor in carrying out additional test runs according to Article 16. If results of the additional test runs or such change show that the equipment, materials or qualification of the contractor are not conformable with the contract, expenses for the change shall be paid by the contractor, including otherwise prescribed in the contract.
The investor (or consultant) shall notify the contractor of their intention to attend a test run within the period [prescribed in SCC]. If the investor (or consultant) fails to attend the test run at the designated time and place, the contractor may carry out the test run by themselves and it is considered that the test run has been carried out in the presence of the investor, unless otherwise provided by the investor (or the consultant).
If the contractor faces a delay or incurs any expense due to the compliance with the investor’s instructions or if the commissioning is delayed by the investor’s default, the contractor shall send the investor (or the consultant) a notice of that fact and shall be granted the rights as prescribed in Clause 1 Article 24 in order to:
a) extend the period if the completion is delayed or will be delayed in accordance with Clause 4 Article 10, and
b) cover all additional expenses of the contract.
After receiving the notice, the investor (or the consultant) shall follow the regulations prescribed in Clause 4 Article 13.
The contractor shall immediately submit reports with confirmation of the test runs to the investor. After completing the test runs, the investor shall approve the commissioning record of the contractor. If the investor does not attend the commissioning, it is considered that the investor has accepted the reports.
9.8. Rejection
If any defect of equipment, materials, design or skill which is not conformable to the contract is detected after inspection, supervision, measurement or testing, the investor (or the consultant) may reject such equipment, materials, design or personnel by notifying reasons to the contractor. The contractor shall remedy the defect immediately and ensure the rejected items are handled in accordance with the contract.
If the investor (or the consultant) requests retesting, tests shall be carried out in accordance with the order and conditions for the previous tests. If the rejection and retesting lead to additional expenses to the investor, the contractor shall be responsible for paying such expenses to the investor according to Clause 2 Article 13.
9.9. Remedies
Even if the tests upon completion have been carried out previously or certificates have been issued, the investor (or consultant) may instruct the contractor to:
a) bring equipment and materials not conformable to the contract out of the construction site or replace them,
b) remove the work and recommence the work if it is not conformable to the contract, and
c) carry out urgent tasks to ensure the safety of the work.
The contractor shall follow such instructions in a reasonable time (if any) which is defined in the instructions or immediately follow if the remedies are urgent as prescribed in Point (c) above.
If the contractor fails to follow the instructions, the investor is entitled to hire other people for carrying out tasks and pay for them. Unless the contractor is entitled to pay for such tasks, the contractor shall pay the investor for all additional expenses due to non-compliance with the instructions according to Clause 2 Article 13.
9.10. Ownership of equipment and materials
All equipment and materials within the scope of the contract shall become the investor’s assets if the contractor has been paid for them.
Article 10. Contract execution period and schedule
10.1. Work commencement date and completion date
The investor (or consultant) shall notify the contractor of the construction commencement date [prescribed in SCC] within the period not less than the number of days [prescribed in SCC] after the contract takes effect.
The contractor shall carry out design – procurement of materials and equipment – construction of the works immediately after the construction commencement date and complete all tasks within the period [prescribed in SCC] or the time limit for completion which is adjusted in accordance with the contract execution schedule approved by the investor.
10.2. Time limit for completion
The contractor shall complete all tasks and each part of the tasks (if any) within the time limit for completion, including:
a) passing tests upon completion of the works or the work items as the case may be, and
b) completing all tasks prescribed in the contract or work items to be considered as completion and accepted according to Clause 1 Article 9.
10.3. Task performance schedule
The contractor shall submit a detailed task performance schedule within the period [prescribed in SCC] after the commencement date to the investor (or the consultant). The contractor shall also submit an adjusted task performance schedule if the previous schedule is not conformable to the progress or the contractor’s obligations. Unless otherwise prescribed in the contract, each completion schedule shall include:
a) The order of work execution of the contractor and scheduled construction period for each main phase;
b) Process and period of testing upon completion specified in the contract, and
c) Additional report including:
– General description of methods applied by the contractor and main phases in design – procurement of materials and equipment – construction of the works, and
– Details showing the reasonable estimate of the contractor of the quantity of each category of personnel and equipment of the contractor necessary to carry out tasks of each main phase.
The contractor shall comply with this schedule and their obligations under the contract, unless the investor (or the consultant), within the period [prescribed in SCC], after receiving the completion schedule, shall notify the contractor if any part of this schedule is not conformable to the contract. The investor’s personnel may draw up plans for their operations on the basis of this schedule.
The contractor shall notify the investor (or the consultant) of the potential occurrences that may affect or prevent the fulfilment of tasks or increase the contract price. The investor (or the consultant) may request the contractor to notify the potential occurrences and/or submit a proposal as prescribed in Clause 3 Article 16.
Whenever the investor (or the consultant) notifies the contractor that the work progress did not comply with (beyond the designated scope) the contract or is not conformable to the construction schedule and plans provided by the contractor, the contractor shall submit a revised completion schedule in accordance with this Clause.
10.4. Extension of the completion date
The contractor has the right to extend the completion date according to Clause 1 Article 24 if and within the scope that the completion for the purpose of Clause 1 Article 9 is or will be delayed due to one of the following reasons:
a) A change (unless the adjustment of completion date agreed upon in accordance with Clause 3 Article 16 or an importance change of a part of tasks included in the contract);
b) Reasons of the delay leading to a deferral according to specific terms of the agreement;
c) Delays or obstructions on the construction site caused by the investor, their personnel or other contractors of the investor.
d) an unpredictable insufficiency of personnel or goods due to operations of the Government;
dd) Force majeure prescribed in Article 23.
If the contractor thinks that they are eligible for deferral of the completion date, they shall send a notification to the investor (or the consultant) according to Clause 1 Article 24. When deciding whether to accept the deferral in accordance with this Clause, the investor (or the consultant) shall review the previous decisions and the deferral period may only be increased.
10.5. Delays due to authorities’ faults
If all the following conditions are applied,
a) The contractor has followed procedures provided for by the State, but an authority does not follow the designated time limit or fails to fulfill tasks proposed by the contractor, and
b) The qualified contractor cannot predict the slow progress or failure of fulfilment of such tasks when submitting the bid.
The slow progress or failure of fulfilment of the tasks shall be considered as reasons for the delays in completion as prescribed in Clause 4 Article 10.
10.6. Progress
Any time at which:
a) The progress is extremely slow at fulfilling tasks within the prescribed completion period, and/or
b) The progress has been or will be slower than the work schedule according to Clause 3 Article 10 due to other reasons different from those prescribed in Clause 4 Article 10, the investor (or the consultant) may instruct the contractor to, according to Clause 3 Article 10, submit a revised schedule and a report showing revised measures proposed by the contractor to follow the designated schedule and complete the tasks within the designated completion period.
Unless other notices provided by the investor (or the consultant), the contractor shall apply these revised measures, including increase in working hours and quantity of the contractor’s personnel and/or goods for which the contractor must incur all risks and expenses. If these revised measures lead to additional expenses for the investor, according to Clause 2 Article 13, the contractor shall pay all these expenses to the investor, apart from losses caused by the delay (if any) according to Clause 7 Article 10 below.
10.7. Losses caused by the delay
If the contractor fails to comply with Clause 2 Article 10, according to Clause 2 Article 13, they must pay for losses caused by this fault to the investor. These losses shall be specified in the Appendix on [task performance schedule] and shall be paid within the period from the completion date under contract and the date specified in the acceptance record. However, the total losses specified in this Clause shall not exceed the total maximum amount of losses caused by the delay (if any) specified in the Appendix.
These losses shall be indemnified by the contractor and shall only be included if these losses are from faults but not from the termination according to Clause 7 Article 18 before completing the task. The indemnification shall not relieve the contractor’s obligations to complete the task or any responsibility or obligation under the contract.
Article 11. Contract performance guarantees and advance payment guarantees
11.1. Contract performance guarantees
The contractor shall submit a contract performance guarantee corresponding to the value and the type of currency [prescribed in SCC] of the contract to the investor.
The contractor shall send the contract performance guarantee to the investor within the period [prescribed in SCC] after both parties have signed the contract. The contract performance guarantee must be issued by a qualified bank or financial organization as prescribed by law, using the form in the Appendix or another form approved by the investor.
The contractor shall ensure that the contract performance guarantee will be effective until the date on which the contractor has constructed and completed the work and has completely remedied defects. If the expiry date is specified in the terms of the contract performance guarantee in detail but the contractor has not received a contract performance certificate within the period [prescribed in SCC] before the expiry date, the contractor shall extend the duration of the contract performance guarantee to the date of completion.
The investor shall not collect the contract performance guarantees, except for the amount that the investor is entitled to enjoy under the contract in the following case:
a) The contractor fails to extend the duration of the contract performance guarantee. In this case, the investor may collect the full amount of the contract performance guarantee.
b) The contractor fails to pay debts as agreed upon or determined to be payable in Clause 2 Article 13 or Article 24, within the period [prescribed in SCC] after both parties come to the agreement or decision to be payable.
c) The contractor fails to remedy defects within the period [prescribed in SCC] after receiving the notification of the investor of request for defect remedy, or
d) The case that the investor is permitted to terminate the contract according to Clause 7 Article 18, whether or not there is a notification of termination.
The investor shall indemnify the contractor for losses and expenses (including legal costs and fees) and incur these losses due to complaints about the contract performance guarantee within the scope that the investor is not permitted to lodge complaints.
The investor shall return the contract performance guarantee to the contractor within the period [prescribed in SCC] after the investor has issued the acceptance record and has received the work warranty certificate according to the terms of the contract.
11.2. Advance payment guarantee
The contractor shall send an advance payment guarantee to the investor within the period [prescribed in SCC] as agreed after the contract takes effect. The advance payment guarantee shall remain effective until the advance is fully recovered. The guarantee value shall be reduced by the same amount as the advance recovered.
Article 12. Contract price, advances and payment
12.1. Contract price
a) Unless otherwise [prescribed in SCC] provided for by both parties, this contract shall be a package contract and only be adjusted according to the terms of the contract.
b) After assessing the whole task and obligations fulfilled by the contractor under the contract, the investor shall pay the contract price to the contractor.
c) Unless otherwise provided for in the contract in detail, the contract price shall include all expenses for performance of the task, royalties, profits and taxes in connection with the task under regulations of law;
d) The contract price shall include all expenses related to the copyright, etc.
dd) Unless otherwise provided for in the contract in detail, the contractor shall incur all risks related to expenses for performance of the task and the contractor shall be deemed to have obtained all necessary information and have considered all circumstances that may affect expenses for determining the contract price.
12.2. Contract advances
The contract advance [prescribed in SCC]:
a) After receiving the contract performance guarantee and the advance payment guarantee, the investor shall give an advance to the contractor (the total contract advance value must not exceed 30% of the contract value).
b) Whenever a payment is made, each payment shall be deducted from the advance. The deduction rate shall be based on the recupation rate prescribed in the Appendix on [The contract price, advances and payment]. The contract advance shall be clear where 80% of the contract value is paid as prescribed in the Appendix on [the contract price, advances and payment].
c) In case production of structural elements and semifinished products with great values and building materials reserved by season is eligible for advance payment as prescribed in Clause 7 Article 18 of Decree No. 37/2015/ND-CP, the application for advance payment must list names, unit prices and total values of each type of materials, structural elements and semifinished products. When payment is made, the value of completed quantity which has been inspected and accepted must be reduced by an amount corresponding to the advanced value under the contract.
