Construction contract: we “build” the right contract. General terms and conditions of a construction contract

In accordance with paragraph 1 of Art. 740 of the Civil Code, under a construction contract, the contractor undertakes to build a certain facility on the instructions of the customer or perform other construction work within the period established by the contract, and the customer undertakes to create the necessary conditions for the contractor to perform the work, accept their result and pay the stipulated price.

Regulation of this type of contracting relationship is carried out by the norms of § 3 Ch. 37 GK "Construction contract". The general provisions on the contract contained in § 1 of this chapter shall apply, unless otherwise provided by the rules on construction contracts provided for in the Civil Code.

The norms governing relations on a construction contract are contained in many other regulatory legal acts. These include, in particular:

• Town Planning Code of the Russian Federation dated December 29, 2004 No. 190-FZ;
• Law of the RSFSR dated June 26, 1991 No. 1488-1 “On investment activity in the RSFSR";
• Federal Law No. 39-FZ dated February 25, 1999 “On investment activities in the Russian Federation carried out in the form capital investments»;
• Law of the Russian Federation of November 17, 1995 No. 169-FZ "On architectural activities in the Russian Federation";
• Federal Law No. 97-FZ dated 06.05.1999 “On Tenders for Placement of Orders for the Supply of Goods, Performance of Work, Rendering of Services for state needs».

In cases where, under a building contract, work is performed to meet the household or other personal needs of a citizen, the rules of § 2 Ch. 37 of the Civil Code "Household contract" (clause 3 of article 740 of the Civil Code).

In addition, acts of a recommendatory nature are used in regulating construction contract relations. Such an act, in particular, is the Guidelines for the preparation of construction contracts for construction in the Russian Federation adopted by the Ministry of Construction of Russia on June 10, 1992.

The parties to a construction contract are the customer and the contractor.

Investors who make capital investments in the Russian Federation using their own and (or) borrowed funds in accordance with the legislation of the Russian Federation, as well as individuals authorized by investors and legal entities, which implement investment projects(clauses 2, 3, article 4 of the Federal Law dated "On investment activities in the Russian Federation, carried out in the form of capital investments").

Contractors may be construction, construction and installation, design and construction and other organizations operating in the field of construction production, as well as individual entrepreneurs. To perform the relevant types of work, they must have a license (clause 4, article 4 of the said Federal Law).

When implementing capital construction the general contracting system is widely used, in which the customer enters into an agreement with one construction organization - the general contractor, which engages specialized organizations as subcontractors to perform individual work packages. General contractors and subcontractors may also be citizens engaged in entrepreneurial activities without forming a legal entity.

With the consent of the contractor, the customer concludes contracts for the performance of certain installation and other special works for this construction project with other contracting installation and other specialized organizations. Such concluded customer contracts are commonly called direct contracts.

The subject of a construction contract (subcontract) is the end result of the contractor's (subcontractor's) activities. Under a construction contract, this is a corresponding construction object (enterprise, building, structure) handed over by the contractor to the customer, and under a subcontract - a complete set of certain works (installation, sanitary, etc.), which are part of the work on the construction object as a whole and delivered by the subcontractor to the general contractor.

There are the following kinds construction contracts:

• contracts for the performance of construction and installation and other works on the facility as a whole;
• contracts for the performance of individual complexes of installation and other special construction works;
• commissioning contracts.

Unless otherwise provided by the contract, the rules on a construction contract also apply to major repairs of buildings and structures (clause 2, article 740 of the Civil Code).

The building contract must be concluded in writing. In this case, the form (sample) of the contract can be used, which is an annex to the above-mentioned Guidelines for drawing up construction contracts in the Russian Federation.

The essential terms of a building contract are the terms on the subject matter, price and term of the contract.

When determining the price of the contract, the parties may be guided by The procedure for determining the cost of construction and free (contractual) prices for construction products in the context of development market relations (Appendix to the letter of the Gosstroy of Russia dated December 29, 1993 No. 12-349).

In accordance with par. 1 p. 1 art. 708 of the Civil Code, the term of a construction contract is determined by agreement of the parties by indicating in the contract the initial and final dates for the performance of work. By agreement of the parties, the contract may also establish deadlines for the completion of individual stages of work, if the contract provides for the delivery of the result of the work performed, first by stages, and then as a whole for the construction object.

