Entry into the sro for 44 fz. New requirements for participants-sro. Extract from the register of members in the SRO

When carrying out procurement procedures for construction, reconstruction, overhaul of capital construction projects, customers often have a question: how legitimate is the indication in the procurement documentation of the requirement for participants to provide the relevant SRO certificate?

Before proceeding with the preparation of procurement documentation, the customer should:

clearly define the types of work
study the normative legal acts concerning the purchased works.

In accordance with Part 2 of Art. 52 of the Urban Planning Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) types of construction, reconstruction, overhaul of capital construction projects that affect the safety of capital construction facilities should be performed only by individual entrepreneurs or legal entities that have certificates of admission to such types issued by a self-regulatory organization works. Other types of construction, reconstruction, overhaul of capital construction facilities can be performed by any individuals or legal entities. In other words, if the subject of the procurement is the performance of work for which, according to the legislation of the Russian Federation, a certificate of admission to such work is required, the organizer of the procurement procedure must indicate the requirement for participants to provide the corresponding SRO certificate as part of the application.

From a letter from the Ministry economic development RF dated May 28, 2015 No. D28i-1542, it follows that the procurement participant must have all the necessary certificates of admission to specific types of work that are the subject of the procurement, or admission to the general contract. A customer working under 223-ФЗ (by analogy with 44-ФЗ) must indicate in the procurement documentation the requirements for participants to provide SRO certificates for the items contained in the order of the Ministry of Regional Development of the Russian Federation of December 30, 2009 N 624 "On approval List of types of work on engineering surveys, on preparation project documentation, for the construction, reconstruction, overhaul of capital construction facilities that affect the safety of capital construction facilities "(hereinafter - Order No. 624). Also, the procurement organizer establishes the requirement for the procurement participant to have a certificate of admission in accordance with clause 33 of Order No. 624.

In turn, potential contractors have the right to provide:

a certificate of admission (in accordance with clause 33 of Order No. 624) in the event that it engages subcontractors to perform each of the types of work;
a certificate of admission to each item of the requirements established by the procurement organizer in accordance with order No. 624, in the event that the participant independently plans to perform the work.

If the procurement participants fail to submit the above permits, their applications are subject to rejection.

The types of work referred to in Part 2 of Art. 52 of the Civil Code of the Russian Federation, approved by Order No. 624.

Procurement organizers should focus on works that affect the safety of a capital construction facility in the event of such work being performed at especially dangerous, technically complex and unique facilities provided for in Art. 48.1 Civil Code of the Russian Federation. Such types of work in Order No. 624 are indicated with a "*" sign (for their performance, a corresponding mark is required in the SRO certificate).

Part 3 of Art. 52 of the Civil Code of the Russian Federation states that the person carrying out the construction, reconstruction, overhaul of a capital construction object (hereinafter referred to as the person carrying out the construction) may be a developer, or an individual or legal entity attracted by a developer or technical customer on the basis of an agreement.

The person carrying out the construction organizes and coordinates the construction, reconstruction, overhaul of the capital construction facility, ensures compliance with the requirements of project documentation, technical regulations, safety measures in the process these works and is responsible for the quality of the work performed and their compliance with the requirements of the design documentation.

The person carrying out the construction has the right to carry out certain types of work on construction, reconstruction, overhaul of the capital construction facility independently and (or) with the involvement of other persons who meet the requirements. According to Part 3.1 of Art. 52 of the Civil Code of the Russian Federation, a person who carries out construction must have a permitting document issued by a self-regulatory organization - a certificate of admission to work on organizing construction.

Renovation: major and current

Overhaul of capital construction facilities (excluding linear facilities) is:

replacement and (or) restoration of building structures of capital construction objects or elements of such structures, with the exception of load-bearing building structures;
replacement and (or) restoration of engineering and technical support systems and networks of engineering support of capital construction objects or their elements;
replacement of individual elements of load-bearing building structures with similar or other elements that improve the performance of such structures and (or) restoration of these elements (Article 1 of the Civil Code of the Russian Federation).

About current repair it says in Art. 55. 24 of the Civil Code of the Russian Federation, namely: current repairs of buildings and structures are carried out in order to ensure the proper technical condition of such buildings and structures. Under proper technical condition buildings, structures means maintaining the parameters of stability, reliability of buildings, structures, as well as the serviceability of building structures, engineering support systems, engineering support networks, their elements in accordance with the requirements of technical regulations, project documentation.

