The state customer in the public procurement procedure is an organizational and legal unit that works on budget money. Moreover, on the money not only of the national budget, but also of the municipal treasury. The concept of the state customer in the business environment is mainly associated with the contract mode of supply, although in other sectors of economic activity one can also find mention of orders for public funds.
The state customer in the contract (contractual) procurement system is a state or municipal organizational and legal unit that is financed from the relevant budgets and purchases goods/works/services for their needs at their expense.
Government customers are not engaged in entrepreneurial activities.
There is no detailed list of such buyers, but the criteria by which one can say that a particular institution can act in such a capacity are specified in Federal Law-44. There are also exceptions, that is, criteria are given for determining structures or individual orders that are not subject to federal law 44.
According to FZ-44, the state customer is:
Only if the organizational and legal unit meets all the listed criteria, it can be said that this institution or organization can be a buyer under the contractual regime.
Exceptions to the contract regime are supply relations:
The listed cases of supplying state budgetary structures are considered in more detail in the Federal Law-44 itself.
Outside the contract regime, state customers can be all the same budgetary structures that are listed in the law, if they work outside the contract procedure and make purchases that are not subject to Federal Law-44.
Such procedures are also controlled by laws and regulations. regulations issued to regulate activities in some specific and strategically important sectors of the economy for the country. However, it is possible that such buyers place some orders to meet their needs in the contractual system.
Participants of the contract system are state and municipal customers, an authorized body for placing an order, a specialized organization, an expert or an expert organization of the commission for placing an order and procurement participants.
The structure of the participants in the procurement process is shown in Figure 1 and is a rather complex scheme of functional interaction between state and non-state institutions and organizations. Let's consider each of the participants in the procurement process in more detail.
Government customers are procurement legal entities that act on behalf of the Russian Federation or a constituent entity of the Russian Federation and are authorized to accept budget obligations on their behalf in accordance with the budgetary legislation of the Russian Federation, namely:
1) state bodies (including state authorities);
2) State Atomic Energy Corporation "Rosatom";
3) management bodies of state non-budgetary funds;
4) state treasury institutions.
Municipal customers are recognized purchasing legal entities that act on behalf of the municipality and are authorized to accept budgetary obligations on its behalf in accordance with the budgetary legislation of the Russian Federation, namely:
1) municipal authorities;
2) municipal state institutions.
State and municipal customers are required to carry out all types of procurement for the supply of goods, performance of work, provision of services in accordance with the requirements established in 44-FZ.
To state and municipal customers include:
-state bodies (including state authorities) all three branches of government - legislative, executive and judicial. The system of public authorities includes two levels - federal public authorities and public authorities of the constituent entities of the Russian Federation.
State power in Russia is exercised by the President of the Russian Federation, the Federal Assembly (the Federation Council and the State Duma), the Government of the Russian Federation, and the courts of the Russian Federation. State bodies that are not state authorities include: at the federal level - Accounts Chamber Russian Federation, the Central Election Commission of the Russian Federation, the Prosecutor's Office of the Russian Federation; at the regional level - the control bodies of the legislative (representative) bodies of the constituent entities of the Russian Federation, election commissions of the constituent entities of the Russian Federation, etc.
- management bodies of state non-budgetary funds, which are subdivided into the federal level, which includes the Pension Fund of the Russian Federation, the Fund social insurance Russian Federation and the Federal Compulsory Medical Insurance Fund, as well as the regional level, which includes the territorial compulsory medical insurance funds.
- municipal bodies Art. 34 of the Federal Law "On the general principles of the organization of local self-government in Russian Federation".
- state institutions included from January 1, 2011 instead of referring to budgetary institutions by the Law of 2010 N 83-FZ, adopted as part of the improvement of the legal status of state and municipal institutions. According to this law, a state or municipal institution may be an autonomous, budgetary or state-owned institution.
Budgetary institutions are customers who are required to make purchases in accordance with the requirements of 44-FZ, if such purchases are made at the expense of subsidies provided from the budgets budget system RF, and other means.
