Conducting an external examination under 44-FZ

In this article we will try to highlight the issues of conducting an examination under 44-FZ based on the results of the execution of government contracts. For a better understanding of the problems of the article, we first advise you to study the Federal Law of 04/05/2013 N 44-FZ (as amended on 05/01/19) “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (with amendments and additions ).

We also recommend reading our review “What is 44-FZ?”

What useful things you will learn from this material:

Examination under 44-FZ, how to conduct it: action plan.
External and internal examination according to 44-FZ.
How to attract an external expert on 44-FZ.
Mandatory examination under 44-FZ (sole supplier), what nuances are possible here.
Types of documents that the customer must prepare for the examination of the results of contract execution under 44-FZ.
Expertise conclusion under 44-FZ.
Examples from the practice of conducting examinations under 44-FZ.

Do you need an examination under 44-FZ?
Order service

Examination of compliance with 44-FZ: how to conduct it in state and municipal organizations

According to 44-FZ “Article 94. Features of contract execution”, an examination under 44-FZ is mandatory for each contract. What is the point of conducting such an examination? The customer is obliged to check the accuracy of the execution of the contract for the supply of goods, works, services and be sure to compare the results received from the supplier with the terms of the contract.

The examination can be prepared on its own or it is necessary to carry out an independent examination under 44-FZ.

To check 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. The examination of the results stipulated by the contract can be carried out by the customer on its own, or experts and expert organizations can be involved in its implementation on the basis of contracts concluded in accordance with this Federal Law.

If the customer has his own specialized specialists, then he can conduct an internal examination under the contract, for example, create a special expert commission for the acceptance of goods, works, services, or appoint a sole expert from among the employees of his organization. But such an examination is not considered independent, because employees of the customer organization may be interested in its results.

If the customer does not have its own specialized specialists to examine the services provided or examine the goods under 44-FZ, then it is necessary to attract an external expert. An external expert on 44-FZ is invited at the customer’s choice or on the basis of a competitive selection procedure, and an external examination on 44-FZ can be appointed at the request of judicial or law enforcement agencies.

Experts must be guided by the legislation of the Russian Federation when conducting an examination, and also be impartial, objective, conscientious and competent specialists.

Is it possible to refuse an examination?

Expertise is the responsibility of the customer, but there are exceptions.

The examination may not be carried out in the following cases.

If the supplier can independently provide an expert assessment of the goods, works or services that he supplies.
If goods, works or services are supplied for federal government needs (for example, to solve problems related to the security and life support of the country).
If the supplied goods, works or services have already undergone examination, before acceptance.
If this is provided for by the Decrees of the Government of the Russian Federation.

Internal examination under 44-FZ: how to conduct it yourself?

So, the customer can choose the following types of examinations under 44-FZ on their own:

the examination is carried out by the commission for the acceptance of goods, works and services;
a special commission is created from among the company’s employees (at least 5 people) to conduct an examination of procurement;
a single authorized expert is appointed.

If a collegial examination is appointed (in the first two cases), then the customer must develop an internal document that specifies the powers of the commission, methods and timing of the examination, etc. (for example, “Regulations on the acceptance committee and examination”).

If the examination is carried out by a commission for the acceptance of goods, works, services, then the conclusion of the examination under 44-FZ can be reflected immediately in the act of acceptance of goods, works, services.

Example 1:

The municipal organization purchased office supplies for its employees. No highly specialized knowledge is required to examine the results of a 44-FZ purchase, so the goods acceptance commission can also assess the compliance of such a purchase with the terms of the contract.

In the case where the supply of goods is ongoing, you can appoint by order of the organization the employee who is responsible for this contract as an expert. This employee will carry out the examination of the delivery of goods in accordance with 44-FZ.

