Thông tư 23/2020/TT-BTTTT

CIRCULAR

REGULATING PARTICULAR CONTENTS OF STATE-FUNDED INFORMATION TECHNOLOGY SERVICE LEASES

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

Pursuant to the Government’s Decree No. 73/2019/ND-CP dated September 5, 2019, regulating the management of projects on investment in application of information technology funded by the state budget capital;

Pursuant to the Government's Decree No. 17/2017/ND-CP dated February 17, 2017, defining the functions, tasks, powers and organizational structure of the Ministry of Information and Communications;

Upon the request of the Director of the Computerization Agency,

The Minister of Information and Communications hereby promulgates the Circular on particular contents of state-funded information technology service leases.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Circular sets out regulations regarding particular contents of the lease of information technology service not available on the market (hereinafter referred to as service) funded by state budget’s regular expenditures prescribed in the Government’s Decree No. 73/2019/ND-CP dated September 5, 2019, prescribing the management of investment in application of information technology funded by the state budget. 

Article 2. Subjects and principles of application

1. Subjects of application

a) This Circular shall apply to entities, organizations and individuals involved in or related to the lease of information technology services funded by the state budget's regular expenditures;

b) Other entities and persons related to the lease of information technology services funded by other sources of capital should apply specific instructions given herein.

2. Principles of application

a) According to the provisions of this Circular, entities and units must formulate specific conditions and terms for a service lease, ensuring the compliance with the law on contracts, bidding and conformance to the approved service lease plan;

b) Regulations laid down in this Circular must form the basis for related parties’ management of the quantity, quality, progress, conduct of the quality inspection, assessment, acceptance testing, payment and finalization of the service lease.

Chapter II

PARTICULAR CONTENTS OF THE STATE-FUNDED SERVICE LEASE

Article 3. Requirements concerning the service scope

1. Technical requirements set out in a service lease

a) The technical requirements shall be defined according to the criteria, ensuring conformance to the service quality requirements in the approved service lease plan, including: Professional function criteria; operating performance criteria; information security criteria; other non-functional criteria; user satisfaction criteria; service management criteria;

b) Specific quality criteria, requirements and output requirements of each criterion shall follow instructions given in Appendix I to this Circular;

c) In the course of implementation of the service lease, based on the particular and specific requirements of each entity or unit, the lead service lessee shall consider and choose to apply some or all of the criteria specified in this Clause, supplementing and updating other criteria (if necessary).

2. Other requirements set out in a service lease

a) Requirements and processes for transfer of information and data acquired during service lease operations

The lead service lessee and the service provider shall negotiate and agree on the request and processes for transfer of information and data acquired during the service leasing process to the lead service lessee with the following main contents:

- The lead service lessee and the service provider must transfer all information and data acquired during the service leasing process to the lead service lessee according to the plan agreed upon by contracting parties;

- Methods, tools, processes and roles and responsibilities of each party in the transfer process; plans to test the status of information and data acquired prior to transfer; plans for backup and restoration of data before transfer (if necessary); plans to check the status of information and data acquired after transfer; plans to check and review data after transfer; plans to delete information and data related to the lead service lessee on management systems of service providers after the completed transfer;

- Service provider’s commitments to be fulfilled after the completed transfer;

- Other requirements for transfer of information and data acquired during the service supply process.

b) Cybersecurity requirements

During the process of negotiating and agreeing on cybersecurity requirements, lead lessees and service providers must ensure conformance to legislative regulations on cybersecurity.

c) Lead lessee and the service provider shall negotiate and agree on requirements concerning service-related copyright and intellectual property rights and other requirements, depending on the nature, characteristics, requirements and actual demands with respect to the contractual service.

Article 4. Contract execution duration and plan

1. Contract execution duration, including:

a) Preparatory period: Service provider sets the time for design and development of the contractual service; testing or commissioning; training or guidance on use or operation of the contractual service (if any);

b) Service lease term: The term ranges from the time of acceptance testing, handover and operation of the contractual service to the end of the lease;

c) Time of transfer, handover and fulfillment of other contractual obligations: Time of transfer of information and data acquired during the service provision period and time of service provider’s fulfillment of other obligations and responsibilities as agreed upon in the service lease contract.

