Provisions of the Federal Law of 05.04.2013 No. No. 44-FZ concerning contract service and the contract manager entered into force on 01.01.2014, separate provisions on the rights and obligations of the contract service regarding the stages of procurement planning and posting information about them in the Unified information system(clauses 1 and 2 of part 4 of article 38 of the Federal Law of 05.04.2013 No. 44-FZ), will enter into force in 2015.

Order of the Ministry of Economic Development of Russia dated October 29, 2013 No. 631 “On Approval of the Standard Regulations (Regulations) on Contract Service” establishes the rules for organizing the activities of the contract service.

The history of the problem of the principle of professionalization of the field of procurement

The main innovation in personnel changes system of public procurement is associated with the establishment of the principle of professionalization of the field of procurement. State procurements in our country began to be carried out since 1991 after the abolition of Gossnab. The new public procurement system was created in 1997 by a presidential decree Russian Federation Boris Yeltsin "On the organization of the procurement of goods, works and services for state needs." However, the requirements for professional knowledge the state customer and members of the procurement commissions were not identified at that time. In 2006, Minimum Knowledge Requirements for Procurement Professions were adopted, but they were not set as mandatory.

In 2009, a requirement appeared in 94-FZ that at least one member of the procurement commission must be trained. The draft law on the FCC contained requirements for work experience, and a provision on the need to establish a minimum knowledge, which are not included in the current Law No. 44-FZ.

Federal Law No. 05.04.2013 No. 44-FZ for the first time introduces the principle of professionalization of the field of procurement and establishes a mandatory requirement for members of the contract service of the customer and contract managers - higher education or additional professional education (advanced training, professional retraining) in the field of procurement.

Reasons for creating a contract service

Public procurement is carried out by the customer. Who is a customer? The customer is a state or municipal body or a budgetary institution that makes purchases. Purchases are needed for the implementation of state and municipal programs, for organizing the current activities of state, municipal and budgetary organizations.

From 01.01.2014 it is possible to make a purchase only according to Law No. 44-FZ. To carry out the procurement, the Customer must create a contract service or appoint a contract manager.

Why do you need a contract service? The purpose of this innovation is to professionally and responsibly ensure the implementation of the entire procurement cycle: from planning to obtaining a specific result and evaluating the effectiveness of implementation by a state or municipal customer or budget institution procurement of goods, works, services to meet state or municipal needs. Introduced principle of personal responsibility employees of the contract service for compliance with the requirements stipulated by law and the achievement of the tasks set as a result of the execution of the contract.

What will the contract service or contract manager do?

The contract service will carry out procurement from the stage of planning and identifying the supplier (contractor, performer) and complete with the stage of analyzing the effectiveness of the fulfillment of obligations by the parties to the contract.

The contract service will carry out full procurement cycle, which includes the following steps:

• Procurement planning;
• Identification of suppliers (contractors, performers);
• Conclusion of contracts;
• Execution of contracts:
• Claim work.

Stages of creating a CS

Preparing a customer for the creation of a contract service includes several stages:

1. study the legal acts on the FCC;
2. create a contract service or appoint a contract manager (depending on the total volume) by 01.01.2014. They can act only in part of those rights and obligations that will come into force from 2014;
3. send employees for training until 01.01.2014. or retraining before 01/01/2016;
4. develop and approve new regulations on commissions.

CS structure

44-FZ offers 3 contract service models:

1. contract service with a special structural unit,
2. contract service without a special structural unit,
3. appointment of a contract manager.

The law provides that the determining moment for the customer when deciding whether to create a contract service or appoint a contract manager will be the total annual volume of purchases according to the plan - schedule.

According to 44-FZ, a contract service is created by those customers whose total annual volume of purchases in accordance with the schedule exceeds 100 million rubles. In this case creation of a contract service is an duty customer (Part 1, Art. 38). At the same time, the customer he decides to create a special structural unit for him or not to create. Since the creation of a special structural unit is not mandatory, the contract service can be created without changes organizational structure customer.

If the customer's total annual purchases less than or equal to 100 million rubles, then the customer has the right to create a contract service(Part 2, Art. 38).

If not created contract service, then the customer must(part 2, art. 38) appoint contract manager - executive responsible for the execution of a purchase or several purchases, including the execution of each contract.

Thus, depending on the total annual volume of purchases (the reference here is the amount: less than or equal to, or more than 100 million rubles), the customer has the right or obligation to create a contract service. But, if the customer, the total annual volume of purchases, which is less than or equal to 100 million rubles, has not exercised his right, then he has the obligation to appoint a contract manager.

Ways to create a contract service

1. creation of a separate structural unit;
2. approval by the customer of a permanent staff of the customer's employees performing the functions of a contract service without forming a separate structural unit.

