New rules for government contracts for the construction of turnkey projects. Government contract for construction

BASIC POINTS

PROCEDURE FOR CONCLUSION AND EXECUTION OF GOVERNMENT CONTRACTS

(CONTRACT AGREEMENTS) FOR CONSTRUCTION OF FACILITIES FOR FEDERAL

STATE NEEDS IN THE RUSSIAN FEDERATION

1. These Basic Provisions determine the procedure for concluding and executing government contracts (contracts) for the construction of facilities for federal government needs (hereinafter referred to as contracts).

The procedure for conducting contract bidding is established by the State Committee of the Russian Federation for Housing and Construction Policy with the approval of the Ministry of Economy of the Russian Federation.

3. State customers, when concluding contracts for the transfer of part of their functions to other business entities, must provide for obligations to fulfill the functions transferred to them, to effectively use the allocated funds, as well as the responsibility of the parties for violation of accepted obligations.

4. Government contracts are concluded with the contractor that won the competition (bidding) on ​​the basis of initial conditions (cost, terms and other indicators determined in accordance with federal and interstate target programs) for the entire period of construction of facilities in the manner established by the State Committee of the Russian Federation on issues of architecture and construction with the participation of the Ministry of Economy of the Russian Federation and the Ministry of Finance of the Russian Federation.

Cost adjustments caused by objective reasons during the construction process are made by agreement of the parties. The allocation of additional financial resources when the cost of construction increases is made by the state customer in agreement with the body that allocated these funds.

The volume of contract work and the necessary financial resources are determined in the contract, broken down by year in accordance with the construction calendar plan and the timing of commissioning of capacities and facilities. In cases of a decrease in the amount of financial resources for the next year or a disruption in the continuity of financing, the construction period is specified by the parties. In this case, the state customer compensates the contractor for losses.

5. The state customer provides the contractor with an advance in accordance with the established procedure and ensures timely and continuous financing of construction. The size, timing of the advance payment, the procedure for its repayment, as well as the conditions for interim payments for work performed within 95 percent of their cost are established when concluding the contract. In cases established by acts of the Government of the Russian Federation, the terms of interim payments for work performed may be established within 99 percent of their cost.

(see text in the previous edition)

If, through the fault of the contractor, the volume of work provided for in the production schedule is not completed, the amount of the submitted interim payment for the work actually completed is reduced by the cost of the uncompleted work or payments are delayed until the backlog is eliminated.

The final payment is made within a month after acceptance of the facility as a whole or its phase, launch complexes, as well as individual buildings and structures, unless a different payment period is provided for in the contract.

In case of delay established by the contract in terms of transfer of advance payment, payment for work performed and final settlements, the state customer compensates the contractor for losses caused as a result, including the cost of paying interest on the loan.

6. The contract may provide for specific benefits provided in accordance with the Law of the Russian Federation “On the supply of products and goods for state needs,” as well as conditions aimed at stimulating timely and high-quality performance of work.

7. The state customer is responsible for the timely transfer of equipment for installation if this obligation is assigned to it under the contract. If, as a result of shortfalls in the supply of equipment, construction is stopped for more than a month, the construction completion period is extended for the period the work is stopped.

The amount of sanctions for untimely delivery of equipment for installation is established when concluding the contract.

8. If the deadlines established by the contract for the commissioning of enterprises, buildings, structures, start-up complexes and queues, as well as individual objects are not met, budget financing and preferential state lending for their construction are suspended by the body that allocated these funds. The decision to complete construction is made in the prescribed manner at the proposal of the state customer, agreed with the Ministry of Economy of the Russian Federation, the Ministry of Finance of the Russian Federation, the State Committee of the Russian Federation for Architecture and Construction and other interested ministries and departments.

In the modern economy, any work, in particular construction, is carried out primarily on the basis of a contract. The state is no exception in this regard, and it can also be the customer of construction work. For example, housing may be constructed for subsequent distribution to the military at the expense of public funds.

A distinctive feature of construction work at public expense is exclusive use of budget funds. Funds can be provided from the municipal budget, local republic, region, district or federal budget.

Conclusion of a contract for contract work for government needs

Before a contract is concluded, a special procedure is carried out - a competition, this gives equal opportunities to everyone who wants to receive a government contract.

When announcing the competition it is indicated:

• what are the terms of the future contract,
• what are the requirements for the customer?

To undertake or not to undertake a government contract, Each entrepreneur or management of an organization decides independently. The only exception is natural monopolies (for example, energy supply companies).

A government contract differs not only from the standard customer, but also from the degree of demands on the part of the state. It must be taken into account that when disputes arise, especially in court, it is very difficult to fight with government agencies, especially when it comes to money. The customer can be any body or government organization that has the right to manage budget funds.

The customer may be the body itself (for example, it is necessary to carry out repairs in the building of the ministry) or a separate government agency deals with issues of orders. But the matter cannot be accomplished without the participation of the final consumer, so to speak..

Contractor could be any organization, having the necessary permissions, if needed.

