Thông tư 40/2020/TT-BTTTT

CIRCULAR

PRESCRIBING CRITERIA FOR DETERMINING DOMESTICALLY PRODUCED INFORMATION TECHNOLOGY PRODUCTS AND SERVICES GIVEN INVESTMENT, LEASING AND PROCUREMENT PRIORITY

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

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

Pursuant to the Law on State Budget dated June 25, 2015;

Pursuant to the Law on Public Investment dated June 13, 2019;

Pursuant to the Government’s Decree No. 63/2014/ND-CP dated June 26, 2014 elaborating certain Articles of the Law on Bidding regarding selection of contractors;

Pursuant to the Government’s Decree No. 73/2019/ND-CP dated September 05, 2019 on management of state investment in information technology application;

Pursuant to the Government’s Decree No. 40/2020/ND-CP dated April 06, 2020 providing detailed regulations on the implementation of several Articles of the Law on Public Investment;

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;

At the request of the Director of the Information Technology Department;

The Minister of Information and Communications hereby promulgates a Circular prescribing criteria for determining domestically produced information technology products and services given investment, leasing and procurement priority.

Article 1. Scope

1. This Circular prescribes criteria for determining domestically produced information technology products and services given investment, leasing and procurement priority (hereinafter referred to as “prioritized products and services”).

2. The priority is given to the following information technology (IT) application activities:

a) IT investment, procurement and application projects funded by the state budget for covering development investment expenditures;

b) IT leasing, procurement and application activities funded by the state budget for current expenses;

c) IT application projects funded by various sources among which funding from the state budget accounts for at least 30% or the highest proportion of the total investment.

3. This Circular does not cover:

a) IT application activities classified as national secrets;

b) IT application activities in Clause 2 of this Article of carried out by Vietnamese diplomatic missions. Such activities shall comply with the Government’s provisions on the basis of the proposals and recommendations of the project owners and in a manner that suits the characteristics of each project and law of the host country.

c) PPP IT application projects, which shall comply with regulations on investment made in the public-private partnership form.

d) Contract packages covered by international treaties on opening public procurement markets.

Article 2. Regulated entities

1. This Circular applies to organizations and individuals that carry out IT application activities mentioned in Clause 2 Article 1 of this Circular in order to invest in, lease or procure IT products and services.

2. Organizations and individuals in Clause 1 of this Article are encouraged to apply the regulations set out in this Circular upon investment in, leasing and procurement of IT products and services.

Article 3. Definitions

For the purposes of this Circular, the terms below shall be construed as follows:

1. “IT products” include hardware products, software products and digital contents.

2. “IT services” include IR services that are available and unavailable on the market as specified in Clauses 3 and 4 Article 3 of the Government’s Decree No. 73/2019/ND-CP.

Article 4. Prioritized products and services

Products and services are given priority in one of the following cases:

1. Products and services which satisfy the general criteria specified in Article 5 and the specific criteria applied to each type of product or service as specified in Articles 6 to 9 of this Circular and which are included in the list of prioritized IT products and services announced by the Ministry of Information and Communications as prescribed.

2. Products and services produced or provided by Vietnamese individuals satisfying the criteria in Article 5 hereof. Such individuals shall, on their own initiative, consider cooperating with Vietnamese organizations and enterprises that satisfy criteria concerning quality standard, safety and security of the corresponding products and services as prescribed in Articles 6 to 9 of this Circular.

Article 5. General criteria applied to prioritized products and services

A prioritized product or service must satisfy the following general criteria:

1. Its domestic production costs comply with regulations on incentives as prescribed by the law on bidding.

2. It includes technical documentation and user manual in Vietnamese language.

3. Its supplier makes a commitment to technical assistance, warranty, maintenance, upgrading and after-sales services.

Article 6. Specific criteria applied to prioritized hardware products

A prioritized product must satisfy all of the following criteria:

1. Its functions and specifications conform to business requirements or regulations/guidelines of regulatory bodies (if any).

