Thông tư 17/2016/TT-BXD năng lực của tổ chức, cá nhân tham gia hoạt động xây dựng

THE MINISTRY OF CONSTRUCTION

Circular No. 17/2016/TT-BXD datedJune 30,2016of the Ministry of Construction oninstructions on capacity of organizations, individuals involved in construction activities

Pursuant to the Law of Construction No. 50/2014/QH13;

Pursuant to the Government’s Decree No. 62/2013/ND-CP dated June 25, 2013 regulating functions, tasks, powers and organizational structure of the Ministry of Construction;

Pursuant to the Government’s Decree No. 59/2015/ND-CP dated June 18, 2015 on investment project management (Hereinafter referred to as the Decree No. 59/2015/ND-CP);

At the request of general director of Department of Construction Management,

The Minister of Construction has promulgated the Circular providing instructions on capacity of organizations, individuals involved in construction activities as follows:

Chapter I

GENERAL PROVISION

Article 1. Scope of adjustment and subject of application

1.Governing scope: This Circular provides instructions on construction capacity of individuals and organizations; publishes information about construction capacity.

2.Regulated entities: This Circular applies to agencies, organizations, and individuals at home and abroad carrying out construction in the territory of Vietnam.

Article 2. Interpretation of terms

1.Practice certificate codes refer to an eight-digit series used to manage construction practice certificates of individuals (hereinafter referred to as practice certificates). Practice certificate codes shall be granted and managed by the Ministry of Construction. Individuals that participate in construction and apply for the issue of practice certificates for the first time as prescribed hereof shall be granted a code of practice certificate. Practice certificate codes shall remain unchanged even though requests for renewal, amendments or supplements to the issued certificates are made.

2.Capacity certificate codes refer to an eight-digit series used to manage construction capacity certificates of organizations (hereinafter referred to as capacity certificates). Capacity certificate codes shall be granted and managed by the Ministry of Construction. Individual organizations that participate in construction and apply for the issue of capacity certificates for the first time as prescribed hereof shall be granted a code of capacity certificate. Capacity certificate codes shall remain unchanged even though requests for renewal, amendments or supplements to the issued certificates are made.

Article 3. Practice certificates

1.Individuals as prescribed in Clause 3, Article 148 of the Law on Construction in 2014 should attain practice certificates for participating in construction activities in the following areas:

a) Construction survey including topographical survey; geological and hydrographical investigations;

b) Construction planning designing.

c) Construction designs include architectural designs; structural designs; electrical and mechanical designs; water supply and drainage designs; ventilation – heat supply & release designs; communications network designs; fire safety designs.

d) Construction supervision includes supervision of civil work construction, installation of equipment and technological equipment of works;

dd) Construction inspection.

e) Construction valuation.

2.Individuals to be granted practice certificates in one or several areas should meet requirements for capacity as prescribed.

3.Requirements for capacity of an individual in charge of labor safety in construction should conform with labor safety regulations.

Article 4. Specimen practice certificate

1.Practice certificate has light yellow cover sized 15x21 cm. Specification and information of the practice certificate is instructed in Clause 3 of this Article, according to the form in Appendix 05 Attached herewith.

2.Management of codes of practice certificates:

Number of practice certificates includes two code groups joined together by a hyphen as follows:

a) First group includes three characters representing the place of issue as prescribed in Appendix 07 Attached herewith.

b) Second group: Codes of practice certificates:

3.Main content of a practice certificate includes:

a) Basic information of individuals granted the certificate: 4x6 cm photo, full name, date of birth, ID card number (or passport number);

b) Name of the issuing agency, signature and seal;

c) Level of specialty training, training system, training institution;

d) Practice areas, type of works (if any), class and practicing period of individual areas granted the certificate.

Article 5. Authority to issue practice certificates

Agencies or organizations having authority to issue practice certificates:

1.Class I practice certificates: Construction Management Department affiliated to the Ministry of Construction.

2.Class II, III practice certificates: the Service of Construction:

a) For individuals as members of a construction organization headquartered in the locality;

b) For individuals that have permanent residence or register residence in the locality.