All conditions in the contract should be as clear as possible, inaccuracies and gaps are not allowed.

For example, the list of works and deadlines must be clearly specified.

If the level of funding for the relevant project decreases, then it is possible to change the terms and other conditions of the contract, because changing the timing changes everything that follows it.

The risk of destruction of the object lies with the contractor, and this the rule in a government contract is unchanged.

The price in the government contract is not subject to change. A price change is possible if it concerns museum values, archival materials, if the preservation of people’s lives depends on this, the customer can change the price by no more than 10%.

A separate decision of the Government is necessary if the contract is concluded for a period of at least 3 years and the price is 10 billion.

A similar rule applies to orders from federal subjects or municipalities. In this case the decision is made by the local legislative assembly by separate law.

A special feature of government orders is that the contract can be concluded for no more than three years. An exception is allowed when it is technically impossible to complete the order within the three-year period.

Regarding the quality of construction work, it should be noted that the state construction contract must be carried out exclusively in accordance with building codes and regulations.

CONSTRUCTION CONTRACT

________________ "__"___________ 199_

N_______

The Construction Department of the Moscow Government, hereinafter referred to as the Developer, represented by _________________________________, acting on the basis of the Charter, and _________________________________, hereinafter referred to as the Customer, represented by ___________________________________, acting on the basis of _______________________, have entered into this contract regarding the following:

1. The customer assumes the responsibilities of fulfilling the functions of the customer - developer for the design and construction of facilities in accordance with the programs approved by the Moscow government and title lists approved by the Department of Prospective Development of the City on the terms established by the Moscow government.

2. The customer undertakes to ensure the comprehensive development of the city in accordance with the master plan for the comprehensive economic and social development of the city and detailed planning projects, contract terms, in compliance with building codes and regulations, technical conditions and turnkey delivery of finished facilities.

3. The developer ensures the uninterrupted transfer of financial resources to the Customer (except for share transfers and other sources collected by the Customer) to pay for design and survey work and financing construction within the allocated volumes of capital investments according to the agreed schedule attached to the annual contracts.

4. The cost of construction entrusted to the Customer under this contract and annual contracts is determined in the manner established by the Moscow government.

5. Design, survey and contracting organizations involved in the construction of facilities under this contract are attracted on a competitive basis.

6. The scope of construction and commissioning of facilities, the financing schedule, the responsibilities of the Developer and the Customer and their property liability are determined in annual agreements concluded between the Developer and the Customer and which are an integral part of this contract.

7. To conclude annual contracts, the parties fulfill the following conditions:

7.1. The developer, before October 1 of the year preceding the contractual one, transfers to the Customer the municipal order of the city, which is a task for the commissioning of facilities and social facilities in the planned year, and before December 15, the title lists of construction projects approved by the Department of Perspective Development for all objects to be built in the contract year.

7.2. The Customer, before December 1, submits to the Developer for approval the title lists of buildings to be built in the contract year, prepared by him and agreed upon with the contractors.

8. The contract comes into force from the moment it is signed by the parties.

9. The contract can be terminated at the request of one of the parties, which must notify the other party of this no later than 6 months before the termination date. The parties are obliged to fulfill their obligations that arose before the date of termination of the contract.

10. Disputes arising during the execution of this contract are resolved by the arbitration court in the prescribed manner.

Settlement accounts of the parties: Developer _____________________________________________________ (location and account number)

Customer ________________________________________________________________ (location and account number)

______________________________________________________________________

Addresses, telephones and faxes of the parties: Developer ________________________________________________________________ _______________________________________________________________________ Customer ________________________________________________________________ _______________________________________________________________________

This contract has been drawn up in three copies: one for each party and one for the bank financing the construction.

Seal Developer _______________ (signature)

Seal Customer ________________ (signature)

From July 1 of this year, a new procedure is being introduced for government contracts, which involve carrying out a set of basic works on the construction of capital facilities. The main innovation is the mandatory receipt of a positive expert opinion from an authorized government agency, both on technical issues and on the investment component.

The new rules apply to state and municipal contracts concluded after July 1, 2017, the subject of which is the design, construction, and commissioning of a specific capital construction project (that is, one contract for the implementation of all main stages of construction until transfer to the customer). They were introduced (hereinafter referred to as the Resolution), which came into force on July 1, 2017, and the corresponding amendments to a number of regulations governing the conclusion and execution of government construction contracts.

There is only one fundamental innovation - the project for the construction of the facility (the basis of the future contract) must contain justification for the planned investments and undergo the procedure of technological and price/investment audit. Without this, such a contract cannot be concluded. All other legislative innovations bring the regulatory framework for construction and tender documentation into compliance with these requirements. And, of course, it was approved (hereinafter referred to as the Regulations).

Consequently, from July this year, in order to conclude a contract for the construction of a turnkey project, the customer-developer will additionally need:

justification of investments in the creation of the facility;

conclusion based on the results of a technological and price audit;

decision to conclude a contract.