Expertise under 44-FZ for a single supplier

Not so long ago, this case was considered the most difficult for customers under state and municipal contracts, since according to 44-FZ, Part 4 of Art. 94, a customer who purchases from a single supplier had to involve external experts or expert organizations, which led to additional costs and difficulties. An external examination of the auction under 44-FZ was mandatory, even if it did not take place. Due to these shortcomings in the legislation, the customer was required to conduct an examination under 44-FZ not only in direct purchases from a single supplier, but also in auctions, even if only one participant in the competition met the necessary requirements for concluding a contract.

This flaw of legislators forced most customers to look for “workarounds” when conducting external examinations under 44-FZ, for example, to enter into “free contracts with experts” or “exchange experts” with neighboring organizations.

From July 31, 2021, this article has lost its force (see Federal Law No. 71-FZ of May 1, 2019), however, the customer is still obliged to conduct an examination, but according to 44-FZ, it can be carried out either on its own or and by external experts, the decision on the time and methods of its implementation remains with the customer himself.

Example 2:

If household chemicals are purchased for a municipal institution from a single supplier, then now the employee responsible for this contract can conduct an examination of the goods under 44-FZ. However, in the case of assessing compliance with the contract for the supply of accounting software, it is necessary to attract external specialists to examine the 44-FZ software, who have the necessary skills and knowledge.

Examination with the participation of experts.

Expert organizations (experts) are involved in conducting examinations only on the basis of contracts that are concluded taking into account the requirements of Law No. 44.
Expert organizations (experts) have the right to request from suppliers and customers additional materials that directly relate to the conditions for fulfilling contractual obligations, as well as the stages of their execution.
The results of the examination are formalized by drawing up a conclusion signed by a representative of the expert organization (expert). If, based on the results of the examination, any violations of the contract requirements were identified that do not interfere with acceptance, then the conclusion may contain instructions for eliminating these violations (in this case, it is necessary to indicate the time frame for their elimination).

Auction examination under 44-FZ

Despite the changes in legislation that occurred in 2019, when conducting competitive procurement, the Customer still has the right to involve external expert organizations, see 44-FZ, Article 58.

Article 58. Involvement of experts and expert organizations during competitions

When holding competitions, in order to provide an expert assessment of competition documentation, applications for participation in competitions, carried out during the prequalification selection of competition participants, assessing the compliance of competition participants with additional requirements, the customer has the right to attract experts and expert organizations.

Contract execution: acceptance of results

Acceptance is carried out on time, as well as in the manner specified in the contract. During the examination by experts, the customer must take into account the conclusions that are presented in the conclusion based on the results of the examination. If experts were not involved, then the document confirming the acceptance of goods, which is drawn up and signed by the customer, is also a document indicating that an expert assessment was carried out directly by the customer. This may be an acceptance certificate or some other document that lists all the goods supplied (services provided, work performed), as well as the claims of the parties (if any).

If the discrepancy identified upon acceptance of the work results is not an obstacle to the execution of the contract as a whole, or the contractor has already eliminated it, then the customer accepts the work (goods, services). However, if the customer believes that the results of the contract do not meet the requirements (the basis for this may be an expert opinion), then he has the right to refuse to sign the document. In this case, within the terms specified in the contract, he is obliged to send a reasoned refusal to the supplier in writing.

In addition, it is the customer’s responsibility to generate a report, which should contain all information about the fulfillment or improper fulfillment of contractual obligations (for each stage).

However, exceptions are provided for contracts concluded for “small” purchases (clause 4 of Law No. 44), purchases for cultural institutions in the amount of no more than 400,000 rubles (clause 5 of Law No. 44 and clauses 23, 44 of Article 93). The report drawn up based on the results of the examination must be placed in the information system. It must be accompanied by a document confirming acceptance of the examination results or a justified refusal. If the examination was carried out by experts, then a conclusion based on its results should also be posted in the Unified Information System.

Situation : Is it legal to conduct an examination by the customer if the contract is terminated unilaterally?

It is legitimate to conduct an examination in such a situation. This conclusion follows from the Decision in case No. A63-6507/2014 dated March 17, 2015, which was adopted by the Arbitration Court of the North Caucasus District.

