Sro in purchases FZ 44 when required. The requirement for an extract is sro. What to require from participants when purchasing construction and repair works

It is unlikely that anyone would argue with the fact that procurement related to construction, design, engineering surveys is one of the most difficult to prepare documentation and submit an 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 such is entitled 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 to 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 carried out both personally by the Contractor and with the involvement of third-party subcontractors. At the same time, it is worth paying attention to the fact that the requirements of the documentation should not contradict each other.

In the event that the work must be performed personally, the requirement for a certificate must contain the entire list of types of work that must be 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 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 remains the option with the possibility of attracting a subcontractor, for the absence of signs of restricting competition during the procurement.

In this case, the Customer must provide the participant with a choice. In the second part of the application, either a certificate 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 restriction - to the NMCC 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.

Date: 22 .05.2017

In accordance with the Urban Planning Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation) certain types works 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 - SRO). V currently these works include:

1. Engineering survey works that affect the safety of capital construction facilities 1. The list of these works is established by the Ministry regional development RF and includes: hydrogeological research, engineering and environmental survey of the territory, physical and mathematical modeling of the interaction of buildings and structures with the geological environment, etc. 2
2. Works on architectural and construction design 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 master plan land plot, preparation of projects for internal gas supply systems, preparation of projects for external networks of low-current systems, etc. 2
3. 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 work was established by the Ministry of Regional Development of the Russian Federation - for example, artificial freezing of soils, reinforcement work during the installation of concrete and reinforced concrete monolithic structures, laying water pipelines, arranging the foundations of highways, etc. 2

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

In accordance with 44-FZ, when making a purchase, the customer establishes uniform requirements to the 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 the procurement 6. Thus, if the object of the procurement is the performance of the above works, which affect the safety of capital construction facilities, then the procurement participant has an appropriate SRO certificate of admission to these types of work is a legitimate requirement of the customer. FAS adheres to the same opinion 7.

Example

In mid-April 2017, the municipal enterprise of housing and communal services of the Bilibinsky municipal district (Chukotka Autonomous Okrug) announced electronic auction for the overhaul of a section of the main hot water supply network of the central heating station with the NMCK in the amount of 2.55 million rubles. 8 According to the auction documentation, one of the documents that was required to be provided from the procurement participant was a copy of the SRO certificate of admission of the auction participant to the organization of the work specified in clause 33.7 of Part III of the Order of the Ministry of Regional Development of the Russian Federation dated December 30, 2009 No. 624 “On Approval of the List of Types works on engineering surveys, on the preparation of project documentation, on construction, reconstruction, overhaul of capital construction objects that affect the safety of capital construction objects "- work on the organization of construction, reconstruction and overhaul by a contracted developer or customer on the basis of a contract by a legal entity or an 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 due to the entry into force of most of the provisions of the Federal Law of July 3, 2016 No. 372-FZ "On Amendments to the Urban Planning Code Russian Federation and certain legislative acts of the Russian Federation ”. Let's consider them.

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

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

In a relationship architectural and construction design is any work on the preparation of project documentation within the framework of contracts for the preparation of project documentation concluded with a developer, technical customer, a person responsible for the operation of a building, structure, a regional operator; and, 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. Exactly the same norm will now apply to construction, reconstruction, overhaul of capital construction facilities 11.

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

1. 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 treasury enterprise, a state (municipal) institution or a commercial organization that is controlled by the authorities state authority or local self-government body (created by one or another public law entity or more than half directly or indirectly belongs to this entity) 12.

It should be clarified that this condition applies to situations when such organizations conclude contracts with state authorities and local authorities, and with respect to the third category of work (construction, reconstruction, overhaul of capital construction objects), this condition applies only to cases of concluding a construction contract. contract. In accordance with civil law, such an agreement is deemed to be a contract when the contractor undertakes to build a certain object at the request of the customer within the time period established by the contract or to perform other construction works, and the customer undertakes to create the necessary conditions for the contractor to perform the work, accept their result and pay the specified price, while such an agreement is concluded for the construction or reconstruction of an enterprise, a building (including a residential building), a structure or other object, as well as for the performance of installation , commissioning and other works inextricably linked with the facility under construction 13.

However, we would like to draw your attention to the fact 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 civil law stipulates that the rules on building contracts also apply to overhaul of buildings and structures, unless otherwise provided by the contract 15.

2. 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, from the Civil Code of the Russian Federation, the concept of "SRO certificate of admission to work" is generally excluded as such, and Rostekhnadzor Order of 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 facilities capital construction "will lose its validity. When making purchases with a document confirming membership legal entity or individual entrepreneur in the relevant SRO, there will be an extract from the register of members of the SRO, of which the procurement participant is a member. A new form of such an extract has already been established and is in effect 17, while the positions of this form, which relate to the 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 need, when making purchases, notices of which are posted in the EIS from 01/01/2017, to take into account these changes in town 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 a section of the main hot water supply network of the central heating station in Chukotka were held in the second half of 2017 (that is, after the amendments have entered into force), then the customer would not have the right to demand from a participant in the procurement of membership in an SRO and the provision of a corresponding extract from the register of SRO members, since the NMCC does not exceed 3 million rubles. 16 But if the NMCC exceeded this threshold, then the requirement to provide an extract would be legitimate, since the customer (municipal housing and communal services enterprise) in this case is the person responsible for the operation of water supply systems 17. But since here the role of the customer is a municipal enterprise, when drawing up the auction documentation, certain categories of organizations established by the new edition of town planning legislation (state and municipal enterprises, state and municipal institutions, commercial organizations with state or municipal participation) 18.