Structure and number of contract service determined and approved by the customer. The structure of the contract service must include at least two people - officials of the contract service from among the employees of the customer.

Appointment and dismissal contract worker is only allowed by decision of the client's manager or the person performing his duties.

Head of the contract service contract manager. The contract service, which is created as a contract service without the formation of a separate unit, is headed by one of the deputy heads of the customer.

Qualification requirements for contract service employees

Article 9 of Law No. 44-FZ introduces the principle of customer professionalism.

Qualification requirements for contract service employees are established by Part 6, Article 38 of Law No. 44-FZ. All contract service employees, contract manager since 2016must have higher education or additional professional education(advanced training, professional retraining) in the field of procurement.

Until 01.01.2016, an employee of a contract service may be a person who has a professional education or additional professional education in the field of placing orders (part 2 of article 112).

Order of the Ministry of Education and Science of Russia dated July 1, 2013 No. 499 “On approval of the Procedure for organizing and implementing educational activities additional professional programs» established that the minimum allowable period for mastering advanced training programs cannot be less than 16 hours, and the period for mastering professional retraining programs - less than 250 hours.

The lack of methodological support in the regions is supposed to be solved through educational seminars, training in universities, and the implementation of pilot projects.

According to Article 39 of Law 44-FZ, the decision to create a commission is made by the customer before the start of the procurement to determine suppliers (contractors, performers), with the exception of procurement from a single supplier (contractor, performer). The customer determines the composition of the commission and the procedure for its work, appoints the chairman of the commission.

The composition of the commission must include at least 5 people: when holding tenders (tender committee) and when holding auctions (auction committee), when conducting all methods of procurement through tenders, auctions, requests for quotations, requests for proposals (single commission).

The composition of the commission must include at least 3 people: when conducting quotations (quotation), when conducting a request for proposals (commission for the consideration of applications and final proposals in the request for proposals).

In the event that persons personally interested in the results of the selection of suppliers (contractors, performers) are identified in the commission, the customer, who has made the decision to establish the commission, is obliged to immediately replace them with others individuals who are not personally interested in the results of procurement and who are not able to influence procurement participants, as well as individuals who are not directly exercising control in the field of procurement officials of control bodies in the field of procurement (part 6 of article 39).

The Procurement Commission is authorized to perform its functions if at least 50% of the total number of its members is present at the meeting.

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. The adoption of a decision by members of the commission by absentee voting, as well as the delegation of their powers to other persons, is not allowed (Part 8 of Article 39).

Qualification requirements for members of the procurement commission:

The Letter of the Ministry of Economic Development of Russia dated September 23, 2013 No. D28i-1070 clarifies the requirements for members of the procurement commission: if all contract service employees by January 1, 2016, in order to exercise their powers in accordance with the Law, must have higher education or additional professional education in the field of procurement, then the customer may include in the commission persons who have special knowledge related to the object of procurement, that is, who do not have higher education or additional professional education specifically in the field of procurement.

Functional responsibilities of the contract service (contract manager)

The functions of a contract service and a contract manager are similar. The difference is in the scale and volume of work. Article 38 of the Federal Law of 05.04.2013 N 44-FZ “On contract system» does not provide for the obligation to develop and approve the position for the contract manager. For a contract manager, it is sufficient to develop and approve a job description, in accordance with his professional duties.

Summarizing the above, we can draw the following conclusions:

1. each procuring customer must establish a contract service or appoint a contract manager;
2. the CS includes employees of the customer: it can be one contract manager, and with a total annual volume of purchases of more than 100 million rubles - at least 2 persons;
3. it is necessary to train contract service employees by 01.01.2014. or retrain before 01/01/2016;
4. all employees of the contract service, the contract manager must have higher education or additional professional education in the field of procurement.Until 01.01.2016 an employee of a contract service may be a person with a professional education or additional professional education in the field of placing orders;
5. the contract service will carry out the full procurement cycle, its functional responsibilities approved in the Standard Regulations (Regulations) of the Ministry of Economic Development of Russia.

Materials used to prepare the article:

1. Law No. 44-FZ of April 5, 2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs"
2. Standard provision (regulation) on contract service (approved by order of the Ministry of Economic Development of Russia dated October 29, 2013 N 631).
3. Letter of the Ministry of Economic Development of Russia dated September 23, 2013 N D28i-1070 "On clarification of the provisions of the Federal Law of April 5, 2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs"
4. Standard provision (regulation) on contract service (approved by order of the Ministry of Economic Development of Russia dated October 29, 2013 N 631)

Functions, rights and obligations of the contract service (contract manager)

1. Normative regulation of the activities of the contract service (contract manager

In its activities, the contract service should be guided by the following legal regulations, normative legal acts of the Russian Federation:

• 1. Constitution.
• 2. Civil law.
• 3. Budget legislation.
• 4. federal law No. 44-FZ.
• 5. Other regulatory legal acts.