2. Service lease execution proposal

Service provider shall be responsible for formulating a proposal for execution of the service lease in order for the lead lessee to check and validate it. Each proposal must include but not limited to the followings:

a) Order and schedule of activities performed in each main stage within the period of execution of the contract as regulated in clause 1 of this Article;

b) Timelines of completion, handover of key works or products, service provider’s progress reports.

Article 5. Payment of contractual obligations

1. Payment method (i.e. payment period, time of payment) must be conformable to the method of determining the cost of service lease according to the approved service lease plan.

2. In case of change of the payment method, the lead lessee and the service provider shall enter into negotiation and agreement according to the principle of compliance with legal regulations on condition that the payment of contractual obligations does not exceed the winning bid, estimated cost or price of a bid.

Article 6. Service quality inspection and assessment

1. Service quality inspection and assessment conducted in the preparatory stage

a) Service quality inspection and assessment shall be carried out through testing or commissioning and inspection and evaluation methods (if any) corresponding to each specific criterion specified in Clause 1 of Article 3 of this Circular;

b) Service quality inspection and assessment results shall serve as the basis for acceptance testing and handover of the contractual service. Documents and records evidencing the acceptance testing shall comprise:

- Test or commissioning report;

- Inspection and assessment report (if any);

- Other related records and materials.

c) The lead lessee and service provider shall negotiate and sign the record of acceptance testing and handover of the contractual service before use by using the form No. 1 of Appendix II hereto as a basis for putting the contractual service into official use.

2. Service quality inspection and assessment conducted in the lease execution stage

a) The lead lessee shall be responsible for monitoring and overseeing the service provision by the service provider, and examining and evaluating the quality of the contractual service during the service lease term.

Service quality inspection and assessment shall be carried out through surveying, collecting, analyzing, and evaluating feedbacks of organizations and individuals using contractual services; or periodic and ad-hoc physical inspections of service delivery systems and inspections over service providers shall be carried out with the aim of evaluating the service quality according to defined specific criteria, or shall be carried out in combination with the above-stated approaches.

b) Service providers shall be responsible for providing the contractual services; reporting the results of the service provision during the service lease term to lead lessees on a periodic or irregular basis as agreed in contracts;

c) Service quality inspection and assessment results shall serve as a basis for the acceptance testing of the service provision results. Documents and records evidencing the acceptance testing shall comprise:

- Report on service provision results prepared by the service provider according to the form No. 2 of Appendix II hereto;

- Report on monitoring and oversight results prepared by the lead lessee according to the form No. 3 of Appendix II hereto;

- Record of transfer of information and data acquired during the service supply process (if any) using the form No. 4 of Appendix II hereto;

- Other related records and materials.

d) The lead lessee and service provider shall seek their mutual agreement and sign the record of the acceptance testing of service provision results by using the form No. 5 of Appendix II hereto as a basis for fulfillment of the contractual payment as agreed upon under contracts.

3. Example of technical requirements set out based on the service output quality, and inspection and evaluation methods corresponding to each stage during the contract performance period, which is shown in Appendix III to this Circular.

Chapter III

IMPLEMENTATION PROVISIONS

Article 7. Entry into force and transitional provisions

1. This Circular shall enter into force on October 25, 2020.

2. If a service lease has been concluded before the effective date of this Circular, terms and conditions set forth in this contract shall remain valid. In case where it is necessary to apply this Circular, the lead service lessee and the service provider shall reach an agreement to ensure continuity of contractual service activities.

Article 8. Implementation responsibilities

1. Entities, organizations and individuals involved in or related to the lease of information technology services funded by the state budget's regular expenditures shall be responsible for implementing this Circular.

2. Computerization Agency – the Ministry of Information and Communications - shall be responsible for communicating, providing guidance on and keeping track of implementation of this Circular.

3. In the course of implementing this Circular, if there is any difficulty that arises, persons and entities may send timely feedbacks to the Ministry of Information and Communications (Computerization Agency) to seek its approval of proper actions./.

APPENDIX I

TECHNICAL REQUIREMENTS SET OUT BASED ON THE SERVICE OUTPUT QUALITY CORRESPONDING TO EACH STAGE DURING THE CONTRACT PERFORMANCE PERIOD
(Issued together with the Circular No. 12/2018/TT-BTTTT dated September 9, 2020 of the Minister of Information and Communications)