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Entry into the SRO under 44 Federal Laws. New requirements for SRO participants

The Town Planning Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) provides that contractors performing engineering surveys design work, construction, reconstruction, major repairs, as well as demolition of capital construction projects must be members of the relevant SRO. This requirement applies to contractors that have entered into contracts directly with customers of construction work (i.e. general contractors).

Subcontractors engaged by the general contractor to perform work under the contract may not be members of the SRO, regardless of the amount of work they perform under the contract. The Civil Code of the Russian Federation does not impose any requirements on such organizations, stipulating that the general contractor bears all responsibility for the quality of the work they perform to the customer.

The customer also does not have the right to establish a ban on the involvement of subcontractors, because this prohibition will be considered as a requirement for the participant to personally perform work, which does not comply with Law No. 44-FZ and limits competition.

The Civil Code of the Russian Federation also provides for 2 exceptions, when the general contractors themselves can not to be SRO members:

if the general contractor is one of the persons specified in Part 2.1. Article 47, part 4.1. Article 48, part 2.2. Article 52, Part 6 Article 55.31 Civil Code of the Russian Federation;
if the price of the concluded contract for construction, reconstruction or major repairs does not exceed 3,000,000 rubles (Part 2.1, Article 52 of the Civil Code of the Russian Federation), and for the demolition of a capital construction project - 1,000,000 rubles (Part 5 of Article 55.31 of the Civil Code of the Russian Federation).

The Civil Code of the Russian Federation does not establish maximum amounts for contracts the subject of which is engineering surveys and design work. Accordingly, the requirement for SRO membership is imposed on persons performing such work, regardless of the amount of the concluded contract.

In practice, the following question usually arises: how to establish a requirement for membership in an SRO if the NMCK exceeds the size established in the Civil Code of the Russian Federation, but during the bidding, participants can reduce to a price at which the requirement for membership in an SRO does not apply?

The answer to this is as follows: when purchasing construction, reconstruction, major renovation, as well as the demolition of a capital construction project, the notice and procurement documentation must contain a clause that the requirement for membership in the SRO established by the customer does not apply to persons who offered a contract price equal to or lower than that established in the Civil Code of the Russian Federation.

Note that the application of the requirement for membership in an SRO depends precisely on the price of the contract concluded by the procurement participant, and not on the NMC. For example, when the customer conducts electronic auction for construction with NMCK 3.5 million rubles, the procurement participant can submit an application without being a member of the SRO. If such a participant during the auction offers a contract price of 3 million rubles. or lower, the application of such a participant cannot be rejected solely on the grounds that when submitting an application to the auction, the participant did not meet the requirements established in the auction documentation.

Extract from the register of members in the SRO

Participant Compliance established requirement membership in the SRO is confirmed by providing an extract from the register of SRO members as part of the application in the form established by order of Rostechnadzor of Russia dated March 4, 2019 No. 86 (except in the case of a customer requesting quotes in electronic form, during which the participant is not allowed to be required to provide any documents confirming the participant’s compliance with the requirements established on the basis of clause 1, part 1, article 31 of Law No. 44-FZ).

In accordance with Part 4 of Article 55.17 of the Civil Code of the Russian Federation, the SRO is obliged, within three days, to provide, at the request of an interested person, an extract from the register of members of a self-regulatory organization, the validity of which is one month from the date of its issue.

Can the customer set a requirement for the validity period of the statement?

Administrative practice shows that the customer does not have the right to set requirements for the validity period of the statement, because such requirements are not established by Law No. 44-FZ.

“... the condition regarding the deadline for extracting from the register of SRO members is violated by Part 6 of Art. 66 of Law No. 44-FZ and contain signs of an administrative offense under Part 4.2 of Art. 7.30 Code of Administrative Offenses of the Russian Federation ..."

This approach of the antimonopoly authority is justified, because An extract from the SRO register only confirms that the relevant contracting organization was a member of the SRO at the time the extract was issued. Further, such an extract does not confirm anything, even if its thirty-day validity period has not yet expired. An extract is provided by participants as part of the application for only one reason: Law No. 44-FZ requires the provision of a supporting document when establishing any requirement within the framework of clause 1, part 1, article 31 of Law No. 44-FZ.

Two SRO compensation funds. What should the customer look at?

According to Part 3 of Article 55.8 of the Civil Code of the Russian Federation, when concluding a contract based on the results of competitive procedures, a member of the SRO has the right to perform construction works meeting the following conditions in total:

the SRO has a compensation fund to ensure contractual obligations;
the total amount of obligations under contracts concluded as a result of competitive procedures does not exceed the maximum amount of obligations based on which such person made a contribution to the compensation fund for securing contractual obligations.

