Thông tư 21/2016/TT-BTTTT

CIRCULAR

ON GUIDELINES FOR PUBLIC-PRIVATE PARTNERSHIPS INVESTMENT MODEL UNDER MANAGEMENT OF THE MINISTRY OF INFORMATION AND COMMUNICATIONS

Pursuant to the Law on public investment dated June 18, 2014;

Pursuant to the Government's Decree No. 132/2013/ND-CP dated October 16, 2013 on functions, tasks, powers and organizational structure of the Ministry of Information and Communications;

Pursuant to the Government's Decree No. 15/2015/ND-CP dated February 14, 2015 on investment under Public-Private Partnerships model;

At the request of Director of Department of Plan and Finance,

The Minister of Information and Communications promulgates a Circular on guidelines for  Public-Private Partnerships investment model under management of the Ministry of Information and Communications.

Article 1. Scope and regulated entities

1. This Circular deals with investment sectors, contents of feasibility study reports, contents of project contracts under Public-Private Partnerships model (hereinafter referred to as PPP model) under management of the Ministry of Information and Communications.

2. This Circular applies to agencies, organizations, and individuals participating or involving PPP investment model under management of the Ministry of Information and Communications.

Article 2. Investment sectors

Projects for construction, renovation, operation, trading, management of infrastructure, procurement of equipment and public services in the following sectors:

1. Concentrated information technology parks (hereinafter referred to as concentrated IT parks), including technical infrastructure inside and outside the parks (traffic system, electricity, clean water, drainage, communications, environmental remediation and other infrastructure).

2. Information technology applications (hereinafter referred to as IT applications), including:

a) National information system, national importance database, specialized database and online connection system under the e-government platform;

b) Technology infrastructure and solutions for information safety;

c) Technical infrastructure of information technology;

d) IT applications serving the people and businesses;

dd) IT applications serving internal operation of regulatory agencies.

3. Other projects in the sector of information and communications decided by the Prime Minister.

Article 3. Contents of feasibility study reports

Main contents of a feasibility study report as prescribed in Article 25 of the Government's Decree No. 15/2015/ND-CP dated February 14, 2015 on investment under Public-Private Partnerships model:

1. Legal bases for making a feasibility study report

a) Laws, Decrees and Circulars on guidelines for project execution under PPP model;

b) Laws, Decrees and Circulars on investment sectors pertaining to information technology, concentrated information technology parks;

c) Decisions on approval for planning, plans for information technology application, information technology industry in connection with IT application-related projects and concentrated IT parks; Resolutions on e-Government, preference or incentives policies of projects; Decisions, documents issued by competent authorities on making, assessment, approval for project proposals and other relevant legislative documents;

d) Documents referred to during the study and making of the feasibility study report.

2. Investment necessity and objectives

a) Analyzing the necessity of the project, social demands and responsiveness of IT applications in regulatory agencies for the purpose of accelerating the work processing and reducing operating costs. To strongly promote e-government development, improve the quality and efficiency of the activities of regulatory agencies, serving the people and businesses better;

b) Priotize localities with advantages in infrastructure of traffic, telecommunication and information technology, workforce in information technology and high/appropriate levels in application and development of IT to build concentrated IT parks;

c) The project’s responsiveness prior to and subsequent to the investment; potential and benefits of the project as the basis for determination of demand, time and scope of the project;

d) Objectives of project, including:

- Overall objectives: Benefits for national and local socio-economy; contribution of project to the overall objectives of information and communications sector and national common objectives;

- Specific objectives: clarify specific and quantifiable indices (quantity, quality, and time); describe issues and situation to be resolved, number of entities meeting demands for services that are provided by the project and other specific objectives.

3. Analysis of advantages of PPP investment model

a) Specify advantages of PPP investment model, including advantages in sources of funds, capital recovery, economic efficiency and ability to transfer risks between involved parties;

b) Specify disadvantages of PPP investment model in comparison with other models, including: managerial capability to execute projects of relevant parties; complexity in formulating and executing terms and conditions of project contract;

c) With regard to a project proposed by an investor, feasibility study report shall specify the advantages in sources of funds, capital balance of investors; managerial capacity and experience of investors, capital recovery, investment efficiency and risk acceptance.

4. Conformity of project with development planning/plan

a) A project for construction of concentrated IT parks shall conform to the Decision of the Prime Minister on approval for master plan to develop concentrated IT parks;

b) A project for IT applications in regulatory agencies shall conform to National Programme for IT Applications in regulatory agencies approved by the Prime Minister;

c) Other kind of projects shall conform to planning/plan for development of IT and communications sector.

