Chương II Nghị định 102/2009/NĐ-CP: Chuẩn bị đầu tư

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.