Investors' arguments

Investment justification is a package of documents. It includes:

• draft assignment for the design of the facility;
• description of the investment project, including main characteristics, timing, construction stages and location of the facility;
• basic architectural, constructive, engineering and other solutions for the creation of the facility;
• information about the main technological equipment taking into account the requirements of modern production and construction technologies;
• estimated cost of the object (calculation);
• provisions on the possibility/impossibility of reusing cost-effective design documentation for a similar facility.

The new procedure provides for public discussion of the rationale for investments. Within its framework (within 15 days), any interested person has the right to provide feedback regarding the justification. That is, the need for investment in the construction of a particular facility may be questioned. If an unfavorable situation develops, the conflict may be brought to court. Therefore, in essence, the customer needs to provide for the possibility of forming an expert response to such objections.

Technology and price audit

According to the Resolution, the audit is carried out by those executive authorities (federal, constituent entities of the Russian Federation) or government agencies subordinate to them that have the appropriate powers. For example, this includes the FAU "Glavgosexpertiza of Russia". The State Atomic Energy Corporation Rosatom also has this right.

The audit is a paid service, the tariff is 0.58% of the cost of design and survey work. Some funding will also be required to prepare a justification for investments. Funds for all this when organizing the construction of a federal property will be allocated from the federal budget (within certain limits), a state property of a constituent entity of the Russian Federation or municipal - in accordance with the relevant adopted regulations. That is, it is quite possible that these costs will be transferred to the winner of the competition (their compensation may include the contract price).

Based on the results of the audit, an expert’s opinion is drawn up, which reflects his conclusions on:

• choosing the location of the object;
• optimal timing and stages of construction;
• sufficiency of data for design and development of project documentation;
• basic constructive, architectural, artistic, engineering and other solutions for the preparation of project documentation (taking into account the requirements of all technical regulations);
• the feasibility of using expensive building materials, machinery and equipment, as well as artistic products for decoration;
• modern level of equipment and technologies that will be used during construction;
• the estimated marginal cost of construction of the facility (in prices of the corresponding years);
• selection for reuse of design documentation of a similar object or the rationale for the decision on the impossibility/inexpediency of its use.

In addition, as part of the audit, conclusions can be drawn about the possible reduction of costs, terms and stages of construction, optimization of selected solutions for the development of project documentation, technological equipment and materials planned for use.

If the audit is carried out by the Ministry of Construction of the Russian Federation or government agencies subordinate to it, then its conclusion will be entered into the appropriate register - the corresponding project has been prepared by the ministry. It is planned that according to a certain procedure, information from this register can be provided to interested parties. In the future, similar registers may appear at the regional level.

Conclusion of a contract

The decision to award a contract must contain the estimated maximum cost of the object in accordance with the audit conclusion. It should not exceed the amount of cost approved by the decision on capital investments. The contract price is determined and justified within the framework of the legislation of the Russian Federation in the field of procurement after receiving the above-mentioned conclusion.

The future agreement includes a number of fundamental conditions. According to one of them, the contractor does not have the right to demand an increase in the contract price, and the customer does not have the right to demand a decrease. It also applies to those cases where it is not possible to initially provide for the full scope of work or expenses.

Thus, any action to conclude an advisory contract is associated with the presence of a positive conclusion based on the results of a technological and price audit. The content of the conclusion, in turn, strictly limits the terms of the contract - subject, composition, content of technical documentation, contract price and deadline for its execution.

In these conditions, the customer and the potential contractor should think about tools to prevent risks and the onset of adverse legal consequences. For example, the objectivity and sufficiency of investment justification documentation can be checked within the framework of an independent construction and technical examination. Such a preliminary specialized expert study will be for the developer or other interested party not only an additional guarantee of the validity of his position, but also an indicator of the integrity and reasonableness of his behavior.

Expert case

An additional examination can be recommended before the audit, especially taking into account the above-mentioned opportunity for any person to provide feedback on the investors’ arguments. Moreover, both sides can turn to experts. Anyone who decides to influence the course of public discussion in order to get their bearings and compose a competent review in a short time (up to 15 days) can use the help of persons with special knowledge (experts).

And for those who present their investment project to the public, independent construction and technical expertise will allow them to take into account all controversial issues in advance and conclude a contract without the threat of time and financial losses. It is obvious that a developer who is negligent in preparing documentation for an audit will face lengthy legal proceedings in an attempt to invalidate the refusal to issue a positive opinion and conduct forensic examinations.

Of course, during the audit, the applicant can make changes to the submitted package of documents (). But will the maximum 60-day period be enough to bring the documentation into compliance (), given that the vast majority of customer-developers under such contracts are not professional participants in urban planning activities ? However, the law does not provide for the possibility of returning the amount paid if the conclusion is not positive for the developer.

As a result, customers of turnkey construction of federal or municipal property will now have to solve several additional issues related to various examinations. And, perhaps, given the income of many local budgets, at the regional and municipal level these costs will be partially or completely transferred to the contractor.