The requirement of the sro in the auction documentation 44 fz. Clarifications regarding the three million limit on bidding. National Registry of Specialists

05.12.2019

It is unlikely that anyone will argue with the fact that purchases related to construction, design, engineering surveys are among the most difficult to draw up documentation and submit an application.

From a proper, objective description of the subject matter of the procurement to the establishment of permitting requirements, the process requires the parties to have specialized, narrow knowledge of the construction industry as well as procurement law.

SRO certificate

When carrying out the mentioned purchases, the main permit document for potential participants is a certificate self-regulatory organization. In accordance with the provisions of the Town Planning Code, only an organization that owns such has the right to carry out the mentioned works.

Of course, in the documentation, the Customer is obliged to establish the requirement for a certificate.

There is a small feature in the preparation of such auction documentation. As you know, legal entities, individual entrepreneurs and individuals can take part in public procurement. This instruction is contained in the documentation. At the same time, when conducting a procurement that requires participants to have a certificate, individuals are excluded from the list of possible participants.

The fact is that, in accordance with the requirements of urban planning legislation, a certificate is issued only to legal entities or individual entrepreneurs. Therefore, individuals are automatically excluded from participation.

Requirement to perform work in person

Based on the needs of the Customers, the performance of the work stipulated by the contract can be carried out both personally by the Contractor and with the involvement of third-party subcontractors. At the same time, it is worth paying attention to the fact that the requirements of the documentation should not contradict each other.

In the event that the work must be performed personally, the requirement for a certificate must contain the entire list of types of work that must be specified in the certificate. In the event that the work can be performed with the involvement of other organizations, both options should be provided, which may be chosen by the winner of the purchase. In this case, the requirement for a certificate with all types of work is prescribed, if the participant decides on personal performance. It is also possible to have a certificate authorizing the organization of the work, in the case when the participant plans to involve subcontractors.

In addition, it should be noted that in the case when the work must be carried out on its own, the draft contract must necessarily contain this condition. Otherwise, as follows from the norms of the Civil Code, if the contract does not contain a condition for the personal performance of work, that is, if the contract does not reflect this condition in principle, the Contractor has the right to engage third-party organizations.

Of course, the Customer, in the event of establishing a requirement for the personal performance of work, should take care in advance that, if necessary, he will need to justify his need and the absence of restriction of competition.

Certificate and other permits

We are talking about cases where the performance of work requires not only a certificate, but also a license to carry out a particular activity (for example, a special case is the need for a participant to have a license from the Ministry of Emergency Situations).

In this case, the only possible option is the possibility of attracting a subcontractor, for the absence of signs of restricting competition during the procurement.

In this case, the Customer must provide the participant with a choice. In the second part of the application, either a certificate authorizing the organization of certain works without the need to provide a license or other permitting document, or the presence of a certificate with a specific list of permitted types of work in conjunction with a license or other document provided for by law can be provided.

Restriction on the amount of the contract

The certificate contains a condition on the maximum amount of the contract that can be concluded for the organization of work.

At the same time, when considering the second parts of applications for participation in the purchase, the Auction Commission faces the question of what amount should be included in the permitted range determined by the certificate.

For example, the Customer conducts a purchase with an initial (maximum) contract price of 10 million rubles. The price of the contract proposed by the participant is 5 million rubles, while the certificate limits the price of one contract to 5 million. The question arises, how should the Auction Commission apply this restriction - to the NMCC or to the price offered by the participant?

From July 1, 2017, amendments to the Civil Code of the Russian Federation introduced by Federal Law No. 372-FZ of July 3, 2016 come into force. From the named date, it is not allowed to carry out entrepreneurial activity for the performance of work that affects the safety of facilities capital construction on the basis of a certificate of admission issued by a self-regulatory organization (hereinafter - SRO). In addition, from July 1, a person will have the right to carry out work on the implementation of engineering surveys, preparation project documentation, construction, reconstruction, overhaul of capital construction facilities under an agreement with the developer, technical customer, the person responsible for the operation of the building, structure, or the regional operator, if it is a member of the relevant SRO and otherwise not established by the Civil Code of the Russian Federation. From 07/01/2017, customers are not entitled to establish a requirement for a certificate of admission from procurement participants.
How, from 01.07.2017, customers should establish requirements for contract participants for the procurement of works, for the implementation of engineering surveys, preparation of project documentation, construction, reconstruction, overhaul of capital construction facilities? What documents should be required if the contract price exceeds 3 million rubles?

