According to part 2 of Art. 38 of the Law on the contract system, in the event that the total annual volume of purchases of the customer in accordance with the schedule does not exceed one hundred million rubles and the customer does not have a contract service, the customer appoints an official responsible for the implementation of the purchase or several purchases, including the execution of each contract ( hereinafter referred to as the contract manager).
In accordance with Part 4 of Art. 38 of the Law on the contract system, the contract manager shall carry out following features and powers:
1. develop a procurement plan, prepare changes to be introduced into the procurement plan, place them in a single information system procurement plan and changes made to it;
2. develop a schedule, prepare changes to be included in the schedule, place the schedule and the changes made to it in a single information system;
3. carry out the preparation and placement in the unified information system of notices of procurement, procurement documentation and draft contracts, the preparation and sending of invitations to participate in the selection of suppliers (contractors, performers) by closed methods;
4. ensure the implementation of procurement, including the conclusion of contracts;
5. participate in the consideration of cases on appealing the results of determining suppliers (contractors, performers) and prepare materials for the performance of claim work;
6. organize, if necessary, at the procurement planning stage, consultations with suppliers (contractors, performers) and participate in such consultations in order to determine the state competitive environment in the relevant markets for goods, works, services, determining the best technologies and other solutions to meet state and municipal needs;
7. exercise other powers provided for by the Law on the contract system.
In addition, according to part 3 of Art. 94 of the Law on the contract system, in order to verify the results provided by the supplier (contractor, performer), provided for by the contract, in terms of their compliance with the terms of the contract, the customer is obliged to conduct an examination. Examination of the results stipulated by the contract may be carried out by the customer on its own or experts, expert organizations may be involved in its conduct on the basis of contracts concluded in accordance with the Law on the contract system.
Also in accordance with Part 6 of Art. 94 of the Law on the Contract System, by decision of the customer, for the acceptance of the delivered goods, work performed or services rendered, the results of a separate stage of contract execution, an acceptance committee may be created, which consists of at least five people.
Taking into account the above, in our opinion, within the framework of the exercise of other powers provided for by the Law on the contract system, the contract manager may conduct an examination of the results provided for by the contracts, if the customer conducts the examination on his own.
1. Customers involve experts, expert organizations in the cases provided for by this federal law.
2. In the cases provided for by this Federal Law, the following may not be allowed to conduct an expert examination:
1) individuals:
a) being 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 the contributions, shares constituting the authorized or share capital legal entities;
3) individuals or legal entities in the event that the customer or supplier (contractor, performer) directly and (or) indirectly (through a third party) can influence the result of the examination carried out by such person or persons.
3. An expert, an expert organization shall be obliged to notify in writing the customer and the supplier (contractor, executor) of the admissibility of their participation in the examination (including the absence of grounds for non-admission to the examination in accordance with part 2 of this article).
4. In the event that the persons specified in Part 2 of this Article are identified among the experts, expert organizations, the customer must take immediate measures aimed at attracting another expert, another expert organization to conduct the examination.
5. Additional requirements for experts, expert organizations involved in the examination of the delivered goods, work performed, services rendered under the state defense order, as well as the specifics of such an examination may be established by Federal Law No. 275-FZ of December 29, 2012 "On State defense order.
6. To conduct an examination in the cases provided for by this Federal Law, experts, expert organizations have the right to request from the customer, supplier (contractor, performer) additional materials related to the subject of the examination.
7. The results of an examination conducted by an expert or an expert organization in the cases provided for by this Federal Law are drawn up in the form of a conclusion, which is signed by an expert or an authorized representative of an expert organization and must be objective, reasonable and comply with the law. Russian Federation. For the provision of unreliable results of an examination, an expert opinion or a knowingly false expert opinion, for failure by an expert or an expert organization to comply with the requirements of Part 3 of this Article, the expert, expert organization, authorized representative of the expert organization, officials of the expert organization shall be liable in accordance with the legislation of the Russian Federation.
(see text in previous edition)
8. If the examination requires research, testing, performance of work, provision of services, and in relation to the persons performing them, in accordance with the legislation of the Russian Federation, mandatory requirements are established (mandatory accreditation, licensing, membership in self-regulatory organizations), the selection of experts, expert organizations for such an examination should be carried out from among the persons who meet the specified requirements.
"On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law No. 44-FZ) has been actively used for several years, strictly regulating the norms of procurement activities for state and municipal customers, issues of acceptance and conduct expertise of supplied goods, works and services is not getting smaller.