In addition, contract service employees are guided by the Standard Regulations approved by the Ministry of Economic Development of the Russian Federation by Order No. 631 dated October 29, 2013.

The main functionality of the contract service is enshrined in Part 4 of Article 38 of Law No. 44-FZ. The contract service, the contract manager shall perform the following functions and powers.

The Model Provision outlines the basic principles for the creation of a contract service, as well as the procedure for its functioning in planning and conducting procurements carried out for state and municipal needs:

• 1. Employees of the contract service must be qualified specialists, have knowledge of the theoretical base and practical skills in the field of procurement.
• 2. Access to information on planning, procurement should be free for all interested parties, and information should be reliable.
• 3. Contracts must be concluded on the most favorable terms that ensure efficiency and high efficiency of procurement.

More details about the functions, powers and responsibilities of the contract service (contract manager) will be discussed in the next section of this work.

2. Functions, powers and responsibilities of the contract service (contract manager). Responsibility

According to Article 38 of Law No. 44-FZ contract service, the contract manager performs the following functions and powers:

• 1. Develop a procurement plan, prepare changes to be included in the procurement plan, place the procurement plan and the changes made to it in a single information system.
• 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.

The functions specified in paragraphs 1 and 2 are assigned to contract services and managers from January 01, 2015.

These forecasting and planning functions constitute the initial stage of preparation for procurement procedures. When drawing up procurement schedules, in which customers will determine their needs, methods of procurement, form and justify the initial price of the contract, it is assumed that the ongoing purchases will be correlated with the main goals and objectives of the data activity. government agencies and local governments.

According to Article 13 of Law No. 44-FZ, in particular, the list of documents that must be taken into account when planning purchases includes state programs of the Russian Federation, state programs of the constituent entities of the Russian Federation, and municipal programs. Thus, it creates one system in which the purpose of purchases and their role in solving the problems facing the state or municipal authority should be clearly traced.

It is worth noting that Law No. 44-FZ defines a limited list of goods that can be purchased by the customer outside the schedule, and also establishes a closed list of cases in which changes to the schedule are possible.

In the Model Provision, the functions provided for in clauses 1 and 2 of part 4 of Article 38 of the Law are set out in more detail and have been developed. It has been established that when planning procurement, the functions of the contract service include:

• - Development of a procurement plan. Preparation of changes for the purpose of their introduction into the plan,
• - placement of the procurement plan, as well as changes made to it in the EIS,
• - placement of the procurement plan on the official website of the Customer on the Internet. Organization of the publication of the procurement plan in print media,
• - preparation of procurement justification,
• - development of a schedule, preparation of changes and their introduction,
• - publication in the unified information system of the schedule and the changes made,
• - decision organizational issues on approval of the procurement plan, schedule,
• - determination of the starting price of the contract, as well as the price of the contract concluded with a single supplier.
• 3. Prepare and place in the unified information system notifications on procurement, procurement documentation and draft contracts, prepare and send invitations to participate in the selection of suppliers (contractors, performers) by closed methods.
• 4. Ensure the implementation of procurement, including the conclusion of contracts.

When determining suppliers / contractors / performers, the contract service:

• - selects the method for determining suppliers / contractors / performers,
• - as part of the justification, specifies the price of the contract, as well as its justification in:

a) tender documentation,

b) purchase notices,

c) invitations to participate in the selection of suppliers in a closed way,

d) auction documentation.

• - as part of the justification, specifies the price of the contract concluded with a single supplier,
• - prepares procurement notices, relevant documentation (not including a description of the purchased object), draft contracts, as well as changes in procurement notices, relevant documentation, invitations to participate in the selection of suppliers / contractors / performers in a closed way,
• - prepares the minutes of the meetings of the commission on the basis of the decisions taken by it,
• - prepares a description of the procurement object,
• - decides organizational and technical questions to ensure commissions, in particular checks:

a) fulfillment of the requirements of the current legislation to the participants in the procurement, supplying products, performing works, rendering services;

b) the procurement participant has the authority to conclude a contract;

c) the powers of the procurement participant as such: whether the liquidation of the legal entity was carried out;

d) are there any positive solutions arbitration court on the insolvency of a legal entity;

e) whether (as of the date of filing the application) the activity of the procurement participant has been suspended in accordance with any article of the Code of Administrative Offenses of the Russian Federation;

f) whether the participant has unfulfilled tax obligations and budgetary debts;

g) whether the procurement participant is included in the register of unscrupulous suppliers;

h) absence of a criminal record for an economic crime of the procurement participant;

i) availability of exclusive rights to the result of intellectual activity;

j) whether other requirements set out in part 2 of article 31 of Law No. 44-FZ are met,

