Nghị định 102/2009/NĐ-CP về quản lý đầu tư ứng dụng công nghệ thông tin sử dụng nguồn vốn ngân sách nhà nước

DECREE

ON MANAGEMENT OF INVESTMENT IN APPLICATION OF INFORMATION TECHNOLOGY WITH FUNDS FROM STATE BUDGET

THE GOVERNMENT

Pursuant to the Law on organizing the Government dated December 25, 2001;

Pursuant to the Law on state budget dated December 16, 2002;

Pursuant to the Law on information technology dated June 29, 2006;

At the request of the Minister of Information and Communications, 

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1. Scope and regulated entities

1. Scope of regulation:

This Decree provides for the management and performance of the investment in application of information technology to:

a) Projects on the application of information technology (referred to as IT application) with funds from state budget that are managed by the Ministries, Ministerial-level agencies, Government agencies, political organizations, sociopolitical organizations, social organizations, socio-professional organizations (as regulated in the Law on stage budget), relevant authorities of provinces or central-affiliated cities (referred to as provincial authorities), relevant authorities of districts, towns or provincial cities (referred to as district authorities) and communal authorities;

b) Projects on IT application with funds from stage budget (referred to state-funded projects on IT application) that support state-owned enterprises or funds managed by state-owned economic groups, state-owned corporations, independent state-owned companies and other assets management companies (as regulated in the Law on stage budget);

c) Projects on IT application with the combination of different sources of capital, in which funds from state budget holds 30% or more, or holds the main proportion in total investment of relevant project;

d) Parts of IT application with funds from state budget in construction investment projects and non-construction investment projects which are managed as an independent project on IT application as regulated in this Decree;

dd) State-funded projects on IT application that belong to the national secret shall not apply this Decree;

e) As for state-funded projects on IT application with capital recovery, the main investors shall recover and return the investment capital;

g) As for the projects on IT application with funds from the Official Development Assistance (referred to as ODA), the main investors shall comply with credit agreements and relevant international treaties to which Vietnam is a signatory, and current regulations on management and use of ODA;

h) As for state-funded projects on IT application of Vietnamese agencies in foreign countries, the establishment of relevant project shall comply with this Decree; the appraisal, making decision on investment and management of relevant project shall comply with the Government's specific decision made on the grounds of proposal and suggestion of the project agency;

i) As for state-funded IT application without the establishment of project, funds from state budget shall be used on the grounds of outline and detailed estimate that are appraised and approved by the competent official.

Establishment of the outline and detailed estimate shall comply with regulations of the Ministry of Information and Communications and those of the Ministry of Finance.

2. This Joint Circular applies to:

This Decree is applicable to Entities engaging in investment in IT application with funds from state budget.

Entities engaging in investment in IT application with other sources of capital are encouraged to apply this Decree.

Article 2. Interpretation of terms

In this Circular, these terms are construed as follows:

1. “Project on IT application” refers to the set of proposals concerning investments in new construction, expansion or upgradation of infrastructure, software and database systems for the purpose of improving speed and operational efficiency, and increasing service quality within at least one IT development life-cycle.

2. “Commercial software” includes system software, application software, utility software, software development tool and embedded software. Commercial software is fully developed, trademarked and produced in large quantity for commercialization.

3. “Internal-use software” is developed, upgraded and modified according to specific requirements of an organization or software user for the purpose of meeting peculiar requirements of such organization and used internally in such organization.

4. “Open-source software – OSS" is software with its source code provided by the copyright holder. The users shall not pay for copyright of source code.

5. “Software development” refers to processing and production of software according to orders for the purpose of meeting demand for internal use or for commercialization.

6. “Software modification” is to innovate and increase its existing efficiency for the purpose of optimizing its capacity for processing users’ requirements.

7. “Software upgrading” refers to the modification of software by improving its existing functions and processing capacity for the purpose of meeting certain additional requirements of users.

8. “Problem” refers failures and breakdowns (of hardware and/or software) that cause the system unreliable, operating problems or irregular operation.

9. “Investment decision makers” are legal representatives of state organizations or agencies, or state-owned economic groups, state-owned corporations or independent state-owned companies as regulated in Article 5 and Article 6 of this Decree.

10. “Main investors” are assigned to manage and use the funds from the state budget for making investment in IT application.

11. “Total investment” is the total costs estimated for performing the investment which is specified in the decision on making investment and used by the main investor for making planning and management of capital during the investment performance.

12. “Total cost estimate” is the sum of necessary costs concerning the investment (costs for preparing, performing and finishing the investment, and other related costs of the project on IT application). Total cost estimate shall not exceed total approved investment capital.

13. “Preliminary design” includes notes and diagrams of arranging infrastructure system, and other contents for ensuring sufficient performance of design plan. Preliminary design may include one or many works of IT application. Preliminary design in the approved project is used as the ground for establishment and approval for construction design.

14. “Construction design” is a document shown by notes, drawings, description of designed contents and other technical requirements. Construction design is developed on the grounds of preliminary design and approved contents of project.

15. “Designer's supervision" refers to inspection, explanation or settlement of difficulties, changes and arisen problems for the purpose of ensuring the construction, installation, adjustment of materials, IT equipment and commercial software, or development, upgrading and modification of internal-use software and database in conformity with construction design, and protecting the copyright of the consultants in construction design.

16. “Construction supervision” refers to the regular, consecutive and systematic inspection of construction supervisor for the purpose of managing workload, quality and progress of the construction, installation, adjustment of materials, IT equipment and commercial software, or development, upgrading and modification of internal-use software and database which are performed by the contractor according to contract, approved construction design, List of technical standards in information technology sector and requirements on applied solutions for IT application. Contents of construction supervision shall comply with guidance of the Ministry of Information and Communications.

17. “As-built drawing” is a drawing that reflects results of construction and installation of infrastructure and is made by successful contractor on the grounds of approved construction design and results of measurement and verification of performed products at site with the main investor’s confirmation.

18. “Chief surveyor” is the person who directly organizes and performs the survey tasks and survey plans, prepares survey reports, and assumes the prime responsibility for survey results and survey plans.

19. “Preliminary design chief” is the person who directly organizes and performs the duties of preliminary design and assumes the prime responsibility for contents and quality of preliminary design.

20. “Construction design chief” is the person who directly organizes and performs the duties of construction design, makes cost estimate and total cost estimate, and assumes the prime responsibility for contents and quality of construction design, cost estimate and total cost estimate.

21. “On-site commander” represents the successful contractor to execute rights and obligations of the contractor at the construction site, directly manages and assumes responsibility for the construction and installation of IT infrastructure.

Article 3. Procedures for investment in IT application

1. Procedures for investment in project on IT application include the three following phases:

a) Investment preparation;

b) Investment performance;

c) Finalization of investment and transfer.

2. Works contained in the preparation and finalization of investment may be carried out in order or overlapped, or alternatively performed according to specific conditions of each project, and the determination of the investment decision maker.

Article 4. Classification of projects

1. Based on features of each project and investment scale, the state-funded project on IT application shall be classified into the following groups: national important project, group A, group B or group C for management. Specific characteristics of each group are regulated in Annex I of this Decree.

2. With regard to the national important project or group-A project that has many component projects or sub-projects, in which, if each component project or sub-project can be independently operated, exploited or performed according to the phasing of investment which is specified in decision on investment policies of the competent authorities, such component project or sub-project shall be performed as an independent project on IT application from its phase of investment preparation.

Article 5. Authority to make decision on investment in project on IT application

1. The Prime Minister makes decision on investment in national important projects on IT application whose investment policies have been approved by the National Assembly.

2. Ministers, Heads of ministerial-level agencies, Government agencies, financial agencies of the Central Committee of the Communist Party, central agencies of sociopolitical organizations, political organizations, social organizations, socio-professional organizations, state-owned corporations, state-owned economic groups, independent state-owned companies (as regulated in the Law on stage budget), and Presidents of provincial people’s committees make decisions on investment in group-A, group-B and group-C projects on IT application which have been regulated in the approved plan for IT application or have been granted with decision on investment policies.

If group-A project is not regulated in the approval plan for IT application or decision on investment policy is not yet granted to group-A project, the investment policy for such project must be considered and approved by the Prime Minister before such project is established. Consideration of investment policy shall comply with the Government's working regulations.

If group-B or group-C projects are not regulated in the approval plan for IT application, decision on investment policy for relevant project must be granted by the investment decision maker before such project is established.

3. With regard to state-owned companies whose establishment decisions have been granted by the Prime Minister (state-owned corporations and state-owned economic groups), the Management Board of relevant state-owned corporation or state-owned economic group may authorize directors of its subsidiary companies to make decisions on investment in group-C projects on IT application.

4. The investment decision maker is entitled to authorize the persons regulated in Clause 5 of this Article to make decisions on investment in group-B and group-C projects on IT application depending on specific conditions of each ministry, regulatory body or local government. The investment decision maker shall assume responsibility before the law for his authorization. The authorized person must bear responsibility before the law and the authorizer for his decisions.

5. Persons who are authorized to make decisions on investment:

a) Ministry level:

Directors general of ministry’s general departments, directors of ministry’s departments, Chairpersons of the management boards of state-owned corporations and state-owned economic groups, Directors of ministry-affiliated state-owned enterprises and heads of ministry-affiliated agencies and units;

b) Provincial level:

Directors of services, Presidents of the people’s committees of districts, towns and provincial cities (referred to district people’s committees), Chairpersons of the management boards of state-owned corporations, Directors of province-affiliated state-owned enterprises and heads of provincial people committee-affiliated agencies;

Presidents of the people’s committees of districts or communes can make decisions on investment in projects within their local budgets (including funds supplemented by higher-level budgets) with total investment up to VND 05 billion (as for district-level projects) and VND 03 billion (as for commune-level projects) depending on specific conditions of each district or commune and as decided by provincial people's committee on the grounds of the approved plan for IT application of such province and capacity of authorized persons.

6. Contents of decision on approval for project on IT application shall comply with the form stated in Annex IV of this Decree.

Article 6. Main investor of project on IT application

1. The main investor of state-funded project on IT application is designated by the investment decision maker before such project is established in conformity with the Law on state budget.

a) As for the project on IT application in which the investment is decided by the Prime Minister, the main investor of such project is one of the following authorities: Ministries, Ministerial-level agencies, Government agencies, political organizations, sociopolitical organizations, social organizations, socio-professional organizations (referred to as ministerial-level agencies), the people’s committees of provinces or central-affiliated cities (referred to as provincial authorities);

b) As for the projects on IT application in which the investment is decided by Ministers, heads of Ministerial-level agencies or Presidents of people’s committees at all levels, the person making decision on investment in relevant project shall assign the manager and user of project's products to act as the main investor;

In case the manager and user of project’s products cannot meet requirements on organization, personnel, period and other necessary requirements to perform duties and powers of the main investor or manager and user of project’s products are not yet determined, the investment decision maker shall select a qualified unit to act as the main investor of such project.

2. With regard to the project on IT application with combination of sources of capital, the main investor of such project shall be appointed via the capital contributors’ agreement or the main investor shall be the representative of the holder of highest percentage of contributed capital.

Article 7. Consulting unit in investment in IT application

1. Consulting unit in investment in IT application is a professional organization of business sectors that has legal entity, has obtained a valid business registration certificate (or valid establishment decision if the organization did not apply for business registration certificate) and carries out consulting services in investment in IT application as regulated by the laws.

