Quyết định 80/2014/QD-TTg

DECISION

PROVIDING FOR THE PILOT LEASING OF INFORMATION TECHNOLOGY SERVICES IN STATE AGENCIES

Pursuant to the Law on organization of Government dated 25 December 2001;

Pursuant to the Law on Information Technology dated 29 June 2006;

Pursuant to the Law on State Budget dated 16 December 2002;

Pursuant to the Public Investment Law dated 18 June 2014;

Căn cứ Luật Đấu thầu ngày 26 tháng 11 năm 2013;

Pursuant to the Law on Tendering dated 26 November, 2013;

In furtherance of Resolution dated No. 47 / NQ-CP dated 8 July, 2014 of the Government's regular meeting held in June 2014;

At the request of the Minister of Information and Communications,

The Prime Minister issues the Decision providing for the pilot leasing of information technology services in state agencies.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation and subjects of application

1. Scope of regulation:

This Decision provides for the leasing of information technology services in state agency using the non-business expenditure funds, investment and development expenditure funds and other legal state funds.

2. Subjects of application:

a) State agencies, public non-business units, public scientific and technological organizations, units of the people's armed forces, political organizations, political – social organizations, political - social - professional organizations, social organizations, social - professional organizations (hereinafter referred to as state agencies) have used the state funds to lease the information technology services;

b) Enterprises, organizations and individuals involved in providing information technology services to the state agencies (hereafter referred to as services provider).

Article 2. Selecting form of implementation of information technology application in state agencies

1. List of information technology application activities in state agencies:

a) The information technology application activities of the state agencies include: E-mail system; document management and operating system; business software system; live conference and meeting system; general management information system; information exchange system, online documents; database update, storage, and processing and mining and other information technology application activities which are used within state agencies;

b) The information technology application activities in service of people and enterprises include: electronic one-stop application; electronic website and portal; online public administrative services providing system; infrastructure operation, monitoring and management system; online customer care and query and question system and other information technology application activities in service of people and enterprises;

c) Activities related to the information technology infrastructure such as supply of technical equipment, server, workstation, peripheral equipment, supply of infrastructure and equipment connected to intranet, extranet, internet and access to public service; supply of database system, data center and cloud computing system;

d) Survey, installation, warranty, maintenance, upgrade, training, transfer AND consultation on information technology; deployment, management, maintenance, operation and integration of system and interconnectivity of information systems;

dd) Safety and information security assurance such as supply of system, equipment and solution to information safety; supply of solution to prevention of unauthorized access, firewall; prevention and control of virus, spyware, vandalism; inspection, assessment and monitoring of information safety; rescue and troubleshooting of information security;

e) Other information technology application activities.

2. Based on the need, actual conditions and maximum mobilization of resources and investment from enterprises and society for the information technology application and explanation of effectiveness between the services leasing compared with the investment, development and operation of information technology application, the competent state agencies shall decide the selection of form of services leasing or investment, procurement or development to carry out the information technology application activities specified in Clause 1 of this Article, in which the services leasing is given the priority.

Article 3. Authority in leasing of information technology services

1. Ministers, Heads of ministerial-level agencies, Heads of government-attached agencies, Chairmen of the People's Committees at all levels shall decide or authorize the heads of subordinate agencies or units (hereinafter referred to as the competent Person). The leasing of information technology services is by the state budget in the agencies and units under management.

2. The competent person specified in Clause 1 of this Article shall decide the unit which is in charge of signing and implementing the leasing of information technology services (hereinafter referred to as unit in charge of services leasing).

Article 4. Principles of leasing of information technology services in state agencies

The leasing of information technology services in state agencies is done in the following principles:

1. Improving the efficiency of information technology application in state agencies and decreasing the investment from the state budget. In feasible cases, the technical infrastructure, information system, software, hardware, information and data available are further made the most.

Considering the application of leasing concentrated services within the Ministries, provinces and centrally-run cities for information technology services with identical nature and features which many agencies and units have the same need of use.

2. Information and data formed in the process of leasing of services and software separately ordered for services supply (if any) are the assets owned by the lessee. The services provider shall fully transfer the information, data and source code of said software separately ordered and necessary instruments upon termination of contract to ensure that the state agencies still utilize such services continuously in case of change of services provider.

