SRO requirement in an auction under 44 fz. Requirement to provide a certificate of sro as part of an application for participation in the procurement

Federal Law No. 372-FZ of July 3, 2016 amended the Town Planning Code, which came into force on July 1, 2017.

Firstly, subcontractors did not need the permission of a self-regulatory organization (SRO) to perform work that affects the safety of capital construction facilities 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 access to perform the functions of a technical customer or conclude a contract for engineering surveys or for the preparation of project documentation with the authorities:

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

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

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

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

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

Table: when permission is needed

We analyze an extract from the register of members of the SRO

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

1. Check the price offered by the participant.

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 register. The application should not be rejected, since the participant is not required to be a member of the SRO and, accordingly, should not submit such a document.

2. Check the date of issue. According to the norms, it must be issued no earlier than one 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, paragraph 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 shown on line 4.

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

Responsibility levels

The levels of responsibility of a participant who carries out construction, reconstruction, overhaul of a capital construction facility depend on his contribution to the compensation fund (part 12 of article 55.16 of the Civil Code of the Russian Federation).

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

An electronic auction is being held for the installation of gas supply networks, heating, ventilation of the building in the amount of less than 3 million rubles. Is it necessary to require from the procurement participants, an extract from the members of the SRO?

Answer

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

In connection with the amendments to the provisions of the Town Planning Code of the Russian Federation from July 1, 2017, the customer has no legal grounds for establishing a requirement for membership in an SRO in the field of construction, reconstruction, overhaul of capital construction facilities, if the NMCC does not exceed 3,000,000 rubles. Until July 1, 2017, procurement participants had to provide SRO permits to confirm the legality of the installation of gas supply networks, heating, ventilation of the building, while the price of the work did 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 does the SRO participant make?

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

1. contribution to the compensation fund for damages (hereinafter - CF BB);

2. 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.

What to do to the customer

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'll tell you in detail what common and Additional requirements set to participants in the procurement of construction and repair work and for whom the law provides for exceptions.

Uniform requirements

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

Membership requirement	How to confirm
Complies with legal requirements for persons who perform construction or repair work	Extract from the register of SRO members 1 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 on taxes, dues, debts on other obligatory payments, the amount of which exceeds 25 percent of the balance sheet value of assets 2 . The data is taken from the financial statements for the last reporting period.	Declaration. Accept the application if the participant has filed an application to appeal the arrears or 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, was 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

2 An exception is the amounts for which a deferment, installment plan, investment tax credit was granted, money that was restructured, for which there is a court decision that the applicant paid off, as well as amounts that are uncollectible.

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 extract is valid for one month from the date the document was issued (part 4 of article 55.17 of the Town Planning Code of the Russian Federation).

If the NMTsK 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.

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

When carrying out procurement procedures for the construction, reconstruction, overhaul of capital construction projects, customers often have a question: how legitimate is it to indicate in the procurement documentation 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 regulatory legal acts relating to the purchased works.

In accordance with Part 2 of Art. 52 of the Town Planning Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), types of work on the construction, reconstruction, overhaul of capital construction facilities that affect the safety of capital construction facilities should be carried out 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 projects 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 the participants to provide the relevant SRO certificate as part of the application.

From the letter of the Ministry of Economic Development of the Russian Federation 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 procurement, or admission to the general contract. A customer working under 223-FZ (by analogy with 44-FZ) 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 dated December 30, 2009 N 624 “On Approval The list of types of work on engineering surveys, on the preparation of project documentation, on 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 a requirement that the procurement participant have a certificate of admission in accordance with clause 33 of Order No. 624.

In turn, potential contractors have the right to provide:

certificate of admission (in accordance with clause 33 of Order No. 624) in the event that it will involve subcontractors for the performance of each type of work;
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 plans to perform the work on his own.