On this issue, we take the following position:
The customer, when purchasing in a competitive way works on the performance of engineering surveys, or the preparation of project documentation, or the construction, reconstruction, overhaul of capital construction facilities with an initial (maximum) contract price of more than 3 million rubles, is obliged to establish a requirement for the need for general rule membership of the procurement participant in a self-regulatory organization that unites persons performing the relevant work, in which a compensation fund has been formed that ensures obligations under contracts concluded using competitive methods of concluding contracts, in the maximum amount, based on which the procurement participant made a contribution to the specified fund, exceeding the amount of obligations of this procurement participant under contracts previously concluded using competitive methods, in the amount not less than the initial (maximum) price of the contract, which must be concluded as a result of the ongoing procurement.
As confirmation of compliance with this requirement, the customer has the right to require the provision of the following as part of the application:
- an extract from the register of members of the above self-regulatory organization, provided no more than a month before the application for participation in the procurement and containing information about the right of this procurement participant to perform work that is the subject of procurement under contracts concluded using competitive methods of concluding contracts, and on the level of responsibility of a SRO member for obligations under contracts of this kind;
- declarations of the procurement participant that the total amount of its obligations under contracts previously concluded using competitive methods is less than the maximum amount of the relevant obligations secured by the above compensation fund, by an amount not less than the initial (maximum) price of the contract, which must be concluded as a result of ongoing purchase.