Termination of the contract was unilaterally initiated by the customer due to improper fulfillment of obligations by the supplier. Data about him are included in the RNP (register of unscrupulous suppliers). The supplier did not agree with this decision, so he appealed it in court. According to the supplier, conducting an expert assessment of the goods by the customer is an illegal examination, which is not conclusive evidence, since it was carried out by the customer’s employees, who can be considered interested parties. The court recognized this conclusion as erroneous, since the examination of the goods was carried out by the customer on its own on the basis of the provisions of Law No. 44 (Article 94). In addition, the conclusion of the examination carried out by the customer was attached to the case, and the supplier does not have any evidence to refute it.

Thus, if you need to make a decision regarding whether to conduct an examination yourself or with the involvement of expert organizations (experts), you must be guided by the provisions of Law No. 44, taking into account the terms of the concluded contract.

Tags : 44-FZ, examination, examination under Federal Law-44, contract execution,

November 30, 2015

Number of views: 9706

Please rate how useful this material was.

Rating: 5/5 — 3 votes

Comments ()

When is an external examination carried out under 44-FZ?

What to do if the customer still needs to conduct an external examination of contracts under 44-FZ?

First of all, you need to attract an external expert on 44-FZ or an expert organization that meets the requirements listed below.

Expertise under 44-FZ, requirements for experts:

Availability of special knowledge in this field and skills in the field of examination. According to Article 41 of the Federal Law of May 31, 2001. No. 73-FZ “On state forensic activities in the Russian Federation”, the examination can be carried out by persons with special knowledge in the field of science, technology, art or craft. Confirmation of the presence of special knowledge among persons involved in the examination is a diploma of specialized higher education, as well as other documents, for example, certificates of qualification as an expert, certificates of advanced training;
Absence of a “conflict of interest” with the customer’s organization (prohibition on inviting experts who have worked for the last 2 years before the examination in this organization, are close relatives of managers or employees responsible for the contract, have property interests in this government contract, etc.), For details, see Part 2 of Art. 41 FZ-44.

If you have already decided on external experts, then you should prepare the documents necessary for the examination under 44-FZ:

Agreement for the provision of external expertise of contract execution services;
Terms of reference for the provision of external examination services;
Notification of the expert about the admissibility of participation in the examination (filled out by the expert; without this notification, the expert cannot be allowed to work);
Act on the provision of external examination services for the execution of the contract 44-FZ.

Based on the results of the inspection, a conclusion of an external expert 44-FZ is being prepared.

We strongly recommend that the tasks and questions that you pose to the experts be spelled out in detail in the terms of reference.

Example 3: It is necessary to conduct an external examination of the supply of goods under 44-FZ (printer cartridges to a government agency). Experts need to check:

Does this product comply with the state regulations? standards and contract conditions;
does the actual quality of the cartridges correspond to the markings and information on the label;
whether the actual properties of the product correspond to those indicated in the accompanying documents and instructions for it;
check the quality of packaging and its integrity, the conditions of transportation and storage of goods;
PS Additionally, you can raise the question of the originality of the cartridges in order to exclude counterfeit products. The terms of reference also need to specify the period of examination under 44-FZ.

How to conclude a contract with an expert

There are no special requirements for contracts with experts. Comply with the general requirements established in 44-FZ. We recommend that you include the following information in the agreement:

subject matter, questions that the expert is required to answer, or the procedure for establishing such questions;
functions and powers of an expert, expert organization;
timing of the examination;
the obligation of the expert, expert organization to notify you and the supplier in writing about the admissibility of participation in the inspection and the absence of grounds for refusing to conduct it before the start of the examination. This is indicated in Part 3 of Art. 41 44-FZ;
condition on the liability of the expert, expert organization, its authorized representative and officials;
other conditions that are mandatory for inclusion in the contract under Art. 34 44-FZ.

External examination under 44-FZ: cost of services

The examination is paid for by the customer; when calculating the cost of services, one must be guided by the provisions of 44-FZ, and also take into account all the costs of an external expert in providing services (for example, transportation costs, payment for necessary materials, etc.). All this is prescribed in an agreement with an expert organization (private individual, individual entrepreneur).