2. It is created or designed or produced in Vietnam by a Vietnamese organization, enterprise or individual. The creation and design are expressed through a patent or utility solution patent or industrial design patent or another document evidencing the creation or design specified in the Appendix II hereof.

3. Satisfy the criteria regarding quality standards, safety and security of the product

a) It is produced by a Vietnamese organization or enterprise that has the certificate of conformity with ISO 9001 standard issued by the registered certification body or equivalent;

b) It ensures information safety in accordance with regulations of law on information safety.

4. The ratio of the cost of research and development of a product to the enterprise’s total revenue from the sale of that product within the last 03 years is 1% or more.

Article 7. Specific criteria applied to prioritized software products

A prioritized hardware product must satisfy all of the following criteria:

1. Its functions and specifications conform to business requirements or regulations/guidelines of regulatory bodies (if any).

2. A Vietnamese organization, enterprise or individual involves in one of the two following stages in process of manufacturing the product: Requirement determination and Analysis and design specified in Clauses 1 and 2 Article 3 of the Circular No. 13/2020/TT-BTTTT dated July 03, 2020 of the Ministry of Information and Communications.

3. It is issued with the certificate of registration of copyright owned by a Vietnamese and is protected in accordance with Vietnam’s law.

4. Satisfy the criteria regarding quality standards, safety and security of the product

a) It is produced by a Vietnamese organization or enterprise that has the certificate of conformity with ISO 9001 standard issued by the registered certification body or CMMI Level 3 or higher certification or equivalent;

b) It ensures information safety in accordance with regulations of law on information safety or is manufactured or operated by the supplier issued with the certificate of conformity with ISO/IEC 27001 standard or equivalent by the registered certification body.

5. The ratio of the cost of research and development of a product to the enterprise’s total revenue from the sale of that product within the last 03 years is 3% or more.

6. Regarding the software product supplied as a service (with attached service), such software product must satisfy the criteria mentioned in Article 9 hereof.

Article 8. Specific criteria applied to prioritized digital contents

A prioritized digital content must satisfy all of the following criteria:

1. It is produced in Vietnam by a Vietnamese organization, enterprise or individual.

2. Satisfy the criteria regarding quality standards, safety and security of the digital content

a) It is produced by a Vietnamese organization or enterprise that has the certificate of conformity with ISO 9001 standard issued by the registered certification body or equivalent;

b) It ensures information safety in accordance with regulations of law on information safety.

3. The ratio of the cost of research and development of a product to the enterprise’s total revenue from the sale of that product within the last 03 years is 3% or more.

Article 9. Specific criteria applied to prioritized IT services

A prioritized IT service must satisfy all of the following criteria:

1. It is provided by a Vietnamese organization, enterprise or individual.

2. Satisfy the criteria regarding quality standards, safety and security of the service

a) It is produced by a Vietnamese organization or enterprise that has the certificate of conformity with ISO 9001 standard or ISO/IEC 27001 standard issued by the registered certification body or equivalent;

b) The system of servers providing the service (if any) is located in Vietnam. Regarding a cloud computing service, it must meet the technical criteria and indicators under the guidance of the Ministry of Information and Communications;

c) Regarding a service involving storage and processing of customer’s data, measures are in place to ensure safety and confidentiality of customer’s information and data. Regarding a cyberinformation security service, regulations laid down in the Law on Cyberinformation Security shall be complied with.

3. Regarding an IR service that is available on the market, it has been provided to at least 03 organizations.

4. The ratio of the cost of research and development of a service to the enterprise’s total revenue from the sale of that service within the last 03 years is 3% or more.

Article 10. Regulations on giving priority

1. Every organization that carries out IT application activities mentioned in Clause 2 Article 1 of this Circular in order to invest in, lease or procure IT products and services under Article 4 of this Circular must:

a) appropriately include the criteria specified in Article 5 and corresponding regulations specified in Articles 6 to 9 hereof in such documents as feasibility study report, fundamental design, detailed design or leasing plan;

b) not include requirements, conditions and functions that are specific to foreign IT products and services or may result in removal of prioritized IT products and services in such documents as feasibility study report, fundamental design, detailed design or leasing plan.