12.3. Payment
a) Currency of payment and methods of payment
i. The currency used for the contract payment shall be Vietnam dong and the currency [specified in SCC].
ii. The payment shall be made by bank transfer or by the method [prescribed in SCC]. Especially, the payment for equipment shall be made by opening an irrevocable letter of credit (ILOC).
b) Payment progress
The payment shall be made over a period of time and is divided into instalments [prescribed in SCC]. Specific payment schedule is specified in the Appendix on [The contract price, advances and payment].
The investor shall fully pay the contract price as agreed to the contractor after the contractor completes all the tasks of the contract that has been accepted, both parties have completed the contract settlement according to Article 25 and after the investor receives the work maintenance guarantee of the contractor.
Payments shall follow this payment progress. If the task performance progress is slower than the payment progress of the contract, the investor may choose to pay for the contract according to the payment progress of the contract or the task performance progress when the contractor completes each task.
c) Advance payment
The advance payment as prescribed in Clause 4 Article 19 of Decree No. 37/2015/ND-CP shall be based on special conditions of each advance payment to decide the advance payment value and measures to guarantee advance payments.
For products and works which are in progress as agreed in the contract, the degree of completion of each specific case and detailed unit price of such products and works specified in the contract shall be bases for applying advance payment.
c) Payment documentation
The contractor shall submit sets of payment documentation [prescribed in SCC] to the investor after the due date stated in the contract. The payment documentation includes the following main documents (and other documents) [prescribed in SCC]:
– An acceptance record of the workload completed in the payment period certified by the investor’s representative or consultant’s representative (if any) and contractor’s representative; The acceptance record is considered as a certificate of completion of the work, work item and workload in accordance with the scope of work under the contract (certification of detailed completed workload is not required);
– A document specifying the value of the increase in workload (if any) beyond the scope of work under the contract certified by the investor’s representative or consultant’s representative (if any) and contractor’s representative as prescribed in Appendix No. 3;
– The contractor’s payment request as specified in Appendix No. 1 which specifies the value of the completed workload under the contract as specified in Appendix No. 2, the value of the increased workload (if any), the advance deduction, the final amount of payment after the previously mentioned amounts have been offset certified by the investor’s representative and contractor’s representative.
d) Time limit for payment
Unless otherwise different from Clause 2 Article 13 provided for, after fully receiving the valid payment documentation as prescribed in the contract, the investor shall pay for the contractor within the period [prescribed in SCC].
dd) Late payment
If the contractor fails to receive the payment according to Clause 3 Article 12, the investor shall recoup the contractor for their financial losses on the basis of the amount that was not paid and the interest incurred over period from the payment deadline to the day on which the contractor is fully paid. The interest rate is that quoted by the commercial bank where the contractor opens the checking account.
e) Withholding return
The investor shall return the amount of withholding to the contractor after the amount of each instalment is evidenced and the contractor fulfils their warranty obligations as prescribed in Clause 2 Article 20.
Article 13. Rights and obligations of the investor
13.1. The investor’s personnel
a) The investor shall be responsible for ensuring that the investor’s personnel and other contractors of the investor on the construction site shall:
i. cooperate with the contractor in accordance with Clause 3 Article 15.
ii. Act like the contractor in accordance with Points a, b and c Clause 5 Article 15 and Clause 13 Article 15.
b)The Investor’s representative
The investor may designate a representative to execute the contract. In this case, the investor shall provide the contractor with a notification of the name, address, duties and entitlements of the representative.
The investor’s representative shall fulfill their assigned duties and exercise the authority given by the investor. Unless and until the investor send the notification to the contractor, the investor’s representative shall be considered to have the full authority of the investor under the contract, except for the details prescribed in Clause 7 Article 18.
If the investor wishes to replace any person designated to be their representative, within the period [prescribed in SCC], the investor shall provide the contractor with a notification of the name, address, duties and entitlements of the replacement as well as the date of designation.
c) Other staffs of the investor
The investor may designate a representative staff to perform a specific number of tasks specified in the contract. In this case, the investor shall provide the contractor with a written notification of the name, contact information, duties and entitlements of the staff.
The designated staff must be qualified to fulfill the assigned duties and entitlements and fluent in the communication languages prescribed in Clause 1 Article 3.
d) The authorized person
The investor’s representative and designated or authorized person of the investor shall provide the contractor with instructions within the authorization only. Any approval, consideration, certification, agreement, inspection, supervision, instruction, notice, request, testing or the similar action by the authorized person, in order to be conformable to the authorization, will be as effective as if it was done by the investor. Nevertheless:
i. It shall not relieve any responsibility of the contractor under the contract, including responsibilities for defects, omission, inconsistencies or inobservance of the terms of the contract, unless otherwise provided for in the notification related to the authorized person of such actions,
ii. Any failure or disapproval for any task, equipment or material shall not affect the investor’s rights to remove or reject such task, equipment or material;
iii. Any suspicion of the authorized person’s decision or instruction shall be reported to the investor by the contractor for confirming, revising or replacing such decision or instruction.
13.2. Complaints of the investor
If the investor has any complaint in connection with the payment under Articles of these conditions or relevant laws and/or the extension of time for giving notification of defects, the inventor shall send the contractor a notice and details of such payment.
The investor shall send the notice as soon as possible after understanding reasons for the complaint. The notice of extension of time for giving notification of defects shall be issued before the deadline of notice.
The complaint shall specify clauses or grounds for complaining and shall include proofs of the payment and/or the extension of payment due date. The investor shall comply with Clause 4 Article 13 to come to an agreement or decision (i) on the amount (if any) that the investor have the right to request for payment by the contractor and/or (ii) extension (if any) of time for giving notification of defects according to Clause 2 Article 21.
The investor may offset this amount against any debt or future debt of the contractor. The investor may only deduct a debt of the contractor that has been confirmed or under another complaint against the contractor according to this Clause.
13.3. Instructions of the investor
The investor may give the contractor necessary instructions to be followed. All instructions shall be given in writing and must specify relevant obligations and Clauses (or other terms of the contract) that include obligations. If the instruction leads to a change, Article 16 shall be applied.
The contractor shall follow the instructions of the investor, the investor’s representative or suitable competent persons authorized under this Article.
13.4. Decision
If the investor is requested to agree or decide an issue according to these conditions, they shall discuss with the contractor before reaching the agreement or decision. Where they fail to reach the agreement or decision, the investor shall make an objective decision in accordance with the contract and on the basis of relevant issues.
The investor shall send a notice to the contractor of each agreement or decision as well as specific proofs. Each party shall endeavor to honor each agreement or decision, unless the contractor gives a notice to the investor of their disagreement about the decision within the period [specified in the SCC] from the date of receipt of the notice. Afterwards, the other party may let the dispute board (if any) to handle the dispute according to Clause 4, Article 24.
13.5. Obligation to allow the contractor to access the construction site
The investor shall allow the contractor to access and use all parts of the construction site during the contract period. If the Appendix on [bid (or request for proposals) of the investor] does not specify regulations on period of access to the construction site, the investor shall allow the contractor to access and use the construction site to construct the work in accordance with the task performance progress submitted to the investor according to Clause 3 Article 10.
If the contractor fails to receive the right to access and use the construction site due to the investor’s delay and incurs additional expenses during this period, the contractor shall send a notice to the investor and request:
a) an extension of the construction period if the completion is delayed or will be delayed in accordance with Clause 4 Article 10.
b) a coverage of all additional expenses included in the contract price.
After receiving the notice, the investor (or the consultant) shall follow Clause 4 Article 13 to reach an agreement or decision on this issue.
However, if and only if the investor does not grant these rights to the contractor due to the contractor’s mistakes or delay, including a mistake or delay in the submission of any document of the contractor, the contractor shall not be entitled to the extension of such period and expenses.
13.6. Assistance for the contractor in application for licenses from competent authorities
The investor shall (where applicable) assist the contractor at the request of the contractor in applying for a license or a written approval for performing tasks according to regulations of law.
13.7. Other rights and obligations in accordance with regulations of law
Article 14. Duties and entitlements of the consultant
14.1. Duties and entitlements of the consultant
The consultant shall carry out tasks assigned by the investor under the consulting contract. The consultant may include competent individuals qualified for performing such tasks.
The consultant is not entitled to make any amendment to the contract. The consultant may exercise rights of a consultant as defined or implied in the contract. The contract shall specify the case in which the exercise of rights by the consultant is required to be approved by the investor (if any). The investor shall commit not to impose additional limits on rights of the consultant, unless otherwise agreed by both parties.
Unless otherwise prescribed in the contract, the consultant shall:
a) The consultant shall be considered as the investor’s personnel when they exercise any specific right defined or implied in the contract.
b) The consultant must not relieve the obligations or responsibilities of any party under the contract, and
c) Notwithstanding the approval, certification, inspection, verification, instruction, notice, request, testing or the similar action by the consultant (including neutral ideas), the contractor shall fulfill their obligations under the contract, including responsibilities for defects, omission, inconsistencies or inobservance of terms of contract.
14.2. Authorization by the consultant
The consultant may assign and authorize other individuals to carry out specific tasks if it is approved by the investor. Authorized persons may be residential consultants and/or external superintendents designated to supervise and/or carry out test runs of equipment and/or materials. The assignment/authorization or cancellation of assignment /authorization shall be submitted to the investor in writing and it only takes effect after the receipt of such document by both parties. Unless otherwise stipulated in the contract by both parties, the authorization to make decisions shall not be made according to Clause 4 Article 13.
These individuals must be qualified to fulfill the authorized duties as well as fluent in the communication languages as defined in Clause 1 Article 3.
The designated or authorized person shall provide the contractor with instructions within the authorization only. Any approval, certification, inspection, supervision, instruction, notice, request, testing or the similar action by an individual under the consultant’s authorization will be as effective as if it was done by the consultant. Nevertheless:
a) The failure or disapproval for any work, equipment or material shall not affect the consultant’s rights to remove or reject any work, equipment or material;
b) Any suspicion of the authorized person or an authorized person’s decision or instruction shall be reported to the consultant by the contractor for confirming, adjusting or replacing such decision or instruction.
14.3. Instruction by the consultant
The consultant may advise the contractor on amendments or addition to the drawings, or defect/error corrections at any time under the contract. The contractor shall follow the instructions provided only by the consultant or authorized person. If any instruction leads to a change, Article 16 shall be applied.
The contractor shall comply with instructions on any aspect of the contract provided by the consultant or authorized person. The consultant and authorized person shall provide instructions in writing, where applicable. If the consultant or authorized person:
a) gives verbal instructions; or
b) is requested in writing to provide instructions but do not response in writing within the period [prescribed in the SCC] from the date of receipt of the request.
The request shall be written instructions provided by the consultant or authorized person (as the case may be).
14.4. Replacement of the consultant
The investor shall send the contractor the consultant candidate’s profile within the period [prescribed in the SCC] in advance before the intended date of replacement. Candidates rejected by the contractor with persuasive reasons for rejection submitted to the investor shall not be employed.
14.5. Decision of the consultant
The consultant (on behalf of the investor) shall discuss with both parties before reaching an agreement or a decision on any issue.
The consultant shall notify both parties of the agreement or decision on such issue and reasons for such decision. Each party shall comply with the agreement or decision, unless it is governed by Article 24
Article 15. Rights and obligations of the contractor
15.1. Overall responsibilities of the contractor
The contractor shall design, supply technology equipment and construct the work under the contract and remedy any defect of the work. Upon completion, the work must be in accordance with the intended use as defined in the contract.
The contractor shall provide the contractor’s equipment and documents specified in the contract and all the contractor’s personnel, goods, consumable materials, other things and services, whether temporary or permanent, which are required in design, construction, completion and defect remedy.
All tasks necessary to satisfy the investor’s requirements or mentioned in the contract and all tasks (including those which are not mentioned in the contract) necessary to the stability or the completion or the safety and smooth operation of the work shall be performed.
