FAS inspections: problems with requirements in construction procurement and other difficulties under Law No. 44-FZ
The Agency drew attention to the fact that a lot of errors have been revealed in construction procurement recently. Thus, the participants submitted incorrect extracts from the register of members of the construction SRO. The customers demanded this document without taking into account the final result of the contract. Read more in the review.
Construction SRO
In one case, the customer rejected the application of the participant, because he submitted an incorrect extract from the register of members of the construction SRO. It specifies the 1st level of liability for contractual obligations, and based on the contract price, the 2nd level is required.
The supervisors recognized this as legitimate: the level of responsibility of the procurement participant-a member of the SRO-must correspond to its price offer.
Note that some courts believe that when assessing the level of liability from the statement, it is worth considering similar contracts for the performance of the participant. This is due to the fact that the amount of obligations, taking into account the price offer, may exceed the maximum amount of obligations.
In another case, the customer purchased design and survey work and required membership in two SROs at once:
in architectural and construction design;
in engineering research.
The supervisors considered this a violation. The condition for membership in the SRO is set without taking into account the final result of the contract. In this case, it is the transfer to the customer of the working documentation developed on the basis of the project. The participant must be a member of the SRO in architectural and construction design. If the execution of the contract requires design surveys with membership in the relevant SRO, you can attract co-executors with this status.
Scope of independent work of the contractor
The customer demanded from the contractor the amount of construction work that he must perform himself. This is provided for in Resolution No. 570.
The supervisors considered this a violation. The document is used only by state or municipal customers. The customer in question was not one of them.
License
Customers often incorrectly require participants to have a license. The general approach of the controllers is as follows: if the licensed works (services) are an independent object of purchase, the customer must establish a requirement for its availability. Even if the purchase has the right to involve a co-executor with a license, this does not mean that the participant should not have his own.
In mixed contracts, the final result of the contract must be taken into account. The supervisors gave an example: the customer purchased construction works that included the licensed type of activity. The customer demanded a license based on the results of the work. When submitting the application, it was not needed.
The inspectors did not find any violations, since the main works accounted for 90% of the contract price. Under the terms of the purchase, the contractor could attract subcontractors to perform work with a license.
Bank guarantee to secure the application
The operator of the electronic platform returned the application of the participant, because he did not specify the number of the entry from the register of bank guarantees. There was also no information about the participant's special account for blocking money.
The participant considered this illegal: to ensure participation in the purchase, he prepared a bank guarantee. Information about it is posted in the registry in time.
The supervisors reminded us that this is not enough. According to the procurement legislation, you also need the number of the registry entry.
Documents:
Analysis of the practice of conducting unscheduled inspections of customers under Law No. 44-FZ (March 2021)
Review of the practice of reviewing complaints during procurement under Law No. 44-FZ (March 2021)