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

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 the work that affects the safety of the capital construction object in the event that such work is performed on especially dangerous, technically complex and unique objects provided for in Art. 48.1 of the Civil Code of the Russian Federation. Such types of work in Order No. 624 are indicated with the sign "*" (for their performance, a corresponding mark is required in the SRO certificate).

In 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 the developer or technical customer on the basis of an agreement.

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

The person carrying out the construction is entitled to perform certain types of work on the construction, reconstruction, overhaul of the capital construction object independently and (or) with the involvement of other persons meeting 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 permit issued by a self-regulatory organization - a certificate of admission to work on organizing construction.

Repair: capital and current

Overhaul of capital construction facilities (with the exception of 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 engineering and technical support networks for capital construction projects 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 repairs says in Art. 55. 24 of the Civil Code of the Russian Federation, namely: the current repair of buildings, structures is carried out in order to ensure the proper technical condition of such buildings, structures. The proper technical condition of buildings, structures is understood as 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 selecting an organization to perform work on the current repair of capital construction facilities, a certificate of admission to certain types of work is not needed, and the customer's requirement that the procurement participants provide such a document as part of the application will be unlawful.

SRO approval

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

The list of types of work that affect the safety of capital construction facilities 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, preparation of project documentation, construction, reconstruction, overhaul of capital construction objects that have an impact on the safety of capital construction projects ”(hereinafter - Order No. 624).

A certificate of admission to a certain type or types of work that affect the safety of capital construction facilities is issued by the SRO without limitation of the term and territory of its validity. In the event that the works purchased by the customer contain at least one type of work, for which, according to Order No. 624, a certificate from the SRO is required, the customer is obliged to prescribe a requirement that the contractor has permission to organize work.

The minimum required requirements for the issuance of SRO certificates of admission to work on the construction, reconstruction and overhaul of capital construction facilities are specified in Appendix No. 4 to the Decree of the Government of the Russian Federation of March 24, 2011 N 207 “On the minimum necessary requirements for the issuance by self-regulatory organizations of a certificate of admission to work on 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 for advanced training and certification of employees, specialists, as well as management;
existing own property and permits.

Building permit

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

Construction, reconstruction of capital construction objects are carried out on the basis of a building permit, except for the cases provided for by Art. 51 GRK RF. Clause 17 of the said article mentions cases when the issuance of a building permit is not required, for example, when:

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

It is not allowed to issue construction 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 of municipal districts, capital construction objects on land plots that are not subject to town planning regulations or for which no urban planning regulations are established, and in other cases provided for by federal laws.

FAS on granting a license

It follows from the clarifications of the FAS Russia that if other works or services are included in one lot with construction works, the performance of which requires an appropriate license and which can be performed (provided) through the involvement of other persons (subcontractors) holding the appropriate license, then establishing the requirement for performance of such works or services by the person carrying out the construction personally, and, accordingly, establishing 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 disposal), the customer is not entitled to prescribe in the documentation the requirement to provide these licenses as part of an 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 of the Federal Service for Environmental, Technological and Nuclear Supervision No. 356 dated 05.07.2011 “On approval of the form of the Certificate of admission to a certain type or types of work that affect safety capital construction projects. The named NLA contains rules regarding the maximum price of one contract for the implementation of work: it must be indicated in the SRO certificate, 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 more than that, which is written in the SRO certificate, such a contractor is not entitled to conclude an agreement. with the customer. Also, the customer should state in the procurement documentation that the participant's application will be rejected if the proposed price exceeds the price indicated in the certificate.

Case Studies

1. The antimonopoly authority received a complaint from the procurement participant LLC "Ts" against the actions of the customer JSC "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 a built-in transformer substation for OAO "Z".

According to the Applicant, the customer unlawfully rejected the Applicant's application due to the absence in the SRO certificate No. 3254.03-2015-7725720626-C-047 of types of work No. 13.1, 13.2, 13.3 "Roofing" presented by the Applicant.