The contractor shall be responsible for the acceptability, stability and safety of activities on the construction site, construction methods and the entire work.
The contractor shall provide detailed arrangements and methods that the contractor proposes to apply in construction of the work whenever the investor requests. Significant changes of the arrangements and methods shall not be accepted if the notice of that is not sent to the investor in advance.
15.2. The contractor’s representative
The contractor shall designate a representative and give her/him the authorization to control the execution of the contract on behalf of the contractor. Unless the contractor’s representative is named in the contract, before the date of commencement, the contractor shall provide the investor with the name and profile of the person designated to act as a representative of the contractor for consideration and agreement. If the this person is not accepted or is rejected afterwards or if the appointed person fails to fulfill his/her tasks in the position of the contractor’s representative, the contractor shall provide the investor with a name and profile of another appropriate representative.
No dismissal or new appointment can be taken without prior consent of the investor.
The contractor’s representative shall, on behalf of the contractor, follow the instructions under Clause 3 Article 13 or Clause 3 Article 14.
The contractor’s representative may give qualified persons an authorization and may revoke the authorization at any time. The authorization or revocation of the authorization shall only be effective if the investor receives the prior notice signed by the contractor which specifies the name of this person and regulations on rights, function and authority to designate or revoke.
The contractor’s representative and these persons must be fluent in the communication languages determined in Clause 1 Article 3.
15.3. Collaboration
Under the contract or instructions of the investor (or the consultant), the contractor shall collaborate with:
a) The investor’s personnel,
b) Other contractors hired by the investor, and
c) Personnel of competent regulatory authorities who may be hired or appointed and sent to perform the above-mentioned tasks beyond the contract.
The above mentioned persons and other contractors may use the contractor’s equipment, temporary works, or accesses the construction site by roads built by the contractor. Charges for the use of the aforesaid equipment, accesses or temporary works shall be included to the contract price.
The contractor shall be responsible for their construction work on the construction site and shall collaborate with other contractors to carry out the work within an extent specified in the investor’s bidding document (request for proposals) (if any).
Under the contract, if the investor is requested to grant the contractor the right to use any foundation, structure, building or means of access at the request of the contractor, the contractor shall submit applications for these rights to the investor (or the consultant) in accordance with the time and format specified in the bidding document.
15.4. Boundary marker positioning
The construction site shall be defined by boundary markers and reference elevation stipulated in the contract. The contractor shall be responsible for the accuracy of every work item positioning and shall correct errors in the position, elevation, size or alignment of the work.
The contractor shall check the accuracy of boundary markers, alignment and standard elevation before carrying out the construction and shall be responsible for the inaccuracy of the above-mentioned elements.
Where the delay and/or expense are/is incurred due to the other party’s fault, the contractor shall notify the investor (or the consultant) of that fact and apply Clause 1 Article 24 hereof to request:
a) An extension if the completion is delayed or will be delayed in accordance with Clause 4 Article 10, and
b) A coverage of all additional expenses of the contract.
After receiving the notice, the investor (or the consultant) shall, according to Clause 4 Article 13, agree to or decide (i) whether or not it was the other party’s fault and (if so) to what extent the fault could not be reasonably detected, and (ii) whether the problems described in paragraphs a and b above is related to this fault.
15.5. Regulations on safety
Contractor shall:
a) Comply with all applicable regulations on occupational safety;
b) Take responsibility for the safety of all persons who are permitted to be present on the construction site;
c) Have measures to ensure the safety of the work and persons who are permitted to be present on the construction site.
15.6. Construction site conditions
The investor shall provide the contractor with related data required to be available on geological and hydrogeological assessment, construction surveys and reports on surrounding environment related to the contract.
To the possible extent (including expenses and time), the contractor shall be deemed to have had all necessary information on risks, problems and other circumstances that may affect the bid or the work. It is also considered that the contractor, in terms of all of the relevant issues, has carried out site surveys and verified the accuracy of the set forth elements prior to the submission of bid envelope, including but not limited to:
a) Construction site topography, including geological conditions;
b) Hydrogeology and climate;
c) Workloads and nature of work, and materials for construction and correction of defects.
d) Regulations of laws on labor;
dd) The contractor’s requirements for accesses, accommodation, means of transportation, personnel, traffic, water supply and other services.
The contractor is deemed to have had adequate information on the accuracy and adequacy of the construction site conditions to set the contract price.
15.7. Unpredictable physical conditions
For the purpose of this Clause, “physical conditions” refer to natural and artificial physical conditions, other physical obstacles as well as pollution encountered by the contractor on the construction site while construction of the work, including all underground conditions, hydrological conditions but not including climatic conditions.
If the contractor encounters any difficulty in physical conditions beyond their anticipation, they shall notice the investor (or the consultant) of such difficulty as soon as possible. The notice shall clarify the difficulty in physical conditions and reasons for failure to anticipate such difficulty. The contractor shall continue to carry out the work, apply compatible measures and follow the instructions of the investor (or the consultant) (if any). If any instruction leads to a change, Article 16 shall be applied.
If and to the extent that the contractor, who has encountered difficulties in physical conditions beyond their anticipation and has submitted a notice of that fact, is still be delayed and/or incurred an additional expense due to such difficulties, the contractor, according to Clause 1 Article 24, shall be entitled to request:
a) an extension if the completion is delayed or will be delayed in accordance with Clause 4 Article 10, and
b) a coverage of all additional expenses included in the contract price.
However, before the additional expenses are accepted or considered in the final decision according to paragraph (b), the investor (or the consultant) may check whether the other physical conditions in similar parts of the work (if any) are more favourable and are anticipated by the contractor prior to submission of the bid in a reasonable manner or not. If such physical conditions are more favourable, the investor (or the consultant) may, following the regulations in Clause 4 Article 13, give consent to such additional expenses or decide to reduce the additional expenses for such conditions; and the additional expenses may be added to (or subtracted from) the contract price and payment certificate. However, the result of making all the adjustments under paragraph (b) and this total deduction, for natural conditions encountered in the similar parts of the work, will not result in discount in the contract price.
The investor (or the consultant) may take account of any evidence of physical conditions seen by the contractor prior to submission of the bid and may obtain it but is not bound by the evidence rules.
15.8. Roads and means of transport
The contractor shall pay all charges or fees for the use of specialized roads and/or temporary roads, including accesses to the construction site. The contractor must have other means of transport paid by themselves outside of the construction site to use for their tasks.
15.9. Avoiding affecting works and residents
Unless it is necessary or appropriate, the contractor shall not interfere in:
a) Convenience of the public, or
b) Access, travelling and occupancy of the whole roads or pavement, regardless of public roads, roads under the investor administration or other’s.
The investor shall indemnify the contractor for losses and expenses (including legal costs and fees) and incur these losses due to any unnecessary and inappropriate intervention.
15.10. Entry into the construction site
The contractor has in principle accepted the availability and suitability of routes to the construction site. The contractor should save the roads, accesses or bridges from harm due to the use of the contractor and their personnel and shall use proper means of transport and designated road routes.
Unless otherwise prescribed:.
a) The contractor shall be responsible for repairing the road that is damaged by themselves or their personnel;
b) The contractor shall install signposts along the road and shall obtain the relevant authority’s prior consent;
c) The investor shall be free from complaints or issues arising in connection with the road routes;
d) The investor does not guarantee for the compatibility or availability of any specific route;
dd) The contractor shall pay all fees or charges for the use of their on-demand roads.
15.11. Transport of goods
Unless otherwise prescribed:
a) The contractor shall notify the investor within the period [prescribed in the SCC] when all the equipment or main goods items are transported to the construction site;
b) The contractor shall be responsible for the packaging, handling, loading, transport, storage and protection of such materials/equipment; and
c) The contractor shall compensate for damage, losses and costs (including legal fees and charges) incurred in connection with the transport of goods and negotiate and pay all claims arising from their transport.
15.12. The contractor’s equipment
The contractor shall be responsible for their equipment. All the contractor’s equipment on the construction site shall be used for the construction only. The contractor is not permitted to move any main item of equipment out of the construction site without the consent of the investor (or the consultant). However, the consent for using vehicles for transport of goods or personnel of the contractor out of the construction site is not required.
15.13. Environmental protection
The contractor shall take appropriate measures to protect environment (on and out of the construction site) and limit damage and effects to people and property due to pollution, noise and other consequences from the contractor’s operations.
The contractor shall ensure that emissions, aboveground wastes and waste streams resulting from the contractor’s operations shall not exceed the levels specified in the investor’s requirements and shall not exceed the levels specified by the applicable Law.
15.14. Electricity and water supply and other services
The contractor shall supply water and electricity and other services to meet their demands.
The contractor shall be entitled to use on-site water or electricity or other services which are specified in the investor’s requirements for the purpose of construction. The contractor shall incur risks and pay for necessary machinery and equipment for the use of such services and measurement of the consumption.
The consumption and its amount payable (at this price) for services must be approved or determined under Clause 2 Article 13 and Clause 4 Article 13. The contractor shall pay for their consumption.
15.15. Materials and equipment supplied by the investor (if any)
The investor’s equipment (if any) must be prepared for use by the contractor in conformity with the technical specifications. Unless otherwise prescribed:.
a) The investor shall be responsible for their equipment supplied to the contractor, unless otherwise specified below in paragraph (b).
b) The contractor shall be responsible for each material/equipment of the investor that is run, used, managed or controlled by the contractor’s personnel.
The consumption and its amount payable (at the prescribed price) for the use of the investor’s equipment must be agreed upon or decided according to Clause 2 Article 13 and Clause 4 Article 13. The contractor shall pay for their consumption.
The investor shall complimentarily provide the contractor with materials specified in the “list of materials supplied by the investor” (if any) under the contract. The investor shall incur risks and pay for such materials on the date and location prescribed in the contract. The contractor shall check the supplied materials and shall promptly notify the investor of any deficiency, inaccuracy or omission of such materials. The investor shall promptly verify the deficiency, inaccuracy or omission of the materials as notified by the contractor, unless otherwise prescribed in the contract.
The contractor shall carefully store and supervise such materials, thereafter. Notwithstanding the supervision, examination and storage of the materials by the contractor, the investor shall be responsible for the deficiency, inaccuracy or omission founded.
15.16. Report on progress
Unless otherwise [prescribed in the SCC], monthly reports on progress shall be prepared and submitted to the consultant with the quantity [prescribed in the SCC] by the contractor. The first report shall cover the period from the commencement date to the last day of the first month. Afterwards, reports shall be submitted monthly, and each report shall be submitted within the period [prescribed in the SCC] after the last day (of the reporting period) of the month.
Reports shall be submitted continuously until the contractor has completed all tasks remaining at the date of completion specified in the acceptance record.
Unless otherwise [prescribed in the SCC], each report includes:
a) A map and specifications of the progress, including all phases of design, procurement of equipment, processing, transport of equipment to the construction site, construction, erection, inspection and commissioning;
b) Photo(s) depicting the status of processing, manufacturing and progress on the construction site;
c) For processing and manufacturing equipment, the report also includes categories of materials, origins and percentage (%) of completion and date of start or scheduled date of start of:
i. processing and manufacturing,
ii. testing of the contractor,
iii. Verification of the investor and
iv. Transport and arrival at the construction site;
d) Profiles of the contractor’s personnel and equipment;
dd) Copies of documents on quality assurance, testing results and certificates of equipment;
e) Lists of changes and notifications made under Clause 2, Article 13 and notifications made under Clause 1, Article 24;
g) Safety statistics, including details of hazardous activities and causes related to environmental factors and public relations; and
h) Documents specifying comparison between the schedule and actual progress, with the details of any events or circumstances that may jeopardize the contractual completion, and the measures that are applying or will be taken to remedy the delay.