The customer is not able to verify the procurement participant’s compliance with the second condition. It’s also not worth trying to do this, because... Some OFAS interpret such actions of the customer as an abuse of authority. In this regard, the participant himself bears responsibility for compliance with the total amount of obligations under contracts concluded using competitive procurement procedures.

In addition to the compensation fund for ensuring contractual obligations, which is formed in the SRO at the request of its members, a compensation fund for compensation of harm is created in any SRO, as required condition existence of the SRO itself. The amount of contribution to such a fund depends on the cost of one construction contract, regardless of the method of its conclusion.

A systematic interpretation of Articles 55.8 and 55.16 of the Civil Code of the Russian Federation allows us to draw the following conclusion: if the procurement participant has a sufficient level of responsibility for the compensation fund to ensure contractual obligations, his level of liability for obligations secured by the compensation fund for damages must also correspond to his price proposal, since by submitting a price proposal the participant plans to carry out construction work at the specified price.

Which SRO should the participant be a member of if design work and engineering surveys are purchased in one lot?

There is no clear answer to this question, at least not at the moment. After changes were made to the Civil Code of the Russian Federation on July 1, 2017, which actually canceled the order of the Ministry of Regional Development of Russia dated December 30, 2009 No. 624, the Civil Code of the Russian Federation, for the performance of each of these types of work, establishes a requirement for membership “in its” SRO.

The establishment by the customer of a requirement for participants to have membership in two SROs at once may be considered by the antimonopoly authority as a requirement limiting the number of participants. Establishing a requirement for membership in only one SRO automatically deprives the customer of the right to receive payments from the appropriate compensation fund if there are deficiencies in the contractor’s work. In connection with the above, the customer should not combine these types of work into one lot, and if they still need to be combined, then they should be guided by the practice that has developed in regional administration FAS Russia.

Work on the development of working documentation is not design work and does not require membership in an SRO

In accordance with paragraphs. "p" clause 23 of the Regulations on the composition of sections project documentation and requirements for their content, approved by Government Decree Russian Federation dated February 16, 2008 No. 87, working documentation is being developed based project documentation.

Thus, by the time the development of working documentation begins, the design work is completely completed. Accordingly, work on creating working documentation does not require SRO membership and can be transferred by the customer to any person, including contractor selected to carry out direct construction, reconstruction or demolition of a capital construction project.

SRO membership when performing construction control work

This question is one of the most interesting. According to the letter of the Ministry of Construction of Russia dated September 4, 2018 No. 37059-TB/02 construction control is a function of the technical customer and can only be performed by a member of a self-regulatory organization in the field of construction, reconstruction, major repairs of capital construction projects , except for the cases specified in parts 2.1 and 2.2 of Art. 52 Civil Code of the Russian Federation.

However, these clarifications do not correspond to reality and the law enforcement practice of the FAS Russia. According to Part 2 of Art. 53 of the Civil Code of the Russian Federation, construction control can be carried out not only by the technical customer, but also by a person (individual entrepreneur or legal entity) engaged by the technical customer on the basis of a contract. Requirement for to the specified person The Civil Code of the Russian Federation have not been established. In connection with the above, the FAS Russia makes the correct conclusion that the requirement for SRO membership in this case contradicts Article 53 of the Civil Code of the Russian Federation and violates Law No. 44-FZ (decision of the FAS Russia dated October 26, 2017 in case No. K-1439 /17).

It turns out to be an absurd situation that control over construction work performed by a member of the SRO can be carried out by any person who is not a member of the SRO, but this is true.

Federal Law No. 372-FZ dated July 3, 2016 introduced amendments to the Town Planning Code, which came into force on July 1, 2017.

Firstly, subcontractors no longer need permission from a self-regulatory organization (SRO) to perform work that affects the safety of capital construction projects as of June 18. And the main contractors forgot about the need to have access to this kind of work only from July 1.

Secondly, unitary enterprises, government and municipal institutions, as well as organizations with state participation may not have access to perform the functions of a technical customer or enter into a contract agreement for the performance of engineering surveys or for the preparation of design documentation with the authorities:

executive power;
state power subjects of the Russian Federation;
local government;
state corporations that regulate in the relevant area.

At the same time, in the procurement of any design and survey work and engineering surveys, participants must still be members of the SRO.