3.For a socio-occupational organization that is involved in construction across the country and meets following requirements, its individual members shall be considered for the issue of Class II, III practice certificates:

a) Meet requirements for the establishment of the Council for testing performance and issuing practice certificates (hereinafter referred to as ‘Testing Council’) according to Article 7 hereof.

b) Have operation regulation of the Testing Council and regulations on testing performance and issuing practice certificates as prescribed.

c) Have adequate facilities serving performance testing as prescribed in Clause 4, Article 8 hereof;

d) Have the written request according to the form in Appendix 08 Attached herewith and accompanied by a copy of the application, papers proving satisfaction of all requirements as prescribed in Points a, b and c of this Clause delivered to the Ministry of Construction for recognition of satisfaction of requirements for the issue of practice certificates. The time for review and making decision on recognition is no more than 20 days since receipt of the application.

Decision on recognition of satisfaction of requirements for the issue of practice certificates by socio-occupational organizations is instructed in Appendix 09 Attached herewith.

4.If individuals make request for the issue of practice certificates of different classes, the competent agency that issues practice certificates of highest class shall issue practice certificates to such individuals.

5.Practicing period corresponding to each area is five years. When the certificate expires, the individual may make a request for re-issue of the practice certificate as prescribed hereof.

Article 6. Principles of determining appropriate specialties and experience for issue of practice certificates

Determination of appropriate specialties and experience as prescribed in Clause 2, Article 45 of the Decree No. 59/CP as foundations for considering issue of practice certificates shall be carried out by the Testing Council in following principles:

1.Specialties of individuals shall be considered as appropriate when disciplines or content of the training program attended by such individuals are appropriate for the areas under request for the issue of practice certificates as prescribed in Article 16 hereof.

2.Experience of individuals who make requests for the issue of practice certificates is the total period of time such individuals have been participating in construction in the areas appropriate for the areas under request for the issue of practice certificates.

3.For individuals whose experience in construction is insufficient since the date of university graduation but previously were awarded college or vocational school degrees and did spend some time in construction activities, the experience shall be determined as the total period of time such individuals participated in construction since the date of graduation from colleges or vocational schools as foundations for the issue of Class II and III practice certificates.

4.For individuals working in state management agencies, experience is the total period of time such individuals have participated in state management tasks in relation to the areas under request for the issue of practice certificates.

Article 7. Testing Council

1.The Testing Council is established under the decision of competent agencies as prescribed in Clauses 1 and 2, Article 5 hereof (herein the issuing agency ):

a) Depending on areas under request for the issue of practice certificates, head of the issuing agency shall make decision on composition, organizational structure and number of members of the Testing Council as appropriate in which president and standing executive members shall be head and officials and civil servants of the issuing agency respectively.

b) Other executive members joining the Testing Council shall be officials and civil servants who have specialties appropriate for the areas considered for the issue of practice certificates and experts in relevant areas invited by the Testing Council.

2.The Testing Council as prescribed in Clause 3, Article 5 hereof shall be established under the decision of heads of socio-occupational organizations with organizational structure and number of members in conformity with the areas considered for issue of practice certificates in which president and executive members of the Testing Council shall be head and members of the socio-occupational organization respectively.

3.President of the Testing Council shall make decision on establishment of the testing unit as an assistant apparatus to the Council. The testing unit includes a head (as member of the Testing Council), and other members (as officials and civil servants of the issuing agency or members of socio-occupational organizations (in case the issuing agency is the socio-organizational organization)).

4.The Council shall hold several offices concurrently and work in accordance with the regulation decided by president of the Council as prescribed in Clause 5 of this Article.

5.Operation regulations of the Testing Council and regulations on testing performance and issuing practice certificates shall be published on the website by the Ministry of Construction.

Article 8. Testing performance for issue of practice certificates

1.Testing shall be carried out in the form of tests.

2.The test includes 15 questions on professional knowledge and 10 questions on knowledge of law on the areas under request for issue of practice certificates which are randomly taken from the set of questions as prescribed in Clause 4 of this Article. Testing period is 30 minutes at the maximum.

3.Maximum score for each test is 100 points of which maximum score for professional knowledge and knowledge of law is 60 points and 40 points respectively. Any individual that achieves from 80 points and over shall be granted the practice certificate.

If an individual is exempted from doing the test in professional knowledge, the test in knowledge of law should reach at least 32 points.

4.The set of questions and instructions on facilities serving performance testing shall be published by the Ministry of Construction on the website.

Article 9. Specialty training

1.Training institutions that meet requirements as prescribed in Article 68 of the Decree No. 59/CP shall be eligible for conducting specialty training in construction for individuals who need.

2.Specialty training should closely follow the framework program for specialty training in the areas relating to construction-related contents promulgated by the Ministry of Construction.