Having studied the materials of the case, the OFAS commission found that the current urban planning legislation of the Russian Federation provides for the obligation for a person carrying out 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 the organization of construction, reconstruction and overhaul by the involved developer or customer on the basis of an agreement by a legal entity or an individual entrepreneur (general contractor).

JSC "Z" in the procurement documentation established that the potential procurement participant as part of the application must submit a certificate of self-regulatory organization, including with a permit for work on roofing, which is not justified and violates the principles of procurement set forth in Art. 3 of the Procurement Law. Based on the results of consideration of the case, the antimonopoly authority recognized the applicant's complaint about the actions of the customer as justified. (Decision of the Moscow OFAS in case No. 1-00-1580/77-16 dated 05.09.2016) 2

2. The OFAS received a complaint from LLC "S" against the actions of the procurement commission of the customer LLC "P" during the open request for proposals OZP 506/16 in accordance with 223-FZ - Construction of FOCL ("last miles") to HPP-9, HPP-10, GES-14, GES-16.

The Applicant considers the actions of the Procurement Commission, which rejected his application for participation, to be unlawful.

Having studied the case materials, the antimonopoly authority found that the application of OOO “S” was rejected, since it did not include an SRO on admission to work that affects the safety of capital construction projects. According to the terms of reference, procurement participants must have the appropriate SROs in accordance with the order of the Ministry of Regional Development of the Russian Federation No. 624 OT 12/30/09.

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 may engage subcontractors (co-executors) subject to compliance with the requirements for subcontractors (co-executors) established by the documentation. According to paragraph 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 found no violations in the actions of the procurement commission of the auction organizer. The application of LLC “S” was rightfully rejected as not meeting the requirements set out in the documentation. Based on the results of 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 August 31, 2016 in case No. T02-511/16)

1 Letter of the Federal Antimonopoly Service dated July 07, 2011 N IA / 26163 "On the requirements for participants in placing an order for the construction, reconstruction and overhaul of a capital construction facility"

2 moscow.fas.gov.ru

3 spb.fas.gov.ru

SOLUTION

03/05/2018 Case No. 14 759/03-2018

Ulyanovsk

Commission of the Office of the Federal Antimonopoly Service for the Ulyanovsk Region for Procurement Control consisting of:

chairman

Deputy Head of Department Popov K.Yu.;

members

in the presence

Leading Specialist-Expert Yu.P. Kuzminova,

Leading specialist-expert Martirosyan E.I.;

- from MBU "Stroyzakazchik":

BUT<….>

X<….>(power of attorney w / n dated 11.01.2018),

- from Rosstroykom LLC:

B<….>(power of attorney No. 01/2018 dated February 22, 2018),

having considered the case No. 14 759/03-2018 on the complaint of Rosstroykom LLC (hereinafter referred to as the applicant) against the actions of the auction commission during the electronic auction No. authorized body - the Department of Public Procurement of the Ministry of Development of Competition and Economy of the Ulyanovsk Region, hereinafter referred to as the authorized body; the initial (maximum) price of the contract is RUB 518,436,960.00; date of summing up the results of the auction - 21.02.2018) on the grounds of violation of the Federal Law "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" dated 05.04.2013 No. 44-FZ (hereinafter - the Law on contract system) in the manner prescribed by the Administrative Regulations approved by the order of the FAS Russia dated November 19, 2014 No. 727/14,

SET UP:

In. No. 933 dated February 26, 2018 and entry. No. 949 of February 27, 2018, Ulyanovsk OFAS Russia received a complaint from Rosstroycom LLC about the actions of the auction commission during an electronic auction .

The contents of the complaint amounted to an indication of the following.

In accordance with the protocol for summing up the results of the electronic auction dated February 21, 2018, the auction commission decided that the application of Rosstroycom LLC did not comply with the documentation requirements due to the fact that, as part of the submitted extract from the register of members of the self-regulatory organization dated January 23, 2018 No. 26 /18 indicates that the auction participant has the second level of liability (the maximum amount of liabilities does not exceed 500 million).