The law does not impose strict requirements for the content of the conclusion of an external expert, 44-FZ, but the content of the conclusion strongly depends on the subject of the examination itself, the terms of the contract with the expert and the technical specifications.

As a rule, expert organizations have special forms and samples of such documents.

Do you need an examination under 44-FZ?

Order service

How to submit your results

A separate expert report is not required. Indicate in the act or delivery note that you checked the quality and characteristics, the result of the check, and the signatures of the inspectors.

Often in practice, customers document the results with a separate expert opinion. This is not a violation. In conclusion, indicate:

date and place when the document is drawn up;
number, date, subject of the contract;
information about the supplier;
date of delivery, performance of work or provision of services;
list of delivery documents and their details (type of document, number, date, etc.);
information about whether the product (work, service) complies with the terms of the contract;
signatures.

Examination of works under 44-FZ

Above we gave examples of examinations for the procurement of goods. There are also subtleties when conducting external examinations of work under 44-FZ. Examination of the results of contract execution under 44-FZ in this case means checking the compliance of the work performed with regulatory, technical and design estimates documentation, assessing the volume of work performed and its compliance with the contract requirements, and conducting pilot tests. In such cases, narrowly specialized external experts are brought in, for example, to conduct an examination of computer equipment under 44-FZ (computer technical examination).

How to draw up an order for the acceptance committee

The form and content of the decree are developed by the customer independently. However, in order for the document to be compiled correctly, it is recommended to include the following parameters in the content:

In the header of the order - the name and details of the organization (TIN, KPP, OGRN, address).
The name of the document itself is “Order”, as well as its details (number and date) and the purpose of its creation.
Regulatory framework - Part 6 of Art. 94 44-FZ.
The text part lists the decrees of the head point by point - the creation of a commission, approval of the chairman, composition and Regulations.
Date of entry into force of the document and appointment of the responsible person.

The order itself is signed by the head and certified by a seal (if any). Also, all members of the PC must sign the order, thereby confirming that they are familiar with the contents of the document.

Expertise of services under 44-FZ

For government procurement specialists under 44-FZ, the examination of services provided also raises many questions. In this case, the examination within the framework of 44-FZ should answer the question: do the volume and quality of services provided comply with the terms of the contract? In this case, the expert will check the properties and characteristics of the service provided. A separate question is how to reflect in the conclusion of an external expert 44-FZ the results of an audit of services that the organization consumes daily? Let's show this with a simple example.

Example 4:

An external expert of 44-FZ carried out an examination of the acceptance of services under 44-FZ (hosting services for a website, which are provided under a contract by an Internet provider for one municipal organization). In conclusion, expert Fr.

Check what

When you have delivered the product, check its quantity and characteristics. They must fully comply with the specifications in the government contract. If a product has an expiration date, check to see if it has expired. Review the certificates, instructions for use, and other documents that the supplier provides with the product.

When you accept services and work, check that they are completed in full and on time. Compare, for example, certificates of completed work with technical specifications, estimates or design documentation for the contract. If you find any violations, record them in photos or videos. This follows from Part 3 of Art. 94 44-FZ and is confirmed by practice.

Compound

The commission must include at least 5 people: the chairman and its participants. The chairman of the commission acts as the head of the commission’s activities, holds meetings and sessions, and also draws up acts of acceptance of the transfer.

According to Art. 39 FZ-44, the commission must include persons who have certain knowledge in the field of goods and services supplied or who have the appropriate level of training in this area.

Certain requirements may be presented to members of the acceptance committee in terms of their education, work experience in their specialty, experience in conducting examinations, knowledge of legislation, etc. The list of such requirements is not specified in Federal Law-44.

It is desirable that the number of specialists with the necessary professional competence be at least 50% of the total number of commission members.

The place of work of the commission member can be anywhere, but the main thing is that it is not an organization interested in the results of acceptance of the work.