Article 10. Capacity certificates

1.Organizations should attain capacity certificates when engaging in following activities:

a) Construction survey including topographical survey; geological and hydrogeological survey;

b) Formulation of construction planning

c) Construction designs and design verifications includes architectural design; structural designs; electrical and mechanical designs; water supply and drainage designs; ventilation – heat supply and release designs; communications network designs; fire safety designs.

d) Formulation and verification of construction investment projects

dd) Construction investment project management

e) Construction work

g) Construction supervision includes supervision of civil work construction, installation of equipment and technological equipment of works;

h) Construction inspection.

i) Construction cost management and verification

2.One organization may make request for issue of capacity certificates for one or more areas corresponding to different classes as prescribed hereof. Organizations that are yet to meet requirements for issue of capacity certificates may engage in the areas as prescribed in this Article with respect to projects which require establishment of economic and technical reports for investment and construction of Class IV works; projects on repairs, renovation and maintenance of Class IV works when persons in charge of specialist areas from such organizations meet capacity requirements.

3.Foreign organizations are not required of capacity certificates as prescribed hereof when engaging in construction in Vietnam.

Article 11. Specimen capacity certificate

1.Capacity certificate has light blue cover sized 21 x 29.7 cm. Specification of a capacity certificate is instructed in Appendix 06 Attached herewith and main content of the certificate is instructed in Clause 3 of this Article.

2.Management of capacity certificate number:

Number of practice certificates includes two code groups joined to each other by a hyphen as follows:

a) First group includes three characters representing the place of issue as prescribed in Appendix 07 Attached herewith.

b) Second group: Codes of capacity certificates.

3.Content of capacity certificate includes:

a) Basic information about the organization granted the certificate: name of the organization; enterprise code or establishment decision number; full name, title of legal representative; addresses of headquarter, representative office (if any); phone, facsimile, email and website (if any);

b) Scope of construction activities (areas, types of works (if any), capacity class and validity period);

c) Name of the issuing agency, signature and seal;

Article 12. Authority to issue capacity certificates

The competent agency that issues capacity certificates (herein ‘the issuing agency’) includes:

1.Class I capacity certificates: Construction Management Department affiliated to the Ministry of Construction.

2.Class II, III capacity certificates: the Service of Construction.

3.If an organization makes request for issue of capacity certificates of different classes, the agency that issues capacity certificate of the highest class shall issue capacity certificate to such organization.

4.The issuing agency has the authority to revoke, re-issue, make amendments and supplements to capacity certificates it has issued.

5.Validity period of a capacity certificate is five years. Any organization with the capacity certificate that expires or needs to make amendments or supplements to the certificate may file procedures for re-issue as prescribed hereof.

Article 13. Testing Council

1.The Testing Council shall be established under the decision of heads of competent agencies as prescribed in Article 12 hereof, of which president and executive members of the Testing Council are officials and civil servants of this agency.

2.The Council shall hold several offices concurrently and work in accordance with the regulation prescribed by president of the Council.

Chapter II

ISSUE OF CONSTRUCTION PRACTICE CERTIFICATES

Article 14. Applications for construction practice certificates

The application includes:

1.A written request (According to the form in Appendix 01 Attached herewith) accompanied by two color 4x6 photos with white background.

2.A computer file containing color photos of relevant diplomas, certificates issued by training institutions.

3.A computer file of color photos of the declaration of experience confirmed by employers or heads of socio-occupational organizations (in case of members of socio–occupational organizations) according to the form in Appendix 02 Attached herewith.

4.A computer file of color photos of the construction contract or the list of task assignments the individual engaged in.

5.For individuals as prescribed in Point b, Clause 5, Article 16 hereof, the application includes:

a) Documents as prescribed in Clauses 1, 2, 3 and 4 of this Article;

b) A computer file of color photos of relevant practice certificates issued by competent agencies;

Article 15. Sequential order and procedures for issue of practice certificates

1.One application should be submitted to the issuing agency as prescribed in Article 5 hereof.

2.Within three working days since receipt of the application, the testing unit shall be responsible for inspecting adequacy and eligibility of the application prior to submission to the Testing Council for decision. In case the application is found inadequate or ineligible, the testing unit shall give notification to the individual for supplements.

3.Testing shall be carried out on a quarterly or irregular basis as decided by the Testing Council in accordance with demands for issue of certificates. Five days prior to the date of testing, the Testing Council shall give notification on the website of the time and venue of the testing including testing codes of individuals.