When carrying out the procurement procedure for the selection of an organization for performing work on the current repair of capital construction objects, a certificate of admission to certain types of work is not needed and the customer's request for the procurement participants to provide such a document as part of the application will be illegal.

SRO approval

Joining an SRO is a requirement of modern reality and the only chance to get admission to work, which significantly increases the contractor's capabilities. However, in order to receive it, cash investments (contributions) are required. According to 55.8 of the Civil Code of the Russian Federation, an individual entrepreneur or a legal entity has the right to perform work that affects the safety of capital construction projects in the presence of a certificate of admission to such work issued by a self-regulatory organization. The contractor has the right to have a certificate issued by only one self-regulatory organization of admission to a certain type of work that affects the safety of capital construction facilities. Individual entrepreneurs and legal entities that are members of an SRO are not entitled to perform types of work that affect the safety of capital construction projects, if they do not comply with at least one of the requirements of the specified SRO for the issuance of a certificate of admission to this type of work.

The list of types of work affecting the safety of capital construction projects is contained in 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 of work on engineering surveys, on the preparation of project documentation, on construction, reconstruction, overhaul of capital construction projects, which have an impact on the safety of capital construction facilities "(hereinafter - Order No. 624).

A certificate of admission to a certain type or types of work that have an impact on the safety of capital construction facilities is issued by the SRO without limiting the period and territory of its validity. In the event that the work procured by the customer contains at least one type of work, for the performance of which, according to Order No. 624, an SRO certificate is required, the customer is obliged to prescribe a requirement for the contractor to have permission to organize the work.

The minimum necessary requirements for the issuance of certificates of admission to SROs for construction, reconstruction and overhaul of capital construction facilities are specified in Appendix No. 4 to the Decree of the Government of the Russian Federation dated March 24, 2011 N 207 "On the minimum necessary requirements for the issuance by self-regulatory organizations of a certificate of admission to work at especially dangerous and technically complex capital construction projects that affect the safety of these facilities. " These requirements affect the staffing of contractors (applicants), depending on:

experience and professionalism of employees;
the cost of the construction contract;
systems of advanced training and certification of employees, specialists, as well as management;
available own property and permits.

Building permit

A building permit is a document that confirms the compliance of the project documentation with the requirements of the urban planning plan of the land plot or the land planning project and the land survey project (in the case of construction, reconstruction of linear objects) and giving the developer the right to carry out construction, reconstruction of capital construction facilities, except for cases, provided for by the Civil Code of the Russian Federation.

Construction, reconstruction of capital construction facilities are carried out on the basis of a construction permit, excluding the cases provided for in Art. 51 Civil Code of the Russian Federation. In clause 17 of the named article, cases are mentioned when the issuance of a building permit is not required, for example, when:

Construction, reconstruction of objects that are not capital construction objects (kiosks, sheds and others); - construction on the land plot of buildings and structures for auxiliary use, etc.

It is not allowed to issue building permits in the absence of land use and development rules, with the exception of construction, reconstruction of objects of federal significance, objects of regional significance, objects of local significance municipal districts, capital construction projects on land plots, which are not covered by town planning regulations or for which town planning regulations are not established, and in other cases stipulated by federal laws.

FAS on granting a license

From the explanations of the FAS Russia it follows that if other works or services are included in the same lot with the construction work, for the performance of which an appropriate license is required and which can be performed (provided) through the involvement of other persons (subcontractors) holding an appropriate license, then the establishment of a requirement for the performance of such works or services by the person carrying out the construction personally, and, accordingly, the establishment of the requirement to provide a copy of the relevant license as part of the application for participation in the auction is a violation 1. In the event that the subject of the procurement is the performance of work that requires the provision of both a SRO certificate in accordance with Order No. 624, and licenses (for example, for garbage collection), the customer is not entitled to prescribe in the documentation the requirement to provide these licenses as part of the application for participation in the procurement procedure (this rule only applies when subcontracting is permitted).

On a note

When forming requirements for procurement participants regarding the provision of an SRO certificate, the customer should study the order Federal Service on environmental, technological and nuclear supervision of 05.07.2011 No. 356 "On approval of the form of the Certificate of admission to a certain type or types of work that affect the safety of capital construction facilities." The named RLA contains norms regarding the maximum price of one contract for the implementation of work: it must be indicated in the certificate of the SRO, which will be provided by the participant as part of the application for participation in the procurement. In the event that the price offered by the contractor during the procurement procedure is higher than that specified in the SRO certificate, such a contractor is not entitled to conclude a contract. with the customer. Also, the customer should write in the procurement documentation that the participant's application will be rejected if the offered price exceeds the price indicated in the certificate.