2. Consulting contents in investment in IT application:

a) Provide information about legislative documents and policies for investment in IT application; survey, preparation and management of project on IT application; preliminary design and construction design; preparation of bidding documents; supervision; selection of qualified contractor; provide consulting services in IT application and performance of other relevant IT services;

b) A consulting unit in investment in IT application can enter into contract with another consulting unit in investment in IT application for performing a part of consulting duties if such cooperation is approved by the main investor.

3. Responsibilities of consulting units in investment in IT application:

a) Requirements on capacity must be satisfied as regulated in this Decree and relevant legislative documents;

b) The consulting unit must bear responsibility before the law and the main investor for all contents stated in the consulting contract, especially economic and technical contents defined in its consulting products. The consulting unit must compensate for damages (if any);

c) In case the investment in IT application needs consultancy of foreign consultants, domestic consulting unit is entitled to set up joint venture, associate or contract foreign consultants to carry out consulting services in investment in IT application;

d) Consulting products specifying selection of usable materials or technical materials and equipment which are provided by a specific producer or supplier and requirements on brands and origin of producer are strictly prohibited;

In certain special cases, if brands or catalogues of a specific producer, or technical materials and equipment originated from a specific country must be specified for reference or illustration of relevant types of materials or technical materials and equipment, the phrase “or equivalent” must be specified after the stated brands, catalogues or origin and the concept of equivalency that refers to products having similar technical specifications and equivalent usable features must be specified.

Article 8. List of technical standards in information technology sector

1. List of technical standards in information technology sector includes Technical standards in information technology sector and basic requirements on functions and technical features of IT products.

2. The Ministry of Information and Communications shall periodically announce the list of technical standards in information technology sector to use as the grounds for management of investment in IT application with funds from state budget.

Concerned ministries shall base on the list of technical standards in information technology sector to establish and announce certain requirements on solutions for IT application in their managing sectors.

3. In case Technical standards in information technology sector of Vietnam are not yet announced or have been inadequately announced, international technical standards shall apply provided that such international technical standards must be in conformity with basic requirements on functions and technical features of IT products which are periodically announced by the Ministry of Information and Communications.

Article 9. Community supervision of investment in IT application

The main investor of project on IT application must publicly announce purposes and contents of activities, project scale and organizational structure of the project management unit (or consulting unit in project management) to political organizations, social organizations, local authorities and local elective bodies for the purpose of courting the community supervision during the investment performance.

Article 10. Supervision and appraisal of investment in IT application

1. Supervision and appraisal of investment in IT application are to monitor, inspect and determine the fulfillment of investment requirements. Such supervision and appraisal of investment in IT application shall be carried out by the competent state authorities to implement state management of information technology and ensure that the efficiency of such investment shall be achieved in consistent with objectives and plans for IT application of regulatory bodies and local government and those of each project.

2. State-funded projects on IT application must be under periodical supervision and appraisal of investment.

3. Supervision and appraisal of investment:

a) The project management board (or consulting unit in project management) shall regularly monitor, inspect and determine the fulfillment of investment requirements;

b) The main investor shall direct, expedite and facilitate the project management board (or consulting unit in project management) in carrying out inspection and appraisal of each project. All difficulties must be promptly reported to the competent authorities for settlement;

c) Managing agencies shall follow the performance of programs and projects within their authorities; response to the main investors in a sufficient and timely manner; analyze list of programs and projects to determine the level of performance;

d) Managing agencies shall consider the appraisal results of investment made by relevant main investors within their authorities. Governing bodies can cooperate with relevant authorities to carry out unscheduled appraisal of projects;

dd) The Ministry of Information and Communications shall take the prime responsibility and cooperate with the Ministry of Planning and Investment to carry out the supervision and appraisal of capability for management and performance of projects on IT application at the managing agencies and carry out national-scale supervision and appraisal of investment in projects on IT application;

e) The Ministry of Planning and Investment shall take the prime responsibility and cooperate with the Ministry of Information and Communications to set up and summarize norms of periodical statistics on investment in IT application for reflecting in the national statistical data system on socio-economic development.

4. Reports on supervision and appraisal of investment:

a) During the project performance, the project management board (or consulting unit in project management) must prepare and send the reports stated in the following parts to the main investor in order that the main investor submits to the managing agencies and relevant authorities:

- Monthly reports must be submitted within 10 days as of the ending day of relevant month (only project on IT application which is approved by the Prime Minister applies this report policy);

- Semi-annual reports must be submitted by July 15^th of relevant fiscal year;

- Annual reports must be submitted by January 01^st of the following year;

- Reports on investment finalization must be submitted within 6 months as of the finishing date of project;

b) The Ministry of Information and Communications shall take the prime responsibility and cooperate with the Ministry of Planning and Investment, Ministry of Finance and relevant authorities to guide report policies and forms of supervision and appraisal of investment in IT application; supervise the compliance with report policies of relevant authorities and submit periodical reports to the Prime Minister on the performance of supervision and appraisal of investment in IT application.

Chapter II

INVESTMENT PREPARATION

Article 11. Contents of investment preparation

Contents of investment preparation include:

1. Carry out research on necessity of the investment and investment scale.

2. Consider capacity for resources of equipment, sources of investment capacity and select form of investment.

3. Carry out investment and survey for establishing the project and select investment location.

4. Establish project on IT application.

5. Send project documents and relevant papers to the person who is authorized to make decision on investment and project appraisal unit.

Article 12. Establishment of survey tasks and organization of survey

1. Survey tasks must be approved by the main investor and in conformity with requirements on each type of survey job.

2. Survey tasks include the following main contents:

a) Survey purposes;

b) Survey scope;

c) Expected types of survey job;

d) Survey technical standards to be applied;

dd) Estimated period of survey.

3. If the requirements on capacity for survey are not satisfied, the main investor can contract qualified surveyors to establish the survey tasks and perform the survey. Each survey task is performed by a chief surveyor. Survey costs shall be aggregated in the investment consultancy costs of total investment.

Article 13. Contents of reports on survey results

1. Contents of reports on survey results include:

a) Survey tasks;

b) Investment features and scale;

c) Position and current conditions of surveyed area (as for installation of equipment and related accessories);

d) Description of users’ requirements (as for internal-use software);

dd) Applied survey technical standards;

e) Workload of field survey;

g) Procedures, methods and equipment (if any) used in the survey;

h) Appraisal of reliability of survey results;

i) Proposal for technical – technological solutions (if any) used in preliminary design or construction design (in case of additional survey);

k) Conclusion and recommendations (if any);

l) Survey diaries;

m) Relevant annexes illustrating survey results (if any).

2. Reports on survey results during the investment preparation must be checked and approved by the main investor. Such reports on survey results shall be used as grounds for establishment of project preliminary design.

3. Reports on additional survey results during the investment performance must be checked and approved by the main investor. Such reports on additional survey results shall be used as grounds for establishment or making amendments to construction design or project preliminary design.

4. Organizations and individuals establishing the survey tasks, performing the survey and directing the survey shall bear responsibility before the main investor and the law for quality on their undertaking works; compensate for damages if they did not comply with approved survey tasks or they have acts of violation causing damages.

Article 14. Survey supervision

1. Responsibility for survey supervision:

The Main investor shall supervise construction survey on a regular and systematic basis, from commencement till completion of such survey. If the requirements on capacity for survey are not satisfied, the main investor may contract qualified consultants to supervise such survey. Costs for supervising the survey shall be aggregated in the investment consultancy costs of total investment.

2. Contents of survey supervision carried out by the main investor include:

a) Examine requirements on capacity of organization or individual carrying out the survey, chief surveyors, equipment and machineries used in the survey (if any);

b) Monitor and examine the survey site, survey workload and the performance of survey according to approved survey tasks.

Monitoring and supervising results must be recorded in survey diaries of relevant surveying unit;

c) Monitor and request the surveying unit and chief surveyors to comply with the following requirements:

- Protect environment in accordance with state current regulations on noise and wastes;

- Protect infrastructure and equipment installed in survey area or survey site (if any). In case damage occurs, the surveying unit and chief surveyors must compensate for such damage;

- Keep secret of information technology system (if any).

Article 15. Acceptance of survey results

1. Grounds for acceptance of survey results include:

a) Surveying contract;

b) Approved survey tasks;

c) Applied survey technical standards;

d) Reports on survey results;

2. Contents of acceptance of survey results include:

a) Evaluate the quality of the survey against the survey tasks and the applied survey technical standards;

b) Check the reports on survey results in terms of their presentation and quantity;

c) Carry out the acceptance of the survey workload already performed under the signed surveying contract. Where the survey results are obtained in accordance with the surveying contract but fail to satisfy the investment objectives set by the main investor, the main investor must still pay for the workload already accepted in accordance with the contract.

3. Results of acceptance of survey results must be recorded in writing with the form stated in Annex III of this Decree.

Article 16. Establishment of project on IT application

1. The main investor shall establish feasible project on IT application, feasibility study report or investment report and bear responsibility for contents stated in the project documents.

The main investor may contract qualified organizations and individuals to establish the project. Project establishment costs shall be aggregated in the investment consultancy costs of total investment. Where the project is established in accordance with the signed contract but fail to satisfy the objectives set by the main investor, the main investor must still pay for the workload already accepted in accordance with the contract.

2. Preliminary design is a part of the project on IT application. Each preliminary design must be performed by a qualified preliminary design chief (if the project is established by individual, such individual shall also perform the role of a preliminary design chief).

3. As for national important projects and group-A projects, relevant main investors must establish feasible projects on IT application.

4. As for group-B and group-C projects, relevant main investors shall establish feasibility study reports. Only investment report is established if total investment of group-C project is up to VND 3 billion.

Maximum period for establishment of group-B project is 05 months and that of group-C project is 03 months since the project main investor is defined.

As for group-B and group-C projects on IT application, the investment decision maker must ensure the balance of investment capital for project performance within 2 years if relevant project is classified in group C and 4 years if relevant project is classified in group B.

5. Administrative capital in the budget estimates of administrative agencies is used for making investment in upgrading and expansion of existing capacity of IT application (including investment in new works of IT application of existing system of relevant administrative agency).

If the sum of administrative capital used for making investment in upgrading and expansion of existing capacity of IT application is VND 03 billion or more, investment procedures must be performed as regulated in this Decree.

Article 17. Contents of feasible project on IT application whose investment is decided by the Prime Minister

1. The necessity of investment, advantages and difficulties.

2. Selection of main investor and form of investment.

3. Expected investment scale: requirements on technological and technical factors; Forecast of investment location (including documents concerning the selection of investment location)

4. Scale of equipment installation.

5. Analysis and preliminary selection of technologies and techniques; preliminary design of selected plan; requirements on provision of materials, equipment, services, infrastructure, fire prevention and fighting and operational safety, guarantee of security and national defense.

6. Preliminary determination of total investment, sources of capital, period for project performance, socio-economic efficiency and phasing of investment (if any); and plan for investment capital return (as for project with recovery of investment capital).

7. Determination of the operational independence of investment works or component projects (if any).

8. Primary periods for investment performance.

9. Proposal for applicable methods of project management.

If project is established for acquisition of equipment without installation, contents of feasible project on IT application shall only include clauses 1, 2, 5, 6, 8 and 9 of this Article.

Article 18. Procedures for approval for feasible project on IT application whose investment is decided by the Prime Minister

1. The main investor shall submit the feasible project on IT application to the Ministry of Information and Communications. The Ministry of Information and Communications shall support the Prime Minister to take suggestions from relevant ministries, regulatory bodies and local governments, summarize such suggestions and submit general proposal to the Prime Minister.

2. Period for taking suggestions:

Within 05 working days as of the receiving date of valid feasible project on IT application, the Ministry of Information and Communications sends written requests for taking suggestions to relevant ministries, regulatory bodies and local governments.

