Examination after acceptance of works – non-target expenses
During the construction of the road state institution acted as the customer. Funds for the implementation of this project were allocated by the Federal budget to the budget of the region in the framework of co-financing. Certain stages of work performed by the contractor in accordance with the terms of the contract were accepted under the acts of acceptance of the work performed (form KS-2) and paid. Examination of results of these works at the time of acceptance of works the organization carried out own forces – it allow to make provisions of the Federal law of April 5, 2013. № 44-FZ "On the contract system in the procurement of goods, works and services for state and municipal needs", hereinafter – the Law № 44-FZ.
In the further carrying out of the works the contractor is in breach of the approved project and estimate documentation and construction technology, for which he was issued a notice to suspend operations at the facility. Since the contractor did not agree with the identified shortcomings, an independent examination was appointed to assess the cost of the work necessary to complete the object. For this purpose, contracts were concluded with an expert organization. At the same time, the stages of work already accepted and paid for were subject to expert inspection.
It was the cost of paying for the examination of previously accepted works that caused a dispute between the auditors of the UFK and the institution. The inspectors insisted that at the time of acceptance of the works by the customer on its own has already been carried out examination of the results of the contract, the cost of re-examination are misuse of budget funds, which is an administrative offense, the responsibility for which is provided for in article 15.14 of the administrative Code.
The courts of two instances agreed with them. According to the judges, the examination of the results provided for in the contract is one of the components of the stage of acceptance of the results of the work performed or individual stages of the contract – this is stated in Law No. 44-FZ. Examination is a method of verification by the customer provided by the contractor of the results of its activities. Completion of acceptance implies acceptance of these results. And since the contracts for the independent examination were concluded after the acceptance of the first stages of the work, its implementation was carried out outside the provisions of Law No. 44-FZ. Accordingly, the costs of payment of these contracts can not be recognized as target, as not aimed at achieving the goal for which funds were provided from the budget – the construction of the road.
Document: Resolution of the Thirteenth arbitration appeal of 29 April 2019 in case no. A26-13149/2018