Case studies

1. The antimonopoly authority received a complaint from the procurement participant LLC "C" against the actions of the customer of OJSC "Z" when conducting a request for proposals in electronic form in accordance with 223-FZ for the right to conclude an agreement on the arrangement of cable ducts, laying cable lines and building an integrated transformer substation for JSC "Z".

According to the applicant, the customer unlawfully rejected the applicant's application due to the absence in the SRO certificate submitted by the applicant No. 3254.03-2015-7725720626-С-047 types of works No. 13.1, 13.2, 13.3 "Roofing".

Having studied the materials of the case, the OFAS commission established that the current urban planning legislation of the Russian Federation provides for the obligation for the person carrying out the construction to have a certificate of admission to work on the organization of construction. The customer has the right to demand from the procurement participant only a certificate for work on the organization of construction, reconstruction and overhaul a legal entity or individual entrepreneur (general contractor) attracted by the developer or customer on the basis of an agreement.

OJSC "Z" in the procurement documentation established that a potential procurement participant as part of the application must submit a SRO certificate, including with a permit to work on roofing, which is not justified and violates the procurement principles set out in Art. 3 of the Procurement Law. Based on the results of the consideration of the case, the antimonopoly authority recognized the applicant's complaint against the customer's actions as justified. (Decision of the Moscow OFAS in case No. 1-00-1580 / 77-16 dated 09/05/2016) 2

2. The OFAS received a complaint from LLC "S" against the actions of the procurement commission of the customer LLC "P" when conducting an open request for proposals OZP 506/16 in accordance with 223-FZ - Construction of fiber-optic communication lines (" last miles») To HPP-9, HPP-10, HPP-14, HPP-16.

The applicant considers illegal the actions of the procurement commission, which rejected his application for participation.

Having studied the materials of the case, the antimonopoly body established that the application of LLC "S" was rejected, since it did not include an SRO on admission to work that affects the safety of capital construction projects. According to terms of reference procurement participants must have appropriate SROs in accordance with the order of the Ministry of Regional Development of the Russian Federation No. 624 OT 30.12.09.

The OFAS commission established that, as part of the application, LLC "S" submitted SROs issued in relation to CJSC "K". In accordance with the documentation, participants can engage subcontractors (co-executors), subject to compliance with the requirements for subcontractors (co-executors) established by the documentation. According to clause 1.5.5 of the documentation, the participant must submit, as part of his application, documents confirming the compliance of the proposed subcontractor with the requirements specified in the documentation. The package of documents named in the documentation in relation to CJSC “K” was not submitted by LLC “S” as part of its application.

The OFAS commission did not find any irregularities in the actions of the procurement commission of the organizer of the auction. The application of LLC "S" was legally rejected as not meeting the requirements established in the documentation. Based on the results of the consideration of this case, the complaint of LLC "S" was recognized by the antimonopoly authority as unfounded (Decision of the St. Petersburg OFAS Russia dated 31.08.2016 in case No. T02-511 / 16) 3.

1 Letter of the Federal Antimonopoly Service of July 07, 2011 N ИА / 26163 "On requirements for participants in the placement of an order for the performance of work on the construction, reconstruction and overhaul of a capital construction facility"

2 moscow.fas.gov.ru

3 spb.fas.gov.ru

If information about a self-regulatory organization is excluded from state register self-regulatory organizations, the funds of the compensation fund for compensation for harm and the compensation fund for ensuring the contractual obligations of a self-regulatory organization within a week from the date of exclusion of such information are to be credited to a special bank account of the National Association of Self-Regulatory Organizations, of which such a self-regulatory organization was a member, and can only be used to make payments to connection with the onset of joint or subsidiary liability of a self-regulatory organization for the obligations of members of such an organization arising in the cases provided for, respectively, by Articles 60 and 60.1 of this Code. 15.

SRO membership requirement

The developers of the letter refer to the requirements of the Civil Code, which speaks of the need for admission to work affecting the safety of capital construction projects. A complete list of works for which it is legal to submit such requirements is established by the federal executive body.

The FAS also adheres to the point of view that the requirements for the provision of an SRO certificate are legitimate. However, in practice, there have been cases of making a diametrically opposite decision.

Attention

It turns out that if the supplier did not provide SRO certificates, but at the same time he meets all the requirements, he retains the opportunity to appeal the actions of the customer. Features of the SRO certificate The SRO certificate includes a clause on the maximum amount of the contract that can be concluded by the company.