Within 15 working days as of the receiving date of written requests for taking suggestions, relevant requested authorities must response via written suggestions about contents within their managing authority. Within 7 working days as of the receiving date of written suggestions according to the aforesaid period, the Ministry of Information and Communications shall prepare and send reports to the Prime Minister.

3. Reports submitted to the Prime Minister include:

Summarize contents of feasible project on IT application, summarize suggestions of relevant ministries and regulatory bodies, and submit general proposal concerning approval for relevant project and written suggestions of relevant ministries, regulatory bodies and local governments.

Article 19. Contents of feasibility study report and application for approval

1. Contents of feasibility study report:

a) The necessity of investment and investment objectives;

b) Selection of main investor and form of investment;

c) Expected investment scale: technical requirements on primary and auxiliary investment works; Forecast of investment location (including documents concerning the selection of investment location);

d) Scale of equipment installation;

dd) Analysis on selection of technical and technological plans;

e) Preliminary design of selected plans;

g) Requirements on provision of materials, equipment, services, infrastructure, fire prevention and fighting and operational safety, guarantee of security and national defense;

h) Sources of capital, financial capacity, total investment and demand for capital according to project progress; Plan for investment capital return (as for project with recovery of investment capital); Project management costs during the project performance;

i) Analysis on investment efficiency;

k) Primary periods for investment performance;

l) Proposal for applicable methods of project management;

m) Relation and responsibilities of project-related authorities.

If project is established for acquisition of equipment without installation, contents of feasibility study report shall only include Points a, b, d, e, g, h, i, k and l, Clause 1 of this Article.

2. The application for approval includes:

a) The application for appraisal and approval for project using the form stated in Annex II of this Decree;

b) The feasibility study report stated in Clause 1 of this Article;

c) Appraisal documents of the units in charge of appraising project;

d) Written suggestions of relevant authorities (if any).

Article 20. Contents of investment report and application for approval

1. Contents of investment report

a) Legal grounds and the necessity of investment (legal grounds and brief explanation about reasons of required investment);

b) Name of project and form of investment (new establishment, upgrading, expansion or maintenance should be specified);

c) The main investor (name of the entity that is selected as the main investor);

d) Investment location: forecast of the investment location (including documents concerning the selection of investment location);

dd) Expected investment scale: scale of equipment installation and technical requirements on primary and auxiliary works;

e) Preliminary design of selected plans;

g) Preliminary determination of total investment;

h) Sources of capital; Project management costs during the project performance;

i) Plan for investment capital return (as for project with recovery of investment capital);

k) Time of starting the construction and period for finishing the project;

l) Methods of operational safety, fire prevention and fighting.

2. The application for approval includes:

a) The application for appraisal and approval for project using the form stated in Annex II of this Decree;

b) The investment report stated in Clause 1 of this Article;

c) Appraisal documents of the units in charges of carrying out the appraisal;

d) Written suggestions of relevant authorities (if any).

Article 21. Contents of preliminary design

1. Requirements on preliminary design:

a) Comply with applied standards and regulations;

b) Include the primary infrastructure parameters;

c) Ensure determination of total investment.

2. Contents of preliminary design include:

a) Notes of preliminary design:

- Brief introduction to the required contents of design tasks;

- List of applied technical regulations and standards;

- Requirements on the project infrastructure;

- Technical and technological plans, and external connection plans;

- Preliminary workload of the construction, and amount of materials, primary equipment and commercial software; description of technical requirements of internal-use software;

- Essential matters of technical and technological plans;

b) Drawings:

- Documents concerning current conditions of the infrastructure and other conditions;

- Installation drawings of the project infrastructure and external connection works.

Article 22. Description of technical requirements of internal-use software

1. Requirements: The requirements on determination of value of the internal-use software must be satisfied.

2. Description of technical requirements of internal-use software:

a) Name of the internal-use software;

b) Primary parameters:

- Computerized specialized procedures (the organization and operation of procedures, products of specialized process and processing protocols of specialized procedures);

- Actors in specialized procedures and their connection (human, human resources, products and equipment for professional processing and other supporting elements);

- List of essential functional requirements of such software and non-functional requirements (constraints on software system: environmental constraints and dependence on base system);

- The arrangement table of order of priority of functional requirements of such software (mandatory functions, desired functions and optional functions);

- Graph of use-cases made by the Unified Modeling Language (UML) on the grounds of the groups of functions stated in the arrangement table of order of priority of software functional requirements;

c) Non-functional requirements:

- Requirements on database (if database is required);

- Requirements on security (specify used security standards, model for inspecting, verifying and keeping secret of data);

- Visual and technical requirements of application program interface;

- Requirements on processing period and complication of software functions;

- Requirements on constraints on logical processing in input (or conversion) of data by means of textareas provided by the application program interface;

- Requirements on installation, infrastructure, transmission line, operating and using safety;

- Other non-functional requirements;

d) Requirements on capacity of technicians who participate in software development, upgrading and modification;

dd) Requirements on environment for software development, upgrading and modification;

e) Requirements on technical complexity factor (TCF) of the software.

Article 23. Determination of the value of internal-use software

1. The value of internal-use software shall be determined on the grounds of technical requirements as regulated in Article 22 of this Decree.

2. Procedures for determination:

a) Determination of actor weights;

b) Determination of use case points;

c) Calculation of technical complexity factor (TCF);

d) Calculation of environment factor (EF) for software development, upgrading and modification;

dd) Estimation of effort for software development, upgrading and modification;

e) Interpolation-based evaluation of experience, and interpolation of working performance in software development, upgrading and modification;

g) Determination of average wages for participants in software development, upgrading and modification;

h) Determination of the value of software on the basis of Points a, b, c, d, dd, e, g Clause 2 of this Article.

3. Contents of documents used for determination of software value and methods for determining the value of internal-use software shall comply with guidance of the Ministry of Information and Communications.

Article 24. Compulsory use or upgrading and modification of available software that has equivalent functions and technical specifications

1. In case there is software in the list of available software (which have been developed with funds from state budget) that has functions and technical specifications equivalent to the expected internal-use software, the entity having demand for the internal-use software must request the agency or organization that is assigned to manage available software to provide such available software to:

a) Use immediately if such available software has equivalent functions and technical specifications, and can meet demand of the user;

b) Upgrade and modify such available software according to the user's needs if the cost for upgrading and modifying such available software is cheaper than that for developing a new software.

2. If the expected internal-use software has functions and technical specifications equivalent to the commercial software traded in the market, the entity having demand for the internal-use software must buy the copyright of such commercial software in order to:

a) Use immediately if such commercial software’s functions and technical specifications can meet demand of the user and the copyright cost is lower than the cost for developing a new software;

b) Upgrade and modify such commercial software according to the user's needs if:

- Such commercial software can be upgraded and modified without asking for the permission of the copyright holder; and

- Total cost for buying the copyright, upgrading and modifying such software is lower than the cost for developing new software.

3. Upgraded and modified contents of available software (including: internal-use software, commercial software and open-source software) must include technical requirements as regulated in Article 22 of this Decree.

4. Determination of software that has equivalent functions and technical specifications shall comply with guidance of the Ministry of Information and Communications.

Article 25. Applying exclusive creation solutions to develop internal-use software

1. While carrying out the research on the necessity of investment, after the survey on domestic and international market has been carried out, if a special creation solution or an exclusive creation solution provided by the only contractor is required for development of expected internal-use software, the main investor must report to the investment decision maker for granting permission to establish the IT advisory board to determine requirements on such internal-use software.

2. The IT advisory board must include at least three specialists with experience in software development and two specialists in the field of IT application requiring computerization by internal-use software (including foreign specialists, if necessary).

3. Operating costs of the IT advisory board shall be aggregated in the investment consultancy costs of total investment and defined by the investment decision maker at the time that permission for establishment of the IT advisory board is granted as stated in Clause 1 of this Article.

4. The Ministry of Information and Communications shall provide guidance on organization and operation of the IT advisory board as regulated in this Article.

Article 26. Authority to make appraisal of projects on IT application

1. The investment decision maker shall organize the appraisal of the project on IT application before such project is approved.

a) Ministerial-level agencies shall organize the appraisal of projects which are established under their decisions. The unit in charge of organizing the project appraisal is a specialized unit under the authority of the investment decision maker;

b) Provincial people's committees shall organize the appraisal of projects whose investments are performed under their decisions. The unit in charge of organizing the project appraisal is an authorized specialized unit;

c) District people's committees shall organize the appraisal of projects which are established under their decisions. The unit in charge of organizing the project appraisal is a budget managing unit under the authority of the investment decision maker;

d) The people's committees of commune shall organize the appraisal of projects which are established under their decisions according to the powers granted by provincial people's committees. The unit in charge of organizing the project appraisal is the unit in charge of managing the budget plans.

2. The unit in charge of organizing the project appraisal shall send the project documents for taking suggestions about the appraisal of preliminary design of the authorized entities stated in Clause 5 of this Article (except for the case the unit in charge of organizing the project appraisal is also the unit in charge of appraising the preliminary design) and take suggestions about the appraisal of project of relevant agencies. The main investor of project is not allowed to act as the unit in charge of organizing the appraisal of such project.

The unit in charge of organizing the project appraisal may contract qualified entities to provide consultancy to the appraisal of project in case of need. Costs for contracting appraisal consultants shall be extracted from the project appraisal charges.

3. During the course of project appraisal, the unit in charge of organizing the project appraisal is entitled to request the main investor to explain, provide additional documents to clearly explain about the contents of project appraisal as regulated in this Decree and relevant laws.

4. Period for carrying out the appraisal of project (including period for carrying out the appraisal of preliminary design) shall not exceed 60 working days if the project is classified in group A, 30 working days if the project is classified in group B, and 20 working days if the project is classified in group C, as of the receiving date of valid documents. In certain special cases, the period for carrying out the appraisal of project may be extended as permitted by the investment decision maker.

5. Authority to carry out the appraisal of preliminary design:

a) As for national important projects and group-A projects, the Ministry of Information and Communications shall carry out the appraisal of preliminary design;

b) As for the projects in which the investment is decided by the people’s committees of provinces, districts or communes, the Services of Information and Communications shall carry out the appraisal of preliminary designs;

c) As for the projects in which the investment is decided by ministerial-level agencies, state-owned economic groups, state-owned corporations or independent state-owned companies, the IT departments under the authority of the investment decision maker shall carry out the appraisal of preliminary designs;

d) The unit in charge of appraising the preliminary design may contract qualified consultants to provide consultancy to the appraisal of preliminary project in case of need. Costs for contracting appraisal consultants shall be extracted from the project appraisal charges.

6. Period for carrying out the appraisal of preliminary design shall not exceed 30 working days if the project is classified in group A, 15 working days if the project is classified in group B and 10 working days if the project is classified in group C, as of the receiving date of valid documents.

Article 27. Contents of appraisal of projects on IT application

1. The unit in charge of organizing the appraisal of project on IT application shall bear responsibility before the law for contents of reports on appraising results, and submit such reports on appraising results, relevant documents and draft of investment decision to the investment decision maker.

2. Contents of the appraisal of project include:

a) Consider factors for ensuring the efficiency of project, including: the necessity of investment; input factors of project; scale, technology, total investment, period and progress of project performance; analysis on finance and socio-economic efficiency of project;

b) Consider factors for ensuring the project feasibility, including: managing experience of the main investor; appraising results of preliminary design; capacity for investment capital return (if project requires capital recovery); other factors influencing on project such as national defense and security; written suggestions of relevant authorities.