• - attracts, in accordance with the terms of the contract, a specialized organization to perform certain functions to determine the supplier,
• - provides benefits to organizations entitled to them in accordance with Articles 28-29 of Law No. 44-FZ (institutions of the penitentiary system, societies and organizations of the disabled), in relation to the proposed contract price,
• - carries out purchases in the appropriate volume from small businesses and socially oriented non-profit organizations, in particular, establishes a requirement to involve small businesses, socially oriented non-profit organizations as subcontractors,
• - publishes in the UIS notices of procurement, proper documentation, draft contracts, protocols. Before the UIS is put into operation, the publication is carried out on the official website on the Internet zakupki.gov.ru.
• - publishes documentation in the media by decision of the head of the contract service,
• - prepares and sends clarifications of the provisions of the procurement documents. Clarifications can be made both in writing and in electronic form,
• - provides security for envelopes or electronic documents containing applications for participation: safety, full inviolability and confidentiality, consideration of received applications only after opening the envelopes or providing access to documentation in electronic form.
• - provides the opportunity to be present at the opening of envelopes or opening access to electronic documents to all participants who submitted applications, or their official representatives,
• - provides an opportunity to get acquainted with information on granting access in real time,
• - organizes an audio recording of the process of opening envelopes or opening access to electronic applications,
• - ensures the storage of minutes drawn up during the procurement process, submitted applications for participation, proper procurement documentation, as well as all changes and clarifications, audio recording of opening envelopes or opening access to applications submitted in electronic form, within the time limits established by law,
• - engages expert groups, expert organizations,
• - coordinates the use of closed methods for determining suppliers / contractors / performers in accordance with part 3 of article 84 of Law No. 44-FZ,
• - sends to the relevant authorities the appropriate documentation for concluding a contract with a single supplier in the event that the procedure for determining the supplier is recognized as failed,
• - prepares a rationale for the inexpediency or impossibility of using other methods for determining the supplier / contractor / performer, except for the purchase from a single supplier,
• - prepares a justification for the price of the contract and its other significant points when purchasing from a single supplier,
• - concludes contracts,
• - Participants evading the conclusion of a contract are included in the register of unscrupulous suppliers.

Upon fulfillment of the conditions, change, and termination of the contract, the functional duties of the contract service include:

• - Ensuring acceptance of delivered products, performed works, rendered services, including individual stages of the contract.
• - Movement organization financial resources, aimed at paying for the delivered products, work performed, services rendered.
• - Interaction with the supplier/contractor/executor in the formation of changes, termination of the contract.
• - Sending to the supplier/contractor/executor a demand for payment of a penalty, imposed fines, accrued penalties in case of failure to fulfill such obligations under the contract, as well as other actions (in accordance with the legal norms of the legislation of the Russian Federation) if allowed by the supplier/contractor/executor breaches of the terms of the contract.
• - Organization of the examination of the supplied products, work performed, services rendered with the involvement of competent persons - experts, expert organizations.
• - Work on the creation of a selection committee consisting of at least five members, the purpose of which will be the acceptance of the delivered products, work performed, services rendered, the result of the execution of individual stages of the contract.
• - Preparation of a document (act of acceptance) on the results of the execution of individual stages of the contract, as well as a document on the acceptance of products, work performed, services.
• - Placement in the unified information system of a report containing detailed information on the fulfillment of the terms of the contract, as well as its intermediate stages, compliance deadlines. If violations are committed, information about them is published, as well as about the sanctions applied to the violator. Prior to the commissioning of the unified information system, publication is carried out on the official website zakupki.gov.ru. The exception is information classified as "state secret".
• - Entering suppliers / contractors / performers who violated the terms of the contract in the register of unscrupulous suppliers. All violators are subject to inclusion in the register, both those with whom the Customer refused to cooperate unilaterally, and those with whom the contract was terminated according to the decision of the court.
• - Drawing up a report on the volume of purchases made from small businesses, socially oriented non-profit organizations.
• - Publication of the report in the EIS.
• 5. Participate in the consideration of cases on appealing the results of the determination of suppliers (contractors, performers) and prepare materials for the performance of claim work.
• 6. Organize, if necessary, consultations with suppliers (contractors, performers) at the procurement planning stage and participate 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 .
• 7. Exercise other powers provided for by Law No. 44-FZ.