As a rule, the construction contract provides for the contractor's warranty obligations for the constructed buildings and structures or for the completed work packages.

To conclude a construction contract, it is necessary to obtain certain documents in advance. For the customer, such a document is a construction permit issued by a federal executive body, an executive body of a constituent entity of the Russian Federation, or a local government body in accordance with their competence (Article 51 of the Town Planning Code), and for a contractor, a license (permit) for the implementation construction activities.

The main obligation of the contractor under a construction contract is to carry out the construction (expansion, reconstruction, technical re-equipment) of the enterprise, building, structure provided for by the contract. An important condition performance of the contract is that construction and installation and other works on the object must be performed in accordance with the technical documentation that determines the scope, content of work and other requirements for them, and the estimate that determines the price of the work (design and estimate documentation).

When carrying out construction, the contractor is obliged to comply with construction norms and rules (SNiPs), other technical norms and rules, as well as the requirements of the law and other legal acts on protection environment and on the safety of construction work (Article 751 of the Civil Code).

The contractor is responsible for the construction necessary materials, including parts and structures, as well as equipment, if the building contract does not provide that the construction in general or in a certain part is ensured by the customer (Article 745 of the Civil Code).

The obligation of the contractor is also the erection of a building, structure or other construction object or the performance of other construction works and the delivery to the customer of the result of the work performed under the construction contract within the time period established by the contract.

The law provides for some specific obligations of the customer under a construction contract. Thus, the customer is obliged to provide a land plot for construction in a timely manner. The area and condition of the provided land plot must comply with the conditions contained in the contract, and in the absence of such conditions, ensure the timely start of work, their normal conduct and completion on time.

The customer is obliged, in the cases and in the manner prescribed by the construction contract, to transfer to the contractor for use the buildings and structures necessary for the performance of work, to ensure the transportation of goods to his address, temporary connection of power supply networks, water and steam pipelines, and provide other services.

Payment for the above services is made in the cases and on the terms stipulated by the construction contract (Article 747 of the Civil Code).

The customer is also required to transfer to the contractor documents confirming the permission of the relevant authorities to carry out work in places where underground utilities pass, in the area of ​​overhead power lines and communication lines.

In accordance with Art. 748 of the Civil Code, the customer has the right to exercise control and supervision over the progress and quality of the work performed, compliance with the deadlines for their implementation (schedule), the quality of the materials provided by the contractor, as well as the correct use of the customer's materials by the contractor, without interfering with the operational and economic activities of the contractor.

The customer, who discovered in the course of control and supervision over the performance of work, deviations from the terms of the construction contract, which may worsen the quality of work, or other shortcomings thereof, is obliged to immediately notify the contractor about this. The customer who has not made such a declaration loses the right to refer to the shortcomings discovered by him in the future.

A characteristic feature of a construction contract is the cooperation of the parties (Article 750 of the Civil Code).

In view of the specific and complex nature of the object of the construction contract, the delivery and acceptance of work performed under this contract is especially regulated (Article 753 of the Civil Code). In the cases provided for by law or other legal acts, representatives of state bodies and local self-government bodies must participate in the acceptance of the result of work.

The delivery of the result of work by the contractor and its acceptance by the customer are formalized by an act signed by both parties. If one of the parties refuses to sign the act, a note is made in it and the act is signed by the other party. A unilateral act of delivery or acceptance of the result of work may be declared invalid by the court only if the motives for refusing to sign the act are recognized by him as justified. The customer has the right to refuse to accept the result of the work in case of detection of defects that exclude the possibility of its use for the purpose specified in the construction contract and cannot be eliminated by the contractor or customer.

Acceptance of completed construction objects is carried out by the customer or another person authorized by the investor. The customer can involve the user of the facility (operating organization), developers technical documentation, specialized organizations and other legal and individuals, creating, if necessary, a selection committee.

In cases where this is provided for by law or a construction contract, or follows from the nature of the work performed under the contract, acceptance of the result of the work must be preceded by preliminary tests. Accordingly, acceptance is carried out only with a positive result of such tests (clause 5, article 753 of the Civil Code).