In particular, it is not allowed to attract to work in the commission persons who organize and conduct public procurement, can influence the results of acceptance, are vested with powers of control in the field of government orders and meet other criteria according to the norms of Part 6 of Art. 39 FZ-44.

Commission work procedure

The procedure for the commission’s work is determined by the customer and is fixed in an internal regulatory document when creating the commission. Such a document could be, for example, a commission regulation. It seems appropriate to include the following sections in the commission regulations:

1) The purpose of the creation and tasks of the commission’s activities

The purpose of creating a commission is to identify suppliers (contractors, performers), with the exception of purchasing from a single supplier (contractor, performer). The objectives of the commission are to comply with all principles of the contract system when identifying suppliers, namely: openness and transparency, ensuring competition, customer professionalism, stimulating innovation, unity of the contract system in the field of procurement, responsibility for the effectiveness of meeting state and municipal needs, and the efficiency of procurement.

2) Composition of the commission and procedure for forming the commission

The composition of the commission is the number and list of commission members, including the chairman and members of the commission with special functions, for example, the deputy chairman of the commission.

The composition of the commission may be increased by the customer, but cannot be less than the minimum established by Law No. 44-FZ (see above). It should be noted that it is not advisable to increase the number of commission members, because, firstly, it will be difficult to assemble a quorum, and, secondly, a larger number of persons may be subject to administrative liability for an unlawful decision from the position of the FAS Russia.

The procedure for forming a commission is the requirements for who needs to be included in its composition. In addition to the requirements of Law No. 44-FZ (persons with special education, persons in creative professions, etc.), the customer, at its discretion, determines additional requirements for qualifications, numerical and personal composition of the commission.

3) Organization of the commission’s activities

In this section, you need to indicate how the commission will work, for example, to whom it will report (directly to the head of the customer, his deputy or the head of another structural unit), whether other divisions must comply with the requirements of the commission members, whether they can (are obligated) to participate in the activities of the commission invited persons (for example, contract service employees/contract managers, members of working groups, department employees, etc.).

Separately, it is necessary to specify the procedure for replacing absent members of the commission, for example: in the absence of the chairman of the commission, his functions are performed by the deputy/any other member of the commission present. The replacement procedure must be established for each member of the commission vested with special functions. It is also necessary to describe the procedure for notifying commission members about the next meeting. In accordance with Part 8 of Art. 39 of Law No. 44-FZ, this function is performed by the chairman.

4) Functions of the commission

This section specifies functions in accordance with Law No. 44-FZ.

5) Rights and obligations of the commission, the procedure for interaction with the customer’s structural divisions

This section specifies the rights and responsibilities of commission members. For example, the right, when performing their functions, to contact various structural divisions of the customer, to involve specialists from these divisions in their work, in cases specified by Law No. 44-FZ, to involve independent experts, etc. Responsibilities may include, for example, informing the supervising manager or the customer’s manager about the possibility of a conflict of interest, about the refusal of other customer employees to provide the necessary information to the commission (if the commission has the right to demand this), etc.

6) Documentary support for the activities of the commission

In this section, for example, standard forms of documents necessary for the activities of the commission may be presented, the timing and place of transfer of documents to the archive, etc. may be indicated.

7) Responsibility of commission members

In such a section, you can include a detailed list of articles of the Code of Administrative Offenses of the Russian Federation with the amounts of fines, or limit yourself to the general phrase “in accordance with the legislation of the Russian Federation.”

The list of these sections is recommended and can be changed and supplemented in accordance with the wishes of a particular customer. If you are interested in preparing a regulation on the commission for the needs of your organization and are afraid of making mistakes when drafting it, including in terms of assigning functions to commission members that cannot be transferred to them in accordance with Law No. 44-FZ, the Procurement and Sales Center “Zakon” .guru" is ready to provide support in this matter and develop the necessary documents. To do this, you just need to apply here.

The commission regulations are approved and put into effect in the manner established by the customer’s local regulations.

« Previous article

Next article »
Disqus Comments

Conducting an examination under 44-FZ: expert opinion and external examination of compliance