Position justification:
In accordance with , federal law dated 05.04.2013 N 44-FZ "On contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law N 44-FZ), the customer in the notice of procurement and procurement documentation must establish the requirement that the procurement participant comply with the requirements established in accordance with the legislation of the Russian Federation to persons engaged in the supply of goods, performance of work, provision of services that are the object of procurement.These requirements include, first of all, the need to obtain a special permit (license), membership in a self-regulatory organization (hereinafter - SRO) or obtain an SRO certificate of admission to a certain type of work for the implementation of legally defined types of activities (Civil Code of the Russian Federation) With regard to the right to perform work that affects the safety of capital construction facilities, the relevant requirements are established by the norms of the Russian Federation (hereinafter also referred to as the Civil Code of the Russian Federation).
At the same time, indeed, from July 1, 2017, the amendments to the Russian Federation introduced by No. 372-FZ dated July 3, 2016 (hereinafter referred to as Law No. 372-FZ) came into force, in connection with which, in accordance with Federal Law No. 191-FZ "On the entry into force of the Town Planning Code Russian Federation", introduced into the said Law of the Law N 372-FZ, from July 1, 2017, it is not allowed to carry out entrepreneurial activities for the implementation of engineering surveys, for the implementation of architectural and construction design, construction, reconstruction, overhaul capital construction facilities on the basis of a certificate issued by the SRO on admission to a certain type or types of relevant work.
Accordingly, from July 1, 2017, customers are not entitled to establish a requirement for the availability of the above certificates from procurement participants.
In accordance with the Civil Code of the Russian Federation, the Civil Code of the Russian Federation, the Civil Code of the Russian Federation as amended by N 372-FZ, the performance of engineering surveys, work on the preparation of project documentation, as well as the performance of construction, reconstruction, overhaul of capital construction facilities (hereinafter referred to as construction work) under an agreement with by the developer, technical customer, the person responsible for the operation of the building, structure, or the regional operator should be carried out only by individual entrepreneurs or legal entities that are members of SROs carrying out relevant types of activities (hereinafter referred to as SROs in the field of construction), unless otherwise established by the norms of the Russian Federation .
Exceptions are established for the following categories of work for the following persons:
- in relation to the performance of any of the above works - for persons listed in the Civil Code of the Russian Federation as amended by N 372-FZ, namely state and municipal institutions and unitary enterprises, other commercial organizations created by public law entities or in the authorized capital of which public law formations or the above legal entities own more than 50%, provided that they perform such work under contracts with authorities state power or bodies local government relevant public legal entities;
- in relation to the execution of construction works:
for any contractors under contracts, the amount of obligations under which does not exceed 3 million rubles (GRK RF as amended by N 372-FZ);
for individuals engaged in the construction, reconstruction, overhaul of an individual residential building (GRK RF);
for any persons engaged in the construction, reconstruction, overhaul of facilities for which a construction permit is not required in accordance with the Civil Code of the Russian Federation (GRC RF).
Additional requirements for the performance of all the above works (hereinafter also referred to as work in the field of construction) under contracts concluded using competitive methods of concluding contracts are put forward by the Civil Code of the Russian Federation as amended by Law N 372-FZ, according to which a SRO member has the right to perform work in the field of construction according to such contracts subject to the following conditions:
1) the SRO, of which such a person is a member, has a compensation fund for securing contractual obligations, formed in accordance with the Civil Code of the Russian Federation;
2) if the total amount of obligations under the above agreements does not exceed the maximum amount of obligations, on the basis of which such a person made a contribution to the compensation fund for securing contractual obligations in accordance with par. 11 or 13 of the Civil Code of the Russian Federation (the number of such contracts is not limited).
At the same time, by virtue of Part 1 of the Civil Code of the Russian Federation, compensation funds for ensuring contractual obligations are formed by SROs in the field of construction only at the request of 15 of its members or 30 - for SROs that unite persons engaged in construction works, on the intention to take part in the conclusion of the relevant agreements using competitive methods of conclusion (, the Civil Code of the Russian Federation).
From the foregoing, it follows that the customer, when purchasing any work in the field of construction, including construction work with an initial (maximum) contract price (hereinafter referred to as the NMTsK) of more than 3 million rubles, in a competitive way, as a general rule, must establish the following requirements that must be met in aggregate :
- membership of the procurement participant in SROs in the field of construction, uniting persons performing the relevant work;
- the presence of a compensation fund for this SRO to ensure contractual obligations;
- confirmation that the maximum amount of obligations, based on which the procurement participant made a contribution to the specified compensation fund, exceeds the amount of obligations of this procurement participant under contracts previously concluded using competitive methods, by an amount not less than the NMCC, which must be concluded based on the results the ongoing procurement, since the contract, in the event that such a procurement is declared void, can be concluded precisely at such a price (part 1 of article 55, paragraph 4 of part 1, paragraph 4 of part 2, paragraph 4 of part 3 of article 71, h., Law N 44-FZ).
These requirements do not apply to persons listed in the Civil Code of the Russian Federation as amended by N 372-FZ, in the situations described in the above rules.
In this regard, it should be borne in mind that, firstly, information about SROs in the field of construction in accordance with part of the Civil Code of the Russian Federation, Federal Law No. 315-FZ of December 1, 2007 "On Self-Regulatory Organizations" (hereinafter - Law No. ) are entered in the state register of SROs, and the information contained in this register is open and publicly available (Law N 315-FZ).
Secondly, by virtue of the Civil Code of the Russian Federation, Law N 315-FZ, each SRO is obliged to maintain a register of its members, information from which, according to part , of Law N 315-FZ, must be posted on the official website of this SRO on the Internet. The register of SRO members in the field of construction in accordance with the Civil Code of the Russian Federation can be maintained as part of unified register members of self-regulatory organizations, subject to the SRO posting such a register of its members on its website. Moreover, according to the Civil Code of the Russian Federation, in the register of members of an SRO in the field of construction, in relation to each of its members, information should be contained, among other things, on whether he has the right to perform relevant work in the field of construction under contracts concluded using competitive methods of concluding contracts, and on the level of his responsibility for obligations under contracts of this kind, in accordance with which he made a contribution to the compensation fund for securing contractual obligations. Logically, it follows from the above rules that the specified information is entered in the register of SRO members only on the condition that the SRO has already formed a compensation fund for ensuring contractual obligations, and the SRO member has already made an appropriate contribution to it.
At the same time, the SRO is obliged to provide, at the request of the interested person, an extract from the register of members of the SRO within no more than 3 business days from the date of receipt of the specified request, the validity of the extract from the register is 1 month from the date of its issue (GRK RF). The form of an extract by virtue of the Civil Code of the Russian Federation is established by the supervisory authority for self-regulatory organizations, on the basis of this rule, this form is approved Federal Service on environmental, technological and nuclear supervision dated February 16, 2017 N 58.
Thus, the customer, as a confirmation of the membership of the participant in the procurement of works in the field of construction, including construction works with the NMTsK over 3 million rubles, in the relevant SRO, the formation of a compensation fund in it to ensure contractual obligations and the payment of the corresponding contribution to this fund by the procurement participant has the right require the provision of an extract from the register of SRO members, provided no more than a month before the application was submitted and containing information about whether this procurement participant has the right to perform work that is the subject of procurement under contracts concluded using competitive methods of concluding contracts, and about the level of responsibility of the SRO member obligations under such agreements.
The accuracy of the information specified in the extract can be verified by the register of members of the SRO posted on its official website, and the eligibility of the SRO to issue such extracts - according to state register SRO.
The excess of the maximum amount of obligations, on the basis of which the procurement participant made a contribution to the compensation fund for ensuring contractual obligations, over the total amount of obligations of this procurement participant under contracts previously concluded by him as a contractor using competitive methods, in an amount not less than the NMCC, which must be concluded based on the results of the ongoing procurement, can be confirmed when submitting an application only by the declaration of the participant himself. At the same time, the reliability of the data of such a declaration can be verified by comparing the data of the extract on the level of responsibility and the data of the register of contracts provided for by Law N 44-FZ on contracts concluded by this participant for the performance of similar work.