Acceptance of the completed construction object is documented by the act of acceptance.

The Contractor is obliged to timely eliminate the shortcomings and defects identified in the process of acceptance of construction and installation works. The deadline for eliminating these shortcomings is specifically stipulated in the acceptance certificate.

Payment for the work performed by the contractor is made by the customer in the amount provided for by the estimate, on time and in the manner established by law or the building contract. In the absence of relevant instructions in the law or contract, payment for work is made after the final delivery of the result of work (clause 1 of article 711 of the Civil Code). At the same time, the significant cost and duration of capital construction require advance payments for the contractor's activities. However, he has the right to demand the payment of an advance or a deposit only in the cases and in the amount specified in the law or the contract (clause 2 of article 711 of the Civil Code).

The responsibility of the contractor for the quality of work has its own specifics. According to Art. 754 of the Civil Code, the contractor is liable to the customer for deviations from the requirements provided for in the technical documentation and in the binding obligations for the parties building codes ah and the rules, as well as for failure to achieve the indicators of the construction object specified in the technical documentation, including such as productive capacity enterprises.

Unless otherwise provided by the construction contract, the contractor guarantees that the construction object will achieve the indicators specified in the technical documentation and the possibility of operating the object in accordance with the contract during the warranty period. Statutory guarantee period may be increased by agreement of the parties (Article 755 of the Civil Code).

Upon presentation of requirements related to inadequate quality of work, the rules of paragraphs 1-5 of Art. 724 GK. Wherein deadline detection of deficiencies in accordance with paragraph 2.4 of this article is five years (Article 756 of the Civil Code).

If the construction contract for its non-fulfillment or improper performance recovery of a penalty (fine, penalty fee) is provided for, losses are recovered net of its deduction (set-off penalty). However, the contract may provide otherwise: the recovery of only the penalty, the recovery of losses in the full amount in excess of the penalty, the recovery of either the penalty or damages.

At any time during normal economic activity the organization may encounter the construction industry. In this area, the organization can act, as a rule, as a construction customer, contractor (general contractor, subcontractor). Contracting activities are also closely related to supplies for construction needs. A construction contract initially implies a turnover of large financial resources, which requires special attention to the content, preparation and execution of all documents. Therefore, we propose to dwell in more detail on one of the main documents in the construction industry - a construction contract.

The legal requirements for a building contract are contained in paragraph 3 of chapter 37 of the second part Civil Code. These norms are set out in the code in the most general form, therefore, in practice, construction contracts often become the subject of litigation, not only regarding the content of the contract, but also up to its original validity. In the whole array judicial practice"Construction" disputes occupy one of the first places in terms of number.

Concept and scope

The definition of a building contract is given in paragraph 1 of Article 740 of the Civil Code: according to it, the contractor undertakes to build a certain object on the instructions of the customer or perform other construction work within the period established by the contract, and the customer undertakes to create the necessary conditions for the contractor to perform the work, accept their result and pay the stipulated price.
The construction contract is concluded:
- for the construction of an enterprise, building, residential building, structure, other facility;
- for reconstruction (renovation, restructuring, etc.) of an enterprise, building, residential building, structure, other facility;
- to perform installation, commissioning and other works inextricably linked with the facility under construction;
- for the performance of work on the overhaul of buildings and structures (in the contract it can be stipulated that the norms on building contracts do not apply to such work).

On January 1, 2009, a new regulation on accounting"Accounting for construction contracts" (PBU 2/2008), approved by Order of the Ministry of Finance of the Russian Federation dated October 24, 2008 No. 116n (hereinafter PBU 2/2008), which established new rules for Russian accountants to record revenue and write off construction costs. The new rules are as close as possible to international standards. Yet the differences remain.

IN IFRS accounting income and expenses for construction contracts dedicated to IAS 11 Contracts. The standard considers accounting for construction work performed under contracts with customers, as well as works on the destruction or restoration of objects and the environment, the provision of services related to the construction of objects (for example, the creation or management of a project).

The main issue, which is regulated by the international standard IAS 11 "Contracts", is the issue of recognition in the reporting of income, expenses and financial results in the performance of construction work under long-term contracts with customers, namely the correlation of costs incurred as of the reporting date with accrued income.