15.17. Construction site security
Unless otherwise [prescribed in SCC]
a) The contractor shall be responsible for the access of non-mission guests, and
b) Only the contractor’s personnel, the investor’s personnel and other persons (or representatives) notified by the investor to the contractor. These other persons are personnel of other contractors hired by the investor to work on the construction site.
15.18. Activities of the contractor on the construction site
The contractor shall carry out their activities within the construction site, and the additional areas which are owned by the contractor and are agreed to be the workplace by the investor. The contractor shall keep their equipment and personnel operating within the construction site and additional areas and ensure that they do not encroach on neighbouring areas.
During the construction, the contractor shall keep the construction site tidy. The contractor shall clean the construction site and demolish all temporary works, where unnecessary.
After receipt of the acceptance record, the contractor shall clear or remove his/her equipment, debris and temporary works. The contractor shall keep the construction site clean and safe. However, necessary goods used for repairing or correcting defects may be left in the construction site during the remedy process.
15.19. Training
The contractor shall provide the investor’s personnel with training to ensure that the work will be operated and maintained within the scope specially prescribed in the requirements of the investor (if any). If the contract specifies that the training must be provided prior to the acceptance of the work, the work shall not be deemed to complete to be transferred according to Clause 1 Article 9 until the training process completes.
15.20. As-built documents
The contractor shall prepare and promptly update an adequate set of as-built documents on construction of the work, specifying locations, sizes and specifications of the completed construction work. These documents shall be stored in the construction site and be used for the specific purposes of this Clause. The investor shall be provided with the quantity of copies [prescribed in the SCC] of these documents before carrying out verification upon completion.
In addition, the contractor shall provide the investor with as-built drawings of the works, showing all specifications of the works and submit these drawings to the investor for consideration and approval in accordance with Article 5. The contractor shall be won approval for sizes, reference system and other relevant specifications from the investor.
Before issuance of the acceptance record, the contractor shall provide the investor with specific data and as-built drawings according to the investor’s requirements. The work shall not be deemed to complete to be accepted according to Clause 1 Article 9 if the investor does not receive these documents.
15.21. Guidelines for operation and maintenance
Before carrying out test runs upon completion, the contractor shall provide the investor with temporary guidelines for operation and maintenance with adequate specifications in order that the investor can operate, maintain, dismantle, reinstall, adjust and repair equipment.
The work shall not be deemed to complete to be accepted according to Clause 1 Article 9 if the investor does not receive the final detailed guidelines for operation and maintenance and other guidelines specified in the investor ‘s requirements for these purposes.
15.22. Other relevant issues
Every antiquity, coin, relics, geological or archaeological object founded within the construction site shall be under the protection and control by the investor. The contractor and their personnel shall not damage to or take above mentioned object off the construction site.
The contractor shall promptly notify the employer of such object at the time it is founded. Where any delay and/or expense are/is incurred due to application of guidelines, the contractor shall notify the investor of that fact and apply Clause 1 Article 24 hereof to request:
a) An extension if the completion is delayed or will be delayed in accordance with Clause 4 Article 10, and
b) A coverage of all additional expenses included in the contract price.
After receiving the notice, the investor (or the consultant) shall give consent or make a decision following the regulations prescribed in Clause 4 Article 13.
15.23. Other rights and obligations in accordance with regulations of law.
Article 16. Price adjustments of contract adjustments
16.1. Adjustments to the contract price
a) The contract price shall be adjusted if there is an addition of workloads beyond the signed contract or in the cases [prescribed in SCC] (if any). When there is an addition of workloads beyond the signed contract (or workloads inappropriate to the design), the parties shall prepare an additional Appendix, specifying additional workloads (or workloads inappropriate to the design) and applied unit prices.
b) Force majeure prescribed in Article 23.
16.2. Adjustments to the contract price
A change may be requested by the investor or proposed by the contractor to be made by the investor (or the consultant) at any time before issuance of the acceptance record according to Clause 1 Article 9.
The contractor is only permitted to change or adjust tasks if they are accepted by the investor (or the consultant). Any such adjustments shall not reduce or nullify the validity of the contract.
In case the contractor fails to make any change according to the investor’s requirements, the contractor shall immediately submit a notice to the investor (or the consultant) which specifying explanation as to (i) why the contractor cannot obtain the essential means of transport according to the requirements for the purpose of change, (ii) the reduction of safety or stability of the work due to the change or (iii) side effects on the achievement of performance guarantees due to the change. After receiving the notice, the investor (or the consultant) shall consider deciding or changing guidelines.
Other cases of adjustments to the contract is prescribed in the SCC.
16.3. Procedures for adjusting the contract
When the investor (or the consultant) requests a change or the contractor proposes a change, the contractor shall submit a written reply to the reasons why the contractor fails to satisfy, as the case may be, or submit:
a) Specifications of the proposed design and/or the tasks to be carried out and plans to carry out them,
b) A proposal for necessary changes for the task performance schedule and time limit for completion according to Article 10, and
c) A proposal for adjustments to the contract price.
The investor (or the consultant) shall, immediately after receiving the proposal, express an agreement or disagreement or other opinions. The contractor shall not be permitted to delay any task pending reply from the investor (or the consultant).
Article 17. Subcontractors
17.1. General provisions on subcontractors
a) The contractor shall not be permitted to transfer all tasks under the contract to their subcontractors and shall be responsible to the investor for the quality, progress, safety of all tasks or defects caused by their subcontractors.
b) An approval for suppliers of materials or a subcontract in which the subcontractor has been named in the contract from the investor (or the consultant) is not required.
c) Any subcontractor who is not named in the contract must be approved by the investor (or the consultant).
d) The contractor shall send a notice to the investor (or consultant) within the period [prescribed in the SCC] before the scheduled date of start of each subcontractor’s tasks.
dd) Each subcontract must include regulations on permission for the investor to request an assignment of the subcontract to the investor according to Clause 2 Article 17 (if or when applicable), or in case of termination of the contract according to Clause 7 Article 18.
17.2. Assignment of interests of the subcontract
If the subcontractor’s obligations extend beyond the expiry date of the time limit for notification of relevant defects, and before the expiry date, the investor (or the consultant) shall request the contractor to transfer the interests of such obligations to the investor, the contractor shall comply with such request. Unless otherwise prescribed, the contractor shall no longer be liable for the tasks performed by their subcontractors once the transfer is finished.
17.3. Definition of “Subcontractor designated by the investor”
For the purpose of this contract, “Subcontractor designated by the investor” refers to a contractor who:
a) is designated by the investor to act as a subcontractor of the contractor to perform part of the professional work with high technical requirements or is designated by the investor if the contractor fails to satisfy the requirement for contract execution schedule, or
b) is proposed by the investor (or the consultant) to the contractor as a subcontractor.
17.4. Right to object to the designation
The contractor is not liable for hiring a subcontractor designated by the investor if the contractor can state a reasonable objection in a notice sent to the investor (or the consultant) as soon as possible with detailed arguments to prove. The objection shall be deemed justified, if it is given on the basis of appropriate reasons including those set forth herein, unless the investor agrees to indemnify the contractor for the following matters or matters arising:
a) There is reason to believe that the subcontractor does not have sufficient capacity, resources or financial strength;
b) The subcontract does not state that the designated subcontractor will indemnify the contractor for the consequences of recklessness or improper use of goods, caused by the subcontractor, their agents or employees;
c) The subcontract does not specify that, regarding the tasks specified in the subcontract (including design if any), the designated subcontractor will:
i. take on legal responsibilities and obligations which will relieve the contractor of responsibilities and obligations under the contract, and
ii. Indemnify the contractor against any legal liability and obligation which may arise from or relate to the contract or may result from consequences or any non-fulfilment of the subcontractor’s legal obligation and liability.
17.5. Payment for subcontractors designated by the investor
The contractor shall pay the subcontractor designated by the investor amounts determined to be payable by the consultant under the subcontract. These amounts plus other payments shall be included in the contract price in accordance with point b of Clause 2 of Article 12, except for the case referred to in Clause 6 of Article 17.
17.6. Evidence for completion of payment for designated subcontractors
Before issuance of a payment confirmation including an amount payable to the subcontractor designated by the investor, the investor (or the consultant) may request the contractor to provide convincing proofs that the designated subcontractor has fully received amounts of payment appropriate to the previous payment confirmations, minus the deductions as retained amounts or other amounts. Unless the contractor:
a) provides convincing proofs to the consultant, or
b) provides a clearly written explanation to the investor (or the consultant) that the contractor is reasonably entitled to retain or refuse to pay these amounts and provides convincing proofs that the designated subcontractor has been notified of the contractor’s entitlement to such rights to the consultant.
The investor may then pay at their own expenses, directly to the designated subcontractor, part or all of the amounts previously confirmed (other than the customarily retained amount) to which the designated subcontractor will be entitled if the contractor fails to submit the evidence set forth in Points a or b above. The contractor must then pay back to the investor the amount that the investor has paid directly to the designated subcontractor.
Article 18. Suspension and termination of the contract by the investor
18.1. Notice of defect remedy
Where the contractor fails to fulfill their obligations, the investor may send a notice of requesting the contractor to fulfill their obligations and remedy defects within the period [prescribed in the SCC].
18.2. Suspension of tasks
The Investor (or the Consultant) may at any time instruct the Contractor to suspend the performance of a work item or the whole work when the Contractor fails to meet the requirements of quality, progress and labor safety under the signed contract. During such suspension, the Contractor shall protect and ensure that the work item or work is not deteriorated, lost or damaged.
The Investor (or Consultant) will notify the cause of the suspension. If and to the extent the cause is notified and the Contractor is liable, then the Contractor shall bear the consequences of the suspension.
18.3. Consequences of the suspension
If the Contractor encounters delays and/or incurs costs due to compliance with the instructions of the investor (or the Consultant) under Clause 2 of Article 18 and/or the resumption of tasks, the Contractor shall send a notice to the investor (or the Consultant) and may request, in accordance with the regulations of Clause 1 of Article 24:
a) An extension if the completion is delayed or will be delayed in accordance with Clause 4 Article 10, and
b) A coverage of all additional expenses of the contract.
After receiving this notice, the Investor (or the Consultant) shall follow the regulations prescribed in Clause 4 Article 13.
The Contractor shall not be entitled to extend the time or pay the costs of correcting the consequences of the Contractor’s fault.
18.4. Payment for equipment and materials in case of suspension of tasks
The Contractor shall be paid by the investor for the value of the equipment and materials that have not been transported to the construction site (on the date of suspension) if:
a) the use of equipment or the supply of equipment and/or materials has been delayed within the period [specified in the SCC], and
b) Such equipment and/or materials have been approved by the investor or the Consultant and the Contractor and are the property of the investor.
18.5. The suspension extending beyond the specified time
If the suspension under Clause 2, Article 18 has continued beyond the period [specified in the SCC], the Contractor may request the Investor to allow the continuation of the tasks. If the investor does not approve within the period [specified in the SCC] after the Contractor has requested it, the Contractor may send a notice of the fact to the investor and consider that the suspension will no longer be effective. If the suspension affects the entire project, the Contractor may notify the termination of the contract in accordance with Clause 2 Article 19.
18.6. Continuation of the tasks
After receiving the approval or instructions to continue carrying out the tasks of the Investor, the parties will jointly inspect the work, equipment and materials affected by the suspension. The Contractor shall remedy defects caused by any deterioration, damage or loss of the work, equipment or materials that occurred during the suspension.