At the same time, the customer often has a question about the admission of the participant's application precisely for this indicator.

Do I need SRO tolerances when participating in auctions for 44-FZ?

Info

The compensation fund for securing contractual obligations (CF ODO) is formed to ensure the contractual obligations of SRO members, when they conclude contracts on a competitive basis under 44-FZ, 223-FZ, overhaul funds, etc. participate in tender procedures for the conclusion of contracts in accordance with 44-ФЗ and 223-ФЗ or planning to enter into contracts with the Overhaul Funds.

The rates of contributions to compensation funds are shown in the figure: The base rate of contribution to the compensation fund for compensation for harm will be 100 thousand rubles if a SRO member plans to carry out construction, reconstruction, overhaul of a capital construction facility, the cost of which under one contract does not exceed 60 million rubles ... For example, an organization enters into 2 construction contracts.

Article 55.16. self-regulatory organization compensation funds

The requirement for the submission of a certificate of admission of a potential supplier to work, issued by a self-regulatory organization, can often be found in procurement documents for construction, major repairs and reconstruction of real estate objects. Participants often have a question about the legality of the requirements put forward. Therefore, it is important to understand what an SRO admission is and why a customer needs it. What is an SRO certificate? The abbreviation SRO means a self-regulatory organization.
It is an organization that unites business entities by field of activity. Such companies are created to carry out supervisory functions.
Such a program was developed as a healthy alternative to government licensing mechanisms.

New requirements for participants-sro

SRO) to perform work that affects the safety of capital construction objects has become unnecessary since 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, state and municipal institutions, as well as organizations with state participation may not have permission to perform the functions of a technical customer or conclude a contract for the performance of engineering surveys or for the preparation of project documentation with the authorities:

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

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

I read it in the Consultant - participants in the procurement of any construction, reconstruction, overhaul should also be a member of the SRO. There are two exceptions. One of them: "for contractors performing construction and installation work under contracts worth not more than 3 million rubles." And they also write: - A member of an SRO who wants to participate in an auction or other competitive procurement must contribute money to a special compensation fund to ensure contractual obligations. This fund acts as additional insurance for customers from unscrupulous contractors.

Sro fund size for 44 ap

It is not allowed to release a member of a self-regulatory organization from the obligation to make a contribution to the compensation fund for compensation for harm, including due to his claims to the self-regulatory organization, as well as the release of a member of a self-regulatory organization who has submitted a statement of intention to take part in the conclusion of contracts for the performance of engineering surveys, preparation design documentation, construction contracts using competitive ways the conclusion of contracts, from the obligation to make a contribution to the compensation fund for securing contractual obligations in the event that the self-regulatory organization decides to form such a compensation fund.

Sro fund size for 44 fz

In the event that a decrease in the size of the compensation fund for compensation for damage arose as a result of payments from such compensation fund in accordance with Article 60 of this Code, a member of a self-regulatory organization, due to deficiencies in engineering surveys, preparation of project documentation, construction, reconstruction, overhaul of capital construction projects of which damage was caused, as well as other members of the self-regulatory organization must make contributions to the compensation fund for compensation for damage within the time period established by part 6 of this article from the date of the said payments. eight.

Important

The requirement for an SRO certificate in an application under 44-FZ There is no direct indication of the need to provide an SRO certificate as part of an application for an auction (or other competitive procedure) in 44-FZ. Therefore, a lot of controversy arose around this issue.

Article 52 of the Civil Code stipulates that in order to carry out capital construction works included in List No. 624, the contractor must have the appropriate general contract approval. But for other works, the customer has the right to demand an SRO certificate from a potential supplier. The final point in this matter was put by the Ministry of Economy and Development. In 2015, it published official letter number D28i-893, which indicated that the customer's request to provide an SRO certificate is legitimate.
The application should not be rejected, since the participant is not obliged to be a member of the SRO and, accordingly, must not submit such a document. 2. Check the discharge date. According to the norms, it must be issued no earlier than a month before the deadline for filing 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 if the participant is excluded from the SRO. This information is indicated in column 3.4.

Check if the contractor can carry out the purchased work. This information is provided on line 4. 5. Ensure that the level of responsibility matches the bidder's bid.

For example, the proposal of a participant with the first level of responsibility was 70 million rubles, and the maximum amount of obligations for the first level is 60 million rubles. Such a participant's application must be rejected.