Prepared answer:
Legal Consulting Service Expert GARANT
Golubev Alexander

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Serkov Arkady

The material was prepared on the basis of an individual written consultation provided as part of the Legal Consulting service.

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

The six main changes that the customer needs to be aware of are:

permits of self-regulatory organizations (SROs) to perform work that affects the safety of capital construction facilities are becoming a thing of the past. From July 1, these tolerances are no longer valid, so it is impossible to demand their availability from procurement participants. With regard to subcontractors, the legislator made a clarification: they do not need permits from 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 of Art. 48 GRK RF;
participants in the procurement of any construction, reconstruction, overhaul work must also be members of the 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 the SRO (part 2 of article 47, part 4 of article 48, part 2 of article 52 of the Civil Code of the Russian Federation);
an SRO member 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 conduct a competitive procurement of engineering survey or design work from July 1

When purchasing any works on engineering surveys (preparation of project documentation), specify the following requirements in the notice and documentation:

the participant of the competition must be a member of the SRO in the field of engineering surveys (in the field of architectural and construction design). Membership in the SRO is not required for unitary enterprises, state and municipal institutions, legal entities with state participation in the cases listed in Part 2.1 of Art. 47 and part 4.1 of Art. 48 GRK RF;
the total amount of obligations of the procurement participant under contracts concluded using competitive methods should not exceed the level of responsibility of the participant for the compensation fund for ensuring contractual obligations;
as part of the application, the participant must submit a valid 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 the 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 N 44 -FZ).

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

When purchasing any work on the construction, reconstruction, overhaul of capital construction facilities, in the notice and documentation, indicate the following requirements (clause 6, part 5, article 63, part 1, article 64, clause 2, part 5, article 66 of Law N 44- FZ):

the auction participant must be a member of the SRO in the field of construction, reconstruction, overhaul of capital construction facilities;
The SRO, in which the participant is a member, must have a compensation fund to ensure contractual obligations;
the total amount of obligations of the 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 the Order of Rostekhnadzor dated February 16, 2017 N 58. This extract must be issued no earlier than one month before the deadline for submitting applications, which is indicated in the notice of auction (clause 1, part 6, article 69 of Law N 44-FZ).