3. Contents of the appraisal of preliminary design:

a) The suitability of preliminary design for technical standards in information technology sector and the suitability of basic requirements on functions and technical specifications for the infrastructure system of ministries, regulatory bodies and local governments; connection and sharing of data with other infrastructure systems;

b) Application of technical – technological standards and regulations, plans for fire prevention and fighting, operational safety and data security;

c) Conditions concerning capacity of the consulting unit and professional capacity of preliminary design chief.

Article 28. Total investment

1. Total investment shall be calculated and determined during the establishment of project in conformity with the contents of project and preliminary design.

2. Total investment includes:

a) Construction costs:

- Costs for installing network accessories and building IT network line and other network installation costs;

- Other relevant direct construction costs;

b) Equipment costs:

- Costs for buying IT equipment: Equipment with or without installation, special equipment which is internal-use software, auxiliary equipment and peripheral equipment;

- Costs for buying intangible assets, including system software and commercial software, to set up and standardize database for the purpose of inputting data and carrying out data entry for database, and costs for buying other intangible assets;

- Costs for training for technological transfer;

- Costs for installing equipment, setting up software, inspecting and adjusting equipment and software;

c) Project management costs include necessary costs used by the main investor to organize the management of project;

d) Investment consultancy costs: Costs for carrying out the survey and supervising the survey job; preparing the investment project; carrying out investigation and research on preparation of project, selection of solutions; costs for making preliminary design; construction design and making amendments to construction design; costs for making cost estimate/total cost estimate; costs for preparing documents on the requirements, documents on invitation for pre-qualification, bidding documents and costs for analyzing and assessing such documents for selecting consultancy contractor, construction contractor, general contractor, construction supervisor; determining quota and unit price; preparing cost estimate and total cost estimate; adjusting cost estimate and total cost estimate; costs for consultants in project management; costs for checking quality of materials and equipment; appraising quality of products; technology assessment; converting investment capital; costs for carrying out the investment consultancy and performing other consulting job;

dd) Other costs: fees and charges; insurance premium, costs for transporting equipment and workers; auditing costs; costs for verifying and approving investment capital accounting; costs for scientific and technological research relating to the project; installing and leasing transmission line; fees for registration and maintenance of domain name; and other specific costs;

e) Provision costs for unanticipated workload when the project is established and provision costs against inflation during the performance of project.

3. If such costs are not yet determined or calculated, they shall be temporarily calculated to aggregate in total investment as regulated by the Ministry of Information and Communications and the Ministry of Finance.

Article 29. Establishment of total investment of the project on IT application

1. Total investment of the project shall be determined according to one of the following methods:

a) Total investment may be calculated according to preliminary design of project. In which, the construction costs shall be calculated according to primary load defined in the preliminary design, other estimated loads and prices of materials, equipment and technological services in conformity with the market price; equipment costs shall be calculated according to the amount and categories of suitable equipment for the solutions on IT application, the market prices of equipment and other related elements (if any); other costs shall be determined by preparing cost estimate or provisionally calculated according to its percentage (%) of total construction costs, equipment costs and provision costs; provision costs shall be determined as regulated in Clause 2 of this Article;

b) Total investment may be calculated on the grounds of figures of performed projects on IT application which have equivalent economic and technical targets. If this method is used, figures of equivalent project must be converted into those at the establishing time of such project and costs that have been not yet determined in the total investment must be adjusted.

2. Provisions for unanticipated workload shall be determined on the basis of the total costs regulated in Points a, b, c, d, dd and e, Clause 2, Article 28 of this Decree. Provision costs for inflation shall be calculated on the grounds of the duration of investment period, taking into account of domestic and international price fluctuations.

Article 30. Contents of appraisal of total investment of project on IT application

1. Appraisal of total investment is a content of the appraisal of project on IT application Contents of appraisal of total investment include:

a) The suitability of the method for determination of total investment of project for features, technical specifications, technology and requirements of such project;

b) The sufficiency, reasonableness and suitability of cost items of total investment for their actual requirements;

c) Calculations of efficiency of IT application, risk factors, financial plans, capacity for return of investment capital (if recovery of investment capital is required);

d) Determination of value of total investment for ensuring the efficiency of the investment project.

2. Total investment shall be specified in the investment decision which is approved by the investment decision maker.

Article 31. Adjustment of project on IT application

1. The project on IT application to which the investment decision has been granted shall be adjusted in the following cases:

a) New factors occur and these factors may help the project achieve higher efficiency;

b) In case of force majeure: earthquake, storm, flood, whirlwind, tsunami, landslide; war or danger of war or other force majeure that cause direct influence on the project;

c) The plan for IT application that is adjusted by the competent authorities causes direct influence on the project scale and objectives.

2. If the adjustment of project causes no influence on the investment scale and objectives and is performed within approved total investment, the main investor is allowed to self-carry out the adjustment of project. If the adjustment of project causes change on preliminary design for technical solutions, technology, scale and initial investment objectives or exceeds approved total investment, the main investor must submit reports to the investment decision maker for making consideration and decision. Changed contents must be appraised before decision on adjustment of project is granted.

3. The person who makes decision on adjusting the project must bear responsibility before the law for such decision.

Article 32. Funding for establishment, appraisal or adjustment of project on IT application

1. Funding for establishment, appraisal or adjustment of project on IT application shall be provided by the source of capital of such project.

2. After the appraisal is finished, if the project is not approved, the costs for establishing, appraising or adjusting the project shall be extracted from the administrative funding source of administrative agencies or provided by funds from state budget that been allocated to the main investor for making payments.

3. The Ministry of Information and Communications shall cooperate with the Ministry of Finance to work out the stipulated charges for appraising the investment in IT application.

Chapter III

INVESTMENT PERFORMANCE

Article 33. Works during the performance of investment in project on IT application

Works during the investment performance includes:

1. Carry out additional survey (if necessary) for establishing the construction design and cost estimate or total cost estimate.

2. Apply for use of national digital resource and frequency (if agreement on use of national digital resource and frequency is required as regulated by the Government).

3. Carry out establishment and approval for construction design.

4. Carry out establishment and approval for bidding documents/documents on requirements.

5. Select contractor, carry out negotiations on contract with successful contractor and enter into bidding contract.

6. Perform contracts.

7. Inspect the performance of contracts.

8. Manage the project performance.

Selection of contractor to perform the contents stated in this Article shall comply with the investment decision, regulations of the law on bidding and other relevant legislative documents.

Article 34. Additional survey used for establishing construction design of project on IT application

1. The main investor shall consider and make decision on carrying out additional survey for establishment of construction design.

2. Additional survey tasks shall be established according to the contents stated in Clause 2 Article 12 of this Decree.

2. Supervision of additional survey, reports, acceptance of additional survey results shall comply with Clause 2 Article 14 and Clause 2 Article 15 of this Decree.

3. Where the additional survey results are obtained in accordance with the surveying contract but fail to satisfy the investment objectives set by the investor, the investor must still pay for the workload already accepted in accordance with the contract. Additional survey expenses shall be aggregated in investment consultancy costs of total investment and total cost estimate of the project.

Article 35. Construction design

1. The main investor shall carry out the establishment, appraisal and approval for the construction design and total cost estimate. The appraisal and approval for the construction design and total cost estimate shall be carried in one single phase. The appraisal and approval for the construction design is not allowed to separate from those for the total cost estimate. With regard to the projects whose investment decisions are made by the people's committees of communes within the authority granted by the people's committees of higher levels, the construction design and total cost estimate shall be appraised and approved by Services of Information and Communications.

The main investor may enter into contracts with qualified entitles to establish or provide consultancy for carrying out the appraisal of the construction design and cost estimate or total cost estimate on the grounds of specific conditions of each project. At the request of the main investor, the consultancy for appraising the construction design and cost estimate or total cost estimate may be carried for all or a part of the contents stated in Clause 1 and Clause 2, Article 37 of this Decree.

The costs for establishing, providing consultancy for appraising the construction design and cost estimate or total cost estimate shall be aggregated in the investment consultancy costs of the total investment and total cost estimate of project.

The main investor shall base on the approved construction design to manage quality, construction progress and construction methods, and manage the investment in project.

Where the construction design and cost estimate or total cost estimate, or consulting results are obtained in accordance with the signed contract but fail to satisfy the objectives set by the investor, the investor must still pay for the workload already accepted in accordance with the signed contract.

2. Construction design must be in conformity with the preliminary design of the approved project. The establishment of the construction design may refer to the sample designs and standard designs which have been announced by the competent authorities.

If the construction design and total cost estimate must be adjusted because of the adjustment of the project, the adjusted contents must be re-approved.

3. Documents used as the basis for establishing the construction design:

a) Survey documents of specialized procedures requiring computerization, documents on determination of user’s requirements, requirements on installation and setting up of equipment and relevant documents;

b) Decision on approval for the investment project and contents of preliminary design in the approved project;

c) List of applied technical standards in information technology sector;

d) Reports on additional survey results which are used for installing, setting up, connecting equipment and network lines, additional survey results on the specialized procedures requiring computerization, user’s requirements and other requirements (if necessary).

4. Contents of construction design documents:

a) Installation of network, IT equipment and accessories:

- Technical criteria applied to installation, setting up, inspection and check-out of equipment;

- List of installed equipment and technical parameters of such equipment;

- Statistics on constructional workload, and amount of materials, equipment of primary and auxiliary investment works;

- Guidance on construction methods (as for complicated construction);

- Site plan;

- Diagram and notes of plans for network design, data security, power supply and lightning arrester;

- Diagram on equipment installation: sites, space and elevation of installation; connection positions; statistics on materials used for equipment installation;

- Network diagram: wiring, installing cable protector, surge protector, materials and equipment used in network installation, connection between network subsystems and connecting to outside systems by main measurements and materials;

- For construction of line-based network: specifying line-based construction plans, turning corner, installation elevation and co-ordinate, main intersection along the line, line protection corridor with common measurements and equipment;

b) As for special equipment that is internal-use software:

- Description of technical requirements of the special equipment that is internal-use software during the investment preparation;

- Written description of each use case in the Graph of use cases;

- Activity diagram of each use case;

- Requirements on training, technological transfer; requirements on warranty and maintenance (if any);

- Requirements on level of error tolerance against programming syntax errors, logic errors occurred during the data processing, input data accuracy control errors, requirements on data safety and security;

c) Total cost estimate shall comply with Article 36 of this Decree.

5. Each construction design must be performed by a qualified construction design chief (if the construction design is carried out by individual, such individual shall also perform the role of a construction design chief).

Construction design chief shall bear responsibility before the main investor and before the law for quality of design products and calculation results (including the accuracy of estimation and cost estimate). The construction design chief must make compensation for damages resulted from use of unqualified information, documents, technical standards and regulations, or IT solutions for carrying out the construction design which make bad influence on quality of investment works, quality of the whole project, and bear responsibility for damages caused by other acts of violation.

6. The entity in charge of carrying out the construction design must perform the designer's supervision during the construction and acceptance of project’s products. The designer's supervision of the construction and installation of IT infrastructure shall be performed at the construction site.

The entity in charge of carrying out the construction design is strictly prohibited from using the name and prestige of another entity in charge of carrying out the construction design under any form.

7. The entity in charge of carrying out the construction design and cost estimate and total cost estimate must transfer construction design-related documents to the main investor for carrying out investment management and archives storage. At least 8 sets of documents must be provided.

8. Construction design-related documents must be retained as regulated by the law on archives.

Article 36. Total cost estimate

1. Total cost estimate is determined for each specific project by calculating the sum of cost estimates of component investment works of the project. Total cost estimate shall not exceed the approved total investment.