3. Ensuring the requirements on services quality, technology and process of services supply; continuity, connection and synchronization on information technology application in each ministry, sector, province, city and the whole country.

4. Ensuring the safety, security and privacy on information and data of the state agencies; the compliance with regulations of law on safety, information security, cipher and Ordinance on protection of state secrets.

5. Giving the priority to the enterprises and organizations in which the Vietnamese legal and natural persons take dominant control and dominant share (for joint stock companies) or hold the dominant contributed capital (for other types of enterprise) to provide the inforation technollogy services in the state agencies.

Where the international agreements in which Vietnam is a signing or acceding party, except for cases otherwise stipulated, the provisions in such agreements shall be applied.

Article 5. Principles of allocation and use of funds for leasing of information technology services in state agencies

1. The funds for leasing of information technology services in state agencies are from the non-business expenditure funds, investment and development expenditure funds and other legal state funds

2. In case of leasing of information technology services using the non-business expenditure funds and the ones for leasing of information technology services as the funds allocated to carry out irregular tasks, the autonomy of state agencies shall not be applied. The unit in charge of services leasing for planning is in accordance with the guidelines specified in Article 7 of this Decision and the Law on state budget.

3. In case of leasing of information technology services using the investment and development expenditure funds, the unit in charge of services leasing for project development is in accordance with the guidelines specified in Article 7 of this Decision and the Law on public investment.

Chapter II

DEVELOPMENT AND APPROVAL FOR PLAN AND PROJECT OF LEASING OF INFORMATION TECHNOLOGY SERVICES

Article 6. Preparing estimates for leasing of information technology services

1. The contents of estimates for leasing of information technology services include:

a) Costs of leasing of information technology services: to be determined on the basis of number of services packages in need of leasing, scale and scope of utilization of each service and average unit price of services leasing in the market. The estimate preparation and determination of price of services package is done based on at least one of the following documents:

- Price of services supply of at least 03 different providers. In case there are not  enough 03 services providers, the agencies or organizations having functions and duties of valuation.

- Result of valuation (if any) from the agencies or organizations having functions and duties of valuation as stipulated by law.

- Market price at the time of estimate preparation is a reference to the official information announced on internet by the services providers;

- Price of similar services package of the last time.

b) Appropriate costs of upgrading and renovating of technical infrastructure for leasing of information technology services.

c) Costs of management of implementation of plan or project of services leasing.

d) Advising costs include: preparation for plan or project of services leasing; bidding (if any), supervision of implementation and other advising costs (if any).

dd) Other costs including the ones related to the leasing not specified at Points a, b, c and d of this Clause are determined by taking the market price or preparing estimates or on the basis of reference to the norm of cost ratio.

e) Provision cost for generated workload is calculated by the percentage (%) over the total costs specified at Points a, b, c, d and dd of this Clause. The provision cost for the price escalation is calculated on the basis of duration of leasing or use of services.

2. Estimate adjustment

a) Cases of estimate adjustment:

- In case of generated requirement on the quality and number of services to be leased which increases the leasing price of services;

- Suggested by the enterprise which provides the services in case of escalation of services price;

- When there is a provider suggesting the provision price lower than 10% or more for the same kind of services with equivalent quality;

- With the occurrence of unforeseen factors: Earthquake, storm, flood, tsunami, landslide, war or prone to war or other unforeseen events with direct effect on the services supply;

- When the program or plan for information technology application is adjusted by the competent authorities with direct effect on the scope, scale and objectives of the plan or project of services leasing.

b) Authority to adjust estimate:

- The unit in charge of services leasing shall prepare the adjusted estimate for submission to the competent person for approval. In case of change of cost structure in the estimate but not exceeding the approved estimate, including the provision cost, the unit in charge of services leasing may adjust the estimate of items of plan or project;

- Depending on specific condition of the plan or project, the unit in charge of services leasing may prepare the adjusted estimate itself or hire the qualified individual or organization to prepare the adjusted estimate;

- The contents of adjusted estimate decided by the unit in charge of services leasing or the competent Person is a part of Plan or Project of services leasing.