The requirement of the international standard IAS 11 “Contracts” is that the construction company is obliged in each reporting period to reflect income and expenses on construction contracts and, thus, form a financial result based on the scope of work performed, taking into account the profitability of each contract.

According to IAS 11, the moment of recognition of the financial result under construction contracts is not made dependent on the actual document flow under specific contracts (acts signed by the parties), but is of a periodic nature. This methodology implements the main approach of IFRS: equal distribution of the financial result between the reporting periods. Recognition of the financial result on long-term construction contracts at the end of construction is not an acceptable approach from the point of view of IFRS.

Recall that in accordance with the IFRS Principles income increment is recognized economic benefits in the form of an inflow of assets or a decrease in liabilities resulting in an increase in capital other than the contribution of the owners. Expenses are defined as a decrease in economic benefits in the form of an outflow of assets or an increase in liabilities, leading to a decrease in capital, not related to its distribution among owners. Income and expenses should be recognized in the financial statements when it becomes obvious that the possibility of receiving (outflow) of economic benefits and their reliable assessment is possible. In fact, this means that for the recognition of income in IFRS, it does not matter whether an interim act of acceptance of work is executed under the contract.

RAS. Recall that the domestic legislation on accounting is basically focused on source documents(See Law "On Accounting" No. 129-FZ of November 21, 1996).

At the same time, paragraph 13 of the accounting regulation “Income of the organization” (PBU 9/99), approved by Order of the Ministry of Finance of the Russian Federation dated 06.05.99 No. 32n, always contained an indication that organizations can recognize revenue from the performance of work in accounting , the provision of services, the sale of products with a long production cycle as soon as the work, service, product is ready. This method of determining revenue can be used if it is possible to determine the readiness of work, services, products.

This aspect of the legislation was ignored by domestic accountants and, as practice showed, was not used in accounting.

The possibility of recognizing income and financial results as soon as they are ready when performing work under a construction contract was also enshrined in the accounting regulation “Accounting for contracts (contracts) for capital construction” (PBU 2/94, became invalid from January 1, 2009) . The volume of work performed in this case was to be determined in the prescribed manner based on their contractual value and the methods used for its calculation.

The second option for determining income provided for the method “by the cost of the construction object”, i.e., upon the completion of all work at the construction site.

Since the procedure for assessing the scope of work performed in the absence of a phased breakdown in the contract was not legally regulated, and the wording of clause 17 seemed vague, in most cases construction companies determined the revenue in accordance with the closed acts of acceptance of work.

The procedure for writing off costs at the end of individual stages at the same time corresponded to clause 17 of PBU 2/94, i.e., the costs attributable to the work performed were determined by the direct method, and more often by calculation.

The specified procedure for the formation of the financial result was simpler and, most importantly, met the requirements of tax accounting.

The adopted new PBU 2/2008 "Accounting for construction contracts" from January 1, 2009 cancels the option of recognizing income and financial results only after completion of construction work at the facility (similar to IAS 11). Now, revenue and expenses under construction contracts in Russian accounting are subject to recognition using the “as soon as they are ready” method (if the final financial result of the execution of the contract as of the reporting date can be reliably determined).

The condition for the recognition of income and expenses when using this method is the need to confirm the degree of completion of work under the contract, i.e., translating into the domestic accounting language, an accounting statement with a corresponding reference to the calculation or other document fixing the costs and the amount of work performed. Thus, the specified accounting statement (calculation), obviously, will be a supporting (primary) accounting document, the requirements for registration of which are regulated by paragraph 2 of Art. 9 of the Law "On Accounting".

Recognition of profit (loss) on work contracts

In accordance with the requirements of IAS 11, the procedure for recognizing the financial result under construction contracts depends on the profitability of the contract.

One category is profitable contracts. Profit from such contracts should be recognized gradually, in each reporting period, based on the degree of completion of construction work (“as completed”).

The next category are unprofitable contracts. The loss must be recognized in the profit and loss statement at a time in the reporting period in which information is received on the unprofitability of a particular contract. Loss can be identified even at the stage of contract conclusion by comparing the total value of the contract and the estimated cost of costs. The reported revenue and cost should also be calculated based on the stage of completion of the work.

