Chương I Nghị định 102/2009/NĐ-CP: Những quy định chung

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.

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