According to the applicant of the complaint, the rejection of the application on the indicated grounds is illegal and unreasonable, since the participant in the application included documents that meet the requirements of the documentation. There were no additional requirements for an extract from the register of members of a self-regulatory organization in the documentation. The presented extract contains an indication that Rosstroycom LLC has a third level of responsibility (the maximum amount of obligations does not exceed three billion rubles), which complies with the requirements of Part 3 of Article 55.8 of the Town Planning Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation).

In fact, the total amount of the company's obligations under construction contracts concluded using competitive methods of concluding contracts corresponds to the maximum amount of obligations, based on which Rosstroycom LLC made a contribution to the compensation fund for securing contractual obligations.

In. No. 979 dated February 27, 2018 and No. 1040 dated March 1, 2018, the Ulyanovsk OFAS Russia received a petition from Rosstroycom LLC to involve in the case as a third party the Self-Regulatory Organization Association of Builders of Mordovia, of which the applicant is a member .

With regard to this petition, the Commission of the Ulyanovsk OFAS Russia explains that consideration of complaints against the actions of a customer, an authorized body, an authorized institution, a specialized organization, a procurement commission, its members, official contract service, contract manager, electronic platform operator when making purchases on the basis of the Law on the contract system is carried out in the manner prescribed by the Administrative Regulations approved by Order No. 727/14 of the Federal Antimonopoly Service of Russia dated November 19, 2014, which does not provide for the involvement of third parties.

At the meeting of the Commission on March 2, 2018, representatives of Rosstroycom LLC supported the arguments set forth in the complaint and explained that the discrepancy between the level of responsibility of the participant in the compensation fund for damages cannot be the basis for rejecting the application, since the procurement participant has the right to increase the level of responsibility of the specified fund before the conclusion of the contract, if it becomes the winner and the requirement that the level of responsibility of the specified fund correspond to the proposal of the participant was not established in the documentation.

In addition, representatives of Rosstroycom LLC noted that the protocol for summing up the results of the specified electronic auction contains an incorrect, misleading basis for rejecting the application.

The representative of the customer at the meeting of the Commission on 03/02/2018 did not agree with the arguments of the complaint, submitted written explanations (ref. No. 279/03-08 of 03/01/2018) containing, among other things, an indication of the following.

The levels of liability for the compensation fund for damages and the compensation fund for ensuring contractual obligations limit different parameters, namely:

The level of responsibility for the compensation fund for damages determines the maximum cost of work under one (any) building contract;

The level of responsibility for the compensation fund for securing contractual obligations determines the maximum total amount of obligations under all construction contracts concluded using competitive contracting methods.

Thus, if a SRO member paid a contribution to the compensation fund for compensation for harm at the second level of liability, and to the compensation fund for ensuring contractual obligations at the third level, then the maximum amount of obligations under each of the contracts he concludes cannot exceed 500 million rubles.

Based on the provisions of the Civil Code of the Russian Federation, the maximum amount of obligations under one contract is determined by the level of responsibility for the compensation fund for damages, and the presence of an appropriate contribution to the specified fund is a necessary condition for the SRO member to have the right to perform work under any construction contract, regardless of the method of concluding the contract, Accordingly, the second level of liability for the compensation fund for damages, which LLC "Rosstroycom" has, is not enough to meet the requirements of the auction.

Based on the foregoing, the customer considers the complaint of Rosstroykom LLC unfounded.

The representative of the authorized body at the meeting of the Commission on March 2, 2018 did not agree with the arguments of the complaint, submitted written objections (outgoing number dated March 1, 2018) containing, among other things, an indication of the following.