Thirdly, candidates for the execution of contracts for construction, reconstruction, overhaul must also be in the SRO. But there are exceptions. Not required to have a permit:

unitary enterprises;
state and municipal institutions;
legal entity with state participation;
contractors who carry out construction and installation work under contracts for an amount not exceeding 3 million rubles.

Fourth, an SRO member who wants to participate in an auction or other competitive procurement must contribute money to a special compensation fund to ensure contractual obligations.

This fund acts as additional insurance for customers from unscrupulous contractors.
What does it mean? If our organization participates in auctions under 44-FZ and the contract amount is less than 3 million, then we can participate in them without joining an SRO and paying a compensation fund. And if more, then join an SRO and deposit money into the above fund? Does the type of work now affect the need to join an SRO or only the cost of the contract? Minimize Victoria Dymova Support Officer Pravoved.ru Hello! Similar questions have already been considered, try to look here: Answers of lawyers (1) good afternoon. The specified norm came into force on 01.07.2017. Indeed, if the price of the contract is up to 3 million, then regardless of the type of work, the contractor can be without a break. From the point of view of 44-FZ money does not need to be contributed to any compensation funds. Enforcement of the contract is sufficient.

From 01.07.2017, amendments to the Civil Code of the Russian Federation, introduced by the Federal Law of 03.07.2016 N 372-FZ, come into force. From the named date, it is not allowed to carry out entrepreneurial activity for the performance of works that affect the safety of capital construction projects 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 of project documentation, construction, reconstruction, overhaul of capital construction facilities under an agreement with a developer, technical customer, a person responsible for the operation of a building, structure, or a regional operator. if it is a member of the relevant SRO and otherwise is not established by the Civil Code of the Russian Federation. From 01.07.2017, customers are not entitled to establish a requirement for the procurement participants to have a certificate of admission.
How, from 01.07.2017, customers should establish requirements for contract participants for the procurement of works, for the performance of engineering surveys, the preparation of project documentation, construction, reconstruction, overhaul of capital construction facilities? What documents are required if the contract price exceeds 3 million rubles?

By this issue we adhere to the following position:
When purchasing in a competitive way works for the implementation of engineering surveys, or the preparation of project documentation, or for 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 uniting persons performing the relevant work, a self-regulatory organization 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 in excess of the amount of obligations of this procurement participant under contracts previously concluded using competitive methods for an amount not less than the initial (maximum) price of the contract, which must be concluded based on the results of the procurement.
As confirmation of compliance with this requirement, the customer has the right to require the submission of the following as part of the application:
- extracts from the register of members of the aforementioned self-regulatory organization, provided no more than a month before the application for participation in the procurement and containing information about the availability of this procurement participant the right 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 member of the SRO for obligations under agreements 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 corresponding obligations secured by the above compensation fund, in an amount not less than the initial (maximum) price of the contract, which must be concluded based on the results ongoing procurement.