18.7. Termination of the contract by the investor
The investor has the right to terminate the contract if the contractor:
a) Fails to comply with Clause 1 of Article 11 or with a notification under Clause 1 of Article 18,
b) Abandons the work or clearly expresses the intention not to continue performing the contractual obligations or continuously fail to perform the tasks under the contract within the period [specified in the SCC],
c) fails to continue the work without acceptable reasons under Article 10,
d) transfers all tasks or the contract without the agreement of the Investor to the subcontractor,
dd) went bankrupt.
If the contractor encounters any of the above-mentioned events, the investor may send a notice to the Contractor before the period [specified in the SCC] of the termination of the contract and the expulsion of the Contractor from the construction site. Nevertheless, if the contractor encounters the event mentioned in point dd, the investor may immediately release a notice of contract termination.
The contract termination shall not affect rights of the investor.
The contractor shall leave the construction site and transfer all their necessary goods, documents and design documents to the investor. However, the contract shall make efforts to comply promptly with the reasonable instructions set forth in the notice including (i) transfer of subcontract, and (ii) protection of people and property or the site security.
After the contract is terminated, the investor may complete the work and/or hire another contractor to complete the work. The investor and new contractors may use any good or document prepared by the previous contractor and other design documents prepared by the previous contractor or the previous contractor’s representative.
The investor shall notify that the Contractor’s equipment and temporary works will be returned to the Contractor at or near the construction site. The Contractor shall immediately make arrangements to carry them, and the risk and expense of the carriage shall be borne by the Contractor. If, at that time, the Contractor still owes the investor one or more payments, the investor is entitled to sell them for a refund, and the excess amount will be paid to the Contractor.
18.8. Pricing at the termination date
Once the notice of contract termination under clause 7 Article 18 takes effect, the investor shall, according to Clause 4 Article 13, approve the pricing or shall price the contract value, goods and contractor’s documents and the amounts payable to the contractor for every task done under the contract.
18.9. Payment after termination of the contract
After the notice of contract termination under Clause 7 Article 18 takes effect, the Investor may:
a) Proceed according to Clause 2 of Article 13,
b) Refuse to make additional payment to the contractor until the costs for design (if any), construction, completion and remedy of defects or damage caused by the delay in the completion (if any) and other expenses incurred by the investor are certified true and/or
c) Collect payment for losses or damage incurred by the investor and other additional expenses for the completion after reducing debts to the contractor according to Clause 8 Article 18. After the collection is completed, the investor shall pay the remainder to the contractor.
18.10. Termination of the contract by the investor
The Investor may send a notice of contract termination at any time convenient for the investor to the Contractor in the cases specified in Clause 7 of this Article. Such termination shall be effective for the period [specified in the SCC] after the following date of the date on which (i) the Contractor receives this notice from the investor or (ii) the investor returns the performance guarantee. The Investor shall not be allowed to terminate the contract under this Clause to construct the work by themselves or hire another contractor to construct the work.
After the contract terminates, the Contractor shall follow the regulations in Clause 3 of Article 19 and shall be paid in accordance with Clause 9 of Article 18.
Article 19. Suspension and termination of the contract by the contractor
19.1. Rights to suspend the contract execution by the contractor
Where the investor fails to comply with the regulations in Clause 3 Article 12, the contractor may, after notifying the investor not later than the period [prescribed in the SCC], suspend their tasks (in part or in whole) until the date on which the contractor is paid by the investor in accordance with the terms of the contract, as the case may be and as described in the notice.
The suspension by the contractor under this Clause shall not affect the contractor’s rights to financial expenses according to Point ss Clause 3 Article 12 and termination of the contract under Clause 2 Article 19.
If the contractor receives the investor’s payment or advance (as mentioned in the corresponding Clause and in the above-mentioned notice) prior to the notification of suspension, the contractor shall continue to fulfill the tasks as soon as possible.
If the Contractor incurs delays and/or additional expenses as a result of the suspension of their tasks (in part or in whole) under this Clause, the Contractor shall send a notice to the investor and may request, under Clause 1 of Article 24:
a) An extension if the completion is delayed or will be delayed in accordance with Clause 4 Article 10, and
b) Payment for all additional expenses and reasonable profits included in the contract price.
After receiving this notice, the Investor shall follow regulations in accordance with Clause 4 Article 13.
19.2. Termination of the contract by the contractor
The contractor has the right to terminate the contract if:
a) The contractor does not receive the payment in accordance with the payment period [specified in the SCC] after the time limit for payment ends as specified in Point b, Clause 3, Article 12, but the payment must be made within the payment period (except for the deduction under Clause 2, Article 13,
b) The investor fails to fulfils their obligations to the contract,
c) The contractor must continuously stop the tasks within the period [specified in the SCC] due to the fault of the Investor,
d) The prolonged suspension affects the entire project as prescribed in Clause 5 of Article 18, or
dd) The investor is bankrupt or dissolved.
If the contractor encounters any of above mentioned events, they may submit a written notice of contract termination to the investor prior to the period [prescribed in the SCC]. Nevertheless, if the contractor encounters events mentioned in point dd, they may immediately release a notice of contract termination.
19.3. Suspension of the tasks and relocation of equipment of the contractor
After receiving the effective notice of contract termination under Clause 10 Article 18 or Clause 2 Article 19, the Contractor shall immediately:
a) Suspend all additional tasks, excluding the tasks under the investor’s instructions to ensure the safety of people and property or the construction site.
b) Transfer all documents of the contractor, equipment, materials and other tasks that the contractor has received payment, and
c) Transport all goods out of the construction site, excluding those necessary for the safety and leaving of the construction site.
19.4. Payment as the contract termination
After the notice of contract termination under Clause 2 Article 19 takes effect, the Investor shall immediately:
a) Return the contract performance guarantee, advance payment guarantee and other relevant guarantees to the Contractor,
b) Pay to the Contractor in accordance with Clause 9 of Article 18, and
c) Pay the Contractor for other damages or losses suffered by the Contractor as a result of the termination of this contract.
Article 20. Insurances and warranties
20.1. Insurances
The parties shall purchase compulsory insurance in accordance with the regulations of law; and voluntary insurance as agreed upon by the parties.
20.2. Warranties
After receipt of record of acceptance of the work or work item, the contractor shall:
– provide warranty within to the period [specified in the SCC] according to the manufacturer’s regulations;
– Submit a guarantee for fulfilment of warranty obligation within the period [prescribed in the SCC] to the Investor after the date of receipt of the record of acceptance of the work or work item. The guarantee shall be valid until the warranty period is ended, and shall be issued by a natural person or juridical person using the form in Part 5 or other forms approved by the investor;
– The contractor shall be responsible for the remedy of defects or errors occurring by their default during the warranty period and all additional expenses related to the remedy shall be paid by the contractor. The remedy of these defects must be started within the period [specified in the SCC] after receiving the Investor’s notice of these defects. After this period, the Contractor does not start the remedy, the investor has the right to hire another Contractor (third party) to remedy and all costs for the remedy to pay the third party shall be borne by the Contractor. The Contractor shall make payments to the third party within the period [specified in the SCC] after receiving the Investor’s notice of these payments. In case the payment expires and the Contractor still fails to pay these costs, the Investor shall comply with Article 24 to request the Contractor to pay.
Article 21. Responsibility for errors
21.1. Fulfilment of incomplete tasks and defect remedy
In order that the Contractor’s works and documents and the condition of each work item are always conformable with the contract (except for damage) until the expiry date of time limit for notifying defects, the Contractor shall:
a) fulfil the incomplete tasks on the date stated in the acceptance record within a reasonable time requested by the Investor, and
b) remedy the defects or damage notified by the Investor by the deadline for notifying defects or before the expiry date of notifying defects of the work or work item.
If a defect is found or damage occurs, the Contractor will be notified by the Investor.
21.2. Cost of defect remedy
All tasks specified in Point b of Clause 1 of Article 21 shall be performed and the Contractor shall bear the risks and costs for the performance, if:
a) Equipment, materials or workmanship are not conformable to the contract,
b) The contractor fails to comply with other obligations.
If the defect is caused by other reasons, the Contractor shall be notified immediately by the Investor and then the regulations in Clause 3 of Article 16 shall be applied.
21.3. Extension of time limit for notifying defects
According to Clause 2, Article 13, the Investor shall be entitled to extend the time limit for notifying defects in the work or item if the work or item or a major part of the Factory (as the case may be and after acceptance) cannot be used for the intended purpose due to the defects or damage. However, the time limit for notifying defects shall not be extended beyond the period [specified in the SCC].
If the supply and/or installation of equipment and/or materials is suspended according to Clause 2 of Article 18 or Clause 1 of Article 19, the contractor shall not be liable for defects or damage occurring beyond the period [specified in the SCC] after the expiry date of notifying defects.
21.4. Failure to remedy defects
If the contractor fails to remedy such defects within an appropriate period, the investor or the representative of the investor may select a date to remedy the defects. The contractor shall be notified of the date.
If the contractor fails to remedy such defects within the designated period and they must incur any additional expense for the remedy according to Clause 2 Article 21, the investor may:
a) carry out the tasks by themselves or hire another contractor according to an appropriate method and all additional expenses shall be paid by the contractor, but the contract shall not be liable for the tasks carried out by another one; and the contractor shall, under Clause 2 Article 13, pay appropriate additional expenses for the remedy to the investor;
b) offer an appropriate discount according to Clause 4 Article 13; or
c) If any defect causes the investor to basically lose most or all of the interests from the work, the investor will rescind the contract in whole or in part accordingly. Even if otherwise not prescribed in the contract, the investor shall be entitled to a full refund of the amount paid to the Contractor to construct the work in whole or in part (as the case may be) plus the financial costs and costs of dismantling that part of the work, clearing the construction site and returning equipment and materials to the Contractor.
21.5. Transport of defective products
If it is unable to remedy the defects at the construction site, the contractor may carry out the remedy in another location outside the construction site, if it is approved by the investor. The approval of the investor must, in the necessary case, be guaranteed by an additional amount of guarantee of the contractor equivalent to costs of replacing these defective products, or by another appropriate guarantee method.
21.6. Additional tests
If the remedy affects the project operation, the investor may request re-conduct of any test mentioned in the contract, including tests before and/or after completing the construction. The request for re-testing may be noticed within the period [prescribed in the SCC] from the date on which the defects are remedied.
The re-testing shall conform to testing requirements of the previous test but its cost shall be paid by the liable party according to Clause 2 Article 21..
21.7. Investigation by the contractor
The contractor shall, if the investor (or the consultant) requests, investigate for the causes of the defects according to the consultant’s instructions. Unless the defects have been remedied and all additional expenses for the remedy has been paid by the contractor according to Clause 2 Article 21, costs of investigation plus appropriate profits shall be agreed or decided by the investor according to Clause4 Article 13 and shall be included in the contract price.
Article 22. Rewards and penalties due to breach of contract and responsibilities for compensation
22.1. Rewards for good completion of the contract
The contractor who completes the contract early with acceptable quality can be given a bonus [prescribed in the SCC] for each (day, week, month, etc.) ahead of schedule. The bonus must not exceed [prescribed in the SCC].
22.2. Contractual penalties
If the violation of the contract period is not due to a force majeure event or the contractor’s fault, the contractor shall be penalized [as prescribed in the SCC]. The total penalty shall not exceed 12% of the value of the violated obligation under the contract.
If the contractor violates the quality assurance as prescribed in this contract, the contractor shall destroy and re-construct the violated part and costs for the destruction and reconstruction and other incurred expenses shall be paid by the contractor according to the applicable regulations. In addition, if the work is completed within the prescribed period, the contractor shall incur a contractual penalty as prescribed above.
22.3. Compensation for the damage
In addition to the contractual penalty prescribed in Clause 2 Article 22, the parties shall also be liable for the breach of the construction contract as specified in Article 43 of Decree No. 37/2015/ND-CP dated April 22, 2015 of the Government elaborating construction contracts.