Having distinguished the concepts of acceptance and examination, as well as introducing the definitions of experts and expert organizations, the authors of the law made it clear that in the second case we are talking on a more thorough procedure for checking the supplied goods, works and services for compliance with the established requirements with the participation of specialists with a high level of qualification and special knowledge in any specific area to which the procurement object belongs.
Practical features of the examination
The right, and in some cases the obligation, given to customers to involve third-party experts, is undoubtedly capable of eliminating situations where the person accepting any goods did not have sufficient knowledge to check the proposed goods for compliance with the requirements terms of reference and procurement documentation.
Everyone who works with Law No. 44-FZ in practice knows many similar examples.
But the good intentions of legislators are shattered by the harsh reality of the everyday life of a contract manager, working within the budget limits brought to the organization.
Recall that, according to Part 3 of Law No. 44-FZ, in order to check the supplied goods, works or services for compliance with the terms of the contract, the customer is obliged to conduct an examination, which can be carried out both by the customer himself, and with the involvement of experts and expert organizations.
At the same time, third-party experts are involved through the conclusion of contracts under Law No. 44-FZ. At the same time, part 4 of the same article stipulates cases in which the customer is obliged to involve experts.
In practice, the involvement of experts entails a number of problems, the most relevant of which are:
- finding funds to pay for the services of experts;
- search for these most highly qualified and, importantly, conscientious experts and expert organizations that will not disappear immediately after payment for their services.
Who has the right to carry out the examination?
Due to the presence of a number of difficulties and issues in the case when it comes to internal expertise, customers tend to manage on their own. But who exactly has the right to carry out the examination? Directly by an employee who is part of the contract service (contract manager) or any representative of the organization? Let's figure it out.
In accordance with the approved Ministry of Labor and social protection RF professional standard procurement specialist, one of his labor functions is the examination of the results of procurement. At the same time, Law No. 44-FZ and the specified Professional Standard establish requirements for the presence of a special education for such a person.
Does this mean that the examination cannot be entrusted to a representative of the organization who is not a contract manager or contract service worker?
Let's turn for clarification to the Order of the Ministry economic development RF dated October 29, 2013 No. 631, which states that the functions of the contract service include organizing the acceptance of products, including conducting their examination. In this case, we are talking about the organization of the procedure, and not about its actual implementation.
Thus, the functions of conducting an examination can be assigned to a person who is not part of the contract service and is not a contract manager, by any order or instruction in the manner prescribed by the rules of the internal document flow of the organization.
About education requirements
As for the requirements for the presence of special education, since in this case we are talking about persons who are not part of the contract service and are not contract managers, the requirements of Law No. 44-FZ do not apply to them.
Conclusion
From the foregoing, it follows that the responsibility for conducting an internal examination can be assigned to any representative of the customer organization who is not part of the contract service and is not a contract manager, regardless of whether he has a special education in the field of procurement.
- Can the customer terminate the service agreement unilaterally?
- Is it possible to claim damages in connection with the early termination of the contract?
- When is the contract considered terminated if it only specifies the time period for the supplier to send a notice of termination?
- If the contractor installs structures that do not comply with the documentation, is the customer obliged to terminate the contract?
- Is it possible to draw up an additional agreement in which to indicate that the counterparty undertakes to pay the debt within a certain time frame?
Question
Question 1: Can the customer change the terms of the contract by agreement of the parties, if the possibility of changing the terms of the contract was not provided for in the procurement documentation and the contract in advance, and in the case of procurement from sole supplier(contractor, performer) contract? Question 2: Notice of holding electronic auction, with the initial (maximum) contract price not exceeding 3 million rubles, placed by the customer in a single information system on 12/12/2014 13:59. In the notice of holding an electronic auction, the deadline for submitting applications for participation in an electronic auction is 19.12.2014 15:00. Is the deadline for submitting applications set correctly by the customer? Question 3: Does the contract manager have the right to conduct an examination if he is the chairman of the unified commission and the chairman of the acceptance commission? 4 question; The customer is obliged to respond to the received request for clarification of the provisions auction documentation within two days from the date of receipt. From what day does the two-day period begin and when does it end if the request for clarification of the provisions of the documentation was received by the customer on Friday? 5 question; What amount of the bid security should be set if the initial (maximum) contract price is less than 3 million rubles. when making purchases through an electronic auction announced with a restriction for small businesses and socially oriented non-profit organizations?6 question: Is the customer obliged to justify the initial (maximum) price of the contract with a single counterparty in the event of the purchase of goods, work or services for an amount not exceeding 100 thousand rubles (on the basis of paragraph 4 of part 1 of article 93 of the law on the contract system)?