In addition, you need to make a reservation that all of the above requirements do not apply:

for participants who will 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;
to unitary enterprises, state and municipal institutions, legal entities with state participation in the cases listed in Part 2.2 of Art. 52 GRK RF.

We recommend that the draft contract include 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 N 44 -FZ).

4. What to look for 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. It is possible that the participant is not required to be a member of the SRO.

For example, the NMTsK auction of 3.8 million rubles. During the auction NMTsK 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 members of the SRO, pay attention to the "date" field: did the participant comply with the requirement for the expiration date of the extract? The extract must be issued no earlier than one month before the deadline for submission of applications. 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, paragraph 1 of part 6 of article 69 of Law N 44-FZ).
Column 3 should not contain information that the auction participant has been 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 on 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 for the first level is 60 million rubles.

5. How to hold an auction for the construction, reconstruction, overhaul with the NMCC of 3 million rubles from July 1 and less

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

Date: 22 .05.2017

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

Engineering survey works that affect the safety of capital construction projects 1 . The list of these works is established by the Ministry regional development RF and includes: hydrogeological studies, engineering and environmental survey of the territory, physical and mathematical modeling of the interaction of buildings and structures with the geological environment, etc. 2
Architectural and construction design works that affect 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: master plan land plot, project preparation internal systems gas supply, preparation of projects for external networks of low-voltage systems, etc. 2
Works on construction, reconstruction, overhaul of a capital construction facility that affect the safety of these facilities 4 . As in the previous two cases, such specific works are established by the Ministry of Regional Development of the Russian Federation - these are, for example, artificial freezing of soils, reinforcing work during the installation of 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 that are members of this SRO, subject to confirmation by them of the relevant requirements without limiting the period and territory of its validity in the prescribed 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, rendering services that are the object of procurement 6 . Thus, if the object of the procurement is the performance of the above works that affect the safety of capital construction facilities, then the procurement participant has the appropriate SRO certificate of admission to these types of work is a legitimate requirement of the customer. FAS 7 is of the same opinion.

Example

In mid-April 2017, the municipal enterprise of housing and communal services of the Bilibinsky municipal district (Chukotsky autonomous region) announced a electronic auction for the overhaul of a section of the main hot water supply network of the central heating substation with the NMCC in the amount of 2.55 million rubles. 8 According to the auction documentation, one of the documents that were required to be provided by the procurement participant was a copy of the certificate of the SRO on the admission of the auction participant to the organization of the work specified in paragraph 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, preparation of project documentation, construction, reconstruction, overhaul of capital construction facilities that affect the safety of capital construction facilities "- work on the organization of construction, reconstruction and overhaul by a legal entity engaged by the developer or customer on the basis of an agreement or individual entrepreneur (general contractor) in relation to water supply and sewerage facilities.

However, from July 1, 2017, the system described above is expected to change, which are caused by the entry into force of most of the provisions of the Federal Law of 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 consider them.

Firstly, the concept of “works that affect the safety of capital construction projects” is excluded from the RF Civil Code. Now criteria for work for which a SRO certificate of admission is required, will be different.

In a relationship engineering surveys these are any works performed under contracts concluded with a developer, technical customer or a person who, in accordance with the Land Code of the Russian Federation, has received permission to use land or a land plot that is state or municipal property; at the same time, work under contracts for the performance of engineering surveys concluded with other persons may 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 project documentation under agreements on the preparation of project documentation concluded with the developer, technical customer, the person responsible for the operation of the building, structure, regional operator; and, just as in the previous case, work under contracts for the preparation of project documentation concluded with other persons can be performed 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 overhaul of capital construction projects 11 .