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

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, on the preparation of project documentation, on construction, reconstruction, overhaul of capital construction facilities that affect the safety of capital construction facilities"

3 Part 4 Art. 48, h. 1 and 4 of Art. 55.8 Civil Code of the Russian Federation.

4 Part 2 Art. 52, parts 1 and 4 of Art. 55.8 Civil Code of the Russian Federation

5 Parts 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 the certificate of admission to a certain type or types of work that affect the safety of capital construction facilities"

6 P. 1 h. 1 tbsp. 31 of the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs."

7 See, for example, Letter of the FAS Russia dated 02.11.2015 No. АЦ / 60557/15.

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

9 New edition h. 2 tbsp. 47 Civil Code of the Russian Federation, effective from 01.07.2017.

10 New edition of Part 4 of Art. 48 Civil Code of the Russian Federation, effective from 01.07.2017.

11 New edition of Part 2 of Art. 52 of the Civil Code of the Russian Federation, effective from 01.07.2017.

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, effective from 01.07.2017.

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

14 New edition of Part 3 of Art. 52 of the Civil Code of the Russian Federation, effective from 01.07.2017.

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

In case of exclusion of information about a self-regulatory organization from state register self-regulatory organizations, the funds of the compensation fund for compensation for harm and the compensation fund for securing 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 present 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 against the actions of the customer. Features of the SRO certificate The SRO certificate includes a condition on the maximum amount of the contract that can be concluded by the company.

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

Info

The compensation fund for ensuring contractual obligations (KF 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.

Article 55.16. self-regulatory organization compensation funds

The requirement to submit 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 the 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 be allowed 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 of the constituent entities 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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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 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.

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 through his claims to a 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 project documentation, construction contracts using competitive methods of concluding contracts, from the obligation to make a contribution to the compensation fund for securing contractual obligations if 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 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.

Check if the contractor can carry out the purchased work. This information is listed 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 amounted to 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 perform 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 looking 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.

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

The six main changes that the customer needs to know about are:

• admissions of self-regulatory organizations (SROs) for the performance of work affecting the safety of capital construction facilities are becoming a thing of the past. Since July 1, these tolerances are not valid, therefore, they cannot be required from procurement participants. Regarding subcontractors, the legislator made a clarification: they do not need permits since June 18;
• participants in the procurement of any design and survey work must be members of the SRO. An exception is made for unitary enterprises, state and municipal institutions, legal entities with state participation, but only for the types of contracts described in Part 2.1 of Art. 47 and part 4.1 of Art. 48 Civil Code of the Russian Federation;
• participants in the procurement of any work on construction, reconstruction, overhaul must also be a member of the SRO. There are two exceptions.

The first is the same as for design and survey work (applies only to unitary enterprises, state and municipal institutions, legal entities with state participation).
The second is provided for contractors performing construction and installation work under contracts for an amount not exceeding 3 million rubles;

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

2. How to conduct a competitive procurement of engineering survey or design works from July 1

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

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

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

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

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

• the auction participant must be a member of an SRO in the field of construction, reconstruction, overhaul of capital construction facilities;
• The SRO, in which the participant is a member, must have a compensation fund for ensuring contractual obligations;
• the aggregate amount of the obligations of the auction participant under contracts concluded using competitive methods must not exceed the level of the participant's liability for the compensation fund for securing contractual obligations;
• in the second part of the application, the auction participant must submit an extract from the register of SRO members in the form approved by Rostechnadzor Order No. 58 dated February 16, 2017. This extract must be issued no earlier than one month before the deadline for the submission of applications, which is specified in the notice of auction (clause 1 of part 6 of article 69 of Law N 44-FZ).

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

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

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

4. What to look for when checking the second parts of applications

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

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

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

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

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

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 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 construction industry, started working 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 made it possible to develop a new 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 the expected heated discussion not only among builders, but also among prospectors, designers, customers and developers. In other words, almost all market participants in the construction industry.

Despite not always unambiguous assessments, No. 372-FZ was adopted, and in July 2017 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 since 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 SROs 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: Chukotka Autonomous Okrug and Jewish Autonomous Region. 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 that 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, it would be wrong to speak in such a situation about 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 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 funded with participation federal budget programs through cooperation with operators in the regions. As an example of such projects, one can cite the program of demolition and resettlement of housing, which is recognized as dilapidated or dilapidated, as well as the program of overhaul of multi-apartment 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 No. 223-FZ and No. 44-FZ.

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 the participants in the implementation of the investment project, as well as the initial documents necessary for them to 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. At the same time, the funds are divided in this 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 survey and design, which is quite logical) and the level of responsibility, which depends on maximum amount 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 the 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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