Chương IV Nghị định 102/2009/NĐ-CP: Kết thúc đầu tư đưa sản phẩm của dự án vào khai thác, sử dụng

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.