Total cost estimate is a part of the construction design documents; approved detailed cost estimates of investment works shall be used as the grounds for determining the contract price in case of no-bid contracts or self-performance of construction design and other works performed without contracts established.

2. Contents of total cost estimate include: construction costs, equipment costs, project management costs, investment consultancy costs, other costs and provision costs.

a) Construction costs:

Construction costs shall be determined by making cost estimate on the grounds of quota, unit price, methods for determining quota and unit price promulgated by the Ministry of Information and Communications, and relevant regulations of the government. Construction costs include direct costs, overhead costs, presumed taxable income and value-added tax;

b) Equipment costs shall be determined on the grounds of amount and categories of equipment that must be purchased, developed, upgraded and modified, and purchasing prices or costs for developing, upgrading and modifying equipment according to comparison method or method for calculating value. Costs for training and technological transfer, costs for installing, testing and adjusting equipment and other relevant costs (if any) shall be estimated;

c) Project management costs and investment consultancy costs shall be determined in percentage, estimated or based on the comparison method;

d) Other costs include those are not regulated in Points a, b, c Clause 2 of this Article and shall be determined according to the comparison method or estimated;

dd) Provision costs for unanticipated workload shall be determined in percentage (%) of the total costs regulated in Points a, b, c, d, Clause 2 of this Article. Provision costs for the inflation shall be determined on the basis of the duration of the investment project.

3. Use of the following methods: comparison method, estimation, value calculation, quota and unit price determination at each specific stage shall comply with the promulgation and guidance of the Ministry of Information and Communications and the Ministry of Finance.

Article 37. Appraisal of construction design, cost estimate and total cost estimate

1. Contents of the appraisal of construction design:

a) The suitability of the construction design for the preliminary design of the approved project;

b) The compliance with applied technical regulations and standards;

c) Assessment of level of data security and safety;

d) The suitability of selected solutions and equipment, if any;

dd) Methods of operational safety, fire prevention and fighting.

2. Contents of appraisal of cost estimate and total cost estimate include:

a) The correlation between designed and estimated workloads;

b) The reasonableness of used economic – technical norms, cost norms and unit price; use of norms, unit price, calculation methods, relevant policies and cost items in the cost estimate as regulated;

c) Determination of the value of cost estimate and total cost estimate.

3. Contents of appraising the construction design, cost estimate and total cost estimate shall comply with guidance of the Ministry of Information and Communications.

Article 38. Change of construction design

1. The approved construction design shall be changed in the following cases:

a) The adjustment of project on IT application requires change of the construction design;

b) Unreasonable factors are discovered during the construction resulting in the construction design must be changed to avoid causing influence on the quality of the investment project, construction progress, construction methods and investment efficiency;

2. If the changes of construction design are contrary to the approved preliminary design of the project, the main investor must ask for re-appraisal of the preliminary design before the changes of construction design are approved.

3. The main investor may contract qualified entities to carry out the change of the construction design and/or adjustment of the preliminary design depending on specific conditions of relevant project. Where the changing and adjusting results of the construction design and preliminary design are obtained in accordance with the relevant signed contracts but fail to satisfy the objectives set by the main investor, the main investor must still pay for the workload already accepted in accordance with the assigned contracts.

The costs for changing the construction design and adjusting preliminary design shall be aggregated in the investment consultancy costs of the total investment and total cost estimate of relevant project.

Article 39. Adjustable cases of cost estimate and total cost estimate

1. The main investment shall carry out the adjustment of the cost estimate and total cost estimate in the cases regulated in Clause 1 Article 31 and Clause 1 Article 38 of this Decree.

2. In case the change of cost structure in the total cost estimate, including provision costs, does not exceed the approved total investment, the main investor shall self-carry out the adjustment of cost estimates of the project’s investment works.

3. The main investor may contract qualified entities to carry out the adjustment of cost estimate and total cost estimate depending on specific conditions of relevant project. Where the adjustment of cost estimate and total cost estimate is performed in accordance with the signed contracts but fail to satisfy the objectives set by the main investor, the main investor must still pay for the workload already accepted in accordance with the signed contracts.

4. Contents of adjusted cost estimate and total cost estimate which have been approved by the main investor shall be established as an integral part of the construction design documents.

Article 40. Requirements on development of the investment in IT application

1. Having lawful contract agreement.

2. Ensuring capacity for making settlements according to the progress of contract performance.

3. Having essential documents concerning the project for managing and monitoring the disbursement of investment capital.

Article 41. Insurance for investment in IT application

1. Subject matters of insurance, insurance coverage, insurance period and insurance liabilities of the parties during the performance of investment in IT application must be specified in the contracts.

2. The contractors must buy essential types of insurance to ensure their operation.

Article 42. Management of performance progress

1. The performance progress must be set up before the project on IT application is performed.

2. As for large-scale project whose period of performance is more than one year, the performance progress must be set up for each phase, quarter and year.

3. The contractors shall set up detailed performance progress with the interlacement of works provided that such performance progress must be in consistent with the approved investment progress of relevant project.

4. The main investor, construction supervisors, on-site commanders and relevant parties shall monitor, supervise and adjust the performance progress in case certain phases of the investment progress are extended. If the investment progress of the whole project is deemed to be extended, the main investor must report to the investment decision maker to make decision on adjustment of the performance progress of the investment project or grant permission to terminate the project.

5. It’s encouraged to speed up the performance progress provided that the investment quality must be ensured.

Article 43. Handling of accidents during performance of investment, warranty and operation

1. If accidents occur during the performance of investment, warranty and operation, the main investor and beneficiary of the investment (owner or manager and user of project’s products) shall protect the accident scene, report to the information technology authorities of such accident and prepare accident documents.

In each specific accident, the main investor and beneficiary may contract qualified entity to provide consultancy for examining, assessing and determining the causes of such accident, and clearly determining liabilities of the persons who caused such accident. Costs for contracting consultants shall be extracted from the administrative funding source of administrative agencies or provided by funds from state budget that been allocated to the main investor for making payments.

2. The accident documents include:

a) Accident scene inspection records made according to the form stated in Annex V of this Decree;

b) Description of accident;

c) Results of examining, assessing and determining grade and causes of accident;

d) Design and construction documents concerning such accident.

3. Such accident shall be handled according to guidance and unanimity of the Ministry of Information and Communications and the Ministry of Justice.

Article 44. Disbursement of investment capital to project on IT application

Disbursement of investment capital to the project on IT application shall comply with guidance of the Ministry of Finance.

Chapter IV

FINALIZATION OF INVESTMENT FOR PUTTING PROJECT’S PRODUCTS INTO OPERATION AND USE

Article 45. Finalization of investment for putting project’s products into operation and use

Tasks of this phase include:

1. Transfer of project’s products and works.

2. Operation, training, technological transfer and instructions for use.

3. Checking, acceptance and transfer of project.

4. Warranty on project’s products.

5. Performance of project finalization.

6. Investment capital accounting and approval for such accounting.

Article 46. Testing, trial operation and installation of internal-use software

1. Before the developed or upgraded and modified internal-use software is accepted, it must be tested or undergone a trial operation at least one beneficiary according to the trial operation plan made by the contractor on the basis of as-built dossiers and approval of the main investor.

2. Based on specific conditions of each project, the main investor may choose one of the following plans:

a) Establish a group in charge of carrying out the testing from the project managing unit under the authority of the main investor to carry out the testing or trial operation;

b) Contract a qualified entity to carry out the testing or trial operation.

3. Costs for carrying out the testing or trial operation are aggregated in the costs for developing, upgrading and modifying internal-use software.

4. The testing or trial operation must be performed with the participation of the representatives of the main investor, contractors, construction supervisors, and representative of the unit that is assigned to manage and use project's products. Results of the testing or trial operation and proposals made during the testing or trial operation are set as an integral part of as-built dossiers and must be certified by the participants in such testing or trial operation.

5. The main investor shall base on the results of software testing or trial operation to the following decisions:

a) Officially accept the software, or

b) Request contractors to add functions or perfect relevant software on the grounds of proposals made during the testing or trial operation.

The main investor shall carry out the second testing or trial operation of the internal-use software perfected by contractors. These procedures shall be finalized if requirements on testing or trial operation are satisfied. Contractors shall set up such software according to contents and scale defined in the signed contracts.

Article 47. Acceptance and transfer of project’s products

1. Project's products or works shall be transferred to the main investor only after the testing or trial operation has been carried out and all requirements on quality have been satisfied. The main investor shall carry out the acceptance of project’s products or works with the participation of consultants, designers, contractors and competent supervisory authorities.

2. During the investment performance, the contractors may temporarily transfer each finished product or work of the project to the main investor for putting into operation and use depending on each type of project.

When the project’s product or work is transferred, contractors must transfer the following documents: as-built dossiers, written instructions for use, operation, warranty and maintenance of finished product or work. These types of documents must be specified in contract and set up as a part of project’s products.

Contractors shall carry out technological transfer and give instructions for use to the unit that is assigned to manage and use project's products or works according to contents of the contracts signed with the main investor.

3. As-built drawing:

a) As-built drawing reflects results of construction and installation of equipment and is made by contractor on the grounds of approved construction design and results of measurement and verification of performed products at site with the investor’s confirmation. As-built drawing is a part of as-built dossiers. All approved changes of construction design for construction and installation of equipment must be shown in the as-built drawing;

In case actual measurements and parameters that reflect results of construction and installation of equipment are in conformity with those stated in the approved construction design drawing, such construction design drawing is also the as-built drawing;

b) Name and signature of the as-built drafter must be specified in the as-built drawing. The as-built drawing also requires the signature and seal of contractor’s legal representative. The as-built drawing that has been certified by the main investor shall be used as the basis for carrying out warranty and maintenance of construction and installation of equipment.

4. As for development or upgrading and modification of internal-use software, the contractor shall transfer:

a) Documents established in each phase during the development or upgrading and modification of internal-use software according to contents of signed contracts;

b) Set of software set-up programs;

c) Program source codes;

d) Instructions for use and management, instructions for technical specifications and standards, documents used in training for users.

5. The entire project on IT application shall be transferred to the main investor when all works have been finished according to the approved construction design. Project-related documents and papers must be retained as regulated by the law on state archives.

The main investor shall base on the final acceptance report which records the transfer of all products of relevant project to certify the fulfillment of transfer of all products and carry out accounting of investment capital.

6. In case the project on IT application must be finalized due to the force majeure or as decided by the investment decision maker, the main investor shall carry out the acceptance of finished works with the participation of consultants, designers, on-site commanders and competent supervisory authorities. Costs for carrying out the acceptance in this case shall be extracted from the administrative funding source of administrative agencies or provided by funds from state budget that been allocated to the main investor for making payments.

Article 48. Warranty on project’s products

1. Period of warranty on products of project on IT application shall start from the date on which the acceptance report is signed by the main investor and be regulated as follows:

a) Warranty period is 24 months, applied to products of national important projects and group-A projects;

b) Warranty period is 12 months, applied to products of group-B and group-C projects.

2. Minimum warranty deposit shall be determined in percentage (%) of value of project’s products and regulated as follows:

a) As for products with 24-month warranty period, minimum warranty deposit is 3%;

b) As for products with 12-month warranty period, minimum warranty deposit is 5%.

3. Contractors shall pay warranty deposit to the main investor’s account before the acceptance report is signed. Interest rate of warranty deposit shall apply that of banking deposit. Contractors and the main investor may carry out an agreement on using bank’s letter of guarantee of equivalent value as warranty deposit.