Article 7. Preparation and approval for plan or project of leasing of information technology services

1. The unit in charge of services leasing shall prepare the plan or project of leasing of information technology services for submission to the competent Person for review and approval.

2. The grounds for plan or project of leasing of information technology services in state agencies include:

a) Legal grounds;

b) Explanation about purposes, requirements and needs of services leasing;

c) Capital (estimated budget limit).

3. The plan for leasing of information technology includes: Explanation about plan and estimate.

a) Contents of explanation about plan:

- Present conditions, need and objectives of leasing of information technology services;

- Determining the unit in charge of services leasing, main items in need of services leasing, scale, scope, timeframe of services leasing and main timelines for implementation, location, agencies and units using the services;

- Dividing the tender packages, services packages (hereafter referred to as tender package), the contents of each tender package and the time of services leasing. For information technology services with required regular use, the time of services leasing must be long enough (at least 3-5 years) in order to ensure the stability, continuity and efficiency in operation of the state agencies;

- Determining requirements on services quality, plan, method and conditions for services supply; clarifying the software leasing and ownership of information and data; analyzing information, data, softwares and assets formed in the process of services supply and the plan for management and transfer to the lessee;

- Determining the requirements on professional and financial competence, technical and technological conditions, experiences and other requirements of the services providers; requirements on safety and security of information and data and other requirements in order to ensure the principles of leasing of information technology services in state agencies.

b) Estimate: is prepared as per the contents of plan, items, tender packages in the plan and provision on estimate preparation specified in Article 6 of this Decision.

4. Project of leasing of information technology services includes: Project report, total estimate and report on survey, study and analysis (if any).

a) Contents of project report:

The project report includes the contents as stipulated at Point a, Clause 3 of this Article and the following additional contents:

- Result of survey and analysis of current situation and actual requirements;

- Designing the model of supply and use of services; determining the requirements, conditions and infrastructure to be ready for services leasing: Conditions for supply of materials, equipment, techniques, technology, fire prevention and control, information safety assurance, operational safety, security, national defense and business process for services leasing;

- Estimating the total capital of the project (for the timeframe of services leasing of project), determing the capital for project implementation, analyzing the fund need as per progress and financial capacity. Repayment plan (for project with required capital recovery);

- Determining the form of management, monitoring and implementation of project; relationship and responsibility of the agencies and units concerned.

b) Total estimate of project: is prepared as per the contents of project, items and tender packages in the plan and provision on estimate preparation specified in Article 6 of this Decision.

5. The person having the authority to approve the plan or project of leasing of information technology services shall decide the assessment of contents of plan or project or consult the professional agencies at the same level as a basis for approving the plan or project.

Article 8. Allocation of funds for leasing of information technology services

Based on the plan or project of leasing of information technology services approved by the competent authorities, the unit in charge of services leasing or estimating agencies or units shall prepare the estimate and add it into the budget estimate of their units to be sent to the financial, planning and investment agencies for submission to the competent authorities for review and decision as per the provisions of the Law on state budget.

Article 9. Selection of provider and implementation of supply of information technology services to state agencies

The selection of provider and implementation of supply of information technology services to state agencies is done as per the provisions specified in this Decision, the current regulations of law on tender and other relevant regulations.

For the contents not specified in this Decision or in the law on tender, the “Regulation on tender, order and assigned duties of supply of public non-business services with the state budget” shall be applied or under the guidelines of the Ministry of Finance on asset procurement.

Article 10. Contract for supply of information technology services

1. The contract is made in writing.

2. The contents of contract are under the agreement of the parties and in accordance with the regulations of law on contract, tender and bidding documents and ensure the compliance with the principles of leasing of information technology services in state agencies and detailed requirements on the leased information technology services, including:

a) Scale, scope, timeframe and price of contract for leasing of information technology services;

b) Output technical parameters of the information technology services; quality standards and indicators and requirements of the services; the requirements and conditions for connection capacity with the application and other information systems that the services provider must meet.

c) Regulation on form and method of evaluating the services quality; form of monitoring and evaluation of result of contract execution;

d) Requirements and process of transfer of data and assets generated during the services leasing to the lessee or other services providers as required by the lessee at the end of the contract term;

dd) Requirements on safety and security of information; the services user’s information security and other requirements related to the leasing of information technology services;

e) Clearly determining the services with collection of user’s fees or commercialization of database generated from the information technology application under contract (if any), the agreements on principles of profit division and other relevant fees between the parties;

g) Rights and obligations of each signing party; time and principles of payment and finalization of contract and other contents as agreed by the signing parties;

h) Conditions, mechanisms and cases entitled to adjustment of price of services leasing in accordance with the provisions in Clause 2, Article 6 of this Decision.