Other powers exercised by the contract service include:

• - Organization and holding of consulting events for suppliers/contractors/performers. Participation in these events in order to monitor the competitive environment, identify best solutions, in particular technological, contributing to the growth of the efficiency of providing state and municipal needs.
• - Organization of public discussions of procurement. This item is required. Based on its results, the preparation and introduction of changes to the schedule, procurement documentation is subsequently carried out, including the cancellation of the procurement, if required.
• - Participation in the approval of the requirements for individual products, works, services, including their maximum affordable prices. Placement of information about approved requirements in a single information system.
• - Participation in the consideration of cases on appealing against the actions of the Customer and / or his inaction, in particular in the consideration of the case on appealing the determination of suppliers.
• - Preparation of appropriate materials for the implementation of work on claims.
• - Development of draft contracts, in particular standard ones.
• - Development of standard conditions of the Customer's contracts.
• - Verification of bank guarantees received as collateral under the contract for their compliance with the requirements of the current legislation.
• - Bringing information about the refusal to accept bank guarantees to the person who provided them, with the obligatory indication of the fundamental reasons for the refusal.
• - Organization of the movement of financial resources aimed at payments under bank guarantees.
• - Organization of the return of funds deposited as security for the execution of applications or contracts.

In order to fully implement the listed functions and powers related to planning, procurement, conclusion, modification, termination of contracts, interaction with suppliers / contractors / performers, and other powers, contract service employees must strictly comply with the requirements of Law No. 44-FZ, in particular the following:

• 1. Information received in the process of determining the supplier / contractor / contractor is not subject to disclosure. Cases expressly provided for by the legal norms of the legislation of the Russian Federation are regarded as exceptional.
• 2. Negotiations with procurement participants are prohibited up to the determination of the supplier / contractor / contractor. Cases expressly provided for by the legal norms of the legislation of the Russian Federation are regarded as exceptional.
• 3. The involvement of competent persons, experts, expert organizations is mandatory in cases provided for by the current legislation of the Russian Federation, in particular Law No. 44-FZ.

In accordance with Article 26 of Law No. 44-FZ, in order to centralize procurement, it is possible to create state, municipal bodies, state institutions authorized to determine suppliers. Authority may be delegated to one or more authorities. In such cases, the contract service performs the functions and powers not transferred. Functions such as substantiating purchases, setting the maximum (starting) price of a contract, determining its terms, signing a document cannot be transferred to authorized bodies. Contracts are signed by Customers. The remaining functions are performed by contract service employees.

At the same time, when centralizing procurement, the contract service, the contract manager shall exercise powers that have not been transferred to the relevant authorized body, authorized institution, and shall be liable within the limits of their powers. It seems that we are talking not only about administrative responsibility, but also about disciplinary responsibility.

From the specified list of powers, it can be seen that these specialists will be responsible for the implementation of all procurement procedures in the organization. Thus, the law attempts to form a structure that will manage all matters related to procurement. This measure is largely dictated by the existing practice, in which the majority of complaints are the result of improper preparation of notices and documentation, draft contracts and terms of reference. It also provides for the personal responsibility of these specialists for violations committed by them in the course of procurement.

It is fundamentally important that the list of powers of the contract service, the contract manager is not closed, in addition, the law does not contain a ban on the performance by the contract service, its individual employees or the contract manager of other duties that are not directly related to procurement (for example, a lawyer can be as an employee of the contract service, and to engage in claim work not related to the execution of contracts concluded under the Law on the contract system).

At the same time, the very list of powers assigned to the contract service, the contract manager, their volume and significance also certainly indicate that their implementation is possible exclusively on a professional basis, by specialists with sufficient qualifications, experience and special knowledge in the field of procurement.

The format of this work does not allow considering in detail such issues as the creation of several contract services for one customer and the distribution of powers between them, or the distribution of powers between several contract managers, however, these issues also, of course, are of great practical importance and can be implemented in practical activities customers only on the basis of the principle of professionalism.

The formation of the organizational structure is the responsibility of the head of the contract service. The range of duties, personal responsibility of each employee are determined taking into account the main principle - the growth of efficiency, the increase in the effectiveness of procurement for state and municipal needs.

The duties themselves are regulated by the Regulations. The task of the manager is their effective distribution among employees in order to fulfill the functional duties of the contract service.

According to the Model Regulations, the functional responsibilities of the contract service include:

• 1. Procurement planning.
• 2. Organization (at the planning stage) and holding of consulting activities with the participation of suppliers/contractors/performers. Participation in consultations in order to determine the most suitable technologies, the best solutions in the markets; monitoring of the competitive environment.
• 3. Justification of purchases.
• 4. Justification of the maximum (starting) price of the contract.
• 5. Conducting public discussions of procurement (this item is mandatory).
• 6. Support (both technical and organizational) of the activities of procurement commissions.
• 7. Attraction of competent specialists, experts, expert groups.
• 8. Preparation for placement of procurement documentation, notices of their implementation, draft contracts.
• 9. Publication of procurement documentation, notices of their implementation, draft contracts in the EIS.
• 10. Preparation and distribution of notifications about the definition of a supplier in a closed way, invitations to participate.
• 11. Work with bank guarantees: their consideration, organization of the movement of funds, payment for bank guarantees.
• 12. Conclusion of contracts.
• 13. Solving organizational issues for the acceptance of delivered products, work performed, services rendered. Implementation of control over the quality characteristics of products, works, services, in particular, examination in accordance with the Federal Law.
• 14. Ensuring the establishment of an acceptance committee. Control over the execution of the stages of the contract.
• 15. Decision financial matters: organization of the movement of funds on account of payment for products, work performed, services rendered.
• 16. Interaction with the supplier / contractor / contractor in the preparation and implementation of changes to the contract, as well as its termination.
• 17. In case of non-compliance with the terms of the contract, organizing the entry of the violator into the register of unscrupulous suppliers, as well as the dissemination of information about the violator in accordance with the regulations.
• 18. When accruing penalties stipulated by the contract, sending a claim to the party that violated the conditions for payment of a penalty.
• 19. Preparation of materials for the performance of work on claims, participation in the consideration of such, as well as in cases of appealing against actions.

According to the Regulations, a regulation is drawn up, which prescribes the procedure for the actions of contract service employees, as well as the procedure for the service to act when interacting with other units. The regulation is approved by the Customer.

Separately, I would like to highlight the issue of responsibility of the contract service (contract manager).

In paragraph 18 of the Model Provision, the responsibility of contract service workers is formulated in general view as an administrative liability. “Any procurement participant, as well as those exercising public control public associations, associations legal entities in accordance with the legislation of the Russian Federation, they have the right to appeal in court or in the manner prescribed by the Federal Law to the control body in the field of procurement actions (inaction) of contract service officials, if such actions (inaction) violate the rights and legitimate interests of the procurement participant.

It is obvious that appealing against the actions of employees as officials is possible if the contract service is a separate organizational unit. If it is formed from involved employees, appealing against the actions of members of the contract service will be doubtful from the point of view of labor law due to the absence of a subject - an official. Apparently, in this regard, the norms on the personal responsibility of members of the contract service were excluded from the final text of the Model Provision. The responsibility of involved employees should remain only disciplinary on the basis of employment contracts and Labor Code Russian Federation. This approach is dictated by legal theory, practice will show. On the same basis, we can conclude that in the paragraph of the Model Provision on the determination by the head of the contract service of the personal responsibility of employees, we are talking about officials of the contract service, formed as a separate structural unit of the customer.

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For those who have been working with public procurement for a long time and monitoring changes in legislation, it is far from a secret that since 01/01/2017 there are clearly regulated requirements for the education of contract service employees and contract managers.

This happened due to the entry into force of the Order of the Ministry of Labor of Russia dated September 10, 2015 N 625n “On approval professional standard"Specialist in the field of procurement" and Order of the Ministry of Labor of Russia dated September 10, 2015 N 626n "On approval of the professional standard" Expert in the field of procurement ".

The application of a professional standard by an employer means its use “when forming personnel policy and in personnel management, in organizing training and certification of employees, developing job descriptions, billing work, assigning tariff categories employees and the establishment of wage systems, taking into account the peculiarities of the organization of production, labor and management.

Thus, now when applying for a job, being appointed to a position, being sent for training, etc., personnel service the customer should rely on the introduced professional standards.

In accordance with the standard, certain requirements are imposed on an employee performing a particular generalized labor function:

Table 1.

As the table shows, if the customer is engaged in procurement (including the acceptance of the results of the contract), for example, only one employee, then he must meet fairly high requirements - have a higher education in a specialist (master's degree), complete additional professional education in the field of procurement and have at least 4 years of practical experience in procurement. If there are several such employees and they perform different generalized labor functions, then the requirements for them may be different depending on the function performed. The highest demands are in any case placed on the employee who is responsible for accepting the results of the contract (1).

So what are the requirements for the education of contract service employees in the approved professional standards?

For contract managers and contract service employees, according to the current legislation and amendments that came into force on January 1, 2017, it is sufficient (strongly recommended) to have one of the following levels of education:

• higher education (excluding profile);
• professional education in the field of placing orders for the supply of goods, performance of work, provision of services for state and municipal needs (secondary or higher);
• 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;
• additional professional education in the field of procurement.

Requirements for the qualifications of the customer's employees are also put forward in the law on the contract system itself and in the training guidelines.