Thirdly, candidates for execution of contracts for construction, reconstruction, and major repairs must also be members of an SRO. But there are exceptions. Not required to have permission:

unitary enterprises;
state and municipal institutions;
legal entity with state participation;
contractors who perform construction and installation work under contracts worth no more than 3 million rubles.

Fourthly, a member of the SRO who wants to participate in an auction or other competitive procurement must contribute money to a special compensation fund for securing contractual obligations. This fund acts as an additional insurance for customers against unscrupulous contractors.

Table: when permission is needed

We analyze an extract from the register of SRO members

As part of the second part of the application for participation in the electronic auction for construction, reconstruction and major repairs, the contractor is required to attach an extract from the register of members. The current form was approved on February 16, 2017, and on July 1, new rules regarding admissions came into force. Analysis of the extract is important when summing up the results of an electronic auction, since it allows you to avoid unjustified refusal, and, as a consequence, liability for this. We offer step-by-step algorithm checking this document.

1. Check the price that the participant offered.

For example, NMCC auction 3.8 million rubles. During the auction, the NMCC was reduced to 2.9 million rubles. The application of the participant who made such an offer does not contain an extract from the register. The application should not be rejected, since the participant is not required to be a member of the SRO and, accordingly, does not have to submit such a document.

2. Check your discharge date. According to the norms, it must be issued no earlier than a month before the deadline for submitting applications. For example, if it ends on July 27, and the extract was issued on June 15, the application should be rejected (part 4 of article 55.17 of the Civil Code of the Russian Federation, clause 1 of part 6 of article 69 No. 44-FZ).

3. Check whether the participant has been excluded from the SRO. This information is indicated in column 3.

4. Check whether the contractor can perform the work being purchased. This information is listed on line 4.

5. Make sure that the level of responsibility matches the price offered by the bidder. For example, the proposal of a participant with the first level of responsibility amounted to 70 million rubles, and the maximum amount of obligations for the first level is 60 million rubles. The application of such a participant must be rejected.

Levels of responsibility

The levels of responsibility of a participant who carries out construction, reconstruction, or major repairs of a capital construction project depend on his contribution to the compensation fund (Part 12, Article 55.16 of the Civil Code of the Russian Federation).

100,000 rub. and the cost under one contract should not exceed 60,000,000 rubles.
500,000 rub. and the price of one contract does not exceed 500,000,000 rubles.
RUB 1,500,000 with the cost of one contract being 3 billion rubles.
2,000,000 rub. with a price of one transaction of 10 billion rubles.
More than 10 billion rubles. for one contract - the contribution indicator is 5,000,000 rubles.

1. What you need to know about SRO reform in the construction industry

The six main changes that customers need to be aware of are:

permits from self-regulatory organizations (SROs) to perform work that affects the safety of capital construction projects are becoming a thing of the past. From July 1, these permits are no longer valid, so procurement participants cannot be required to have them. Regarding subcontractors, the legislator made a clarification: they do not need permits as of June 18;
participants in the procurement of any design and survey work must be members of the SRO. An exception is made for unitary enterprises, state and municipal institutions, legal entities with state participation, but only for the types of contracts described in Part 2.1 of Art. 47 and part 4.1 art. 48 Civil Code of the Russian Federation;
participants in the procurement of any construction, reconstruction, or major repair work must also be members of an SRO. There are two exceptions.

The first is the same as for design and survey work (applies only to unitary enterprises, state and municipal institutions, legal entities with state participation).
The second is provided for contractors performing construction and installation work under contracts worth no more than 3 million rubles;

subcontractors are not required to be members of an SRO (part 2 of article 47, part 4 of article 48, part 2 of article 52 of the Civil Code of the Russian Federation);
a member of an SRO who wants to participate in an auction or other competitive procurement must contribute money to a special compensation fund for securing contractual obligations. This fund acts as an additional insurance for customers against unscrupulous contractors;
SROs will be able to defend the interests of their members in court if the customer files a claim for non-fulfillment or improper fulfillment of their obligations.

2. How to carry out competitive procurement of works from July 1 engineering surveys or design

When purchasing any engineering survey work (preparation of design documentation), indicate the following requirements in the notice and documentation:

the competition participant must be a member of the SRO in the field of engineering surveys (in the field of architectural and construction design). Membership in an SRO is not required for unitary enterprises, state and municipal institutions, and legal entities with state participation in the cases listed in Part 2.1 of Art. 47 and part 4.1 art. 48 Civil Code of the Russian Federation;
the total amount of obligations of the procurement participant under contracts concluded using competitive ways, should not exceed the level of liability of the participant under the compensation fund to ensure contractual obligations;
As part of the application, the participant must submit a current extract from the register of SRO members in the form approved by Rostechnadzor Order No. 58 dated February 16, 2017.