4.Within three days at a maximum since the date of testing, the Testing Council shall compile results and make the submission to heads of competent agencies for issue of practice certificates. The results shall be maintained for six months since the date of testing.

Within three working days at a maximum since the decision on the issue of practice certificates is made, the issuing agency shall make a written request according to the form in Appendix 10 Attached herewith to the Ministry of Construction for the issue of practice certificate codes. Within five working days since receipt of the written request, the Ministry of Construction shall be responsible for issuing the codes, integrating information for management of the issued practice certificates and publishing information about construction capacity of the individuals on the website as prescribed in Clause 2, Article 25 hereof.

The issuing agency shall be responsible for issuing practice certificates to individuals who have already been granted the practice certificate codes.

5.Collection and use of testing fees are instructed by the Ministry of Construction; fees for testing performance and issuing practice certificates are instructed by the Ministry of Finance. Individuals who submit requests for the issue of practice certificates should fulfill obligations for paying relevant fees and charges. Fees and charges shall be in no case refunded.

Article 16. Professional qualifications and experience

Based on the principles as prescribed in Article 6 hereof and applications for the issue of practice certificates, the Testing Council shall evaluate actual capacity for each of following areas, specifically:

1. Construction survey:

a) Topographical survey: Individuals who have been trained in geological, land survey or construction disciplines and have had practical experience as topographical surveyors or chief surveyors as prescribed in Clause 2, Article 46 of the Decree No. 59/CP shall be considered for the issue of topographical survey practice certificates.

a) Geological and hydrographical survey: Individuals who have been trained in geological discipline and have had practical experience as geological, hydrogeological surveyors or chief surveyors as prescribed in Clause 2, Article 46 of the Decree No. 59/CP shall be considered for the issue of geological and hydrogeological survey practice certificates.

2. Construction planning design

Individuals who have attained university decrees in architecture, construction planning, urban technical infrastructure, urban economy or any discipline in conformity with requirements for the formulation of construction planning and have had sufficient practical experience as construction planning designers or chief designers as prescribed in Clause 1, Article 47 of the Decree No. 59/CP shall be considered for the issue of construction planning practice certificates.

3. Construction design and construction design appraisal

a) Architectural designs:

Individuals who have been trained in architectural disciplines and have had practical experience as architectural designers or chief designers,  chief design appraisers as prescribed in Clause 2, Article 48 of the Decree 59/CP shall be considered for the issue of design practice certificates.

b) Structural design:

Individuals who have been trained in construction disciplines and have had sufficient practical experience as structural designers, chief designers, major designers or design appraisers for a construction work of a particular type as prescribed in Clause 2, Article 48 of the Decree 59/CP shall be considered for the issue of practice certificates corresponding to such type.

c) Individuals who have been trained in other disciplines concerning designing of technical systems such as electrical & mechanical, water supply & drainage, ventilation – heat supply and release, communications networks, fire safety shall be considered for the issue of practice certificates corresponding to the disciplines being trained based on their practical experience in design practicing.

4. Construction supervision:

a) Individuals who have been trained in construction disciplines and have had practical experience in designing, construction and construction supervision with respect to a construction work of a certain type as prescribed in Clause 2, Article 49 of the Decree No. 59/CP shall be considered for the issue of construction supervision practice certificates corresponding to such type.

b) Equipment and technological equipment installation supervision: Individuals who have been trained in such disciplines as electricity, mechanical engineering, ventilation – heat supply and release, water supply and drainage, air conditioning, communications networks, fire safety and other suitable disciplines and have had sufficient practical experience as supervisors of activities related to such disciplines shall be considered for the issue of equipment installation or technological equipment installation (or both ) practice certificates.

5. Construction inspection:

a) Individuals who are yet to attain construction supervision or construction design practice certificates but have been trained in construction disciplines and have had sufficient practical experience in the tasks of a construction work of a particular type as prescribed in Clause 1, Article 50 of the Decree No. 59/CP shall be considered for the issue of construction inspection practice certificates corresponding to such type.

b) Individuals who have attained construction supervision or construction design practice certificates in the areas of structural design as prescribed hereof shall be considered for the issue of construction inspection practice certificates corresponding to classes and types of construction works as specified in the issued certificates.

