Circular No. 21/2016/TT-BTTTT provides detailed regulations on certain contents related to public-private partnership investment under the management scope of the Ministry of Information and Communications.

CIRCULAR

Detailed regulations on certain contents regarding public-private partnership investment under the management scope of the Ministry of Information and Communications

On the basis of Law on Public Investment dated June 18, 2014;

Decree No. Decree No. 132/2013/NĐ-CP dated October 16, 2013 of the Government stipulating functions, tasks, powers, and organizational structure of the Ministry of Information and Communications;

Decree No. Decree No. 15/2015/NĐ-CP dated February 14, 2015 of the Government on public-private partnership investment;

At the proposal of the Director of the Department of Planning and Finance,

The Minister of Information and Communications promulgates this Circular detailing certain contents regarding public-private partnership investment under the management scope of the Ministry of Information and Communications.

Article 1. Scope of Regulation and Applicability

Article 1. This Circular regulates the field of investment, the contents of feasibility study reports, and the contents of project investment contracts under the management scope of the Ministry of Information and Communications.

Article 2. This Circular applies to agencies, organizations, and individuals participating in or related to public-private partnership investment activities under the management scope of the Ministry of Information and Communications.

Article 3. Field of Investment

Projects for construction, renovation, operation, business, and management of infrastructure works, provision of equipment or public services in the following fields:

1. Concentrated information technology zones, including technical infrastructure within and outside the zone (roads, electricity, clean water, drainage, communication, environmental treatment, and other infrastructures).

2. Information technology application, including:

a) National information systems, important national databases, specialized databases, and online connection systems belonging to the e-Government platform;

b) Infrastructure and technological solutions ensuring information security;

c) Information technology technical infrastructure;

d) Information technology applications serving citizens and businesses;

đ) Information technology applications within state administrative agencies.

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

Article 4. Contents of Feasibility Study Reports

The main contents of feasibility study reports as prescribed in Article 25 of Decree No. 15/2015/NĐ-CP dated February 14, 2015 of the Government on public-private partnership investment and the following contents:

1. Legal basis for preparing feasibility study reports

a) Laws, decrees, and circulars guiding the implementation of projects under the public-private partnership model;

b) Laws, decrees, and circulars guiding the investment field concerning information technology application and concentrated information technology zones;

c) Decisions approving planning and plans for information technology application and information technology industry related to information technology application and concentrated information technology zone projects; resolutions on e-Government, preferential policies of the project; decisions and documents of competent authorities at each stage of proposal submission, review, and approval, and other relevant legal documents;

d) Reference materials during the research and preparation of feasibility study reports.

2. Need and investment objectives

a) Analysis of the necessity of the project investment, social demand, and the response to information technology application in state administrative agencies to increase work processing speed, reduce operational costs. To strongly promote e-Government development, improve the quality and efficiency of state administrative agency operations, and better serve citizens and businesses;

b) Prioritize areas with advantages in transportation infrastructure, telecommunications infrastructure, information technology infrastructure, human resources in information technology, and the level of information technology application and development to build concentrated information technology zones;

c) The degree of meeting project needs before and after investment; the potential and benefits of the project as a basis for determining the need, timing, and scale of the project investment;

d) Project investment objectives, including:

- Overall objectives: the benefits that the project brings to the national economy and society, as well as localities; the contribution of the project to the overall objectives of the information and communications sector and the country's general objectives;

- Specific objectives: clearly stating specific quantifiable indicators (quantity, quality, and time); explaining issues and current situations resolved, the number of beneficiaries of the services provided by the project, and other specific objectives.

3. Analysis of the advantages of investing in the project through the public-private partnership model

a) Explain the advantages of investing in the project through the public-private partnership model, including a clear analysis of the advantages in terms of capital sources, repayment capacity, economic efficiency, and risk transfer between parties;

b) Present the limitations of investing in the project through the public-private partnership model compared to other models, including: the project implementation management capabilities of the parties involved; the complexity in drafting and implementing project contract clauses;

c) For projects proposed by investors, the feasibility study report must clearly analyze the advantages in terms of capital sources and the investor's ability to balance capital; the investor's management capability and experience; repayment capacity, investment efficiency, and risk acceptance.

4. Compatibility of the project with planning and development plans

a) Projects for constructing concentrated information technology zones must comply with the Prime Minister's Decision approving the overall plan for developing concentrated information technology zones;

b) Projects for applying information technology in state administrative agencies must comply with the National Program on Applying Information Technology in State Administrative Operations approved by the Prime Minister;

c) Other projects must comply with planning and development plans for the information and communications sector.