Answer
In response to your question dated 03/02/2016 «
3. No, it can't. In accordance with the Law on the contract system, the following cannot be allowed to conduct an examination in the cases provided for by the Law on the contract system:
1) individuals:
a) being 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 (contractor, performer) directly and (or) indirectly (through a third party) can influence the result of the examination carried out by such person or persons.
The rationale for this position is given below in the materials of "Systems Lawyer" .
“In accordance with Part 7 of Article 66 of Law No. 44-FZ, a participant in an electronic auction has the right to submit an application for participation in an electronic auction at any time from the moment a notice of its holding is posted until the date and time specified by the documentation for an electronic auction, the deadline for filing for participation in such bid auction.
Thus, when placing a notice of an electronic auction, for example, on October 1, 2015, October 1, 2015 should be considered the start of the application deadline.
The answer to your question is given in accordance with the rules of expert support, which you can find at: http://www.1jur.ru/#/hotline/rules.
Professional help system for lawyers, where you will find the answer to any, even the most complex question.
Hello dear colleague! As you know, for procurement under contract system(44-FZ) The customer must appoint a contract manager or create a contract service. The decision to choose between the creation of a contract service or the appointment of a contract manager depends on the size of the total annual purchase volume of the Customer. In this article, we will talk in detail about the contract manager, determine what requirements he must meet, as well as what functions and duties he must perform. This article will be useful to representatives of Customers, as well as specialists job seekers contract manager. ( Note: this article was updated on 01/03/2018).
1. Who is a contract manager?
Contract manager - the official responsible for the implementation of the procurement or several procurements, including the execution of each contract.
A contract manager is appointed when the total annual volume of purchases (abbreviated as SPO) of the Client does not exceed 100 million rubles and the Customer does not have a contract service (part 2 of article 38 of 44-FZ).
One Customer may simultaneously have several contract managers responsible for certain sectors of procurement activities. So, for example, one contract manager can be engaged in the purchase of construction and repair work, the second purchase of food, the third purchase of equipment, etc. This position is reflected in paragraph 2 of the letter of the Ministry of Economic Development of Russia dated September 30, 2014 No. D28i-1889.
You can buy a contract manager book.
2. Contract service or contract manager?
Customers whose cumulative annual purchases >100 million rubles , create contract services(while creating a special structural unit is optional). In the event that the total annual volume of purchases of the Customer <= 100 млн. рублей and the Customer does not have a contract service, the Customer appoints a contract manager. Those. at SHOZ <= 100 млн. рублей Customer MUST appoint a contract manager or RIGHT create a contract service.
3. Obligations of a contract manager under 44-FZ
According to part 4 of article 38 of 44-FZ, the duties of a contract manager include:
- development, preparation of changes to be included in the procurement plan, placement in the procurement plan and the changes made to it;
- development, preparation of changes to be included in the schedule, placement in a single information system of the schedule and the changes made to it;
- preparation and placement in the unified information system of notices of procurement, procurement documentation and draft contracts, preparation and sending of invitations to participate in the selection of suppliers (contractors, performers) by closed methods;
- procurement, including the conclusion of contracts;
- participation in the consideration of cases on appealing the results of determining suppliers (contractors, performers) and preparing materials for the performance of claim work;
- organization, if necessary, at the procurement planning stage of consultations with suppliers (contractors, performers) and participation in such consultations in order to determine the state of the competitive environment in the relevant markets for goods, works, services, determine the best technologies and other solutions to meet state and municipal needs;
- other powers provided for by 44-FZ.
A detailed list of the functions and powers of the contract service (contract manager) is contained in Section II of the model provision (regulation) approved.
Important point! According to part 3 of article 38 of 44-FZ, the contract service operates in accordance with the regulation (regulation) developed and approved on the basis of the model regulation (regulation) approved by the federal executive body for regulating the contract system in the field of procurement. Article 38 44-FZ does not provide obligations of the Customer to develop and approve the regulations for the contract manager.
4. Contract manager requirements for the position
According to part 6 of article 38 of 44-FZ, the contract manager must have a higher education or additional professional education in the field of procurement.
According to part 23 of article 112 of 44-FZ, until January 1, 2017, a contract manager may be a person who has a professional education or additional professional education in the field of placing orders for the supply of goods, performance of work, provision of services for state and municipal needs (i.e. .training according to 94-FZ).