Justification of the position:
In accordance with the Federal Law of 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 the procurement and procurement documentation must establish a requirement for the procurement participant to comply with the requirements established in accordance with the legislation of the Russian Federation to persons who supply goods, perform work, provide services that are the object of the 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 a SRO certificate of admission to a certain type of work for the implementation of activities defined by law (Civil Code of the Russian Federation) With regard to the right to perform work that affects the safety of capital construction projects, 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, amendments to the Russian Federation entered into force, made on 03.07.2016 N 372-FZ (hereinafter - Law N 372-FZ), in connection with which, in accordance with Federal Law of 29.12.2004 N 191-FZ "On the introduction of the Urban Planning Code Russian Federation"included in the specified Law No. 372-FZ, from July 1, 2017, it is not allowed to carry out entrepreneurial activities to perform engineering surveys, to carry out architectural and construction design, construction, reconstruction, overhaul of capital construction projects on the basis of a certificate of admission issued by the SRO to a certain type or types of relevant work.
Accordingly, from July 1, 2017, customers are not entitled to establish a requirement for the purchase participants to have the above certificates.
In accordance with the Civil Code of the Russian Federation, the Civil Code of the Russian Federation, the Civil Code of the Russian Federation in edition N 372-FZ, the execution of engineering surveys, work on the preparation of project documentation, as well as the performance of work on construction, reconstruction, overhaul of capital construction facilities (hereinafter - construction works) under an agreement with a developer, technical customer, a person responsible for the operation of a building, structure, or a regional operator should be performed only by individual entrepreneurs or legal entities that are members of SROs carrying out relevant activities (hereinafter referred to as SROs in the field of construction), unless otherwise not 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 established by public legal entities or in the authorized capital of which public legal entities or the above legal entities own more than 50%, provided that they perform such work under contracts with state authorities or local governments of the relevant public legal entities;
- in relation to the performance of construction work:
for any contractors under contracts, the amount of obligations under which does not exceed 3 million rubles (Civil Code of the Russian Federation, as amended by N 372-FZ);
for individuals engaged in construction, reconstruction, overhaul of an individual residential building (Civil Code of the Russian Federation);
for any persons engaged in the construction, reconstruction, overhaul of facilities for which work does not require a construction permit in accordance with the Civil Code of the Russian Federation (Civil Code of the Russian Federation).
Additional requirements for the performance of all the above works (hereinafter also referred to as construction work) 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 on such agreements, subject to the aggregate following conditions:
1) the SRO, of which such a person is a member, of 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 Part No. 11 or 13 of the Civil Code of the Russian Federation (the number of such agreements is not limited).
At the same time, by virtue of the Civil Code of the Russian Federation, compensation funds for ensuring contractual obligations are formed by the SRO in the field of construction only at the request of 15 of its members, or 30 - for SROs uniting persons carrying out construction work, about their intention to take part in the conclusion of relevant contracts using competitive methods conclusions (, 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 - NMCK) over 3 million rubles, in a competitive way, as a general rule, must establish the following requirements, fulfilled in aggregate :
- membership of the procurement participant in the SRO in the field of construction, uniting persons performing the relevant work;
- availability of a compensation fund for this SRO to ensure contractual obligations;
- confirmation that the maximum amount of obligations, on the basis of 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, in an amount not less than the NMCK, which must be concluded following the results the purchase, since the contract, if such a purchase is declared invalid, 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 situations described in the above norms.
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 of 01.12.2007 N 315-FZ "On Self-Regulatory Organizations" (hereinafter - Law N 315-FZ ) are entered in the state register of the SRO, 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 No. 315-FZ, each SRO is obliged to maintain a register of its members, information from which, according to part of Law No. 315-FZ, must be posted on the official website of this SRO on the Internet. The maintenance of the register of SRO members in the field of construction in accordance with the Civil Code of the Russian Federation can be carried out as part of a single register of members of self-regulatory organizations, provided that the SRO of such a register of its members is posted on its website. Moreover, according to the Civil Code of the Russian Federation, the register of SRO members in the field of construction in relation to each of its members should contain, among other things, information on whether he has the right to perform the 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, from the above norms, it follows that the specified information is entered into the register of SRO members only under the condition that the SRO has already formed a compensation fund for ensuring contractual obligations, and the SRO member has already made a corresponding contribution to it.
At the same time, the SRO is obliged to provide, at the request of an interested person, an extract from the register of SRO members within no more than 3 working days from the date of receipt of the specified request, the term of the extract from the register is 1 month from the date of its issue (Civil Code of the Russian Federation). The form of the statement by virtue of the Civil Code of the Russian Federation is established by the supervisory body for self-regulatory organizations, on the basis of this norm, such a form was approved by the Federal Service for Environmental, Technological and Nuclear Supervision of February 16, 2017 N 58.
Thus, the customer, as a confirmation of the membership of the participant in the procurement of work in the field of construction, including construction work with the NMCK 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 is entitled require the provision of an extract from the register of SRO members, provided no more than a month before the submission of the application and containing information on 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 on the level of responsibility of the SRO member for obligations under agreements of this kind.
The reliability of the information specified in the extract can be checked against the register of SRO members posted on its official website, and the SRO's ability to issue such extracts can be verified according to the state register of the 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 securing contractual obligations, over the total amount of the obligations of this procurement participant under contracts previously concluded by him as a contractor using competitive methods, in an amount not less than the NMCK, which must be concluded based on the results of the procurement being carried out, can be confirmed when submitting an application only by a declaration of the participant himself. At the same time, the reliability of the data of such a declaration can be checked by comparing the data of the statement on the level of responsibility and the data of the register of contracts provided for by Law No. 44-FZ on contracts concluded by this participant for the performance of similar work.

Prepared answer:
Expert of the Legal Consulting Service GARANT
Golubev Alexander

Quality control of the response:
Reviewer of the Legal Consulting Service GARANT
Serkov Arkady

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

Hardly anyone will argue with the fact that procurement related to construction, design, engineering surveys is one of the most difficult for the preparation of documentation and application.