22.4. Precautions of the contractor
The contractor shall be fully responsible for protecting the work and goods from the commencement date to the date on which the acceptance record is issued or is deemed to be issued according to Clause 1 Article 8 when transferring the responsibility to the investor. As the date the acceptance record is issued (or is deemed to be issued) to any work or work item, the investor shall take the responsibility for protecting that work item.
After the responsibility is transferred to the investor in an appropriate manner, the contractor shall be responsible any remaining task that has not been completed yet by the date specified in the Acceptance Record until the date on which the task is completed.
If any event of loss or damage to the work, goods or documents of the contractor is occurred during the guarantee period of the contractor due to any reason which is not mentioned in Clause 1 Article 23, the contactor shall be responsible for recovering such damage or loss at their own expense.
The contractor shall be responsible for the malfunction or losses caused by the contractor’s operation after the acceptance record is issued. The contractor shall be responsible for the malfunction or losses, within the liability, before and after the acceptance record is issued.
22.5. Industrial and intellectual property rights
For the purpose of this Clause, “violation” refers an action which is confirmed as a violation or is alleged to have violation against a patent, registered design, copyright, trademark, trade secret or other industrial and intellectual property right relating to the work; and “complaint” refers a claim or an appeal for benefits if it is alleged that a violation is committed.
A party who fails to send a notice of any complaint during the period [prescribed in the SCC] from the date of receiving the complaint to the other party shall be deemed not to be liable under this Clause.
The investor shall compensate the contractor and be liable for damages if there is any complaint alleging a violation on the basis of:
a) an inevitable result of the contract’s compliance with the investor’s requirements, or
b) the use of the work by the investor in the period of complaint:
i. for a purpose different from the purpose which is indicated or described in an appropriate manner in the contract, or
ii. for items that are not provided by the contractors, unless the fact of the investor’s use is informed to the contractor before the commencement date or the date specified in the contract.
The contractor shall compensate the contractor and be liable for all the damages if any other complaint is lodged or is related to (i) design, manufacturing, construction of the work of the contractor, (ii) use of equipment of the contractor or (iii) use of the work.
If one contract party is entitled to be compensated according to this Clause, the indemnifying party may (at their own expense) conduct negotiations to handle complaints and lawsuits or arbitration. The other contract party shall, according to requirements and at the indemnifying party’s expense, support in argument about the complaint. The other party (together with their personnel) must not do anything that could harm the indemnifying party, unless the indemnifying party denies the other party’s request to conduct a negotiation, file any lawsuit or settle disputes.
22.6. Limit of indemnity
All legal obligations of the contractor to the investor according to or relating to the contract, except for Clause 14 and Clause 15 Article 15, Clause 3 Article 22 and Clause 5 Article 25, must not exceed [the limit prescribed in the SCC].
This Clause shall not apply to cases of fraud, wilful abandonment or misconduct by the offending party.
Article 23. Risks and force majeure
23.1. Risks and force majeure
a) Risks means events which may cause adverse effects on the performance of the contract.
b) Force majeure is a risk event that occurs objectively, cannot be foreseen before the conclusion of the contract and cannot be remedied even though all necessary and permissible measures have been taken, such as: earthquake, storm, flood, flood, tsunami, fire, enemy sabotage or other force majeure events.
c) If one party falls into a force majeure event, they must send a written notice to the other party as soon as possible.
23.2. Consequences of risks
If the risks listed in Clause 1 Article 23 above cause losses or damage to the work, real estate, materials, equipment or documents of the contractor, the contractor shall immediately send a notice to the investor and repair such losses and damage according to the investor’s requirements.
Where delay and expense are incurred due to repair of such losses and damage, the contractor shall send a notice to the investor of that fact and apply Clause 1 Article 24 hereof to request:
a) An extension if the completion is delayed or will be delayed in accordance with Clause 4 Article 10;
b) A coverage of all additional expenses of the contract.
After receiving the notice, the investor shall consider these issues before reaching an agreement or a decision.
23.3. Responsibilities for risks by the contractor
The contractor shall be fully responsible for protecting the work and goods from the commencement date to the date on which the acceptance record is issued or is deemed to be issued according to Article 9 when transferring the responsibility to the investor. As the date the acceptance record is issued (or is deemed to be issued) to any work or work item, the investor shall take all responsibilities for protecting work items of such work.
After the responsibility is transferred to the investor in an appropriate manner, the contractor shall be responsible any remaining task that has not been completed yet by the date specified in the Acceptance Record until the date on which the task is completed.
If any event of loss or damage to the work, materials, equipment or documents of the contractor is occurred during the protection of the work of the contractor, the contactor shall be responsible for recovering such damage or loss at their own expense to satisfy requirements of the contract.
The contractor shall be responsible for the malfunction or losses, within the liability, before and after the acceptance record is issued.
23.4. Compensation for risks
The contractor shall compensate for complaints, malfunctions, damage, losses and costs (including legal fees and charges) relating to:
a) damage to body, diseases, sick or death of anyone due to construction of the work and repair of defects, except for results of the carelessness, purposefulness or breach of the contract of the investor, their personnel or their representative;
b) Malfunctions or losses of any property, which is a real estate or private property (excluding the work), within the scope that the malfunctions or losses:
– are incurred from or during the processing or are due to causes from construction of the work and repair of defects;
– Are attributed to the negligence, deliberate acts or breach of the contract of the contractor, their personnel or anyone who are hired directly or indirectly by the contractor.
The investor shall incur damage and indemnify the contractor and the contractor’s personnel for complaints, losses and expenses (including legal costs and fees) concerning the damage to body, sick or death that are considered as the results of the carelessness, purposefulness or breach of the contract of the investor and their personnel.
23.5. Notice of force majeure events
If one party is hindered from fulfilling their contractual obligations due to force majeure, the party must send a notice to the other party of the fact or causes of the force majeure and clarify the obligations that are hindered. The notice must be sent as soon as possible after the party understands the force majeure or would have understood the force majeure or causes of the force majeure.
In addition, when the notice has been sent, tasks under the obligations must be released within the period that the force majeure hinders their task performance.
The force majeure is not considered as a justifiable reason for the release of the contractual payment obligation of both parties even if otherwise prescribed in this Clause.
23.6. Consequences of force majeure
If the contractor is hindered in fulfilling their obligations under the contract due to force majeure and the contractor has sent a notice as prescribed in Clause 5 Article 23 and incurred the delay and expenses due to the force majeure, the contractor may request, according to Clause 1 Article 24.
a) An extension if the completion is delayed or will be delayed in accordance with Clause 4 Article 10;
b) A payment if the force majeure is one of the cases stated in Point b Clause 1 Article 23.
After receiving the notice, the investor shall consider these issues before reaching an agreement or a decision.
23.7. Contract termination due to force majeure, payment and reconciliation
If the construction is hindered continuously while the work is in progress for a period of time [prescribed in the SCC] due to force majeure that has been noticed as prescribed in Clause 5 Article 23, or for more than a period of time with the total time [prescribed in the SCC] due to the same force majeure that has been notified, one of the parties may send a notification of contract termination to the other party. In this case, the termination of the contract shall be effective within the period [prescribed in the SCC] after the other party receives the notification.
In this case of termination, the investor shall pay the contractor:
b) expenses for equipment and materials which have been ordered and transported to the contractor or things that the contractor is responsible for accepting delivery: equipment and materials that will become property (and risks) of the investor after payment by the investor for free use;
c) All other costs or responsibilities that the contractor must incur in the force majeure;
d) Expenses for moving temporary works and equipment of the contractor out of the construction site and returning them to the contractor;
dd) Compensation for staffs and workers employed for the whole contract period by the contractor.
Article 24. Complaints and settlement of disputes
24.1. Complaints of the contractor
In case the contractor claims that they are entitled to any extension of completion date and/or any additional payment according to any Clause relating to the contract, the contractor shall send a notice to the investor of such claim or the cause of complaint. The notice must be immediately issued within the period [prescribed in the SCC] after the contractor is aware or should be aware of such situation.
If the contractor fails to notify their complaint within the period [prescribed in the SCC], the completion date shall not be extended, the contractor shall not be entitled to additional payment and the investor shall not incur all responsibilities for the complaint. Otherwise, the following regulations of this Clause shall be applied.
The contractor shall submit other notifications under the contract and additional details for the complaint, and all of them relate to this situation.
The contractor shall retain the prepared documents at the construction site or at a place where the investor may accept because these documents will be necessary to prove the complaint. By denying the investor’s liability, the investor may have to, after receiving any notification according to this Clause, supervise the storage of documents and/or instruct the contractor to continue to retain the existing documents for a longer period. The contractor shall allow the investor to inspect all documents and submit copies (if requested) to the investor.
Within the period [prescribed in the SCC] after the contractor is aware or should be aware of such situation; or within the other equivalent period proposed by the contractor and approved by the investor, the contractor shall submit full details about the complaint including supporting details on the basis of the complaint and of the request for extension of time and/or additional payment. If the complaint situation persists,
a) full details of the complaint shall be considered temporary;
b) the contractor shall directly submit monthly temporary complaints showing the accrued delay and/or claimed amount and specific details that the investor may request; and
c) the contractor shall lodge the final complaint within the period [prescribed in the SCC] after the situation no longer has impacts, or within the other period proposed by the contractor and approved by the investor.
Within the period [prescribed in the SCC] after receiving a complaint or supporting details about the previous complaint, or within the other period proposed by the investor and approved by the contractor, the investor shall reply to the contractor with agreement or disagreement and give comments in detail. The investor may request more details; however, their reply must be sent within the prescribed period and the reply must comply with the principles of the complaint.
Each payment certificate shall include information on the claimed amount as proved reasonable and appropriate to relevant terms of the contract. Unless and until details are fully provided to prove the entire complaint, the contractor shall only be entitled to receive the part of the claim amount that has been proved appropriate.
The investor shall comply with Clause 3 Article 14 to come to an agreement or decision (i) on extension (if any) of the completion date (behind or ahead of schedule) according to Clause 4 Article 10, and/or (ii) additional payment (if any) that the contractor is entitled to under the contract.
Requirements of this Clause shall be used as supplementary requirements of any other Clause applicable to a complaint. If the contractor does not comply with terms relating to the complaint, any extension of the completion date and/or additional payment shall be investigated for violation that hinders or affects investigation of the complaint shall be considered, unless the complaint is not notified in accordance with the regulation specified in the second paragraph of this Clause.
24.2. Appointment of a Dispute Board
In case the parties agree to resolve contractual disputes through mediation by a dispute board, disputing parties shall be arbitrated by the dispute board according to Clause 4 Article 24. The parties shall jointly appoint the dispute board within the period [prescribed in the SCC] after one party notifies the other one of their intention to deal with the dispute by the dispute board.
The dispute board shall include, as prescribed in the SCC, one or three qualified person(s) (“members”). If the number of members is not prescribed in advance and the parties fail to come to an agreement, the dispute board shall include three persons.
If the dispute board includes 03 persons, each of the parties shall appoint a member and consider accepting the member of the other one. The parties shall ask opinions of these two member and come to an agreement on the third party who will be appointed to be the Chairperson.
However, if a list of members has been made in the contract, the board’s members shall be chosen from the list instead of another person who cannot or is not volunteer to accept the appointment to the dispute board.
The agreement between the parties and either the sole member (“the dispute settler”) or each of the three members will be strictly combined by reference to the dispute resolution clauses and their amendments which have been agreed upon by the members.
Remunerations for the sole member or each member of the board shall be agreed upon when coming to terms of the sections concerning appointment. Each party shall be liable for a half of this remuneration.