Warranty deposit shall be returned to contractors when period of warranty comes into an end and the warranty job has been completed according to the main investor's certification.

4. Responsibilities of the parties for warranty:

a) The main investor, manger and user of project’s products shall:

- Check and find out errors to request contractor to repair faults or replace equipment. If contractor fails to satisfy warranty job, the main investor and manger and user of project’s products can contract another contractor to repair such faults. Costs for contracting another contractor shall be taken from warranty deposit;

- Supervise and carry out an acceptance of contractor’s repair or replacement;

- Grant certification of completing warranty of project’s products to contractor;

b) Contractor shall:

- Repair or replace equipment in a timely way as requested by the main investor and manger and user of project’s products and pay for costs for carrying out such repair or replacement;

- Refuse to carry out the warranty in the following cases: Errors which are not caused by the contractor’s fault; products must be removed according to decision of the state competent authorities because the main investor violates regulations on state management; Project’s products are not used in conformity with their operating procedures;

c) Contractor must make compensation for damages if errors, accidents or failure of project's products occur by his fault even the warranty period is over. Regulations of the law may apply depending on level of such violation.

Article 49. Handling assets upon project completion

Upon the project completion (including completion of a part of project or completion of each phase of project), assets used for carrying out project operation which shall be not used shall be handed as regulated by the Ministry of Finance.

Article 50. Maintenance of project’s products

1. When warranty period of comes into an end, products of state-funded project on IT application must be undergone maintenance for ensuring their stable and long-term operation.

2. The manager and user of project’s products shall bear responsibility for:

a) Carrying out the maintenance of project’s products according to maintenance procedures set by contractors;

b) Estimate maintenance costs and aggregate such costs into annual operating cost estimate;

c) Assuming liabilities before the law for the deterioration or failure of project's products due to non-performance of regulated maintenance procedures.

Article 51. Financial statement of completed project

Annual financial statement and terminal financial statement of the completed project shall comply with guidance of the Ministry of Finance.

Article 52. Return of investment capital

As for state-funded projects on IT application with capital recovery that the main investor must return investment capital including basic depreciations, a part of profits and other sources of capital (if any).

Article 53. Protection of copyright on project’s products

1. Unit that is assigned to manage and use the products of state-funded project on IT application shall comply with the Law on intellectual property and copyright protection.

2. Users of products stated in Clause 1 of this Article must execute the following obligations:

a) Ask for permission for using products;

b) Pay using charges.

State authorities shall not pay using charges provided that such use must be approved in writing by the manager of project’s products.

3. The Ministry of Information and Communications shall coordinate with the Ministry of Finance to promulgate regulations on charges for using products stated in Point b Clause 2 of this Article.

Article 54. Updating information to national database

1. Information concerning the products of state-funded project on IT application must be updated into the national database for managing investments in IT application for the purpose of avoiding waste of state budget.

2. Updating information to the national database:

a) After the project has been approved, the main investor shall update information on preliminary design and total investment of the project through IT unit which is under the authority of the investment decision maker;

b) After the project’s products have been accepted and transferred, the main investor shall update all related information through IT specialized unit which is under the authority of the investment decision maker.

3. Information included in documents of state-funded project on IT application must be published on the website of the Ministry of Information and Communications for supporting the management of investments in IT application, especially projects for developing, or upgrading and modifying software.

Information that belongs to state secret must be managed and provided as regulated by the Law on protection of state secrets.

4. Determination of information that must be provided and updated into the national database at each phase shall comply with guidance of the Ministry of Information and Communications.

Chapter V

MANAGEMENT AND OPERATION OF PROJECT ON INFORMATION TECHNOLOGY APPLICATION

Article 55. Forms of project management

1. Based on capacity conditions of entities, requirements on project on IT application, the investment decision maker shall choose one of the following forms of project management:

a) Recruit project management and consultancy organization if the main investor cannot meet capacity requirements;

b) The main investor is authorized to directly manage the project if the main investor can meet all capacity requirements.

2. If the main investor directly manages the project, a project management board is established to carry out the project management.

As for simple and small-scale projects whose total investment is under VND 10 billion, the main investor shall not establish the project management board. The main investor shall authorize a specialized unit to manage the project or contract specialist to support the project management.

3. If the main investor recruits a project management and consultancy organization, responsibilities and rights of such organization shall be performed according to the contract signed by and between the two parties. The project management and consultancy organization must meet capacity requirements as regulated in this Decree.

The main investor shall assign its specialized unit to inspect and monitor the performance of the signed contract of the project management and consultancy organization.

4. The Ministry of Information and Communications shall provide detailed guidance on forms of project management and stipulate the project management costs after reaching agreements with the Ministry of Finance.

Article 56. Responsibilities for project management of the main investor

1. The main investor shall bear responsibility for managing and performing the project, executing duties and rights from the investment preparation and investment performance till finalization of investment. The main investor shall bear responsibility for carrying out the acceptance and transfer of project's products for use, ensuring the efficiency and feasibility of project, complying with the laws. The main investor shall also bear responsibility for the works performed by the assigned project management board or project management and consultancy organization according to the signed contract.

2. In case the main investor directly mange the project, the main investor must assign at least one head of the unit in charge of carrying out the project management to perform the project management and specialized units of the main investor to provide advice to the assigned head to carry out duties and rights of the main investor, and monitor, inspect and expedite the project management board to perform assigned duties and rights.

3. In case the main investor enters into the contract with a project management and consultancy organization, the main investor must assign at least one head of the unit in charge of carrying out the project management to perform the project management and specialized units of the main investor to provide advice to the assigned head to carry out duties and rights of the main investor, and monitor and inspect the performance of the contract signed with the project management and consultancy organization for the purpose of ensuring that the project shall be performed according to approved contents, progress with high quality and efficiency.

Article 57. Duties, powers of the main investor and the project management board, if established

1. Duties, powers of the main investor:

a) Assign duties and grant powers to the project management board in the following principles: Suitability for actual conditions of the main investor and project’s requirements; responsibilities of the main investor and the project management board must be clearly determined; give great powers to the project management board to ensure that duties must go together with powers for the purpose of minimizing administrative procedures between the main investor and the project management board;

Assignment of duties and powers to the project management board must be specified in the decision on establishment of the project management board, letters of assignment and authorization of the main investor.

The main investor must directly carry out certain duties and powers as follows: approve construction design, and cost estimate and total cost estimate; adjust construction design, and cost estimate and total cost estimate; submit for approval for adjusted preliminary design; inspect and approve certain important contracts before they are delivered to the project management board; carry out the acceptance of project’s products for putting into use. In special cases, the main investor may authorize the project management board to execute the aforesaid duties and rights provided that such authorization must be reported to the investment decision maker to make consideration and decision.

b) If the main investor is not the manager and user of project’s products, the manager and user of project’s products shall assign an individual to participate in project management together with the main investor from the investment preparation till finalization of investment, including receiving and putting project’s products into use;

The individual who is assigned by the manager and user of project’s products shall participate in the project management board and be appointed to hold the position of Deputy Director of the project management board. Such individual must not meet all requirements on professional skills and experience as regulated in Clause 3 of this article but he must attend the professional training courses for management and investment in IT application (project establishment and project management subjects).

c) The main investor can assign one project management board to manage many projects if all capacity requirements have been satisfied and such assignment has been approved by the investment decision maker.

2. Duties, powers of the project management board:

a) Perform duties and powers assigned and granted by the main investor. The project management board shall bear responsibility before the main investor and legal liabilities within scope of assigned duties and authorized powers;

b) Carry out procedures and perform other works for project performance;

c) Carry out the establishment and preparation of documents concerning construction design, cost estimate and total cost estimate, and then submit them to the main investor for appraisal and approval as regulated;

d) Establish required documents (such as bidding documents) and select contractors;

dd) Negotiate and enter into contracts with qualified contractors according to the main investor’s authorization;

e) Perform the construction supervision job if all capacity requirements have been satisfied;

g) Carry out acceptance, payments and accounting according to signed contracts;

h) Manage quality, workload, progress, performance costs, requirements on fire prevention and fighting, operational safety and industrial cleaning at the construction site;

i) Carry out the acceptance and transfer of project’s products;

k) Prepare reports on investment supervision and assessment and accounting report when the project has been finished and put into operation and use;

l) The project management board shall not establish its affiliated project management boards or income-generating administrative units to be in charge of project management;

m) If the project management board is assigned to manage many projects, each project shall be separately managed, monitored and recorded. Upon the project completion, the project management board must carry out accounting in a timely manner as regulated;

n) In case of need, the project management board may recruit qualified entities to manage and supervise certain works in which the project management board cannot meet capacity requirements for performance provided that such cooperation must be approved by the main investor. The costs for contracting such entities in this case shall be aggregated in the investment consultancy costs of the total investment and total cost estimate of relevant project.

o) The project management board may enter into contracts with qualified foreign consultants to perform the works which cannot be performed by domestic consultants or to meet other special requirements. Entering into contracts with foreign consultants must be approved by the investment decision maker.

3. Organizational structure of the project management board includes director, deputy directors, specialized units; participants in the project management board may perform specialized or concurrent works.

Director, deputy directors and individuals in charge of information technology, economics, and finance must possess university’s qualifications in corresponding majors, have at least 3 years of experience in relevant specialized sectors and attended professional training courses for management and investment in IT application (project establishment and project management subjects). As for group-C projects in remote areas, the aforesaid positions may be assigned to the individuals who possess college or vocational education qualifications in corresponding majors.

Article 58. Transformation or re-organization of redundant project management boards

1. Ministries, ministerial-level agencies and people’s committees at all levels shall base on actual number of projects on IT application in which they are acting as the main investors, and orientations and plans for IT application of the following year to make decisions on transformation or re-organization of the project management boards according to one of the following plans:

a) In case ministries, regulatory bodies and local governments only have some projects resulting in the redundancy of project management boards, such project management boards must be re-arranged or re-organized in conformity with actual requirements; the project management boards that are in charge of managing in-progress projects or shall be in charge of managing projects in which the investment has been decided with the project management directly performed by the main investors shall be kept alive; it is prevented project management boards from waiting for projects;

Idle project management boards may be transformed into professional project management and consultancy enterprises to support the main investors in managing projects through contracts signed with the main investors. Based on actual conditions, ministries, regulatory bodies and local governments direct the establishment of project management and consultancy enterprises on the grounds of transformation of one project management board or consolidation of some project management boards for meeting capacity requirements on project management as regulated.

If the project management boards cannot be re-organized or transformed according to the aforesaid plans, ministries, regulatory bodies and local governments shall make dissolution decisions. Unsolved issues of previous projects as well as rights and benefits of members of relevant project management boards must be settled definitively.

b) In case project management boards want to be transformed into consultancy enterprises to use and promote their every existing professional capacity and experience, ministries, regulatory bodies and local governments shall grant decisions and facilitate such project management boards in transforming into professional project management and consultancy enterprises provided that such transformation shall not interrupt the project management.

Article 59. Duties and powers of main investor and project management and consultancy organization that is contracted by the main investor

1. The main investor shall select and enter into contract with qualified project management and consultancy organization to support the main investor in performing the project management.

2. Organizational structure of a project management and consultancy organization includes a director in charge of project management and consultancy, deputy directors and specialized divisions in conformity with duties and rights defined in the contract signed with the main investor.

Director in charge of project management and consultancy must meet capacity requirements as regulated. Deputy directors and individuals in charge of specialized works must possess university’s qualifications in corresponding majors and have at least 3 years of experience in relevant specialized sectors.