Customers under the law on the contract system are required to be as competent as possible and must be aware of their responsibility in the use and distribution budget funds, therefore, Law No. 44 FZ imposes the following conditions:

1. Customers are obliged to improve the level of qualifications and professional education of employees of contract services and commissions, including through advanced training or professional retraining in the field of procurement (Article 9 No. 44-FZ).
2. Requirements for the professional composition of the commission of the customer and the composition of the contract service: the commission must be formed from persons who have undergone professional retraining or advanced training in the field of procurement or who have special knowledge related to the object of procurement (part 5 of article 39 No. 44-FZ).
3. Qualification requirements for contract service workers, contract managers - must have higher education or additional professional education in the field of procurement (part 6 of article 38 No. 44-FZ, letter of the Ministry of Economic Development of Russia dated 04/06/2016 No. D28i-841, letter of the Ministry of Economic Development of Russia dated 13.05 .2016 No. D28i-1220; Professional standards "Expert in the field of procurement" and "Specialist in the field of procurement").

Read about the terms, forms and cost of training in the contact system (44-FZ) in the following article

(1)https://otc.ru/academy/articles/profstandarts_44fz_223fz

Article 38. Contract service

• checked today
• law dated 01.04.2020
• entered into force on 01.01.2014

There are no new versions of the article that have not entered into force.

Compare with the wording of the article dated 06/04/2014 01/01/2014

Customers, the total annual volume of purchases of which exceeds one hundred million rubles, create contract services (in this case, the creation of a special structural unit is not mandatory).

If the total annual volume of purchases of the customer 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).

The contract service operates in accordance with the regulation (regulation) developed and approved on the basis of model provision(regulation) approved federal agency executive power on the regulation of the contract system in the field of procurement.

The contract service, the contract manager shall perform the following functions and powers:

• 1) expired on October 1, 2019 - Federal Law of May 1, 2019 N 71-FZ
• 2) develop a schedule, prepare changes for making to 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 the determination of 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 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 ;
• 7) exercise other powers provided for by this Federal Law.

When centralizing procurement in accordance with Part 1 of Article 26 of this Federal Law, the contract service, the contract manager shall exercise the powers provided for by this Federal Law and not transferred to the relevant authorized body, authorized institution that exercise the powers to determine suppliers (contractors, performers). At the same time, the contract service, the contract manager are responsible within the limits of their powers.

Contract service employees, a contract manager must have a higher education or additional professional education in the field of procurement.

This position appears when the total annual value of the customer's purchases does not exceed 100 million rubles, and there is also no contract service.

One customer may have several contract managers on staff who will be engaged in procurement in different areas. For example, one manager can purchase construction and repair work, the other - a grocery basket, the third - various equipment etc.

Responsibilities

The provisions of part 4 of article 38 of 44-FZ describe what the contract manager must do, whose duties are as follows:

• Develop and prepare changes for implementation this plan, place the plan in a single information system, make changes to the plan.
• Develop a schedule, prepare changes for it, make a schedule in the EIS, make changes to the schedule.
• Prepare and place in the EIS notices of procurement execution, procurement documents, prepare and send invitations to participate in the selection of suppliers in a closed way.
• Make purchases and conclude contracts.
• Participate in the consideration of cases concerning the appeal of the results of the selection of suppliers and prepare material for the performance of claims and lawsuits.
• Organize consultations with suppliers, if the case so requires, take part in such consultations to identify the competitive environment, identify the best technologies, and resolve issues related to public needs. This work should be carried out at the procurement planning stage.
• Perform other duties that are provided for by 44-FZ.

Requirements

The federal law does not contain specific requirements for an employee applying for the position of "contract manager" to improve his qualifications. But nevertheless, according to Article 39 of 44-FZ, only those persons who have undergone professional training or have certain skills can be included in the commission of the customer.

Federal law defines the requirements for those employees who want to become contract managers. Firstly, the employee must have a higher education, and secondly, a document confirming the availability additional education in the purchasing area.

There is also such a thing as professional standards according to 44-FZ. The law decided not to use the concept of “advanced training” anymore in everyday life. There is professional training and retraining. Why not upgrade? The first concept is aimed at updating existing skills and increasing professionalism within the framework of existing education. The second concept is aimed at obtaining a new qualification, that is, the employee will be retrained.

The law established deadlines until January 1, 2017, for all employees holding the position of a contract manager to undergo retraining and meet the stated requirements.

A contract manager according to 44-FZ is an employee who has the following documents:

• for those employees who received training at seminars with a completion time of 72-100 hours;
• certificate of advanced training: for those who have studied over 100 hours;
• diploma of professional retraining: for those who have trained over 1000 hours.

professional standards

Based on part 1 of article 9 of 44-FZ, employers must ensure their activities and the activities of the contract manager on a professional basis. Therefore, the customer is obliged to give the position of "contract manager" only to those employees who have the necessary skills and knowledge related to the procurement area.

In addition, such a specialist has the right during work to improve the level of professional training, knowledge of procurement activities, skills corresponding to the position held, as well as the level of qualifications in the field of public procurement.