At the time agreed by the parties, they may appoint one appropriate person or several persons to replace one or a number of members of the dispute board. Unless another agreement reached by the parties, the appointment shall be effective if one member refuses to hold the appointed position or is unable to undertake by cause of death, incapacity, resignation or termination of his/her term of office. The successor shall be appointed according to the same way as the previously applied way for appointing or agreeing the predecessor as prescribed in this Clause.
The appointment of any member may be terminated if the parties reach a consensus; however, the investor or contractor must not act without prior consensus. Unless both parties come to an agreement on the termination, the appointment of each member of the dispute board shall be terminated when the dispute board has come to a decision on the dispute arbitration.
24.3. Failure to reach an agreement on the dispute board
If there is any of the following requirements:
a) The parties have disagreement about the appointment of the sole member of the dispute board during the period prescribed in Clause 2 Article 24;
b) One of the two parties fails to appoint a member to the dispute board including three persons within the prescribed period;
c) The parties have disagreement about the appointment of the third member (to act as the Chairperson of the dispute board) within the prescribed period;
d) The parties fails to reach a consensus about appointment of a successor within the period [prescribed in the SCC] immediately after the date that the sole member or one of the three members refuses to undertake or is unable to undertake the appointed position by cause of death, incapacity, resignation or termination of his/her term of office, the appointing office or public employee [prescribed in the SCC] shall, on the basis of the request of one of the parties or both parties and after considerable discussion with the two parties, appoint a member to the dispute board This appointment shall be final. Each party shall be liable for a half of remuneration to the appointing office or public employee.
24.4. Conclusion of the dispute board
If a dispute (any type) between the parties relating to or arising from the contract, including any dispute relating to certification, determination, instruction, expression of opinion and evaluation of the investor, immediately after the dispute board is appointed according to Clauses 2 and 3 Article 24, each party may put forward the dispute in writing to the dispute board for consideration and conclusion. These opinions must specify that they are made according to this Clause.
The dispute board having three persons is considered to have received these opinions on the date that the Chairperson of the dispute board receives them.
Both parties shall fully prepare information for the dispute board, facilitate access to the construction site and suitable vehicles that the dispute board may request for the purpose of making decision on the dispute. It shall be considered that the dispute board does not act as arbitrators..
Within the period [prescribed in the SCC] after receiving these opinions or advances according to the Appendix on [the dispute board] and conditions specified in the contract of agreement to settle dispute, a later time or another period proposed by the dispute board and agreed by the both parties, the dispute board shall issue their decisions and these decisions must be reasonable and must be disclosed in accordance with this Clause. However, if both parties fail to pay all invoices submitted by each member according to the Appendix on [the dispute board], the dispute board shall not be obligatory to issue any decision until all invoices are paid. The decision shall bind the two parties to immediately comply unless and until it is re-considered according to the mediation or an arbitrator’s decision as described below. Unless the contract has been terminated, refused or cancelled, the contractor shall continue to execute the contract.
If one party disagrees about the decision of the dispute board, the party may, within the period [prescribed in the SCC] after receiving the decision, send a notice of their disagreement with the decision to the other party. If one party does not issue their decision within the period [prescribed in the SCC] after receiving documents or proposed payments, the party may, within the period [prescribed in the SCC], send a notice to the other party of their disagreement.
In each event, the notice must be disclosed in accordance with this Clause, and present matters of the dispute and causes of the disagreement. Except the regulations in Clauses 7 and 8 of Article 24, both parties are not allowed to initiate arbitration unless a notice of disagreement does not issue according to this Clause.
If the dispute board has issued their decision on a matter of the dispute, and no notice of disagreement is sent by the parties within the period [prescribed in the SCC] after receiving the decision of the dispute board, the decision shall be final and binding on both parties.
24.5. Mediation
If any content mentioned in the conclusion of the dispute board is noticed of disagreement according to Clause 4 Article 24 above, the parties shall try to settle the dispute through mediation before filing a lawsuit. Unless otherwise prescribed by both parties, the arbitration may be carried out within the period [prescribed in the SCC], and the notice of disagreement may be issued by a party, even if there is no mediation.
24.6. Settlement of the dispute through a Court or an arbitrator
Methods for settlement of the dispute through a Court or an arbitrator are prescribed in the SCC. Unless the dispute is settled through the conclusion of the dispute board or mediation, if there is any other dispute relating to the conclusion of the dispute board (if any) which is not final and the dispute does not stop, such dispute(s) shall be settled through the Court or the arbitrator. Procedures for settlement of the dispute shall comply with regulations of law or rules of the arbitrator.
24.7. Non-compliance with the conclusion of the dispute board
Where:
a) Both parties do not issue their notices of disagreement within the period prescribed in Clause 4 Article 24,
b) The relevant conclusion of the dispute board (if any) is final and binding.
c) When a party fails to comply with the conclusion of the dispute board, the other party may put forward the non-compliance to the arbitrator or the Court for arbitration according to Clauses 4, 5 and 6 of Article 24.
24.8. Expiration of appointment of the dispute board
If there is a dispute between the parties, whether or not they are related to the contract or the execution of the contract, and the dispute board is not available due to expiration of appointment or other reasons,
a) Clauses 4 and 5 of Article 24 shall not be applied, and
b) Disputes may be put forward to arbitrators or Courts for arbitration according to Clause 6 of Article 24.
Article 25. Contract settlement and finalization
25.1. Contract settlement
Within the period [prescribed in the SCC] after receiving an acceptance and certification record of the investor that the contractor has completed all tasks according to the contract, the contractor shall submit to the investor, [as prescribed in the SCC], contract settlement dossiers and detailed documents on values of all tasks to be fulfilled according to the contract using the form approved by the investor and other payments deemed to be due under the contract or other agreements, including the following documents:
a) Acceptance record of all tasks under the contract;
b) Certificate of values of additional workloads (if any) beyond the contract;
c) The tabulated contract statement (A-B statement) which specifies the paid amount and the remaining amount payable by the Investor to the Contractor;
d) As-built documents, construction log;
dd) Other documents (according to agreements in the contract (if any)).
If the investor disagrees or considers that the contractor does not give enough grounds to certify any part of the contract settlement dossier, the contractor shall provide more information to the investor if necessary and amend the settlement dossier as agreed upon by both parties. The contractor shall prepare and submit to the investor the contract settlement agreed upon by both parties.
However, if after discussions between the parties ensue and there is any change in the contract settlement dossier that is agreed by both parties, the investor shall make payment for these agreed parts of the contract settlement dossier in accordance with Clause 3 Article 12.
When submitting the contract settlement, the contractor shall attach a payment confirmation to confirm that the entire contract settlement specifying the full payment for all amounts payable to the contractor according to or relating to the contract. It can be specified in the payment confirmation that it will be effective when the Contractor has received the contract guarantee amount and when this amount has been settled.
On the basis of Clause 3 Article 12, the investor shall fully pay the contractor the amount owned after deducting all amounts to which the investor is entitled under Clause 3 Article 12.
25.2. Termination of the investor’s liability
The investor shall not be liable to any matter according to or relating to the contract, unless the contractor has mentioned a specific amount used for the matter:
a) in the contract settlement, and
b) except for matters arising after concluding the acceptance record included in the contract settlement mentioned in Clause 1 Article 25.
However, this Clause does not limit the Investor’s responsibility for compensation, dishonesty, deliberate violation or incorrect work due to the Investor’s negligence.
25.3. Contract finalization
The parties shall perform contract finalization within the period [prescribed in the SCC], from the date on which:
a) The parties complete their obligations under the contract;
b) The contract has terminated according to Clause 7 Article 18 or Clause 2 Article 19 or the contract has been cancelled according to regulations of law.
Article 26. Entry into force
26.1. Both parties commit to abide by the Articles in this contract. Language used in the contract is Vietnamese; the number of copies, pages, Appendices and contract language, in case a foreign party is involved in the construction contract, are prescribed in the SCC.
26.2. This contract comes into force from the date [prescribed in the SCC] and after the investor has received the contract performance guarantee according to Clause 1 Article 11 hereof.
PART 4 – SPECIAL CONDITIONS OF CONTRACT
Article 1. Definitions
(i) The investor is __________[specify full legal name of the investor]______.
(ii) The contractor is __________[specify full legal name of the contractor]______.
(viii) The project is ______[specify official full name of the Project]__.
(xxv) The main works: _______[specify all works]___.
Article 2. Contract dossier and order of priority
2.1. The contract dossier: ____[specify all documents of the dossier].
2.2. The order of priority: ____[specify all documents of the dossier in order of priority (if any)].
Article 3. General regulations
6. Ways of information exchange:
– The investor:
+ Address: ___[specify full address].
+ Tel: ____[specify phone number, including the national code and the city’s code].
+ Email: _____[specify email address (if any)]
+ Fax: ____[specify fax number, including the national code and the city’s code].
+ Website: _____[specify email address (if any)]
The contractor (If the contractor is a consortium, specify all information of the members of the consortium)
– In foreign country (if the contractor is a foreigner):
+ Address: ___[specify full address].
+ Tel: ____[specify phone number, including the national code and the city’s code].
+ Email: _____[specify email address (if any)]
+ Fax: ____[specify fax number, including the national code and the city’s code].
+ Website: _____[specify email address (if any)]
– In Vietnam:
+ Address: ___[specify full address].
+ Tel: ____[specify phone number, including the national code and the city’s code].
+ Email: _____[specify email address (if any)]
+ Fax: ____[specify fax number, including the national code and the city’s code].
+ Website: _____[specify email address (if any)]
Article 5. Design requirements
5.3. Requirements for design documentation (or design drawings) of the contractor
Time for approval consideration is ________[specify the number of days].
Article 6. Requirements for supply and installation of equipment
b) Time for provision of after-sales services is ________[specify the number of months].
d) Equipment to which the inspection is required is _____[specify name, origin, category and quantity of the equipment].
h) Time for removing unqualified equipment out of the construction site is ________[specify the number of days].
Article 7. Construction requirements
l) Time for carrying out check and acceptance is ________[specify the number of days after commissioning].
m) Time for further supervision of the work operation is ________[specify the number of days after acceptance].
Article 8. Testing, adjustment and commissioning upon completion
8.1. Obligations of the contractor
Time for carrying out tests upon completion is ________[specify the number of days after the date of notification or the requested date].
Article 9. Acceptance of the investor
9.1. Acceptance of the work
Time for response to the contractor is_____ [Specify the number of days from the day on which the contractor receives the request for acceptance of the work].
9.4. Record of acceptance of bringing the work into use
Time for issuing the acceptance record is __________[specify the number of days after the expiry date of the time limit for notifying defects or immediately after the contractor has provided all their documents].
9.6. Return of premises
Time limit for removal from the construction site of the contractor is ________[specify the number of days after the investor issues the acceptance record].
9.7. Commissioning of each part of the work
Time for giving advance notice to the contractor of attendance at the test run is ______[specify the amount of hours prior to the test run].
Article 10. Contract execution period and schedule
10.1. Commencement date and completion date of all tasks
– Advance time: ____ day____ month_____ year_____ [specify advance time].
– Time for giving advance notice to the contractor of the commencement date is ______[specify the number of days].
– The effective date of the contract is ___________[specify the number of days].
– Time to completion of all tasks is ____ [specify the time including day, month, year].
10.3. Task performance schedule
– Time for submitting the detailed task performance schedule is_____ [Specify the number of days after the commencement date of the task].
– Time for response to the contractor in terms of the proposed performance schedule is_____ [Specify the number of days from the day on which the investor receives the performance schedule of the contractor].
Article 11. Contract performance guarantees and advance payment guarantees
11.1. Contract performance guarantees
– The value of the contract performance guarantee is ________ [specify the percentage (%) of the contract value] equivalent to ___ [Specify the value and currency].
