The Ministry of Construction is currently soliciting feedback on the draft Decree detailing several articles of the Construction Law regarding construction contracts (replacing Decree No. 37/2015/ND-CP and Decree No. 50/2021/ND-CP dated April 1, 2021 of the Government).
The draft Decree details the contents related to construction contracts, specifically in: Article 82; Clause 4 of Article 83; Clause 4 of Article 84; Article 85; and Article 87. For construction contracts under projects using Official Development Assistance (ODA) funds, if an international treaty provides otherwise, that international treaty shall prevail.
The draft Decree inherits the provisions of Decree No. 37/2015/ND-CP dated April 22, 2015, as amended and supplemented by Decree No. 50/2021/ND-CP dated April 1, 2021; and the results of the review of the implementation of the Decree detailing regulations on construction contracts that the Ministry of Construction has organized in the past.
The draft Decree has omitted several articles already stipulated in Construction Law 2025, including: principles for implementation of construction contracts; the validity and legality of construction contracts; applicable law and language used for construction contracts; guarantees for payment of construction contracts; payment guarantees for construction contracts; currency and forms of payment for construction contracts; adjustment of construction contracts; principles for adjusting construction contracts; contract bonuses and penalties for breach of contract; Liability for breach of construction contracts (Articles 4, 6, 11, 17, 21, 35, 36, 42, 43 of Decree No. 37/2015/NĐ-CP);
Content amended and new points added:
(1) Scope of application: Applicable to all construction contracts, not only those under public investment projects and PPP projects. Accordingly, the structure of the Draft Decree is developed in a way that, in addition to general provisions, includes separate provisions applicable to construction contracts under public investment projects and PPP projects.
(2) Amendments and clarifications to provisions on contract performance duration; effective time of construction contracts; and construction contract schedules to ensure consistency with practical conditions and relevant legal regulations.
(3) Amendments and supplements to provisions on contents and workload; obligations to prepare schedules for each type of work for EC, EP, PC contracts; scope of application of contract pricing forms; payment and payment dossiers for newly added types of construction contracts (such as: output-based contracts, percentage-based contracts; …).
(4) Amendments and supplements providing clear regulations on methods for adjusting unit prices and contract prices in the Draft Decree and its appendices (this content is currently guided in Circular No. 02/2023/TT-BXD); contents and procedures for amending construction contracts; suspension and termination of construction contracts; payment, settlement and liquidation of construction contracts.
(5) Supplementation of provisions on adjustment of workload among members in joint ventures (currently provided in Circular No. 02/2023/TT-BXD); responsibilities for assessing the impact of force majeure events on contract performance schedules of relevant parties; incorporation of a number of provisions that have been stably applied under Circular No. 02/2023/TT-BXD into the Draft Decree.
(6) Addition of provisions on unilateral termination, settlement, and liquidation of construction contracts.
(7) Restructuring of contents related to the rights, obligations, and responsibilities of parties in a manner that does not restate those already provided in relevant legal documents, but only regulates those not yet covered elsewhere.
(8) Amendments and supplements to authority in accordance with new regulations on decentralization and delegation of powers in construction activities.
For construction consulting contracts
A construction consulting contract is a construction contract to perform one, several or all consulting work in construction activities;
Time-based contracts and percentage-based contracts are considered applicable to construction consulting contracts.
Regarding advance payments for construction contracts, the amount of advance payments, the number of advance payments, the time of advance payments, and the amount of advance payments recovered through each payment are agreed upon by the parties in the construction contract. Furthermore, for public investment projects and PPP projects, the minimum advance payment is stipulated as 15% of the contract value for consulting contracts valued at over 10 billion VND; and 20% of the contract value for consulting contracts valued up to 10 billion VND.
VPDAĐS – TECCO1