However, if state-financed organization makes purchases at the expense of grants, at the expense of funds received from income-generating activities, or in order to attract third parties for the execution of a contract under which a budgetary institution is a contractor, then it has the right to make purchases in the manner prescribed by Federal Law of 18.07.2011 N 223- Federal Law "On Procurement of Goods, Works, Services by Certain Types of Legal Entities".
Autonomous institutions, state and municipal unitary enterprises are customers and are obliged to make purchases in the manner prescribed by 44-FZ in the following cases:
Procurement is carried out at the expense of funds received from the budgets of the budgetary system of the Russian Federation for the implementation of capital investments in objects of state or municipal property;
State or municipal customers have delegated to the said persons their authority to carry out purchases free of charge on the basis of contracts and agreements.
Authorized body, authorized institution - a state body, a municipal body, a state institution authorized to determine suppliers (contractors, performers) for customers.
Such authorized bodies, authorized institutions exercise the powers to determine suppliers (contractors, performers) for customers, established by decisions on the establishment of such authorized bodies, authorized institutions or on vesting them with the specified powers. It is not allowed to entrust such authorized bodies, authorized institutions with the authority to justify procurement, determine the terms of the contract, including determining the initial (maximum) price of the contract, and signing the contract. Contracts are signed by customers for whom suppliers (contractors, performers) have been identified.
Authorized bodies, authorized institutions, which are entrusted with the authority to determine suppliers (contractors, performers) to meet the needs of the constituent entities of the Russian Federation, have the right to exercise the powers of authorized bodies, authorized institutions of municipalities to determine suppliers (contractors, performers) on the basis of agreements between the constituent entities of the Russian Federation and municipalities located on their territories.
The procedure for interaction of customers with authorized bodies, authorized institutions is determined by decisions on the establishment of such bodies, institutions or decisions on empowering them in accordance with this article.
Specialized organization - a legal entity engaged by the customer to perform certain functions to determine the supplier (contractor, performer) by holding a tender or auction, including the development of tender documentation, auction documentation, placement in a single information system of a notice of an open tender, a tender with limited participation, a two-stage tender or an electronic auction, sending invitations to take part in a closed tender, a closed tender with limited participation, a closed two-stage tender or a closed auction, performing other functions related to ensuring the determination of the supplier (contractor, performer). At the same time, the creation of a procurement commission, the determination of the initial (maximum) price of the contract, the subject and essential terms of the contract, the approval of the draft contract, tender documentation, auction documentation and the signing of the contract are carried out by the customer.
The customer is jointly and severally liable for harm caused to an individual or legal entity as a result of illegal actions (inaction) of a specialized organization committed within the powers transferred to it by the customer on the basis of a contract and related to the determination of the supplier (contractor, performer), in the implementation of the above functions on behalf of the customer.
A specialized organization cannot be a procurement participant in which this organization performs functions.
Expert, expert organization - an individual with special knowledge, experience, qualifications in the field of science, technology, art or craft, including an individual entrepreneur, or a legal entity who, on the basis of a contract, carries out activities to study and evaluate the subject of expertise, as well as to prepare expert opinions on issues raised by the customer, procurement participant.
To examination cannot be allowed:
1) individuals:
a) who, either within less than two years preceding the date of the examination, were officials or employees of the customer conducting the examination, or the supplier (contractor, performer);
b) having property interests in the conclusion of the contract, in respect of which the examination is being carried out;
c) who are close relatives (relatives in a direct ascending and descending line (parents and children, grandfather, grandmother and grandchildren), full and half-blooded (having a common father or mother) brothers and sisters), adoptive parents or adopted with the head of the customer, members of the commission for procurement, the head of the contract service, the contract manager, officials or employees of the supplier (contractor, performer) or married to them;
2) legal entities in which the customer or supplier (contractor, executor) has the right to dispose of more than twenty percent of the total number of votes attributable to voting shares, or more than twenty percent of deposits, shares constituting the authorized or share capital of legal entities;
3) individuals or legal entities in the event that the customer or supplier directly and / or indirectly (through a third party) can influence the result of the examination carried out by such a person or persons.
An expert, an expert organization are obliged to notify in writing the customer and supplier (contractor, performer) of the admissibility of their participation in the examination.
Procurement commissions are created by the customer to determine suppliers (contractors, performers), with the exception of procurement from a single supplier (contractor, performer).