The Civil Code of the Russian Federation provides for the formation in the SRO of two compensation funds that do not replace each other and for which the SRO bears different kinds responsibility. At the same time, it is not allowed to release a member of the SRO from the obligation to make a contribution to the compensation fund for compensation for harm, including through claims to the SRO, as well as to release the member of the SRO who has submitted a statement of intent to participate in the conclusion of work contracts using competitive methods of concluding contracts, from the obligation to make a contribution to the compensation fund for securing contractual obligations. The amounts of contributions to compensation funds in the field of construction, reconstruction, overhaul of capital construction facilities are established in parts 12 and 13 of Article 55.16 of the Civil Code of the Russian Federation. Thus, the amount of the contribution to the compensation fund for damages depends on the cost of one construction contract, and the amount of the contribution to the compensation fund for securing contractual obligations determines the maximum amount of obligations under construction contracts concluded at auction.

Thus, the extract from the register of SRO members submitted by the complainant indicates that he has the right to take part in competitive procedures, as a result of which contracts in the amount of not more than 3 billion rubles can be concluded in total, while the cost of one such construction contract does not should exceed 500 million rubles. Taking into account that, following the results of the auction, the offer for the price of the contract amounted to more than 500 million rubles. the application of Rosstroykom LLC was reasonably rejected by the commission.

In. No. 1047 dated 03/02/2018, the Ulyanovsk OFAS Russia received written explanations from the Self-Regulatory Organization "Association of Builders of Mordovia" (ref. No. 59-с dated 01.03.2018), in which the SC "Association of Builders of Mordovia" supports the position of LLC " Rosstroycom” and expresses the opinion that the auction commission erroneously (illegally) in the protocol indicates that “the auction participant has the second level of liability (the maximum amount of obligations does not exceed 500 million), as this information is not true.

The consideration of the complaint was adjourned until 16:00 on 03/05/2018 for a documentary analysis of the case materials.

In. No. 1095 dated 05.03.2018, the Ulyanovsk OFAS Russia received objections from Rosstroycom LLC to the recall of MBU Stroyzakazchik, containing an indication, among other things, of the following.

Rosstroycom LLC complies with all the requirements stipulated by Part 3 of Article 55.8 of the Civil Code of the Russian Federation and in order to participate in the procurement for the right to conclude a construction contract in accordance with the legislation on the contract system, a member of the SRO must confirm the contribution to the compensation fund formed by the SRO to ensure contractual obligations. This position is supported by a letter from the Deputy Prime Minister of the Russian Federation<….>(No. DK-II 9-6702 of 09.10.2017) and a letter from the Self-Regulatory Organization "Association of Builders of Mordovia" (ref. No. 59-s of 01.03.2018). At the same time, the Government of the Russian Federation has the right to make additional requirements for the procurement participant in accordance with part 2 of article 31 of the Law on the contract system.

The commission of the Ulyanovsk OFAS Russia established the following.

In the unified information system (www.zakupki.gov.ru) on January 30, 2018, a notice and documentation on holding an electronic auction No. 0168200002418000028 were published for the construction of a capital construction facility of the municipal property of the city of Ulyanovsk "The building of the municipal educational institution of the city of Ulyanovsk for 1000 places" on a land plot located at the address: in the "Central" quarter of the Zavolzhsky district of Ulyanovsk" ( the initial (maximum) price of the contract -518,436,960.00 rubles).

According to the protocol for consideration of the first parts of the applications of participants in the open auction in electronic form dated February 16, 2018, 3 applications were submitted for participation in the specified auction, all applications were admitted to participate in the auction.

In accordance with the protocol of the electronic auction No. 0168200002418000028 dated February 19, 2018, bids were received from 2 procurement participants, the price was reduced by 1.00%.

0168200002418000028 dated February 21, 2018, the application of participant No. 2 (Rosstroycom LLC) was recognized as not complying with the requirements of the legislation and documentation.

Having considered the submitted materials, the Commission decided to recognize the complaint of Rosstroykom LLC as unfounded. In doing so, the Commission proceeded from the following.

In accordance with paragraph 1 of part 1 of article 31 of the Law on the contract system, when making a purchase, the customer establishes a requirement for the procurement participants to comply with the requirements established in accordance with the law Russian Federation to persons engaged in the supply of goods, performance of work, provision of services that are the object of procurement.