3. Project management and consultancy organization can contract qualified and experienced entities to perform certain works of project management provided that such contract must be approved by the main investor and in conformity with duties and rights defined in the contract signed by the project management and consultancy organization with the main investor.

4. The project management and consultancy organization must bear responsibility before the law and the investor for all contents committed in the signed contract, and must compensate for damages caused by such organization’s faults during the project management.

Chapter VI

REQUIREMENTS ON CAPACITY OF ENTITIES ENGAGING IN INVESTMENT IN INFORMATION TECHNOLOGY APPLICATION

Article 60. General provisions on capacity requirements of relevant entities

1. Entities engaging in investment in IT application must satisfy requirements on capacity and experience as regulated in this Decree.

2. Individuals engaging in investment in IT application must possess diplomas or training certificates issued by qualified training facilities in conformity with undertaking works and have obtained certificates of completion of professional training courses in management of investment in IT application as regulated by the Ministry of Information and Communications.

3. Individual acting as director of project management and consultancy organization, or on-site commander, or construction supervisor shall only hold a single position within the same period.

The individual holding positions regulated in Clause 2 and Clause 3 of this Article must enter into contract with concerned organization as regulated by laws. Duration of such contract must be long enough for such individual to fulfill all assigned works according to undertaking position.

4. Organization's capacity for carrying out consultancy and investment in IT application shall be determined according to levels on the grounds of capacity conditions of individuals in such organization, consultancy experience, financial capacity, facilities and management capacity of such organization.

5. As for state-funded projects, the consultant engaging in the establishment of construction design shall not enter into supervision consultancy contract with the main investor to supervise the performance of the established construction design; the construction supervision consultant shall not enter into contract with construction contractors to carry out the inspection of investment quality of project in which the construction is supervised by such construction supervision consultant.

The construction supervision consultant shall also not enter into construction contract for performing project or investment work of the project under his construction supervision.

Article 61. Requirements on capacity of preliminary design chief

1. Capacity of preliminary design chief:

a) Must possess a university’s degree in information technology, has attended professional training courses for establishment and management of investment in IT application (project establishment and project management subjects) and must satisfied capacity requirements in corresponding with each level as follows:

b) Level 1:

An individual is recognized as Level-1 preliminary design chief if he has satisfied all requirements on Level 2, has at least 7 consecutive years of experience in establishment of project on IT application, and has participated in the establishment of at least 5 preliminary designs of group-A, group-B or group-C projects on IT application or has acted as preliminary design chief of a project of equivalent investment scale.

c) Level 2:

An individual is recognized as Level-2 preliminary design chief if he has at least 5 consecutive years of experience in establishment of project on IT application and has participated in the establishment of at least 3 investment reports or 2 feasibility study reports of group-C projects on IT application;

d) As for remote areas, individual who has college or vocational school’s diploma in information technology, has at least 3 consecutive years of experience in establishment of project on IT application and has participated in the establishment of at least 1 investment report of group-C project on IT application shall act as the preliminary design chief of the project that only requires the investment report established.

2. Scope of activities:

a) Level 1: Level-1 preliminary design chief can act as the preliminary design chief and establish national important projects, group-A, group-B and group-C projects on IT application;

b) Level 2: Level-2 preliminary design chief can act as the preliminary design chief and establish group-C projects on IT application;

c) Individuals who are not qualified for the aforesaid levels shall not hold the position of preliminary design chief but can participate in the establishment of preliminary design.

Article 62. Capacity requirements of project establishment consultancy organization

1. Capacity of project establishment consultancy organization is divided into 2 levels as follows:

a) Level 1:

The project establishment consultancy organization of this level must have at least 10 individuals possessing university’s qualifications in information technology, economics or finance in conformity with project’s requirements; among which there is an individual eligible for acting as level-1 preliminary design chief;

b) Level 2:

The project establishment consultancy organization of this level must have at least 7 individuals possessing university’s qualifications in information technology, economics or finance in conformity with project’s requirements; among which there is an individual eligible for acting as level-2 preliminary design chief.

2. Scope of activities:

a) Level 1: Level-1 project establishment consultancy organization can establish national important projects, group-A, group-B and group-C projects;

b) Level 2: Level-2 project establishment consultancy organization can establish group-C projects;

c) Organization that does not meet requirements for being classified into the aforesaid levels must enter into cooperation or joint venture contract with another qualified organization to perform project establishment job.

Article 63. Requirements on capacity of Director in charge of project management and consultancy

1. Capacity of Director in charge of project management and consultancy is divided into 2 levels. Individual who acts as the Director in charge of project management and consultancy must possess a university’s degree in information technology or higher, has attended professional training courses for management and investment in IT application (project establishment and project management subjects) and must satisfy requirements in corresponding with each level as follows:

a) Level-1 Director in charge of project management and consultancy:

- An individual is qualified for Level-1 Director in charge of project management and consultancy if he has qualified all requirements on capacity of Level-2 Director in charge of project management and consultancy, has at least 7 consecutive years of experience in project establishment and management, has participated in the project management job of 1 group-A project or 2 group-B projects or 5 group-C projects, and has acted as on-site commander of group-C project;

b) Level-2 Director in charge of project management and consultancy:

- An individual is qualified for Level-2 Director in charge of project management and consultancy if he has at least 5 consecutive years of experience in project establishment and management and has participated in the project management job of 1 group-B project or 2 group-C projects;

c) As for remote areas, individuals who have college or vocational school’s diplomas in information technology and have at least 3 consecutive years of experience in project management shall be eligible for acting as Directors in charge of project management and consultancy of projects that only require the investment reports established.

2. Scope of activities:

a) Level 1: Level-1 Director in charge of project management and consultancy can manage national important projects, group-A, group-B and group-C projects;

b) Level 2: Level-2 Director in charge of project management and consultancy can manage group-C projects.

Article 64. Requirements on capacity of project management and consultancy organization

1. Capacity of project management and consultancy organization is divided into 2 levels as follows:

a) Level 1:

- Level-1 Director in charge of project management and consultancy is available;

- There are at least 10 individuals who possess university’s qualifications in information technology, economics or finance in conformity with project’s requirements; among which there are individuals eligible for acting as chief surveyor, construction design chief and on-site commander; and requirements on capacity of level-1 construction supervision organization have been satisfied.

b) Level 2:

- Level-2 Director in charge of project management and consultancy is available;

- There are at least 7 individuals who possess university’s qualifications in information technology, economics or finance in conformity with project’s requirements; among which there are individuals eligible for acting as chief surveyor, construction design chief and on-site commander; and requirements on capacity of level-2 construction supervision organization have been satisfied.

2. Scope of activities:

a) Level 1: Level-1 project management and consultancy organization can manage national important projects, group-A, group-B and group-C projects;

b) Level 2: Level-2 project management and consultancy organization can manage group-C projects;

c) Organization that does not meet requirements for being classified into the aforesaid levels must enter into cooperation or joint venture contract with another qualified consultancy organization to perform the project management and consultancy job.

Article 65. Requirements on capacity of chief surveyor

Chief surveyor must possess a university’s degree in information technology and has attended professional training courses for management and investment in IT application (project establishment and project management subjects), and is ranked into the following groups:

a) If the individual has participated in the performance of at least 2 survey tasks of group-A projects or 3 survey tasks of group-B or group-C projects, he shall be eligible for acting as chief surveyor of group-A project;

b) If the individual has participated in the performance of at least 2 survey tasks of group-B or group-C projects, he shall be eligible for acting as chief surveyor of group-B or group-C project.

Article 66. Requirements on capacity of survey consultancy organization

1. Requirements on capacity of survey consultancy organization:

a) There are at least 10 individuals who possess university’s degrees in information technology in conformity with requirements on survey tasks; among which there are individuals eligible for acting as chief surveyors of project groups in conformity with requirements on survey tasks.

b) Equipment for carrying out each survey job is available.

2. Scope of activities: Survey consultancy organization can carry out the survey for establishing investment projects or establishing construction designs in conformity with capacity of chief surveyor and requirements on survey tasks.

Article 67. Requirements on capacity of construction design chief

1. Construction design chief must possess a university’s degree in information technology or higher and is divided into 2 levels as follows:

a) Level 1:

- An individual is eligible for level-1 construction design chief if he has satisfied all requirements on level-2 construction design chief and has attended professional training courses for management and investment in IT application (subjects of project establishment and management, establishment of cost estimate of IT application investment); and

- Has hold the role of construction design chief of at least 01 group-A project, or 02 group-B projects, or has participated in construction design job of 5 group-C projects, and has at least 7 consecutive years of experience in construction design;

b) Level 2:

- An individual is eligible for level-2 construction design chief if he has attended professional training courses for management and investment in IT application (subjects of project establishment and management, establishment of cost estimate of IT application investment); and

- Has hold the role of construction design chief of at least 01 group-B project, or has participated in construction design job of 2 group-C projects, and has at least 5 consecutive years of experience in construction design;

c) As for remote areas, individuals who have college or vocational school’s diplomas in information technology, have at least 3 consecutive years of experience in construction design shall be eligible for acting as the construction design chief of project that only requires investment report established.

2. Scope of activities:

a) Level 1: Level-1 construction design chief can hold the role of construction design chief of group-A, group-B and group-C projects;

b) Level 2: Level-2 construction design chief can hold the role of construction design chief of group-B and group-C projects;

Article 68. Requirements on capacity of construction design and consultancy organization

1. Capacity of construction design and consultancy organization is divided into 2 levels as follows:

a) Level 1:

- There are at least 10 individuals who possess university’s qualifications in information technology, economics or finance;

- Level-1 construction design chief is available;

- Level-1 construction design and consultancy organization has performed the construction design of at least 01 group-A project or 02 group-B projects or 5 group-C projects;

b) Level 2:

- There are at least 7 individuals who possess university’s qualifications in information technology, economics or finance;

- Level-2 construction design chief is available;

- Level-2 construction design and consultancy organization has performed the construction design of at least 01 group-B project or 02 group-C projects.

2. Scope of activities:

a) Level 1: Level-1 construction design and consultancy organization can perform construction design of national important projects, group-A, group-B and group-C projects;

b) Level 2: Level-2 construction design and consultancy organization can perform construction design of group-B and group-C projects;

c) Organization that does not meet requirements for being classified into the aforesaid levels must enter into cooperation or joint venture contract with another qualified organization to perform the construction design job.

Article 69. Requirements on capacity of construction supervision and consultancy organization

1. Capacity of construction supervision and consultancy organization is divided into 2 levels as follows:

a) Level 1:

- There are at least 10 individuals who possess university’s qualifications in information technology and have attended professional training courses for management and investment in IT application (construction supervision subject);

- Such organization has performed the construction supervision of at least 01 group-A project or 02 group-B projects or 03 group-C projects;

b) Level 2:

- There are at least 7 individuals who possess university’s qualifications in information technology and have attended professional training courses for management and investment in IT application (construction supervision subject);

- Such organization has performed the construction supervision of at least 2 group-C projects.

2. Scope of activities:

a) Level-1 construction supervision and consultancy organization can perform the construction supervision of group-A, group-B and group-C projects;

b) Level-2 construction supervision and consultancy organization can perform the construction supervision of group-C projects;

c) Organization that does not meet requirements for being classified into the aforesaid levels must enter into cooperation or joint venture contract with another qualified consultancy organization to perform the construction supervision.

Article 70. Requirements on capacity of on-site commander

1. On-site commander must possess a university’s degree in information technology or higher and has at least 5 consecutive years of experience in construction and installation of IT infrastructure system.

