Chương III Nghị định 102/2009/NĐ-CP: Thực hiện đầu tư

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.