In accordance with paragraph 6 of part 5 of article 63 of the Law on the contract system, the notice of an electronic auction indicates the requirements for participants in such an auction and an exhaustive list of documents that must be submitted by participants in such an auction in accordance with paragraph 1 of part 1 and part 2 (if there are such requirements) article 31 of the Law on the contract system.

In accordance with paragraph 2 of part 1 of Article 64 of the Law on the contract system, the documentation on an electronic auction must contain requirements for the content, composition of the application for participation in such an auction in accordance with parts 3-6 of Article 66 of the Law on the contract system and instructions for filling it out. At the same time, it is not allowed to establish requirements that entail limiting the number of participants in such an auction or restricting access to participation in such an auction.

Notice of holding an electronic auction No. 0168200002418000028 in the section "Requirements for participants", section 2 "Requirements for participants in the auction, and an exhaustive list of documents that must be submitted by participants in the auction in accordance with clause 1 of part 1, parts 2 and 2.1 (if the presence of such requirements) Article 31 of Federal Law No. 44-FZ of April 5, 2013, as well as the requirement for participants in such an auction in accordance with Part 1.1 (if such a requirement exists) of Article 31 of Federal Law No. 44-FZ of April 5, 2013" and clause 5.1 of section 3 "Requirements for the content, composition of an application for participation in an electronic auction in accordance with parts 3 - 6 of Article 66 of the Federal Law of 05.04.2013 No. 44-FZ and instructions for filling it out" of the documentation establishes uniform requirements for participants on compliance part 1 of article 31 of the Law on the contract system: compliance with the requirements established in accordance with the legislation of the Russian Federation to whether tsam, carrying out the supply of goods, performance of work, provision of services that are the object of procurement and an exhaustive list of documents that must be submitted by auction participants in accordance with clause 1 of part 1 and parts 2 and 2.1 (if there are such requirements) of Article 31 of the Law on the contract system : documents confirming that the procurement participant is a member of a self-regulatory organization in the field of construction, reconstruction, overhaul of capital construction facilities (except for the cases established by parts 2.1, 2.2. article 52 of the Civil Code of the Russian Federation): an extract from the register of members of the self-regulatory organization (parts 4, 5 of article 55.17 of the Civil Code of the Russian Federation) and (or) information on the name of the self-regulatory organization, of which the procurement participant is a member, the address of the official website of the self-regulatory organization (part 1, 2 article 55.17 of the Civil Code of the Russian Federation, article 7.1 of the Federal Law of December 1, 2007 No. 315-FZ “On Self-Regulatory Organizations”).

According to part 1 of article 69 of the Law on the contract system, the auction commission considers the second parts of applications for participation in an electronic auction and documents sent to the customer by the operator of the electronic site in accordance with part 19 of article 68 of the Law on the contract system, in terms of their compliance with the requirements established by the documentation on such an auction.

In accordance with Part 2 of Article 69 of the Law on the Contract System, the auction commission, based on the results of consideration of the second parts of applications for participation in an electronic auction, makes a decision on the compliance or non-compliance of an application for participation in such an auction with the requirements established by the documentation for such an auction, in the manner and according to the grounds provided for in Article 69 of the Law on the contract system.

In accordance with part 6 of article 69 of the Law on the contract system, an application for participation in an electronic auction is recognized as not meeting the requirements established by the documentation for such an auction, if:

1) non-submission of documents and information, which are provided for in paragraphs 1, 3 - 5, 7 and 8 of part 2 of article 62, parts 3 and 5 of article 66 of the Law on the contract system, non-compliance of these documents and information with the requirements established by the documentation of such an auction, the presence in the specified documents of false information about the participant of such an auction on the date and time of the deadline for filing applications for participation in such an auction;

2) non-compliance of the participant of such an auction with the requirements established in accordance with part 1, parts 1.1, 2 and 2.1 (if such requirements exist) of Article 31 of the Contract System Law.