– The time to send the contract performance guarantee to the investor is ____ [Specify the number of days after both parties have signed the contract].
– The time the contractor must extend the performance guarantee is _____ [Specify the number of days before the expiry date of the performance guarantee].
b) The time for debt payment to the investor is____ [Specify the number of days after the agreement or decision to pay].
c) The time to defect remedy is_____ [Specify the number of days from the date of receipt of the investor’s notification].
– The time to return the contract performance guarantee to the contractor is____ [Specify the number of days after the issuance of the acceptance record of completion and after receipt of the warranty guarantee].
11.2. Advance payment guarantee
The time for submitting advance payment guarantee is ________[specify the number of days after the effective date of the contract].
Article 12. Contract price, advances and payment
12.1. Contract price
a) This contract is ________[specify the type of the contract]
b) Contract price includes:
i. VND:_________.
Where (if the parties have an agreement on separating each part of the task):
– Design: ______ VND,
– Procurement of materials and equipment: _____ VND,
– Construction: _________ VND.
ii. Foreign currency:__________[specify the name of the foreign currency which is used].
Where (if the parties have an agreement on separating each part of the task):
– Design: ______,
– Procurement of materials and equipment: _____ ,
– Construction: _________ .
iii. Additions or deductions: ________
12.2. Advances
i. VND: _________, equivalent to _____ % of the contract price.
Where (if the parties have an agreement on separating each part of the task):
– Design: VND _________, equivalent to _____ % of the value of the design;
– Procurement of materials and equipment: VND _________, equivalent to _____ % of the value of the design;
– Construction: VND _________, equivalent to _____ % of the value of the design;
ii. Foreign currency:__________[specify the unit of foreign currency used for payment], equivalent to ____% of the contract price.
Where (if the parties have an agreement on separating each part of the task):
– Design: _________[specify the name of the foreign currency], equivalent to _____ % of the value of the design;
– Procurement of materials and equipment: _________[specify the name of the foreign currency], equivalent to _____ % of the value of the design;
– Construction: _________[specify the name of the foreign currency], equivalent to _____ % of the value of the design;
iii. Details of advances are specified in the Appendix No. ………[contract price, advances and payment].
12.3. Payment
a) The currency used for the contract payment is Vietnam dong and ___[specify the type of foreign currency used in the payment].
– Method of payment: _______[By bank transfer or by another method agreed upon by the parties in accordance with relevant laws].
b) The payment progress is divided into____________[specify the number of payments].
Where:
i. Design:
– The first instalment: ____ % of the contract price after the contractor completes design for the work item or the task _____ [specify the agreement by both parties].
– The second instalment: ____ % of the contract price after the contractor completes design for the work item or the task _____ [specify the agreement by both parties].
– The ………………instalment:
– The final instalment:_______% of the contract price after the contractor fulfils the entire design of the work and the investor approves it.
ii. Procurement of materials and equipment:
– The first instalment: ____ % of the contract value after the contractor transports equipment of the work item to the construction site _____ [specify the agreement by both parties];
– The second instalment: ____ % of the contract value after the contractor transports equipment of the work item to the construction site _____ [specify the agreement by both parties];
– The ………………instalment:
– The final instalment: _____% of the contract value after the contractor transports all equipment listed in the contract to the construction site.
iii. Construction:
– The first instalment:__________% of the contract value (or the value of the completed work item) after the contractor completes the work item___[specify the name of the work item].
– The second instalment:__________% of the contract value (or the value of the completed work item) after the contractor completes the work item___[specify the name of the work item].
– The ………………instalment:
– The final instalment:________% of the contract value (or the full payable) after the contractor fulfils their obligations under the contract.
c) Payment documentation__________[specify the number of sets of payment documents],
The payment documentation includes the following main documents______[specify names of the documents].
d) Time limit for payment is ______[specify the number of days after receiving the full valid payment documentation as prescribed by the contract].
Article 13. Rights and obligations of the investor
13.1. The investor’s personnel
The time to send the notification to the investor is_____ [Specify the number of days].
13.4. Decision
The time to send the notification of disagreement about the decision of the investor is_____ [Specify the number of days after the contractor receives the notification of the decision of the investor].
Article 14. Tasks and entitlements of the consultant
14.3. Instruction by the consultant
b) The time to make a written reply is_____ [Specify the number of days from the date of receipt of the request or proposal].
14.4. Replacement of the consultant
The time to notice the replacement of the consultant is ______[specify the number of days before the scheduled date of replacement].
Article 15. Rights and obligations of the contractor
15.11. Transport of goods
a) The time to notice the transport of goods to the construction site is ______[specify the number of days – within 21 days as usual].
15.16. Report on progress
– Frequency of making progress report is ____ [specify the frequency by month, quarter, year].
– The number of progress reports submitted to the consultant is ____ [specify the number of reports].
– The time for submitting the progress reports is_____ [Specify the number of days after the last date of the month, quarter or year].
– A progress report include ________[specify the requests unless otherwise provided for in the GCC].
15.17. Construction site security
– Regulations on the construction site security include_______ [specify contents, measures, performing unit and relevant contents].
15.20. As-built documents
– The number of as-built documents is __________[specify the number of documents].
Article 16. Price adjustments of contract adjustments
16.1. Adjustments to the contract price
In case of adjustments to the contract price:__________[specify the cases where the contract price is adjusted in association with the content, method, time, formula, data sources of adjustment and relevant contents to ensure the consistency with the adjustment rules of each type of contract price as prescribed by law].
16.2. Adjustments to the contract
In case of adjustments to the contract:__________[specify the cases where the contract is adjusted in association with rights and obligations of relevant parties to ensure the consistency with the construction contract adjustment rules as prescribed by law].
Article 17. Subcontractors
17.1. General provisions on subcontractors
d) The time to give the notification of subcontractors is ______[specify the number of days before the scheduled start date of the task of each subcontractor].
Article 18. Contract suspension and termination by the investor
18.1. Notice of remedy
– The time to request the contractor to remedy defects is ________[specify the number of days].
18.4. Payment for equipment and materials in case of suspension
a) The time for suspension is_____ [Specify the number of days after the task that uses or supplies equipment and/or materials is delayed].
18.5. The suspension lasting longer than the specified time
– The time for giving the notification of approval to the contractor to continue to fulfill the task is ______[specify the number of days after receiving the request].
18.7. Contract termination by the investor
b) The period of failure to fulfill the task under the contract is ________[specify the number of days].
dd) The time for giving advance notice to the contractor is ______[specify the number of days before the date of the contract termination and removal from the construction site].
18.10. Right to terminate the contract by the investor
The effective date after the contract termination is _____ [Specify the number of days after the date on which the contractor receives the notification of the investor or the investor returns the contract performance guarantee].
Article 19. Contract suspension and termination by the contractor
19.1. Right to suspend the task of the contractor
The time to suspend the task is ______[specify the number of days from the date on which the notification is given to the investor].
19.2. Contract termination by the contractor
c) The suspension period due to the investor’s fault is ______[specify the number of days from the date on which the notification is given to the investor].
dd) The time for giving advance notice to the investor is ______[specify the number of days before the date of the contract termination].
Article 20. Insurances and warranties
20.2. Warranty
– Time for warranty is __________[specify the number of months – at least 24 months for special-level works and level-1 works with the warranty level of 3% of the contract value; at least 12 months for level-2, level-3, level-4 works and the other works with the warranty level of 5% of the contract value].
– The time to submit the guarantee for fulfilment of warranty obligation is____ [Specify the number of days from the date on which the acceptance record is received].
– The time to defect remedy is_____ [Specify the number of days after receiving the notification].
– The time for payment to the third party is____ [Specify the number of days after receiving the investor’s notification].
Article 21. Responsibilities for defects
21.3. Extension of time limit for notice of errors
– The time for extension of time limit for notice of errors is_____ [Specify the number of days and months after the expiry date of the period for notice of errors – maximum of 2 years].
21.6. Additional verification
Time for notifying a request for additional verification is ________[specify the number of days after the date on which errors are completely corrected].
Article 22. Rewards and penalties due to breach of contract and responsibilities for compensation
22.1. Rewards for good completion of the contract
Bonus amount is ________[specify the percentage (%) of the contract price for each period of time (day, week, month, etc.) of early completion] and the maximum amount is _______[specify the percentage (%) of the contract value for the maximum bonus].
22.2. Contractual penalties
Penalty amount is ________[specify the percentage (%) of the contract price for a week of delay].
22.5. Industrial and intellectual property rights
The time to send a notice of complaint is_____ [Specify the number of days before the complaint is not effective].
Article 23. Risks and force majeure
23.7. Contract termination due to force majeure, payment and reconciliation
– The period of hindrance is _______ [specify the number of days] or the total time is ________ [specify the number of days of the total number of hindrances].
– The effective date of termination of the contract is _______________ [Specify the number of days after receiving the other party’s notification].
Article 24. Complaints and settlement of disputes
24. 1. Complaints of the contractor
– The time for giving notice of complaint is ______ [specify the number of days after the date on which the contractor understands the fact or cause of the complaint].
c) The time to send the final complaint is ______ [specify the number of days after the date on which effects from the fact or cause stop].
– The time to reply to the investor’s complaint is ______ [specify the number of days after receiving a complaint or supporting details for the previous complaint].
24.2. Appointment of a Dispute Board
– The time for joint appointment of a dispute board is ______[specify how many days after the date on which a party notices of putting forward the dispute to the dispute board].
– Members of the dispute board include _________ [specify information of all members, including but not limited to names, positions, occupations and qualifications]
24.3. Failure to reach an agreement on the dispute board
d) The time for giving a notice of appointment of a successor is ______[specify the number of days after the date on which the sole member or one of the three members refuses or is unable to undertake the task].
24.4. Conclusion of the dispute board
– The time for conclusion of the dispute board is_____ [Specify the number of days from the date of receipt of proposals to settle the dispute or advances].
– The time for giving a notice of disagreement with the conclusion of the dispute board is_____ [Specify the number of days after the date of receipt of the conclusion or after the date on which the dispute board received the dossier but they have not yet reached any conclusion].
– The effective date of a decision of the dispute board is_____ [Specify the number of days after the date on which the dispute board issues the decision and no notice of disagreement is sent].
24.5. Mediation
The time for the arbitration is ______[specify the number of days after the date on which the notice of disagreement was given by a party].
24.6. Settlement of the dispute through a Court or an arbitrator
Dispute settlement method ______ [Specify the method of dispute settlement through a Court or an Arbitrator and specific information for the selected method of dispute settlement including but not limited to the Arbitrator and Court].
Article 25. Contract settlement and finalization
25.1. Contract settlement
– The time for submitting the contract settlement dossier is _______[specify the number of days from the date on which the acceptance and certification record of the investor is received].
– The number of contract settlement dossiers is __________[specify the number of dossiers].
25.3. Contract finalization
The time for contract finalization is ________[specify the number of days that the finalization is carried out but not exceeds 90 days]
Article 26. Entry into force
26.1. This contract includes _______[specify the number of pages] and _____[specify the number of Appendices] which is made into ______[specify the number of copies] in Vietnamese with the same legal force, and _____[specify the number of copies] in ______[specify the other language other than Vietnamese].
– The investor will keep ______ [specify the number of copies] in Vietnamese and ______[specify the number of copies] in _______[specify the language other than Vietnamese that is used in the contract].
– The contractor will keep ______ [specify the number of copies] in Vietnamese and ______[specify the number of copies] in _______[specify the language other than Vietnamese that is used in the contract].
26.2. This contract comes into force from ______[specify day____month____year_____] and after the investor has received the contract performance guarantee according to Clause 1 Article 11 hereof.
|
The contractor’s representative |
THE INVESTOR’s representative |