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

For all three categories of work (engineering surveys; architectural and construction planning; construction, reconstruction, overhaul of capital construction facilities) - if the contractor is a state (municipal) unitary or state-owned enterprise, a state (municipal) institution or a commercial organization that is controlled by the authorities state power or local self-government body (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 where such organizations enter into contracts with state authorities and local governments, and in relation to the third category of work (construction, reconstruction, overhaul of capital construction facilities), this condition applies only to cases of concluding a construction contract contract. Such a contract in accordance with civil law is considered to be a contract when the contractor undertakes to build a certain facility on the instructions of the customer or perform other construction work within the period established by the contract, and the customer undertakes to create for the contractor the necessary conditions to perform work, accept their result and pay the stipulated 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 linked with object of work 13 .

However, please note that in the new edition of the Civil Code of the Russian Federation, the person carrying out the construction, reconstruction, overhaul of a capital construction object 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 norms related to a construction contract can also be applied to contracts under which not the construction of new buildings or structures is carried out, but the overhaul of existing facilities. This approach is also supported by the fact that the civil legislation establishes that the rules on a construction contract also apply to major repairs of buildings and structures, unless otherwise provided by the contract 15 .

With regard to the conclusion of 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 “certificate of SRO on admission to work” is generally excluded from the Civil Code of the Russian Federation as such, and Order of Rostekhnadzor dated 05.07.2011 No. 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, which relate to a certificate of admission to a certain type or types of work that affect the safety of capital construction facilities (clauses 8-10), will not be applied from 07/01/2017 .

Thus, customers under 44-FZ, when making purchases, notices of which are posted in the EIS 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 auction given above in the example for the overhaul of work on the overhaul of a section of the main hot water supply network of the central heating station in Chukotka was held in the second half of 2017 (that is, after the considered changes came into force), then the customer would not have the right to demand from participant in the purchase of membership in the SRO and the provision of an appropriate 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 legitimate, since the customer (municipal housing and communal services) in this case is the person responsible for the operation of water supply systems 17 . But since here the municipal enterprise acts as a customer, when drawing up the auction documentation, it would be necessary to “release” from this obligation separate categories organizations established by the new version of urban planning legislation (state and municipal enterprises, state and municipal institutions, commercial organizations with state or municipal participation) 18 .

1 Ch. 2 Art. 47, parts 1 and 4 of Art. 55.8 GK RF.

2 Order of the Ministry of Regional Development of the Russian Federation of December 30, 2009 No. 624 “On approval of the List of types of work on engineering surveys, preparation of project documentation, construction, reconstruction, overhaul of capital construction facilities that affect the safety of capital construction facilities”

3 Ch. 4 Art. 48, parts 1 and 4 of Art. 55.8 GK RF.

4 Ch. 2 Art. 52, parts 1 and 4 of Art. 55.8 GkR RF

5 Ch. 8 and 9 Art. 55.8 of the Civil Code of the Russian Federation, Order of Rostekhnadzor dated 05.07.2011 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 h. 1 art. 31 of the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”.

7 See, for example, Letter of the FAS Russia No. АЦ/60557/15 dated November 2, 2015.

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

9 New edition Part 2 Art. 47 of the Civil Code of the Russian Federation, which comes into force on 07/01/2017.

10 New version of Part 4 of Art. 48 of the Civil Code of the Russian Federation, which comes into force on 01.07.2017.

11 New version of Part 2 of Art. 52 of the Civil Code of the Russian Federation, which comes into force on 07/01/2017.

12 For more details, see Part 2.1 of Art. 47, part 4.1 of Art. 48, part 2.2 of Art. 52 of the Civil Code of the Russian Federation, which come into force on 07/01/2017.

13 Ch. 1-2 Art. 740 of the Civil Code of the Russian Federation.

14 New version of Part 3 of Art. 52 of the Civil Code of the Russian Federation, which comes into force on 07/01/2017.

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

Oksana Balandina, chief editor of the State Order System

From July 1, 2018 to January 1, 2019, customers have a transition period - it is allowed to carry out both electronic and paper procedures. From 2019, competitions, auctions, quotes and requests for proposals on paper will be prohibited, with eight exceptions.
Read what purchases to make at the ETP, how to choose a site and get electronic signature, according to what rules to conclude contracts during the transition period and after.