As for remote areas, individuals who have college or vocational school’s diplomas in information technology and have at least 3 years of experience in construction and installation of IT infrastructure system shall be also eligible for holding the position of on-site commander.

2. Scope of activities: On-site commander shall direct the construction and installation of IT infrastructure system of group-A, group-B and group-C projects at construction site.

Article 71. Requirements for freelancers specialized in design, survey and supervision

1. Requirements for freelancers specialized in design, survey and supervision:

a) The freelancer must possess university’s qualification in information technology and has attended professional training courses for management and investment in IT application (with suitable subjects);

b) The freelancer has to register for individual taxpayer identification number as regulated by the laws;

c) The freelancer must satisfy requirements on experience according to each undertaking position.

2. Scope of activities:

a) Freelancer specialized in survey can act as chief surveyor, carry out the survey, establish survey tasks and prepare reports on survey results if all requirements on capacity regulated in Clause 1 of this Article have been satisfied;

b) Freelancer specialized in design can act as preliminary design chief, develop preliminary design and construction design if all requirements on capacity regulated in Clause 1 of this Article have been satisfied;

c) Freelancer specialized in survey or construction supervision can supervise the survey or construction job if all requirements on capacity regulated in Clause 1 of this Article have been satisfied.

3. When freelancers perform relevant works, they must comply with regulations of this Decree and relevant laws.

Article 72. Requirements on capacity of foreign entities providing consultancy or performing contracts in the field of IT application investment in Vietnam

Foreign entities that provide consultancy or perform contracts in the field of IT application investment in Vietnam must satisfy all requirements on capacity as regulated in this Decree, obtain operation licenses from the state competent authorities and comply with relevant laws of Vietnam.

Chapter VII

PROFESSIONAL TRAINING IN MANAGEMENT AND INVESTMENT IN INFORMATION TECHNOLOGY APPLICATION

Article 73. Professional training in management and investment in IT application

1. Entities:

a) Individuals who directly participate in management, consultancy and performance of the investment in IT application must obtain certificates of completion of professional training courses in management and investment in IT application;

b) Other individuals who have demands.

2. Management of training in management and investment in IT application:

The Ministry of Information and Communications shall organize the training in management and investment in IT application. To be specific:

a) Provide for frameworks programs of professional training, forms of certificates of completion of training courses in management and investment in IT application and their period of validity after having taken suggestion of the Ministry of Education and Training;

b) Summarize training situation of training facilities through annual reports on performance situation of professional training submitted by such training facilities;

c) Establish database system of training facilities in management and investment in IT application on the grounds of information provided by such training facilities.

3. Requirements for training facilities in management and investment in IT application include:

a) Training facility must have business registration certificate (or establishment decision if such training facility does not have business registration certificate) as regulated by the laws;

b) Lecturers who specialized in management and investment in IT application are available;

c) Training facility must be included in the list of facilities qualified for training in management and investment in IT application which is published on the website as regulated in Article 74 of this Decree.

4. Requirements on issuance of certificate of completion of the training course in management and investment in IT application:

a) Certificate of completion shall be granted to the individual who has fulfilled all courses of management and investment in IT application according to training program in corresponding with each subject and passed required examinations;

b) Period of each course in management and investment in IT application is 5 days or more.

5. Responsibilities and obligations of training facilities in management and investment in IT application:

a) Bear responsibility for training quality; provide the training facility-related information to the database system as regulated in Point b Clause 2 of this Article;

b) Organize the training in management and investment in IT application and issue certificates of completion to qualified students as regulated;

c) Submit annual reports to the Ministry of Information and Communications (via Services of Information and Communications) and relevant ministries, regulatory bodies or local governments on training situation for inspection and summation.

Article 74. Website on capacity for management and investment in IT application

1. The following information on capacity for management and investment in IT application must be published on the website on capacity for management and investment in IT application which is managed by the Ministry of Information and Communications:

a) Information on training in management and investment in IT application;

b) Information about facilities qualified for training in management and investment in IT application;

c) Information concerning entities that have qualified all requirements on capacity for engaging in investment in IT application;

d) Information on taking actions against violations of the law on management and investment in IT application;

dd) Prevailing legislative documents on management and investment in IT application;

e) Other relevant information (publishing of bidding information shall comply with the law on bidding).

2. After information regulated in Clause 1 of this Article has been posted gratis on the website on capacity for management and investment in IT application, such information may be extracted for publishing on other means of mass media to facilitate concerned entities in updating information.

3. Provision of information for publishing:

a) Ministries, Ministerial-level agencies, other central-affiliated agencies and Services of Information and Communications shall provide information regulated in Point d, dd and e, Clause 1 of this Article;

b) The main investors shall provide information regulated in Point a, Point b, Point c, Point d and Point e, Clause 1 of this Article.

4. Provision of information, schedule and plans for publishing information on the website on capacity for management and investment in IT application shall comply with guidelines of the Ministry of Information and Communications.

Chapter VIII

IMPLEMENTATION

Article 75. Implementation organization

1. Projects on IT application which have been approved before the effective date of this Decree but have been not performed or have been in progress shall apply the law on investment management promulgated at the approving time of relevant project.

In case the project, total investment capital, construction design, cost estimate or total cost estimate must be adjusted as regulated in this Decree, such adjustment shall be considered and performed by the competent persons provided that such adjustment shall not interrupt the performance of relevant project.

2. If project on IT application has been established and appraised but has been not approved before the effective date of this Decree, the following steps in performing such project shall apply regulations of this Decree.

3. Entities that are engaging in the investment in IT application shall continue their operation up to December 31, 2010, inclusively. As of January 01, 2011, entities that engage in the investment in IT application must satisfy all capacity requirements as regulated in this Decree.

4. Quota, unit price, average wages for workers, costs of machines and equipment for construction and costs of materials directly aggregated in costs for performing state-funded project on IT application which have been promulgated by the Ministry of Information and Communications, regulatory ministries and local governments before the effective date of this Decree shall be announced in order that relevant entities can refer, apply or use such announcement as the basis for determining and managing the costs for investment in IT application.

Article 76. Effect

This Decree shall take effect as of January 01, 2010. Previous regulations promulgated by the Government, Ministries, Ministerial-level agencies and local authorities that are contrary to this Decree shall be abrogated./.

ANNEX I

CLASSIFICATION OF PROJECTS ON INFORMATION TECHNOLOGY APPLICATION WITH FUNDS FROM STATE BUDGET
(Promulgated under the Government's Decree No. 102/2009/ND-CP dated November 06, 2009)

Projects on information technology application with funds from state budget shall be classified as follows:

ANNEX II

FORM OF APPLICATION FOR APPRAISAL AND APPROVAL FOR PROJECT ON INFORMATION TECHNOLOGY APPLICATION
(Promulgated under the Government's Decree No. 102/2009/ND-CP dated November 06, 2009)

APPLICATION FOR PROJECT APPRAISAL AND APPROVAL

(Name of project)…………To:……………………………….Pursuant to the Government’s Decree No……/2009/ND-CP dated …./…./2008 on management of investment in application of information technology with funds from state budget;

Other related legal grounds;

The main investor hereby applies for appraisal and approval for project ……. (Name of project)…..with the following main contents:

1. Name of project:

2. The main investor:

3. Name of project establishment and consultancy organization:

4. Investment objectives:

5. Investment contents and scale:

6. Investment location:

7. Preliminary design:

8. Primary and auxiliary equipment:

9. Total investment capital of project:

Total:

In which:

- Construction costs:

- Equipment costs:

- Project management costs:

- Investment consultancy costs:

- Other costs:

- Provision costs:

10. Source of investment capital:

11. Form of project management:

12. Period of project performance:

13. Other contents:

ANNEX III

FORM OF SURVEY ACCEPTANCE REPORT
(Promulgated under the Government's Decree No. 102/2009/ND-CP dated November 06, 2009)

SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
-----------------------

…….., day……month……..year……..

SURVEY ACCEPTANCE REPORT

Project:……………..(name of project)………………. No.: ………

1. Subjects of acceptance: (specify survey tasks, design procedures)

2. Participants in acceptance:

a) The main investor: (specify name of organization or individual)

- Full name and position of legal representative:……………….

b) Survey supervisor, if any: (specify name of organization or individual)

- Full name and position of legal representative:……………….

c) Surveyor: (specify name of organization or individual)

- Full name and position of legal representative:……………….

- Full name and position of chief surveyor:…………………………….

3. Time of survey acceptance:

The survey acceptance starts from:………….day………month………..year………

Ends at:.............. ….day………month………..year…………..

At:………………………………………….

4. Assessment of report on survey results:

a) Survey quality (compared to survey tasks);

b) Scale and scope of survey (compared to those defined in the survey contract);

c) Quantity and presentation of report on survey results;

d) Other issues, if any.

5. Conclusion:

- Accept or not to accept survey results.

- Request relevant entities to make amendments to the report on survey results and other suggestions, if any.

Survey acceptance documents include:

- Survey acceptance report and attached annexes, if any;

- Documents used as the basis for carrying out the acceptance of survey results.

ANNEX IV

FORM OF DECISION ON APPROVAL FOR PROJECT ON INFORMATION TECHNOLOGY APPLICATION
(Promulgated under the Government's Decree No. 102/2009/ND-CP dated November 06, 2009)

DECISION OF ……………..
GIVING APPROVAL FOR PROJECT (Name of project)………….

(NAME OF APPROVING INDIVIDUAL/AUTHORITY)

Basing on functions, duties and organizational structure of…………….;

Pursuant to the Government’s Decree No. …../2009/ND-CP dated…/…/2009 on management of investment in IT application with funds from state budget;

Pursuant to other related legal grounds;

At the request of …….at the Statement No.............dated....../..../...... and appraisal reports of .......

DECIDES:

Article 1. To approve……(Name of project)…..with the main contents as follows:

1. Name of project:

2. The main investor:

3. Name of project establishment and consultancy organization:

4. Investment objectives:

5. Investment contents and scale:

6. Investment location:

7. Preliminary design:

a) Preliminary design solutions required:

b) Preliminary design solutions that may be revised by the main investor in subsequent steps of design:

8. Primary and auxiliary equipment:

9. Estimate of total investment capital of project:

Total:

In which:

- Construction costs:

- Equipment costs:

- Project management costs:

- Investment consultancy costs:

- Other costs:

- Provision costs:

10. Source of investment capital:

11. Form of project management:

12. Period of project performance:

13. Bidding plans (if any):

14. Other contents:

Article 2. Implementation organization.

Article 3. Responsibilities of concerned authorities for the implementation of this decision.

ANNEX V

FORM OF ACCIDENT SCENE INSPECTION RECORDS
(Promulgated under the Government's Decree No. 102/2009/ND-CP dated November 06, 2009)

 RECORDS OF INFORMATION TECHNOLOGY SYSTEM ACCIDENT SCENE INSPECTION
Project:……………..(name of project)……………….

1. Works of accident:…………….

2. Investment location: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3. Accident scene inspection records are made according to the following contents:

a) Time of accident:………hour(s)…….day….month…..year……

b) Brief description of accident, state of IT system when such accident occurs………………

c) Brief description of human and material losses………………..

d) Brief description of reasons of the accident (if any)……………. 

Notes:

a) The main investor shall prepare reports on the accident that occurs at the construction site during the investment performance;

b) The manager and user of project’s products shall prepare reports on the accident that occurs during the use and operation of project’s products.

Participants in preparation of accident records include:

- Construction contractor: (legal representative’s signature and seal)

- Contractor in charge of establishing construction design: (legal representative’s signature and seal)

- Construction supervisor: (legal representative’s signature and seal)

- Other participants, if any.

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