According to the protocol of summing up the results of the electronic auction No. 0168200002418000028 dated February 21, 2018, the application of participant No. 2 (Rosstroycom LLC) was recognized as not complying with the requirements of the legislation and documentation on the basis of the following: as part of the submitted extract from the register of members of the self-regulatory organization dated January 23, 2018 No. 26/18, it is indicated, that the auction participant has the 2nd level of liability (the maximum amount of liabilities does not exceed 500 million).

At the same time, the proposal of Rosstroycom LLC, in accordance with protocol of summing up the results of the electronic auction No. 0168200002418000028 dated February 21, 2018, on the price of the contract is 513,252,590.4 rubles.

During the analysis of the auction documentation and the application for participation in the auction of Rosstroycom LLC, the Commission of the Ulyanovsk OFAS Russia found that an extract from the register of members of a self-regulatory organization dated January 23, 2018 No. 26/18.

Item 5 of the said extract contains an indication that Rosstroycom LLC has second level(the maximum amount of obligations does not exceed 500 million) liability for obligations under a contract for the performance of engineering surveys, preparation of project documentation, under a construction contract, in accordance with which the company made a contribution to compensation fund for damages.

By virtue of Part 1 of Article 55.16 of the Civil Code of the Russian Federation, a self-regulatory organization, in order to ensure the property liability of members of a self-regulatory organization for obligations arising from damage to a person or property of a citizen, property of a legal entity due to destruction, damage to a building, structure or part of a building or structure, forms a compensation compensation fund harm.

According to part 2 of article 55.16 of the Civil Code of the Russian Federation, a self-regulatory organization, in cases established by the Civil Code of the Russian Federation, in order to ensure the property liability of members of a self-regulatory organization for obligations arising from their failure to fulfill or improper fulfillment of their obligations under contracts for engineering surveys, preparation of design documentation or under construction contracts contracts concluded using competitive methods of concluding contracts, additionally forms a compensation fund for securing contractual obligations in the cases provided for by parts 2 and 4 of Article 55.4 of the Civil Code of the Russian Federation.

At the same time, in accordance with Part 3 of Article 55.16 of the Civil Code of the Russian Federation, 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 through his claims to a self-regulatory organization, as well as to release a member of a self-regulatory organization who has submitted a statement of intent take part in the conclusion of contracts for the performance of engineering surveys, preparation of project documentation, construction contracts using competitive methods of concluding contracts, from the obligation to make a contribution to the compensation fund to ensure contractual obligations if the self-regulatory organization decides to form such a compensation fund.

Based on the foregoing, a member of the SRO cannot be released from the obligation to make a contribution to the compensation fund for harm.

Parts 12 and 13 of Article 55.16 of the Civil Code of the Russian Federation determine the amount of contributions to the compensation fund for compensation for harm and the compensation fund for ensuring contractual obligations and the levels of responsibility of the SRO participant corresponding to the contributions.

From the systematic interpretation of Articles 55.8 and 55.16 of the Civil Code of the Russian Federation, it follows that the compensation fund for damages is formed by the SRO without fail, the amount of the contribution to this fund depends on the cost of one construction contract, regardless of how it is concluded, and the compensation fund for ensuring contractual obligations is an additional fund, the amount of which depends on the total cost of contracts concluded by a member of the SRO using competitive procedures and is a necessary condition for participating in procurement.

Thus, even if the procurement participant has a sufficient level of liability for the compensation fund for securing contractual obligations, its level of liability for obligations secured by the compensation fund for damages must also correspond to its price offer, since by submitting a price offer during the auction, the participant plans to carry out construction, reconstruction or overhaul at the specified price.

Therefore, the decision of the auction commission regarding the recognition of the second part of the applicant's application as inconsistent with the requirements of the auction documentation on the basis specified in the protocol for summing up the results of the electronic auction is legitimate and the complaint of Rosstroycom LLC is unfounded.