Contract costs that are not likely to be recovered should be recognized as an expense immediately. Such contracts may include contracts that are legally unsound or whose execution is subject to pending litigation, legislation. An example of a contract with a low probability of recovery would be the construction of an object that can be alienated by a court decision. Also, this category of contracts will include transactions in which one of the parties is unable to fulfill its obligations under the contract.

It is possible that a contract initially recognized as profitable is subsequently qualified as unprofitable. Then the reflection in the financial statements will depend on the assessment made on the basis of information that was available at the time of formation financial reporting. That is, in one period, under a construction contract, the company must recognize profit (based on the stage of completion of work at the reporting date), in the other - show a loss that compensates for previously recognized profit.

There is another category of contracts. These are contracts for which the financial result at the reporting date is not reliably determined. Under such contracts, income and expenses should be recognized in the reporting period in an equal amount based on an estimate of the costs incurred at the reporting date, which are recognized and reimbursed by the customer. As information becomes available in the future about the profitability of a contract, its financial result should be recognized in accordance with the methodology for accounting for profitable or unprofitable contracts, respectively.

RAS. The profitability of the contract as a condition for choosing the method of recognizing the financial result is now fixed in the new PBU 2/2008.

The procedure for recognizing income under contracts with an uncertain financial result complies with the requirements of Russian legislation. So, in accordance with paragraph 14 of PBU 9/99 “Income of the organization”, if the amount of proceeds from the sale of products, performance of work, provision of services cannot be determined, then it should be accepted for accounting in the amount of expenses recognized in accounting for the manufacture this product, the performance of this work, the provision of this service, which will subsequently be reimbursed to the organization.

The corresponding procedure is now indicated in paragraph 23 of PBU 2/2008.

With regard to unprofitable contracts, PBU 2/2008 (paragraph 3, paragraph 23) now indicates the need to recognize an expected loss from the performance of construction work, regardless of at what stage of the execution of the contract the expected loss arose.

When determining the profitability of a contract, one should proceed from the most probable events under the specified contract. Accordingly, at each reporting date, the likelihood of certain uncertain events accompanying the contract may change. The way financial results are recognized is also changing.

Regardless of the procedure for determining the price under the contract, the necessary and sufficient conditions for a reliable determination of the financial result are the following:

- the likelihood of obtaining economic benefits;

- the possibility of estimating costs under the contract.

Composition of income and expenses under construction contracts

Giving an assessment of the profitability of a construction contract, you should first determine which items of income and expenses that form the cost of construction work, in accordance with the international standard IAS 11, are to be attributed to specific contracts.

The list of income and expenses under construction contracts primarily depends on the type of agreement between the parties. For this purpose, there are:

Fixed price contracts, which means that the contractor agrees to perform work in a specified amount for a fixed price specified in the contract, or taking into account a fixed rate per unit of work, which may increase with increasing costs;

Cost plus contracts, which involve reimbursement of unrecorded costs to the contractor at an agreed contractor's profit (for example, covert work).

Additional costs under "cost plus" contracts, in addition to being reflected in the cost of work, form the contractor's revenue.

Contract agreements may contain additional conditions that affect the amount of remuneration construction organization, for example, incentive payments or penalties, which also affects the amount of revenue of the contractor. The formation of the contractor's revenue "as soon as it is ready" implies the corresponding gradual accrual of the specified incentives or penalties.

According to IAS 11, revenue from a construction contract must include:

The cost of construction work specified in the contract;

Claims and incentive payments (when there is a possibility of an inflow of economic benefits and the possibility of their reliable assessment);

Other deviations from the terms of the contract.

Variations occur when the range of work performed under a construction contract changes. An example of a deviation is a change in the characteristics or design of an object under construction, which in turn affects the change in the duration of the contract. A variance changes the amount of revenue on a construction contract when it is probable that the customer will accept the variance and the amount of revenue that arises from it, and the amount of revenue can be measured reliably.

RAS. In this regard, PBU 2/2008 “Accounting for construction contracts” provides that if a company has doubts about receiving the amounts included in revenue in previous reporting periods, then these amounts should be recognized as expenses for ordinary species activities, i.e., no adjustment is made to contract revenue recognized in previous periods for these amounts (paragraph 22 of PBU 2/2008).