6. Construction valuation:

Individuals who have been trained in economic or construction engineering disciplines and have had sufficient practice experience in performing activities related to construction cost management as prescribed in Clause 2, Article 52 of the Decree No. 59/CP shall be considered for the issue of construction valuation practice certificates.

Article 17. Re-issue, amendments and supplements to practice certificates

1. Practice certificates shall be re-issued or amended in following cases:

a) Existing certificates expire.

b) Make amendments and supplements to practice areas.

c) Existing certificates are torn or damaged.

d) Existing certificates are lost.

2. Requirements for re-issue, amendments, supplements to practice certificates:

a) A written request according to the form in Appendix 01 Attached herewith submitted to the issuing agency;

b) Attach existing certificates which are torn or damaged or expire;

c) Copy of diplomas, certificates and written declaration of experience in the areas under request for amendments and supplements;

d) Do not violate regulations on construction and relevant law provisions;

3. Sequential order and procedures for re-issue, amendments, supplements to practice certificates:

a) For the cases as prescribed in Points a and b, Clause 1 of this Article: sequential order and time for the issue of practice certificates are the same as the cases of renewal.

b) For the cases as prescribed in Points c and d, Clause 1 of this Article: sequential order is the same as that for the cases of renewal but testing is not required and the time for consideration is no more than 25 days (in case of Class I certificates) and 15 days (in case of Class II and III certificates).

4. Content and validity of a practice certificate as follows:

a) Content and validity is the same as existing certificates that are lost, torn and damaged.

b) Note supplements to practice areas according to validity period of existing certificates in case of amendments and supplements.

c) In case of expiration, content and validity of the practice certificate is instructed the same as the cases of renewal.

5. Authority to re-issue practice certificates, make amendments and supplements thereto is instructed in Article 5 hereof.

6. Individuals who submit application for the re-issue or supplements to practice certificates should fulfill obligations for paying relevant fees and charges. Fees and charges shall be in no case refunded.

Article 18. Practice certificates issued to foreigners

1. Practice certificates issued to individuals as foreigners or overseas Vietnamese (hereinafter referred to as ‘foreigners’) are instructed in Clause 2, Article 44 of the Decree No. 59/CP.

2. For foreigners carrying out construction in Vietnam under six months, practice certificates issued by foreign agencies or organizations should be legalized in Vietnam, translated in Vietnamese according to laws.

3. For foreigners carrying out construction in Vietnam from six months and over, conversion of practice certificates should be done as follows:

a) The application for conversion includes:

- A written request according to the form in Appendix 11 Attached herewith;

- Copy of practice certificates, professional training certificates which have been legalized and translated in Vietnamese according to laws;

- Copy of residence-related papers or work permits issued by Vietnam’s competent agencies, and passports;

- Written declaration of employment experience related to areas under request for conversion of practice certificates: at least seven years (Class I) five years (Class II) and three years (Class III) up to the time of requesting conversion according to the form in Appendix 02 Attached herewith.

b) Sequential order and procedures for conversion of practice certificates:

- Applications for conversion of practice certificates shall be submitted to the Ministry of Construction in person or by post.

- Within seven working days since receipt of the application, the Ministry of Construction shall be responsible for inspecting the application and give notification to the applicant.

- Within 30 days since receipt of the application, the Testing Council shall carry out examination and assessment of actual capacity of the applicant and make the submission to the Ministry of Construction for decision on conversion of practice certificates.

c) Examination and assessment of capacity of foreigners (foreign applicants) and conversion of practice certificates are instructed in Article 16 hereof corresponding to the areas requested by such applicants.

d) Applicants should fulfill obligations for paying relevant fees and charges.

4. Time limit for construction practice in Vietnam for foreigners shall be determined on the basis of the time limit specified in the work limit issued by competent agencies but no more than five years. In case of expiration, foreigners who need to continue practicing construction in Vietnam may file procedures for the re-issue of practice certificates as prescribed in Clause 3 of this Article.

5. For individuals from other nationalities, if the provisions set out in the international agreement to which Vietnam is a signatory are different from the provisions prescribed hereof, the former shall prevail.

Article 19. Rights and obligations of individuals applying for practice certificates

1. Individuals applying for construction practice certificates (applicants) shall have following rights:

a) Request supply of information about the issue of practice certificates;

b) Practice construction across the country in the areas specified in the practice certificate; practice construction verification in the areas corresponding to those as specified in the practice certificate;

c) Complaints and denunciations of acts in violation of regulations on the issue of practice certificates.