In the draft contract, we recommend specifying a condition that the customer has the right to unilaterally terminate the contract if the contractor, whose membership in the SRO is mandatory, is excluded from it (Clause 3 of Article 450.1 of the Civil Code of the Russian Federation, Part 9 of Article 95 of Law No. 44 -FZ).

3. What to look for in the notice, documentation, draft contract

When purchasing any work on construction, reconstruction, major repairs of capital construction projects, indicate the following requirements in the notice and documentation (clause 6, part 5, article 63, part 1, article 64, clause 2, part 5, article 66 of Law No. 44- Federal Law):

the auction participant must be a member of the self-regulatory organization in the field of construction, reconstruction, major repairs of capital construction projects;
The SRO in which the participant is a member must have a compensation fund to ensure contractual obligations;
the total amount of obligations of an auction participant under contracts concluded using competitive methods should not exceed the level of responsibility of the participant for the compensation fund for securing contractual obligations;
in the second part of the application, the auction participant must submit an extract from the register of SRO members in the form approved by Rostechnadzor Order No. 58 dated February 16, 2017. This extract must be issued no earlier than one month before the deadline for filing applications, which is specified in the notice of auction (clause 1, part 6, article 69 of Law No. 44-FZ).

In addition, it is necessary to make a reservation that all of the above requirements do not apply:

for participants who offer a contract price of 3 million rubles. and less. Such participants are not required to be members of the SRO by virtue of Part 2.1 of Art. 52GrK RF;
for unitary enterprises, state and municipal institutions, legal entities with state participation in the cases listed in Part 2.2 of Art. 52 Civil Code of the Russian Federation.

We recommend including in the draft contract a provision that the customer has the right to unilaterally terminate the contract if the contractor, whose membership in the SRO is mandatory, is excluded from it (Clause 3 of Article 450.1 of the Civil Code of the Russian Federation, Part 9 of Article 95 of Law No. 44 -FZ).

4. What to pay attention to when checking the second parts of applications

If the second part of the application does not contain an extract from the register of SRO members, do not rush to reject the application. Perhaps the participant is not required to be a member of the SRO.

For example, NMCC auction is 3.8 million rubles. During the auction, the NMCC was reduced to 2.9 million rubles. The application of the participant who made such an offer does not contain an extract from the SRO register. The application should not be rejected, since the participant is not required to be a member of the SRO and, accordingly, does not have to submit an extract.

When checking an extract from the register of SRO members, pay attention to the “date” field: has the participant complied with the requirement that the extract is dated? The extract must be issued no earlier than one month before the application deadline. For example, if the submission of applications ends on July 17, and the extract is issued on June 5, the application must be rejected (part 4 of article 55.17 of the Civil Code of the Russian Federation, clause 1 of part 6 of article 69 of Law No. 44-FZ).
Column 3 should not contain information that the auction participant is excluded from the SRO.
In column 4, you need to check whether the auction participant has the right to perform the purchased work.
In column 6, pay attention to the information about whether the level of responsibility indicated in it corresponds to the price offered by the auction participant. For example, the offer of a participant with the first level of responsibility amounted to 70 million rubles. The application of this participant must be rejected, since the maximum amount of obligations under the first level is 60 million rubles.

5. How to hold an auction for construction, reconstruction, major repairs from July 1 with NMCC for 3 million rubles. or less

From July 1, in order to fulfill contracts worth 3 million rubles. and less, organizations or individual entrepreneurs are not required to be members of an SRO in the field of construction, reconstruction, and major repairs. Check that the notice, documentation, and draft contract do not contain requirements for membership in an SRO or availability of SRO approvals.

We are holding an electronic auction for design work for the major renovation of a building. N (M) Central Committee 30 million rubles. According to the results of the auction, the winner offered a price of 10 million rubles. When considering the second parts of the applications, the winner was offered an extract from the SRO register with a level of responsibility of 25 million rubles. Is it necessary to reject an application due to the fact that the NMCC is above the winner's level of responsibility?

Answer

Read in the article the answer to the question: If, when creating a technical specification, we do not ask for specific indicators for nails, is it necessary to indicate the country of origin of the nails, and if we ask for specific indicators for paint, is it necessary to indicate the country?