5. Contract manager under 44-FZ: job description
The Customer has 3 possible options for appointing a contract manager:
Option number 1— Hire a new employee for the position of contract manager with the conclusion of an employment contract. Or you can hire an employee for a different position, but with similar duties and powers;
Option number 2— Transfer a full-time employee to the position of a contract manager (or a similar position) with the conclusion of an agreement on changing the terms of the employment contract;
Option number 3— Agree with a full-time employee the possibility of combining positions in accordance with the rules of Article 60.2 of the Labor Code of the Russian Federation (at the same time, in accordance with Article 151 of the Labor Code of the Russian Federation, an additional payment is made to the employee, and appropriate changes are made to his job description).
The sequence of actions of the Customer when assigning a CG should be as follows:
- introduction of a new position in the organization's staffing table;
- development of a job description for CU ( Note: As a rule, the job description consists of several sections - general provisions, job duties, rights and responsibilities);
- issuing an order to appoint an official responsible for procurement (i.e. a contract manager).
Also, part 2 of article 12 of 44-FZ establishes that the officials of the Customers are personally responsible for compliance with the requirements established by the legislation of the Russian Federation on the contract system in the field of procurement.
Persons guilty of violating the legislation of the Russian Federation and other regulatory legal acts on the contract system in the field of procurement bear disciplinary, civil, administrative, criminal liability in accordance with the legislation of the Russian Federation (part 1 of article 107 44-FZ).
7. Contract manager: training and professional standard
According to part 1 of article 9 of 44-FZ, the contract system in the field of procurement provides for the implementation of the activities of the Customer, a specialized organization and a control body in the field of procurement on a professional basis with the involvement of qualified specialists with theoretical knowledge and skills in the field of procurement.
Customers, specialized organizations must take measures to maintain and improve the level of qualifications and professional education of officials involved in the field of procurement, including through advanced training or professional retraining in the field of procurement in accordance with the legislation of the Russian Federation (part 2 of article 9 44 -FZ).
As I said earlier, until January 1, 2017, a contract manager can be a person who has professional education or additional professional education in the field of placing orders for the supply of goods, performance of work, provision of services for state and municipal needs (part 23 of article 112 of 44-FZ).
In addition, a connection has been established between these standards and the CEN (Unified Qualification Directory for the Positions of Managers, Specialists and Other Employees) and OKPDTR (All-Russian Classification of Workers' Occupations, Positions of Employees and Wage Categories).
The professional standard "Specialist in the field of procurement" (qualification level from 5 to 8) was developed for a group of positions:
- Procurement Specialist;
- Leading Specialist;
- contract worker;
- contract manager;
- Purchasing consultant;
- Deputy head of department;
- Head of department;
- Contract manager;
- Advisor;
- Supervisor.
The professional standard "Expert in the field of procurement" (qualification level from 6 to 8) was developed for a group of positions:
- Purchasing consultant;
- Senior Purchasing Specialist;
- Procurement expert;
- Deputy head/director (department, department, organization);
- Head/director (department, department, organization);
- contract manager;
- Contract manager.
In line with professional standards specialist in the field of procurement must have:
- Secondary vocational education;
- Additional professional education - advanced training programs and professional retraining programs in the field of procurement;
A expert must have:
- Higher education - specialty, magistracy;
- Additional professional education - advanced training programs / or professional retraining programs in the field of procurement.
For the second group of positions (i.e. “Expert in the field of procurement”), it is mandatory not only to have the appropriate education, but also work experience - at least 5 years in the field of procurement, including in senior positions at least 3 years .
8. Search for a vacancy of a contract manager
I am often asked - "Where can I find a vacancy for a contract manager?". In fact, finding a job as a contract manager is as easy as shelling pears. To get started, I recommend that you look at the most popular online job search sites:
- www.hh.ru (HeadHunter);
- www.superjob.ru (SuperJob);
- www.rabota.ru (Rabota);
- www.job.ru (Job);
- www.avito.ru (Avito).
In addition, you can go to the websites of administrations or the websites of state (municipal) customers, where sometimes there are announcements about the search for procurement specialists.
Sometimes such ads are posted on or in thematic groups and communities in social networks.
Go through all these resources, I am sure that you will be able to find a suitable vacancy for yourself.
This concludes my article. I hope that the above material was useful to you. I wish you good luck and see you in the next editions.
P.S.: Like and share links to the article with your friends and colleagues on social networks.
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