Starting from a proper, objective description of the procurement object, ending with the establishment of requirements for permits, the process requires the parties to have specialized narrow knowledge in the field of construction, as well as in the field of procurement legislation.

SRO certificate

When carrying out the mentioned purchases, the main permitting document for potential participants is a certificate of a self-regulatory organization. In accordance with the provisions of the Urban Planning Code, only an organization that possesses one has the right to perform the mentioned work.

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

There is a small peculiarity in the preparation of such auction documentation. As you know, in public procurement legal entities, individual entrepreneurs and individuals... This note 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 legal entities or individual entrepreneurs... Consequently, the possibility of participation for individuals is automatically excluded.

Requirement to perform work in person

Based on the needs of the Customers, the performance of the work stipulated by the contract can be performed 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 spelled out in the certificate. In the event that the work can be performed with the involvement of other organizations, both options should be envisaged, which may be chosen by the winner of the procurement. In this case, the requirement for a certificate with all types of work is prescribed, in the event that the participant decides on personal performance. And it is also allowed to have a certificate authorizing the organization of the performance of work, in the case when the participant plans to attract subcontractors.

In addition, it should be noted that in the case when it is necessary to carry out the work 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 conditions for the personal performance of work, that is, if the contract, in principle, does not reflect this condition, the Contractor has the right to engage third-party organizations.

Of course, the Customer, in case of establishing a requirement for 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 those cases when 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 Emergencies).

In this case, the only possible option is the option 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 can be provided that allows the organization of certain works without the need for 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 stipulated by law.

Limit on the amount of the contract

The certificate contains a clause 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 bids for participation in the procurement, the Auction Commission raises the question of what amount should be included in the permitted range specified by the certificate.

For example, the Customer conducts a purchase with the initial (maximum) contract price of 10 million rubles. The contract price 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 limitation - to the NMC or to the price proposed by the participant?

As follows from judicial practice, and, in principle, is quite logical, this limitation should be applied to the price offered by the participant. The only condition is the impossibility of changing the price of the contract during its execution (for example, within the limits of 10% permissible by law), if the amount exceeds the limit established in the certificate.

Large-scale changes in the activities of SROs that occurred after the adoption of No. 372-FZ and came into force in the third quarter of 2017, affected all types of self-regulatory organizations. However, the most significant impact they had on contracting companies. Therefore, it is not surprising that the SRO requirements for construction organizations from July 1, 2017, they changed in the first place.

Reasons for the development of No. 372-FZ

Self-regulatory organizations operating in the construction industry began operating in the Russian Federation in 2010. As with any large-scale event, far from all the tasks that the developers of the former No. 315-FZ faced were solved equally successfully. The experience accumulated over the years of the SRO's work has made it possible to develop a new the federal law No. 372-FZ, which was signed by the President in July 2016.

Naturally, the preparation and adoption of such large-scale changes in the activities of SROs caused quite expected heated discussion not only among builders, but also among prospectors, designers, customers and developers. In other words, practically all market participants in the construction sector.

Despite not always unambiguous assessments, No. 372-FZ was adopted, and in July 2017 it came into force. The practice of its implementation has shown that many of the innovations turned out to be quite effective, although not all. In any case, the work related to the construction of SROs from July 1, 2017 has changed very noticeably and significantly.

Main innovations №372-FZ

The development and implementation of No. 372-FZ has led to the fact that the requirements of SROs for construction organizations have changed dramatically since July 1, 2017. The most serious adjustments should be considered in more detail.

Territorial factor

A significant part of the amendments introduced by No. 372-FZ concerns the Town Planning Code. Among the most significant ones is the introduction of the territorial principle, according to which SROs operating in the field of construction should be formed from July 1, 2017.

This means that the contractor has the right to join and be a member only of the association that is registered in the same subject of the Russian Federation. This change applies exclusively to construction contractors, which is not surprising, since not every region has its own SRO of surveyors and designers.

At the same time, the number of constituent entities of the Russian Federation without a self-regulatory building organization is extremely small. As of the beginning of 2018, such regions included the Chukotka Autonomous District and the Jewish Autonomous District. According to the rules established by No. 372-FZ, contractors from these entities received the right to join SROs created in the regions bordering with them.

The main goal of this innovation was the elimination of numerous fictitious SROs, which accepted members from all over the country. Many of these associations, in fact, did not carry out any activity, with the exception of collecting contributions and issuing extracts from the register. Naturally, in such a situation it would be wrong to speak of any controlling functions. After the introduction of the territorial formation mechanism, it became much easier to track such SROs, and many of them almost immediately ceased their activities.