No, in the case specified in the question, the commission has no legal grounds for rejecting the procurement participant’s application. Since the contract price does not exceed the level of responsibility of the contractor. The level of responsibility is calculated based on the proposed contract price based on the procurement results.

From July 1, 2017, the composition of the documents that participants attach to their application has changed. We will tell you for whom the documents have changed and what now needs to be included in the application.

Certificates of admission to certain types of work that affect the safety of capital construction facilities are no longer valid from July 1. Instead, the customer must require the participant to attach to the application an extract from the register of members of self-regulatory organizations. It is this document that is now provided by procurement participants for engineering surveys, preparation of design documentation, construction, reconstruction, and major repairs of capital construction projects. This rule was introduced into the Town Planning Code of the Russian Federation by amendments to Law No. 372-FZ dated July 3, 2016.

An extract from the register of SRO members will be needed when individual entrepreneurs and legal entities participate in government procurement and procurement under Law No. 223-FZ.

When the rule on requiring an SRO does not apply

If the procurement is carried out for construction, reconstruction and overhaul and the amount of obligations under the contract or agreement does not exceed 3 million rubles, membership in the SRO is not required. In this case, the customer does not have the right to demand from the participants an extract from the register of SRO members.

If the NMCC is above 3 million rubles, then the customer must establish a requirement for membership in an SRO in the field of construction, reconstruction, and major repairs of capital construction projects. Install it taking into account the exceptions made by Part 2.2 of Article 52 of the Civil Code of the Russian Federation.

Membership in an SRO is also not required in the following cases:

Part 2.1. Article 47 of the Civil Code of the Russian Federation - for procurement for engineering surveys;
Part 4.1. Article 48 of the Civil Code of the Russian Federation - for procurement for architectural and construction design.

What contributions does the participant make?

A member of a self-regulatory organization who wants to participate in competitive procurement must pay:

1. contribution to the compensation fund for damages (hereinafter referred to as the CF VV);

2. contribution to the compensation fund for securing contractual obligations (hereinafter referred to as CF ODO).

At the same time, the CF ODO is necessary only to ensure the contractual obligations of SRO members who enter into contracts on a competitive basis. This means that only SRO members who participate in competitive procedures under 44-FZ and 223-FZ need to form this fund.

For your convenience, we have compiled the amounts of contributions of SRO members into tables.

Table 1. The amount of contribution to the CF VV and CF ODO per one member of the SRO in the field of engineering surveys or in the field of architectural and construction design (parts 10 and 11 of article 55.16 of the Civil Code of the Russian Federation)

Table 2. The amount of contribution to the CF VV and CF ODO per one member of the SRO in the field of construction, reconstruction, overhaul of capital construction projects (parts 12 and 13 of article 55.16 of the Civil Code of the Russian Federation)

Let's look at specific example the amount of contributions to funds for participation in procurement. Let’s say that NMCC purchases for major repairs of a capital construction project amounted to 510 million rubles. The winner of the competitive procurement offered a price of 480 million rubles. Then the level of responsibility in his extract from the register cannot be lower than the second level. The contribution that the winner made to the CF BB must be at least 500 thousand rubles, and the minimum contribution to the CF ODO for him is 2.5 million rubles.

What should the customer do?

The procurement documentation must indicate that the price offered by the participant cannot be higher than the level of responsibility in accordance with contributions to the funds.

To check a participant’s extract from the register, the customer can send a request to the SRO about the accuracy of the data. It must be provided to the customer within 3 working days after the request is received.

The form of such an extract was approved by order of Rostechnadzor dated February 16, 2017 No. 58.

What to require from participants when purchasing construction and repair work

From July 1, 2017, customers must take into account changes in urban planning legislation when preparing procurement documentation - instead of an SRO certificate, require participants to provide an extract from the register of members of a self-regulatory organization. I will tell you in detail what uniform and additional requirements to establish for participants when purchasing construction and repair work and for whom the law provides exceptions.

