1. 관련 규정

Decision 87-2004-QD-TTg of the Government dated 19 May 2004 issuing Regulations on Management of Operations of Foreign Contractors in the Construction Sector in Vietnam

2. 외국건설업체의 정의

A foreign contractor is a foreign organisation or individual that has proper legal capacity and proper civil conduct capacity under the laws of the country of which the organisation or individual is a national. A foreign contractor can be the main contractor (one with a direct contractual relationship with the project's investor), an EPC(Engineering, Procurement, Construction) contractor, a contractor in partnership with a Vietnamese contractor, or a sub-contractor.

3. 베트남사업 참여를 위한 전제조건

A foreign contractor can only operate in Vietnam after it has obtained a tender licence from the authorised Vietnamese State body (relevant licensing body), being either the Ministry of Construction (MOC) or a construction department of a municipal or provincial people's committee.

A foreign contractor must be issued with a contractor's permit in order to be permitted to operate in Vietnam. Contractor's permits remain specific to the construction contract being performed.

※ 외국 건설회사가 공사를 수행하기 위해서는 개별 프로젝트마다 베트남정부 관련 기관에서 건설허가를 먼저 취득해야 한다.

4. 건설허가 취득을 위한 요건

Conditions for issuance of a contractor’s permit are as follows:

•. Where tendering is mandatory:

- The foreign contractor must be the successful tenderer or appointed tenderer; and

- There must be a contract assigning the contract work to the foreign contractor.

•. Where tendering is not mandatory:

- The foreign contractor must have full capacity for the contract work in accordance with the law of Vietnam (in addition to the above conditions).

•. In all cases:

- A foreign contractor must have a partnership with a Vietnamese contractor or must engage a Vietnamese sub-contractor (unless exempted by the Prime Minister or under Vietnamese law); and

- A foreign contractor must undertake to implement fully the provisions of the law of Vietnam relating to conduct of the contract work in Vietnam (in addition to the above conditions).

5. 건설허가 신청 시 필요서류

The contents of the application file for a contractor’s permit are prescribed in the new regulations and include:

- Standard form application (issued by the Ministry of Construction);

- Official letter on results of tendering, decision on appointment of a contractor or legal contract assigning the contract work to the contractor (copy);

- Operating license and practising certificate in the country of nationality of the contractor (copy);

- Overall report on operational experience relevant to the contract work assigned and audited financial statements for the last 3 years (applicable in cases where tendering is not mandatory);

- Contract of partnership with Vietnamese contractor or undertaking to engage a Vietnamese sub-contractor to perform the contract work assigned (already in the tender bid or file containing the offer to act as contractor).

6. 건설허가 발급 절차 및 효력

The time-limit for consideration of an application is 20 working days from receipt. A fee is payable for issuance of a permit.

The Ministry of Construction issues contractor’s permits where a foreign contractor receives a tender package belonging to a Group A project. The local Department of Construction issues contractor’s permits where a foreign contractor receives a tender package belonging to a Group B or C project in the locality.

A contractor’s permit expires in the following circumstances: upon completion of contract; or when the contract is no longer effective because the operations of the foreign contractor have been suspended, or the foreign contractor has been dissolved or declared bankrupt, or for some other reason under the law of Vietnam or the law of the country of nationality of the contractor.

In the case of a partnership between one or more foreign contractor and a Vietnamese contractor, there must be a contract of partnership in order to submit a joint tender and together perform a contract in Vietnam. The contract of partnership must clearly specify the general obligations and also the particular obligations of each contractor participating in the partnership with respect to the work of the contract, and must also specify which contractor is the entity in charge of the partnership.

After issuance of a permit, a foreign contractor may establish (and must register) an operating office in the locality of the construction works to which the permit relates for the purpose of carrying out the tasks of the contract work. The operating office may only exist for the duration of implementation of the contract and must be dissolved when the contract is liquidated.

※ 외국회사가 공사를 수행하기 위해서는 공사 현장에 Project Office를 설치하게 된다. 대부분의 외국회사들은 하노이나 호치민에 대표사무소를 설치하고, 공사 현장에 Project Office를 설치하는 형태로 운영되고 있다.