The decision to create a commission is made by the customer before the start of the procurement. At the same time, the composition of the commission and the procedure for its work are determined, and the chairman of the commission is appointed.
The customer may create tender, auction, quotation commissions, commissions for consideration of applications for participation in the request for proposals and final proposals and single commissions performing the functions of procurement through tenders, auctions, requests for quotations, requests for proposals. The number of members of the tender, auction or unified commission must be at least five people, the number of members of the quotation commission, the commission for consideration of applications for participation in the request for proposals and final proposals must be at least three people.
The customer includes in the composition of the commission mainly persons who have undergone professional retraining or advanced training in the field of procurement, as well as persons with special knowledge related to the procurement object.
Members of the committee cannot be individuals who were involved as experts in the peer review, or individuals who are personally interested in the results of the selection of suppliers (contractors, performers).
The commission is authorized to perform its functions if at least fifty percent of the total number of its members is present at the meeting of the commission. Members of the commission must be promptly notified by the chairman of the commission about the place, date and time of the meeting of the commission. Adoption of a decision by members of the commission by absentee voting, as well as delegation of their powers to other persons is not allowed.
Procurement participant - any legal entity, regardless of its organizational and legal form, form of ownership, location and place of origin of capital, or any individual, including registered as an individual entrepreneur.
When describing the figure of the customer in construction, they are guided by those regulations, which to a greater extent regulate its current role. The customer, as a person managing the construction, can be identified with the figure of the developer in terms of characteristic features, and in terms of the volume and content of functions - partially overlap with the investor and / or general contractor. At the same time, the role of the customer in construction using this particular name is described in detail in the document in the “Regulations on the customer during construction ...” and in the Civil Code of the Russian Federation.
A customer in construction is a person who manages the construction assigned to him. The customer can be a legal entity and an individual who is authorized by the investor to implement the project, or who is the investor himself. On behalf of the investor or developer, the customer organizes the relations and activities of contractors aimed at fulfilling engineering surveys, project documentation and construction progress.
From the definition of the customer follows the possibility of both combining in one person the functions of the investor and the customer, and their separation. Since investors make capital investments using their own and / or borrowed funds, the differences are determined by whether the customer invests his own funds in the project and whether he initiates the project in this role together with other investors.
If the customer is considered solely as a hired person authorized by the investor to manage the construction, then he is vested with ownership rights capital investments and use them during the period of authority, which is established by the agreement. In case of violation of contractual obligations by the investor, the customer has the right to terminate the fulfillment of obligations on its part.
The customer can also receive authority from the developer for the construction period (the period of authority determined by the contract) or combine the functions of the customer-developer in one person. In order for the concepts to become identical in one subject, the customer must be legal entity, to own or lease a land plot and have the right to independently make a decision on the very fact of the implementation of the construction program. In the Civil Code, the figure of the customer correlates with the figure of the developer in the Town Planning Code.
It is the person who has the right to a land plot that can first obtain a construction permit, then - to put it into operation, and after construction is completed - to register ownership. This implies one of the requirements of the Civil Code to the customer on the timely provision for construction land plot.
The customer, as a person who intends to carry out the construction (reconstruction) of an architectural object, is obliged to have in his hands completed according to the architectural and planning assignment architectural project. This project must be carried out by a licensed architect. In this regard, the customer selects designers and determines the terms of reference.
As a rule, the customer concludes an agreement with the general designer, who then, if necessary, attracts subcontracted designers and surveyors to solve the problem. At the same time, the issues of obtaining approval and permission from the relevant authorities to conduct surveys and design work are within the scope of the client's tasks.
In most cases, for the direct execution of construction tasks, the customer concludes a contract with the general contractor, and he, in turn, through subcontracts, if necessary, involves subcontractors in the process. In such a classic scheme, many customers are not satisfied that they do not know which performers, in the end, will do the work.
To eliminate this ignorance, resort to several methods:
Since any construction has its own specifics, the customer usually does not “tie” to some standard classical formats, but chooses those that are most appropriate to use in this particular situation.