Uniform requirements

For any procurement, the customer is obliged to establish uniform requirements for procurement participants from Law No. 44-FZ. What uniform requirements to establish when purchasing construction and repair work, and how to confirm that the participant meets the requirements, see the table:

Participant requirement	How to confirm
Complies with legal requirements for persons performing construction or repair work	Extract from the register of members of SRO 1 clause 1 part 1 art. 31 of Law No. 44-FZ
The procurement participant - the legal entity is not liquidated, the arbitration court did not declare the legal entity or individual entrepreneur bankrupt, and did not open bankruptcy proceedings	Declaration clause 3, part 1, art. 31 of Law No. 44-FZ
The participant’s activities have not been suspended on the date the application was submitted	Declaration clause 4, part 1, art. 31 of Law No. 44-FZ
Over the past calendar year, the participant has no arrears on taxes, fees, debts on other obligatory payments, the amount of which exceeds 25 percent of the book value of assets 2. The data is taken from the financial statements for the last reporting period	Declaration. Accept the application if the participant has filed an application to appeal the arrears or debt and there is no decision on the application as of the date of consideration of the application clause 5, part 1, art. 31 of Law No. 44-FZ
Citizen, leader, member of a collegial executive body or the chief accountant of the organization has not been convicted of economic crimes, has not been deprived of the right to hold a position and engage in construction or repair work, not disqualified	Declaration clause 7, part 1, art. 31 of Law No. 44-FZ
The procurement participant, a legal entity, was not fined for bribery or commercial bribery within two years before submitting the application.	Declaration clause 7.1 part 1 art. 31 of Law No. 44-FZ
There is no conflict of interest between the procurement participant and the customer	Declaration clause 9, part 1, art. 31 of Law No. 44-FZ
The procurement participant is not an offshore company	Extract from the Unified State Register of Legal Entities clause 10, part 1, art. 31 of Law No. 44-FZ

2 Exceptions - amounts for which a deferment, installment plan, investment tax credit were provided, money that was restructured, for which there is a court decision that the applicant has paid, as well as amounts that are hopeless for collection.

A declaration that the participant meets the uniform requirements and an extract from the register of SRO members are submitted as part of the application.

In what case to require SRO

When purchasing construction, reconstruction, major repairs and NMCC work exceeds 3 million rubles, establish a requirement that the procurement participant must be a member of a self-regulatory organization. An exception is cases when SRO membership is not required in accordance with Part 2.2 of Article 52 of the Town Planning Code of the Russian Federation. Include in the procurement documentation that participants must confirm SRO membership. Request that participants submit an extract from the register of SRO members as part of their application. The rules have been in effect since July 1, 2017 - articles 46.8, 52, 55.17 of the Town Planning Code of the Russian Federation.

The form for extracting from the register of SRO members was established by Rostechnadzor. To check whether the information from the extract is accurate, request participant data from the self-regulatory organization. At the request of an interested person, the organization is obliged to provide an extract from the register of SRO members within three working days from the date the request was received. The validity period of the extract is one month from the date the document was issued (Part 4 of Article 55.17 of the Town Planning Code of the Russian Federation).

If the NMCC is less than 3 million rubles, it is impossible to require that the procurement participant be a member of the SRO in the field of construction, reconstruction, and major repairs of capital construction projects (Part 2.1 of Article 52 of the Town Planning Code of the Russian Federation).

If you require an extract from the register of SRO members, set two requirements in the procurement documentation.

Requirement 1. A self-regulatory organization must be registered in the same entity as the participant.

Rationale: only individual entrepreneurs and legal entities that are registered in the same subject of the Russian Federation in which the SRO is registered can be members of a self-regulatory organization. The regional principle of membership in the SRO does not apply to designers and surveyors. This is stated in Part 3 of Article 55.6 of the Town Planning Code of the Russian Federation.

Requirement 2. The price offer of the participant should not exceed the level of responsibility of the SRO member from the extract. It's about on liability for obligations under construction contracts concluded as a result of competitive procedures. Depending on the level of responsibility, the SRO member makes a contribution to the compensation fund for securing contractual obligations.

Rationale: the register of SRO members indicates information about the level of responsibility of the participant, in accordance with which the member made a contribution to the compensation fund for securing contractual obligations. We are talking about responsibility for obligations under contracts for engineering surveys, preparation of design documentation, and construction contracts that are concluded as a result of competitive procurement. The listed information is also included in the extract from the register of SRO members (clause 5, part 2, article 55.17 of the Town Planning Code of the Russian Federation).