Obligation to participate in an SRO

The second no less important innovation No. 372-FZ was changes in the conditions under which participation in an SRO is mandatory for an economic entity. In the specified normative document both cases when membership in a trade union is required and situations when there is no need to join an SRO are quite clearly spelled out.

Who should join the SRO

Under the terms of the new Federal Law, those participants in the construction industry who plan to engage in:

signing contracts for work and general work, the amount of which may exceed 3 million rubles;

conclusion of direct contracts with organizations operating ZiS, technical customers, investors and developers;

participation in programs financed with the participation of the federal budget through cooperation with operators in the regions. As an example of such projects, one can cite the program for the demolition and resettlement of housing, which is recognized as emergency or dilapidated, as well as the program for the overhaul of an apartment building. housing stock;

research, project development or construction, acting at the same time as a customer;

participation in various kinds of public procurement, which are organized and carried out according to №223-ФЗ and №44-ФЗ.

One of the innovations №372-FZ was the term “technical customer”. An economic entity that acts in this role must also join an SRO. Some of the most important functions that are typically assigned to a technical customer are:

preparation and signing of contracts for conducting surveys, development of design and estimate documentation, implementation of works on reconstruction, overhaul and construction;

providing assignments to participants in the implementation investment project, as well as the source documents necessary for their work;

approval and agreement of the developed design and estimate documentation;

verification and signing of the current executive and acceptance documentation;

preparation and submission of documents required for the commissioning of a constructed, reconstructed or repaired facility;

other tasks, based on the requirements of the legislation and the signed contract for the implementation of the functions of the technical customer.

Who should not join an SRO

Those economic entities that are:

contractors and subcontractors carrying out activities under contracts, the value of which does not exceed 3 million rubles;

unitary enterprises, half or more owned by the state. This applies equally to both municipal and state UPs;

SUEs and municipal unitary enterprises, which act as technical customers or contractors and conclude contracts with government agencies, authorities and corporations;

individuals who carry out the construction, reconstruction or overhaul of houses that belong to individual residential development;

contractors carrying out any type of work on non-capital buildings and structures.

The above conditions for participation and non-participation in SROs clearly show that a large number of various organizations with not very serious turnover, after the entry into force of No. 372-FZ, are exempted from mandatory membership in specialized associations. This statement applies equally to both the builders themselves and the much less numerous designers and prospectors.

In addition, it significantly reduces the bureaucratic burden on those working for construction market business entities canceled SRO admissions, instead of which extracts from the SRO register were introduced. In other words, now there is no need to additionally draw up documents, since a simple membership in a trade union is enough.

Formation of the second CF

The most noticeable change that concerns the financial component of participation in an SRO is the creation of a second compensation fund. In fact, it is more correct to talk about dividing the existing CF into two parts, since the minimum contribution amount was previously 300 thousand rubles in one compound fund, and now it is a similar amount, but already in two CFs. In this case, the funds are divided in the following way: 100 thousand rubles are sent to the existing and earlier KF VV (compensation for harm), and 200 thousand rubles - to the newly created KF ALC (securing contractual obligations).

It is important to note that the amount of payments is determined taking into account two key parameters- the type of activity (for construction, more serious contributions to the fund are established than for research and design, which is quite logical) and the level of responsibility, which depends on the maximum amount of contracts that the SRO participant plans to conclude.

The current amount of payments to both types of CF SROs in 2018 for members of trade associations is presented in the table below.

Based on the above data, several obvious conclusions can be drawn. First, the financial burden caused by the need to create a CF on medium and small contractors has not grown. Moreover, for companies concluding contracts in the amount of 10 to 60 million rubles, it even slightly decreased - from 0.5 million rubles. up to 0.3 million rubles.

For all the larger market participants, payments have increased sharply, that is, 3 times. This very moment is recognized by the majority of experts as the most negative innovation №372-FZ.

Establishment of LDCs

The last important innovation, directly affecting the requirements of SROs for potential members, is the creation of two LDCs (National Registers of Specialists). The first one includes construction specialists, and the second one includes designers and surveyors.

Now, to join the SRO among the personnel of the applicant organization, in addition to the head with higher education and five years of experience, there must also be at least 2 specialists included in the LDCs and working on a permanent basis. It should be borne in mind that an organization can either include in the roster of employees already working in it, which does not require any excessively serious efforts, or hire specialists already in LDCs.

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