5. With regard to a project for IT applications, its preliminary design shall be made in accordance with regulations on management of IT applications funded by State budget.

6. Assessment of conformity and compliance with applicable technical standards in terms of IT applications in regulatory agencies in Vietnam.

7. In particular circumstances that international regulations or standards or stage investment apply/ies to decrease the complexity, increase the feasibility and attractiveness of the project, a detailed description according to the scope and master plan of project is required to analyze difficulties during the project execution.

8. Risk analysis and proposed incentives and guarantees

a) Determine major risks of project and impact thereof to propose risk distribution between regulatory agencies and investors, and solutions for reducing risks and responsibility incurred by parties and risk management during the project execution. The aforesaid contents shall be presented in a summary of project’s risks, including:

- Major risks in connection with the following aspects: legality; society; environment; design, construction, production; costs of construction, equipment and work completion; finance; macroeconomic situation; market demand; operation; contract termination and other risks (if any).

- Describe major risks of the project and their likelihood and impact on project (costs, schedule, changes in design, capital allocation, etc.); evaluation of financial impact on the project if the risk occurs, in particular circumstances, different plans may be tested in finance model to evaluate such impact.

According to specific conditions in terms of technical, economic and financial aspects of the project; financial analysis results to evaluate impact of risks on the project as well as costs and benefits of solutions for risk reduction shall be specified. The feasibility study report shall specify the proposed distribution of risks and responsibility between relevant parties in risk management during the project execution; proposed specific grants given by competent authorities, and risk-sharing mechanism between competent authorities and investors.

b) According to risk evaluation of the project and current domestic and international financial market situation, it is required to specify proposed investment incentives, types of investment guarantees of the Government prescribed in Chapter 9 of the Government's Decree No. 15/2015/ND-CP dated February 14, 2015 on PPP investment model and conditions attached, as well as the required reserve obligations during contract implementation.

9. Proposed investment guarantees

a) Investment supports and incentives prescribed in Article 21 and Article 22 of the Government's Decree No. 154/2013/ND-CP dated November 8, 2013 on concentrated IT parks; regulations of law on investment, taxation, land and other relevant regulations.

b) Supports and incentives for investment in IT applications prescribed in Resolution No. 41/NQ-CP dated May 26, 2016 of the Government on tax incentives to promote the development of IT applications in Vietnam; regulations of law on investment, taxation, land and other relevant regulations.

Article 4. Contents of project contract

Basic contents of a project contract as prescribed in Article 32 of the Government's Decree No. 15/2015/ND-CP dated February 14, 2015 on investment under Public-Private Partnerships model:

1. Bases for considering the conformity of types of project contracts determined in the approved project proposal or to choose other project contracts.

2. Analyze advantages and disadvantages of chosen type of contract seen from the perspective of sharing risks and factors relating to the feasibility of the execution of the project.

3. Clarify responsibilities in connection with project execution (including: design, construction, operation, fund arrangement) of competent authorities, investors and project management enterprises.

4. With regard to project for IT applications in regulatory agencies under PPP model with Build-Lease-Transfer contract, the State-owned capital paid to investors in conformity with capital balance and main contents as follows:

a) Scale, scope, time frame, charges for renting IT services.

b) Output specifications of IT services; quality standards and criteria, requirements for services; requirements and conditions for connectivity to applications, other IT system to be satisfied by the service provider;

c) Regulations on forms, methods of evaluation of service quality, forms of surveillance and evaluation of contract execution;

d) Requirements and process of transfer to regulatory agencies upon expiration of contract term;

dd) Requirements pertaining to confidentiality and safety of information technology; protection of service users’ information and other requirements pertaining to the renting of IT services;

e) Clarify chargeable services or commercialized database arising from IT applications according to contract (if any), agreements in terms of rules for profit distribution and relevant costs incurred by parties.

g) Rights and obligations of each contracting party; time and rules for payment, statement of contract; other contents agreed upon contracting parties;

h) Conditions, mechanism, and cases eligible for rent adjustments (if any).

Article 5. Implementation

1. This Circular comes into force from November 16, 2016.

2. Difficulties that arise during the implementation of this Circular should be reported to Department of Plan and Finance, affiliated to the Ministry of Information and Communications for consideration./.