Date: 22 .05.2017

In accordance with the Town Planning Code of the Russian Federation (hereinafter referred to as the RF Civil Code) individual species work related to capital construction projects can only be performed by legal entities and individual entrepreneurs who have issued self-regulatory organization(hereinafter referred to as SRO) certificates of admission to these types of work. Currently these works include:

Engineering survey work that affects the safety of capital construction projects 1. The list of these works is established by the Ministry regional development RF and includes: hydrogeological research, engineering and environmental survey of the territory, physical and mathematical modeling of the interaction of buildings and structures with the geological environment, etc. 2
Work on architectural and construction design that affects the safety of capital construction projects 3. The list of specific works is also established by the Ministry of Regional Development of the Russian Federation, it includes: preparation master plan land plot, preparation of projects for internal gas supply systems, preparation of projects for external networks of low-current systems, etc. 2
Work on construction, reconstruction, major repairs of a capital construction facility, which affects the safety of these facilities 4. As in the two previous cases, such specific work is established by the Ministry of Regional Development of the Russian Federation - this is, for example, artificial freezing of soils, reinforcement work when installing concrete and reinforced concrete monolithic structures, laying water pipelines, laying foundations highways etc. 2

The specified certificate is issued by the SRO to legal entities and individual entrepreneurs who are members of this SRO, subject to their confirmation of the relevant requirements without limiting the period and territory of its validity in the established form 5.

In accordance with 44-FZ, when making a purchase, the customer establishes uniform requirements for procurement participants, which include compliance with the requirements established in accordance with the legislation of the Russian Federation for persons supplying goods, performing work, or providing services that are the object of procurement 6 . Thus, if the object of the procurement is the implementation of the above work, which affects the safety of capital construction projects, then the procurement participant has the appropriate SRO certificate of admission to these types of work is a legitimate requirement of the customer. The Federal Antimonopoly Service adheres to the same opinion 7 .

Example

In mid-April 2017, the municipal enterprise of housing and communal services of the Bilibinsky municipal district (Chukotsky autonomous region) announced an electronic auction for the completion of major repairs of the site backbone network hot water supply to central heating stations with NMCC in the amount of 2.55 million rubles. 8 According to the auction documentation, one of the documents that was required to be provided from the procurement participant was a copy of the SRO certificate of admission of the auction participant to organize the work specified in clause 33.7 of part III of the Order of the Ministry of Regional Development of the Russian Federation dated December 30, 2009 No. 624 “On approval of the List of types works on engineering surveys, on the preparation of design documentation, on construction, reconstruction, major repairs of capital construction projects that affect the safety of capital construction projects" - work on organizing construction, reconstruction and major repairs by a developer or customer engaged on the basis of an agreement by a legal entity or an individual entrepreneur (general contractor) in relation to water supply and sewerage facilities.

However, from 07/01/2017, the system described above is expected to undergo changes, which are caused by the entry into force of most provisions Federal Law dated July 3, 2016 No. 372-FZ “On amendments to the Town Planning Code of the Russian Federation and certain legislative acts of the Russian Federation.” Let's look at them.

Firstly, the concept of “work that affects the safety of capital construction projects” is excluded from the Civil Code of the Russian Federation. Now criteria for work for which an SRO certificate of admission is required, there will be others.

In a relationship engineering surveys this is any work performed under agreements concluded with a developer, technical customer or a person who has received permission in accordance with the Land Code of the Russian Federation to use land or a land plot that is in state or municipal ownership; at the same time, work under contracts for the performance of engineering surveys concluded with other persons can be performed by individual entrepreneurs or legal entities that are not members of the SRO 9 .

In a relationship architectural and construction design is any work on the preparation of design documentation within the framework of contracts for the preparation of design documentation concluded with the developer, technical customer, person responsible for the operation of the building, structure, regional operator; and, as in the previous case, work under contracts for the preparation of project documentation concluded with other persons can be carried out by individual entrepreneurs or legal entities that are not members of the SRO 10. Absolutely the same norm will now apply to construction, reconstruction, and major repairs of capital construction projects 11 .

Secondly, the following additional cases when membership in an SRO and a certificate of admission are not required:

In relation to all three categories of work (engineering surveys; architectural and construction planning; construction, reconstruction, major repairs of capital construction projects) - if the contractor is a state (municipal) unitary or state enterprise, a state (municipal) institution or a commercial organization that is controlled by the authorities state power or local government (created by one or another public legal entity or more than half directly or indirectly owned by this entity) 12.

It should be clarified that this condition applies to situations when such organizations enter into contracts with state authorities and local governments, and in relation to the third category of work (construction, reconstruction, major repairs of capital construction projects), this condition applies only to cases of concluding a construction contract contract In accordance with civil law, such an agreement is considered to be an agreement when the contractor undertakes, within the period established by the agreement, to build a certain object on the instructions of the customer or to perform other construction work, and the customer undertakes to create for the contractor the necessary conditions to carry out the work, accept the result and pay the agreed price, while such an agreement is concluded for the construction or reconstruction of an enterprise, building (including a residential building), structure or other object, as well as for the performance of installation, commissioning and other inextricably related to the construction object of work 13.