A foreign contractor may recruit and employ Vietnamese and foreign employees (in accordance with the labour laws of Vietnam). Managers, technical experts and highly skilled persons may only be brought to Vietnam if Vietnamese candidates are not available to undertake those tasks. Foreign employees must comply with the laws of Vietnam on entry and exit, on registration of temporary or permanent residence, and on registration for a work permit.

A foreign contractor may import materials, machinery and equipment required to perform the contract work. The temporary import for re-export of materials, machinery and equipment for execution of construction works and the list of raw materials, fuel, materials, and both entire and synchronous equipment for the contract works must be registered.

7. 건설허가 취득 시 의무사항

A foreign contractor must do the following:

- Register its address, its communication facilities, its transaction bank account and place where such account is opened by its operating office, and its representative for contract performance at the relevant agency in accordance with the regulations of the people’s committee of the province where the assigned project work is located (this information must also be reported to the Ministry of Construction, the Ministry of Police, the Ministry of Finance, the Ministry of Trade, the State Bank of Vietnam and the relevant provincial or municipal people’s committee);

- Register the seal of the operating office with the police in the province or city where the construction works are located (the seal may only be used in performance of the contract to which the permit relates); and return the seal upon termination of the contract;

- Register for tax payment in Vietnam; implement the accounting regime, open a bank account and make payments in accordance with guidelines of the Ministry of Finance and the State Bank of Vietnam in order to service business operations under the contract;

- Perform the contract of partnership signed with a Vietnamese contractor or implement its undertaking to engage a Vietnamese sub-contractor as specified in the tender bid or offer to act as contractor;

- Purchase insurance in accordance with the law of Vietnam for the contractor’s works, comprising professional indemnity insurance in the case of construction consultancy; insurance of property and goods in the case of a contract for procurement; all types of insurance in the case of a contractor for execution of construction works;

- Register quality of imported materials and equipment which are supplied pursuant to the contract work received; register safety of equipment for execution of construction works and transport vehicles relevant to business operations of the foreign contractor in accordance with the law of Vietnam;

- Comply with the regulations on standards and criteria for management of quality of construction works and environmental protection as well as other relevant provisions of the law of Vietnam;

- Implement the reporting regime specified in the provisions of the contractor’s permit.

8. 건설사업 완료시 조치사항

Upon completion of contract works, a foreign contractor must formulate a file on completion of the works; provide a warranty; conduct accounting finalization for imported materials and equipment; deal with any excess materials and equipment in a contract for execution of works in accordance with the laws on import-export; and liquidate the contract. At the same time, the relevant State administrative offices must be notified of completion of the contract.

9. 건설사업 관리주체

The new regulations also stipulates the responsibilities of the investor or project owner to assist and supervise foreign contractors.

Various State bodies are responsible for administration of foreign contractors in Vietnam, including Ministry of Finance (taxes, accounting reports, insurance premiums, etc), Ministry of Police (seals, registration of residence, social order and safety, fire and explosion fighting and prevention), Ministry of Trade (import- export), Ministry of Labour, War Invalids and Social Affairs (recruitment and employment, registration of safety of equipment), Ministry of Planning and Investment (database of foreign contractors operating in Vietnam in accordance with the laws on tendering), and provincial and municipal people’s committees (registration of operating offices, representatives of contractors and operations of foreign contractors in their localities).

The Ministry of Construction will co-ordinate regular inspections of any foreign contractor in Vietnam (not more than once per year). Irregular inspections will be conducted where there are indications that a foreign contractor has breached the law of Vietnam.

10. 관련 규정 위반 시

If a foreign contractor breaches the new regulations or other provisions of the law of Vietnam, depending on the seriousness of the breach:

- The work it is conducting in Vietnam may be suspended;

- It may be subject to an administrative penalty;

- Its contractor’s permit may be revoked and its right to participate in contracts in Vietnam may be suspended for a specific period or indefinitely;

- If loss and damage is caused, compensation must be paid in accordance with law