5. For information technology application projects, preliminary design contents must comply with regulations on managing information technology application investments using state budget funds.

6. Evaluation of compliance with current technical standards for information technology application in state administrative agencies in Vietnam.

7. In cases where it is necessary to apply international standards or investment phases to reduce the complexity of the project, enhance its feasibility and attractiveness, detailed explanations must be provided based on the scale of the project and the overall implementation plan to analyze difficulties during the implementation process.

8. Risk analysis of the project and proposal for investment guarantees

a) Identify the main risks of the project, assess the impact on the project if these risks occur, thereby proposing an optimal risk allocation between the competent state agency and the investor, while suggesting measures to mitigate risks and responsibilities of each party in managing risks during the project implementation. These contents must be presented in the form of a summary table of project risks, including:

- Identifying the main risks of the project related to aspects such as: legal; social; environmental; design, construction, production; construction costs, equipment and completion; financial; macroeconomic situation; market demand; operation; contract termination and other risks (if any).

- Describing the main risks of the project while analyzing the likelihood of occurrence of these risks as well as their impact on the project (in terms of cost, schedule, design changes, capital allocation...); evaluating the financial impact on the project if the risk occurs, when necessary, different scenarios should be tested in the financial model to assess these impacts.

Based on specific technical, economic, and financial conditions of the project; the results of financial analysis to evaluate the impact of risks on the project as well as the costs and benefits of risk mitigation measures. The feasibility study report must detail the proposed risk allocation and the responsibilities of each party in managing risks during the project implementation; specifically recommend the level of support from the competent state agency, the risk-sharing mechanism between the competent state agency and the investor.

b) Based on the assessment of project risks and the current domestic and international financial market situation, provide detailed explanations about investment incentives, types of guarantees, and investment assurances prescribed in Chapter 9 of Decree No. 15/2015/NĐ-CP dated February 14, 2015 of the Government on public-private partnership investment forms, along with necessary precautionary obligations during the contract implementation period.

9. Investment incentives and guarantees

a) Investment support and incentives as stipulated in Article 21 and Article 22 of Decree No. 154/2013/NĐ-CP dated November 8, 2013 of the Government on concentrated information technology zones; investment laws, tax laws, land laws, and other relevant regulations;

b) Information technology application investment support and incentives according to Resolution No. 41/NQ-CP dated May 26, 2016 of the Government on tax policies to promote the development and application of information technology in Vietnam; investment laws, tax laws, land laws, and other relevant regulations.

Article 4. Content of the Project Contract

The basic content of the project contract as prescribed in Article 32 of Decree No. 15/2015/NĐ-CP dated February 14, 2015 of the Government on public-private partnership investment forms, and the following contents:

1. Bases for considering the suitability of the type of project contract determined in the approved project proposal or for selecting another type of project contract.

2. Analyze the advantages and disadvantages of the selected project contract type from the perspective of risk allocation and factors related to the feasibility of implementing the project.

3. Clarify the responsibilities related to project implementation (including: design, construction, operation, financing arrangement) of the competent state agency, the investor, and the project enterprise.

4. For information technology application projects in state agencies invested through public-private partnerships, the Build-lease-service-transfer (BLT) contract type shall be applied, with the state's investment capital paid to the service provider investor in accordance with annual budget balancing capacity and the following main contents:

a) Scale, scope, timeframe, and information technology service rental fee.

b) Output technical parameters of the information technology service; quality standards and requirements for the service; connection and interoperability requirements with other applications and information systems that the service provider must meet;

c) Regulations on the form and method of service quality evaluation; monitoring and evaluation methods for contract performance;

d) Requirements and procedures for transferring to the state agency at the end of the contract term;

đ) Requirements for security, information security; protection of user information and other requirements related to information technology service leasing;

e) Clearly define services with user fees or commercialization of databases generated from information technology application under the contract (if any), agreements on profit-sharing principles and related costs among parties;

g) Rights and obligations of each contracting party; time and principles of payment and settlement of the contract; other contents agreed upon by the contracting parties;

h) Conditions, mechanisms, and situations for adjusting the rental fee appropriately (if any).

State-owned enterprises that have been assigned by the Ministry of Agriculture and Rural Development to conduct offshore wind power project surveys before the effective date of this Circular shall continue to implement according to the assigned documents; any new matters arising after the effective date of this Circular shall be implemented in accordance with the provisions of this Circular.

1. This Circular takes effect from November 16, 2016.

2. During the implementation process, if there are any issues, organizations and individuals participating in activities related to public-private partnership investment shall send their opinions to the Ministry of Information and Communications (Department of Planning and Finance) for timely guidance and resolution./.