However, let us note that in the new edition of the Civil Code of the Russian Federation, the person carrying out construction, reconstruction, or major repairs of a capital construction project may be a developer or an individual entrepreneur or a legal entity that has entered into a construction contract 14. Therefore, according to the logic of urban planning legislation, the rules relating to a construction contract can also be applied to contracts under which not the construction of new buildings or structures is carried out, but major repairs of existing facilities. This approach is also supported by the fact that civil law establishes that the rules on construction contracts also apply to major repairs of buildings and structures, unless otherwise provided by the contract 15 .

With regard to concluding a construction contract - if the amount of obligations (that is, the price) of the contract does not exceed 3 million rubles 16.

Thirdly, the concept of “SRO certificate of admission to work” is generally excluded from the Civil Code of the Russian Federation, and Order of Rostechnadzor dated 07/05/2011 No. 356 “On approval of the form of a certificate of admission to a certain type or types of work that affect the safety of objects capital construction" will lose its force. When making purchases, a document confirming membership legal entity or individual entrepreneur in the relevant SRO, there will be an extract from the register of members of the SRO, of which the procurement participant is a member. New form such an extract has already been established and is in force 17, while the positions of this form that relate to a certificate of admission to a certain type or types of work that affect the safety of capital construction projects (clauses 8-10) will not be applied from 07/01/2017 .

Thus, customers under 44-FZ must, when making purchases, notices of which are posted in the Unified Information System from 01/01/2017, take into account these changes in urban planning legislation when preparing procurement documentation in terms of establishing requirements for these participants. For example, if the above example auction for the overhaul of a section of the main hot water supply network of a central heating station in Chukotka had been held in the second half of 2017 (that is, after the considered changes had come into force), then the customer would not have the right to demand participant in the purchase of membership in an SRO and providing the corresponding extract from the register of SRO members, since the NMCC does not exceed 3 million rubles. 16 But if the NMCC exceeded this threshold, then the requirement to provide an extract would be legal, since the customer (municipal housing and communal services enterprise) in this case is the person responsible for the operation of water supply systems 17. But since here the municipal enterprise acts as the customer, when drawing up auction documentation it would be necessary to “exempt” from this obligation certain categories of organizations established by the new edition of town planning legislation (state and municipal enterprises, state and municipal institutions, commercial organizations with state or municipal participation) 18.

1 Part 2 Art. 47, parts 1 and 4 art. 55.8 Civil Code of the Russian Federation.

2 Order of the Ministry of Regional Development of the Russian Federation dated December 30, 2009 No. 624 “On approval of the List of types of work for engineering surveys, preparation of design documentation, construction, reconstruction, major repairs of capital construction projects that affect the safety of capital construction projects”

3 Parts 4 Art. 48, parts 1 and 4 art. 55.8 Civil Code of the Russian Federation.

4 Parts 2 tbsp. 52, parts 1 and 4 art. 55.8 Civil Code of the Russian Federation

5 Parts 8 and 9 Art. 55.8 Civil Code of the Russian Federation, Order of Rostekhnadzor dated 07/05/2011 No. 356 “On approval of the form of a certificate of admission to a certain type or types of work that affect the safety of capital construction projects”

6 P. 1 part 1 tbsp. 31 of the Federal Law of 04/05/2013 No. 44-FZ “On contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

7 See, for example, Letter of the Federal Antimonopoly Service of Russia dated November 2, 2015 No. ATs/60557/15.

8 www.zakupki.gov.ru - purchase No. 0588600001517000019.

9 New edition Part 2 Art. 47 Civil Code of the Russian Federation, which comes into force on July 1, 2017.

10 New edition of Part 4 of Art. 48 Civil Code of the Russian Federation, which comes into force on July 1, 2017.

11 New edition of Part 2 of Art. 52 of the Civil Code of the Russian Federation, which comes into force on July 1, 2017.

12 For more details, see Part 2.1 of Art. 47, part 4.1 art. 48, part 2.2 art. 52 of the Civil Code of the Russian Federation, coming into force on July 1, 2017.

13 Parts 1-2 art. 740 Civil Code of the Russian Federation.

14 New edition of Part 3 of Art. 52 of the Civil Code of the Russian Federation, which comes into force on July 1, 2017.

15 Part 2 Art. 740 Civil Code of the Russian Federation.