An employee who decides to undergo retraining must undergo training as a contract manager. Training can take place both internally and in absentia. Online courses are now very popular. This form learning involves continuous learning from the work itself. These courses consist of theoretical and practical parts.

Choosing distance learning, the employer must still be prepared to provide the employee with some free time to practical tasks. For those employees who improve their skills, a minimum of 16 hours is given for training. And for those who undergo retraining, a minimum of 250 hours is given.

The contract manager can be a new employee, an employee who is transferred to this position by order, or an employee who combines this position with the main one.

Job description

The legislation does not contain any notes on what exactly the official contract manager should contain and what it should be at all. Therefore, the manager can independently choose a document that will regulate the work of the contract manager, where the duties and rights of this employee are prescribed.

Job responsibilities can be employment contract or in an annex to it, but in this case they must be drawn up in accordance with the professional standards of the contract manager.

Sometimes this option is not very convenient for implementation, so the management of the organization can draw up a document not specifically for the employee, but for the position as a whole. A specific sample, how it should look job description contract manager, no. Therefore, each organization where there is a similar position can create its own unified form.

There is one nuance that must be taken into account and the employee who intends to take the stipulated position must be notified about this. The instruction of the contract manager under 44-FZ should contain information that this employee is liable before the law and may be fined or subject to administrative punishment for failure to fulfill his duties or for abusing his powers.

Responsibility

Taking into account the provision of Part 5 of Article 38 of 44-FZ, the responsibility of the contract manager is within the limits of the duties that he performs. The instructions must clearly describe the duties of the employee in this position and the responsibility that he bears for failure to fulfill these duties.

The employee is liable in accordance with the Labor Code of the Russian Federation for non-fulfillment or neglect of his official duties provided by the instruction, as well as for causing material harm to the employer.

In addition, the contract manager may be subject to criminal, civil or administrative penalties for an offense that is committed in the course of his employment.

It is legally established that contract managers can bear individual responsibility for compliance with the requirements established by the law on the contract system in the field of procurement. Individuals who violate the provisions of the law and regulations may be subject to penalties, up to and including criminal penalties.

Penalties

As mentioned above, the contract manager under 44-FZ, whose job description implies responsibility, must be attentive to his work. Penalties for non-performance or abuse of their duties include:

1. Administrative penalty. The amount of fines is determined by the Code of Administrative Offenses of the Russian Federation.
2. Disciplinary action.
3. Criminal penalty.

Purpose

When appointing a contract manager, the customer must adhere to the following algorithm:

• a new position is introduced in the current staffing organizations;
• the job description of the contract manager is drawn up;
• an order is issued to appoint a contract manager in this organization.

Process Automation

A lot of programs are currently being created that are aimed at helping to make management decisions. Automation in public procurement is becoming more and more popular.

Special programs perform monitoring, create schedules, notify suppliers and perform many other useful actions. But machines will not soon replace human labor. Even though the program does most of the work, the employee must double-check all the information. But, nevertheless, automation significantly reduces the time of work and labor costs.

Creation of a contract service

According to the repeatedly mentioned 44-FZ, the determining moment in the creation of a contract service is the total annual volume of public procurement in accordance with the schedule.

The customer must create a contract service if the figure exceeds 100 million rubles.

Legislation gives customers a choice - to change structural system his organization, creating a new department, or to distribute responsibilities between working employees through part-time work. And this is with an indicator below 100 million rubles. If not created, a contract manager is appointed according to 44-FZ, whose job description includes all the duties prescribed by law.

Creation methods

If the employer has stopped at creating a contract service, then he has several ways to do this:

1. The customer forms a separate structural unit, the head of which is the head of the contract service. This method is relevant for large enterprises, where the department includes a large number of permanent employees.
2. The customer prepares an order, which indicates the permanent staff. As a result, a separate service is formed (not to be confused with a structural unit). Leadership is assumed by the deputy head of the organization. The main advantage of this method is the quick disbandment of the department if necessary. Usually such a service consists of several people.

Public Procurement Commission

According to Article 39 of 44-FZ, the customer is obliged to decide on the formation of a commission before the start of procurement to identify suppliers. He appoints the composition of the commission, the order of work and the chairman. The exception is when there is only one supplier.

The composition of the commission includes at least five people, if it is:

• holding competitions;
• holding auctions;
• requests for quotations, offers (single commission).

The composition of the commission must be at least three people, if it is:

• conducting quotations;
• commission to review applications and final proposals.

If, during the creation of the commission, it turns out that it includes a person who is personally interested in choosing a particular supplier, the customer must immediately replace him with another individual who is not interested in the final result of the procurement.

The Commission may perform its duties and make decisions if at least half of its members are present at the meeting.

Members of the commission must be notified in advance of the date, time and place of the meeting. Absentee decision-making, as well as the transfer of voting rights, are prohibited.