The relationship between the customer and the supplier also begins to move away from the standard one-to-one schemes over time, however, two models are still the most common:
All relationships with suppliers are built through the signing of sales contracts or supply contracts (depending on the context and legal nuances).
The functions that are assigned to the customer depend on the stages of work on construction project and areas of implementation of the process.
The functional set of responsibilities of the customer for each specific project is specified separately, and the features are reflected in the agreements. At the same time, it is important to prevent the combination of the functions of the executor and the controller in one division of the customer company.
The customer, unless otherwise provided by the terms of specific agreements, while implementing tasks and performing duties, has the right to:
According to article 748 of the Civil Code of the Russian Federation, the customer has the right to control the progress of construction, the progress of work, the quality of materials and the appropriateness of their use, without interfering economic activity contractor. Often this function is attributed to the responsibilities of the customer, which is not true. Control over the progress of work and construction supervision are placed in the category of "rights", because such control belongs to the sphere of objective interests of the customer. The lack of control increases, first of all, the risks of the customer himself, especially when it comes to the ownership of the construction object (reconstruction, repair).
The customer here pursues at least two tasks:
In the event that the construction object receives the status of unauthorized construction state registration ownership rights will be in question. In addition, this may lead to the demolition of the building.
Therefore, the second paragraph of Article 748 of the Civil Code of the Russian Federation introduces the obligation of the customer to immediately report the discovered shortcomings to the contractor. If the customer does not immediately do this, he loses the right to later refer to the shortcomings he discovered.
Customer in construction - the one who concluded as the customer of the construction (with the contractor).
In construction, the Customer (the person who orders the construction or reconstruction of a facility) enters into a contract with the contractor. steam adjustable. 3 ch. 37 of the Civil Code of Russia (CC RF). In the Civil Code of the Russian Federation, the parties to a work contract (including a construction contract) are referred to as the Customer and the Contractor:
"Under a work contract, one party (contractor) undertakes to perform certain work on the instructions of the other party (customer) and hand over its result to the customer, and the customer undertakes to accept the result of the work and pay for it." (Clause 1, Article 702 of the Civil Code of the Russian Federation).
That is, a contractor can also be a customer if he concludes an agreement building contract as a customer, with a subcontractor.
Example
Company A entered into a construction contract No. 1 with construction company B for the construction of a production workshop.
To fulfill this contract, Company B entered into a construction contract No. 2 with Construction Company C, entrusting it with the performance of part of the construction of the production workshop.
In contract 1:
Company A - Customer
Company B - Contractor
In contract 2:
Company B - Customer
Company B - Contractor
Example
The developer organizes the construction of an office center on his land plot. The developer under the contract attracted technical customer, whose tasks include performing the function of the customer - conducting an examination and accepting the work performed by the contractor, obtaining the necessary permits and approvals, etc.
Members construction industry are always connected with each other by contractual relations, which are regulated by the Civil Code of the Russian Federation. In this article, we will consider who the customer, developer, general contractor, contractor in construction are and the share of responsibility that lies with each of them.
The customer, the developer, the general contractor, the contractor in construction are the parties to the work contract, with certain functions and responsibilities. The main responsibility falls on the shoulders of the general contractor, who is obliged to:
- ensure the fulfillment of the obligations of the general contractor to the customer;
- ensure the fulfillment of the obligations assumed by the subcontractor, with full control of its scope of work, including quality;
- ensure the safety of all upcoming work (construction, geodetic, installation, etc.);
- ensure environmental protection, fire, sanitary and environmental and other safety;
- enforce design and estimate documentation on construction, including its registration and approval in state bodies.
In general, the customer, developer, general contractor, contractor in construction must observe mutual interests and contractual relations, primarily within the framework of civil law.
If we consider the chain customer, developer, general contractor, construction contractor by links, then the general contractor will always be a contractor for the customer and a customer for the subcontractor. In this case, it is easier to write that the general contractor is the main executor of all turnkey works, which determine the degree of his responsibility. To fully reveal this topic, let's give a definition of who the customer, developer, general contractor, contractor in construction are from a professional point of view.
As you can see, the customer, the developer, the general contractor, the construction contractor are interrelated concepts, but meanwhile they are complex legal phenomena that have their own subordination structure and their own responsibilities.
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