Article 11. Monitoring and evaluation of leasing of information technology services in state agencies

1. The leasing of information technology services in state agencies is subject to the periodical supervision, monitoring, examination and evaluation in terms of expertise and determines the achieved level in comparison with the lessee’s requirements conducted by the competent professional agencies or report requirements in order to ensure the effectiveness of leasing of information technology services consistent with the objectives and programs and plans for application and development of information technology in state agencies.

2. The leasing of information technology services using the state budget is subject to the periodical supervision and evaluation of result of use of budget allocated in accordance with the provisions in the Law on state budget. The periodical evaluation and supervision report must be made by the unit in charge of services leasing and sent to the agency having the authority to manage the capital as follows:

- Biannual report no later than the 15th of July of the plan year;

- Annual report no later than the 31st of January of the following year;

- Final report within 03 months after the end of contract for services leasing.

Chapter III

IMPLEMENTATION

Article 12. Responsibility of state agency leasing the information technology services

1. The person having the authority to decide the leasing of information technology services is responsible for the effectiveness of leasing of information technology services at agencies or units under management.

2. The unit in charge of services leasing shall make and carry out the plan or project of leasing of information technology services, including preparation and submission for assessment and approval for plan or project, selection of services provider, signing, management and monitoring of contract execution, effective use of services and implementation of other responsibilities under regulation.

Article 13. Responsibility of Ministries, sectors and localities

1. The Ministries, sectors and People’s Committees of provinces and centrally-run cities shall:

a) Direct the subordinate agencies or units to actively implement the services leasing in the information technology application in service of management, professional operation and public services supply in state agencies. Giving the priority to the allocation of fund for leasing of information technology services in regular activities of their subordinate agencies or units;

b) Aggregate the needs of leasing of information technology services in the budget estimate for regular expenditure, 5-year medium-term and annual development expenditure under the provisions of the Law on state budget;

c) Publicize on their website the information on plan or project of leasing of information technology services;

d) Promptly report the difficulties and problems during the pilot implementation to the Ministry of Information and Communications.

2. The Ministry of Information and Communications shall:

a) Take charge and coordinate with the Ministry of Finance and the Ministry of Planning and Investment to provide the instructions on implementation and monitoring of compliance with this Decision;

b) Aggregate and report to the Prime Minister on the result of evaluation of leasing of information technology services in state agencies after 01 year of implementation and subsequent years periodically; promptly propose solution to solve and deal with difficulties and problems during the implementation.

3. The Ministry of Finance shall aggregate the needs and anticipate the state budget for the annual leasing of information technology services in state agencies and make report to the Prime Minister for decision in order to assign to the Ministries, sectors and localities for implementation.

4. The Ministry of Planning and Investment shall:

a) Take charge of aggregatiing the need of development investment capital for the leasing of information technology services in state agencies as per the 5-year and annual planning period and report it to the Prime Minister for decision in order to assign to the Ministries, sectors and localities for implementation.

b) Ensure the allocation of sufficient funds for services leasing throughout the duration of the tender package of services supply under the contract to ensure the stability, continuity and efficiency of application of information technology of state agencies.

Article 14. Effect

1. This Decision takes effect from 15 February 2015.

2. Ministers, Heads of ministerial-level agencies, Heads of government, Chairman of the People's Committees of provinces and centrally-run cities and the heads of agencies and organizations related to the leasing of information technology services in state agencies are liable to execute this Decision.

3. During the pilot implementation, if there are problems arising different from the current regulations of law, the Ministry of Information and Communications shall take charge and coordinate with the agencies concerned to make report to the Prime Minister for consideration and decision./.