The applicant's arguments that the level of liability under the compensation fund for damages can be increased by the winner at the time of the conclusion of the contract, and that the documentation did not contain requirements for the compliance of the price offer of the participant with the level of liability for the compensation fund cannot be taken into account on the basis of next.

According to the provisions of the Law on the contract system, the procurement participant must comply with the requirements provided for in paragraph 1 of part 1 of Article 31 of the Law on the contract system, from the moment he submits an application for participation in an electronic auction until the moment the winner is identified.

At the same time, on the basis of part 1 of article 69 of the Law on the contract system, the auction commission considers the second parts of applications for participation in an electronic auction and documents sent to the customer by the operator of the electronic site in accordance with part 19 of article 68 of the Law on the contract system, in terms of compliance with their requirements, established by the documentation of such an auction.

The law on the contract system does not provide for the obligation to verify by the auction commission the documents and information provided by the procurement participants as part of the application for participation, as in a single information system as well as for the customer. The decision on the participant's compliance with the requirements of the documentation and legislation is made on the basis of the documents submitted by the procurement participant in the application to participate in the purchase.

At the same time, the auction documentation contains a requirement to provide documents confirming that the procurement participant is a member of a self-regulatory organization in the field of construction, reconstruction, overhaul of capital construction objects, namely: extracts from the register of members of the self-regulatory organization and (or) information on the name of the self-regulatory organization, member which the procurement participant is, the address of the official website of the self-regulatory organization, that is, documents and information from the content of which it can be concluded that the procurement participant complies with the requirements imposed by the legislation of the Russian Federation for persons performing works that are the object of procurement.

At the same time, the argument of Rosstroycom LLC about the right to increase the level of liability under the compensation fund for damages at the time of the conclusion of the contract contradicts the principle of ensuring competition established in Article 8 of the Law on the contract system, since this may lead to the creation of unequal conditions between the procurement participants, some participants who have completed all the necessary actions (making contributions, increasing the level of responsibility) will have a level of responsibility for the compensation fund for compensation for harm corresponding to their price proposals, while others will have the right to change it after summing up only if it is beneficial for them. In fact, this argument of the applicant makes the requirement that the procurement participants comply with the requirements of Article 31 of the Law on the contract system and the Town Planning Code of the Russian Federation meaningless.

The applicant’s arguments regarding the content of the protocol for summing up the results of the electronic auction No. 0168200002418000028 dated February 21, 2018 also cannot be taken into account, since the complainant knows for certain the content of the extract submitted by him from the register of members of the self-regulatory organization dated January 23, 2018 No. 26/18, which allows you to unambiguously determine the basis for rejecting the application.

Taking into account that the complaint of Rosstroycom LLC was recognized as unfounded and no violations of the Law on the contract system were found in the actions of the auction commission, the operator of the electronic trading platform must stop the suspension of purchase No. 0168200002418000028.

In view of the foregoing, the Commission, guided by part 1 of article 2, paragraph 1 of part 15, paragraph 2 of part 22 of article 99, part 8 of article 106 of the Law on the contract system,

DECIDED:

Recognize the complaint of Rosstroykom LLC as unfounded.

The decision may be appealed in court within three months from the date of its adoption.

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 of Regional Development of the Russian Federation 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: preparation of a master plan for a land plot, preparation of projects for internal gas supply systems, 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 two previous 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 for roads, 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 (Chukotka Autonomous Okrug) announced an electronic auction for the overhaul of a section of the main hot water supply network of the central heating center 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 concerns situations when such organizations conclude 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. 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, the document confirming the membership of a legal entity or an individual entrepreneur in the relevant SRO will be an extract from the register of members of the SRO, of which the procurement participant is a member. A new form of 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 01.07 .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 a municipal enterprise acts as a customer, when drawing up auction documentation, certain categories of 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) should be “released” from this obligation. eighteen .

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 version of Part 2 of 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.