Certificates of admission to certain types works that affect the safety of capital construction facilities from July 1, 2017 are not valid. 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 project documentation, construction, reconstruction, and overhaul of capital construction facilities.

The customer has the right to establish a requirement to provide an extract on membership in the SRO in the event of a purchase for:

Performance of works on construction, reconstruction, overhaul of capital construction facilities, where the amount of obligations under each of such agreements (contracts) exceeds 3 million rubles;

Engineering surveys (the amount of obligations under each of such agreements (contracts) does not matter);

Preparation of project documentation (the amount of obligations under each of such agreements (contracts) does not matter).

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 should now be included in the application.

Certificates of admission to certain types of work that affect the safety of capital construction facilities are not 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 project documentation, construction, reconstruction, and overhaul of capital construction facilities. This rule was introduced into the Town Planning Code of the Russian Federation by amendments to the Law of July 3, 2016 No. 372-FZ.

An extract from the register of SRO members will be required when an individual entrepreneur and a legal entity participate in public procurement and procurement under Law No. 223-FZ.

When the SRO Requirement Rule Does Not Apply

If the purchase 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 NMTsK is higher than 3 million rubles, then the customer needs to establish a requirement for membership in the SRO in the field of construction, reconstruction, overhaul 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 the SRO is also not required in cases of:

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

What contributions to the SRO does the participant make

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

contribution to the compensation fund for damages (hereinafter - CF BB);
contribution to the compensation fund for ensuring contractual obligations (hereinafter - KF ODO).

At the same time, the KF ODO is necessary only to ensure the contractual obligations of SRO members who conclude 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 in tables the amounts of contributions of members of the SRO.

Table 1. The amount of contribution to the KF BB and KF 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 KF VV and KF ODO per one member of the SRO in the field of construction, reconstruction, overhaul of capital construction facilities (parts 12 and 13 of article 55.16 of the Civil Code of the Russian Federation)

Consider, on a specific example, the amount of contributions to funds for participation in procurement. For example, the NMCC purchases for the overhaul of a capital construction facility amounted to 510 million rubles. The winner of the competitive purchase 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 ALC for him is 2.5 million rubles.

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 the extract of the participant 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 has been received.

The form of such an extract was approved by the order of Rostekhnadzor 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 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 in the procurement of construction and repair work and for whom the law provides for exceptions.

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:

Membership requirement	How to confirm
Complies with legal requirements for persons who perform construction or repair work	Extract from the register of SRO members p. 1 h. 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, did not open bankruptcy proceedings	Declaration p. 3 h. 1 art. 31 of Law No. 44-FZ
The activity of the participant is not suspended on the date when the application was submitted	Declaration p. 4 h. 1 art. 31 of Law No. 44-FZ
For the past calendar year, the participant has no arrears in taxes, fees, debts on other obligatory payments, the amount of which exceeds 25 percent of the book value of assets. 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 debts and there is no decision on the application as of the date of consideration of the application p. 5 h. 1 art. 31 of Law No. 44-FZ
A citizen, head, member of the collegial executive body or chief accountant of the organization was not tried for economic crimes, was not deprived of the right to hold a position and engage in construction or repair work, not disqualified	Declaration p. 7 h. 1 art. 31 of Law No. 44-FZ
The procurement participant - a legal entity, was not fined for a bribe or commercial bribery within two years prior to the filing of 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 p. 9 h. 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 p. 10 h. 1 art. 31 of Law No. 44-FZ

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 which case to require SRO

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

Rostekhnadzor established the form of an extract from the register of SRO members. To check if the statement information is correct, request the member's details from the SRO. At the request of the interested person, the organization is obliged to submit an extract from the register of SRO members within three working days from the date the request was received. The validity of the extract is one month from the date the document was issued (part 4 of article 55.17 of the Town Planning Code E 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, overhaul of capital construction facilities (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. The 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. We are talking about liability for obligations under construction contracts, which are concluded as a result of competitive procedures. Depending on the level of responsibility, a member of the SRO makes a contribution to the compensation fund for securing contractual obligations.