2. In case of failure to invest in, lease or procure a prioritized IT product or service, the organization is required to provide a written explanation. The explanation shall include a description of the necessity and specific requirements which the prioritized product or service fail to satisfy.

Article 11. Publishing of prioritized products and services

1. Every organization, enterprise and individual that has prioritized products and services shall:

a) proactively assess, publish and update information about prioritized products and services on mass media and websites of organizations and enterprises according to the Appendix I of this Circular;

b) notify the Department of Information and Communications (hereinafter referred to as “the Department”) of the province where the enterprise registers its business in writing or electronically through the Department’s web portal or website;

c) ensure quality of prioritized products and services as published during the process of providing such products and services; take total responsibility for the accuracy of the information relating to the prioritized products and services published.

2. Every Department of Information and Communications shall:

a) receive and consider the validity and adequacy of information provided by enterprises about prioritized products and services and publish information about prioritized products and services on its web portal/website;

b) According to information provided by enterprises, current condition or on a biannual basis, prepare a consolidated report and send information on prioritized products and services of enterprises to the Ministry of Information and Communications using the form in the Appendix II hereof;

c) carry out assessment, post-inspection and handling of prioritized products and services published by enterprises in contravention of regulations.

3. The Ministry of Information and Communications shall:

a) according to Departments’ written requests, update and publish a List of prioritized products and services and relevant information according to Appendix III hereof and publish it on its web portal at www.mic.gov.vn for nationwide application;

c) Where necessary, organize inspection of fulfillment of prioritized products and services provided by organizations and enterprises with the criteria; publish inspection results on its web portal at www.mic.gov.vn.  If it is found the prioritized products and services published fail to fulfill the criteria, the Ministry of Information and Communications shall handle them as prescribed by law.

Article 12. Implementation

1. The Department of Information and Technology (the Ministry of Information and Communications) shall preside over and cooperate with relevant agencies in organizing the implementation of this Circular.

2. Specialized information technology units (including specialized information technology units and other specialized units) of other Ministries, ministerial agencies, Governmental agencies and Departments of Information and Communications of provinces and central-affiliated cities shall:

a) organize dissemination of, instruct and urge agencies and units affiliated to Ministries, departments or their local authorities to implement the regulations set out in this Circular;

b) express and take responsibility for their comments on contents related to prioritized products and services if assigned to appraise feasibility study reports, fundamental designs and IT service leasing plans during state-funded IT application activities of agencies and units affiliated to Ministries or their local authorities;

c) consolidate information about investment in, leasing and procurement of prioritized products and services using the form in the Appendix IV hereof (data is aggregated from December 15 of the previous year to December 1 of the year in which information is consolidated) and send it to the Ministry of Information and Communications (the Department of Information Technology) by March 31 every year.

Article 13. Transitional clauses

1. IT application activities involving investment in and procurement of IT products and services satisfying the criteria and published as prescribed in the Circular No. 47/2016/TT-BTTTT which were approved before the effective date of this Circular shall continue to be carried out.

2. Regarding IT products and services published on the web portal of the Ministry of Information and Communications as prescribed in the Circular No. 47/2016/TT-BTTTT, organizations and enterprises shall proactively update and add information in accordance with regulations laid down in this Circular.

Article 14. Effect and responsibility for implementation

1. This Circular comes into force from February 15, 2021.

2. This Circular supersedes the Circular No. 47/2016/TT-BTTTT dated December 26, 2016 of the Minister of Information and Communications.

3. Chief of Office, Director of Department of Information Technology, Directors of Departments of Information and Communications of provinces and central-affiliated cities and organizations, enterprises and individuals concerned are responsible for the implementation of this Circular.

4. Difficulties that arise during the implementation of this Circular should be reported to the Ministry of Information and Communications (the Department of Information Technology) for resolution.