According to IAS 11 expenses under the construction contract must include:

Direct costs for the performance of work under a specific contract, including:

Wages of workers at the construction site, including supervision at the construction site;

Cost of materials used in construction;

Depreciation of fixed assets used to fulfill the contract;

Costs of moving machinery, equipment and materials to and from the construction site;

The cost of renting machinery and equipment;

Costs for design and technical support directly related to the contract;

Estimated costs for correcting errors and performing warranty work, including the cost of warranty repairs;

Third party claims;

Costs that relate to the construction activity in general, but may be allocated to a specific contract, including:

Costs for design and technical support not directly related to a specific contract;

insurance payments;

Overhead costs of construction (for example, the cost of collecting and accruing wages construction personnel; borrowing costs).

The latter costs should be systematically apportioned on the basis of the normal level of construction activity. It is understood that the planning department of the organization for a number of reporting periods should determine the average volume of construction work, taking into account planned downtime, and evaluate the average level of overhead costs. Further write-offs of overhead costs should be carried out in accordance with the average figure thus calculated;

Other additional costs that may be reimbursed by the customer in accordance with the terms of the contract.

RAS. It should be noted that in accordance with paragraph 16 of PBU 2/2008, when forming the cost of construction, only costs related to the work performed are taken into account. Costs incurred in connection with future work are recognized as deferred expenses, including:

- transferred materials;

- transferred advances to subcontractors;

- listed rent.

The concept of deferred expenses in IFRS does not apply. In accordance with IAS 11, costs related to future activities under a construction contract (advance payments issued; materials transferred for construction) are recorded in the contract account and subsequently form the cost of work.

Advances transferred to the subcontractor cannot be taken into account when calculating the percentage of completion of the object, since they reflect only settlements with the counterparty, and not his actual participation in the construction work.

The procedure for determining the stage of completion and the formation of the financial result for the period

The key moment of recognition financial results under contracts is to determine the stage of completion.

IAS 11 provides three options for its definition:

Based on accepted papers;

Based on actual costs;

According to progress reports.

stage of completion based on accepted papers is defined as the ratio of the work actually accepted by the customer and the total cost of the contract. The cost is determined by calculation as the total planned estimated value costs multiplied by the percentage of completion.

The profit and loss statement for the period reflects revenue as the cost of work accepted by the customer and the cost calculated based on the stage of completion. In addition, the composition of income reflected in the income statement should include the cost of expenses compensated by the customer, as well as the amount of premiums and penalties determined based on the terms of the contracts. The cost of construction work for the period must, in turn, be adjusted for unplanned costs for correcting errors and other compensated and non-compensated costs by the customer.

Example 1

The company "Stroymontazh" performs work under a contract with the company "Alfa". The cost of the contract (with a fixed price) is 40,000,000 rubles. The estimated cost of costs under the contract is 33,000,000 rubles.

IN current year the cost of the work accepted by the customer amounted to 16,000,000 rubles.

The total costs of Stroymontazh under the contract amounted to 15,000,000 rubles. (shown in the table):

Let's calculate indicators for reporting on the basis of "accepted works".

Based on the ratio of planned revenues and costs, the specified contract is profitable. Therefore, the calculation of revenue and cost on it should be carried out “as soon as it is ready”.

1) The degree of completion of construction works at the reporting date is:

RUB 16,000,000 / 40,000,000 rubles × 100% = 40%,

where 16,000,000 rubles. - cost of works accepted by the customer;

RUB 40,000,000 - the total value of the contract.

2) Revenue under the contract for the period is:

RUB 16,000,000 (40% × 40,000 = 16,000).

3) The cost of civil works (estimated value) is determined as the total estimated cost of contract costs multiplied by the percentage of completion, plus actual additional unplanned costs:

RUB 33,000,000 × 40% + 500,000 rubles. = 13,700,000 rubles.

Thus, under the construction contract in the reporting period, profit in the amount of 2,300,000 rubles will be recognized. (16,000,000 - 13,700,000).

stage of completion based on actual expenses is defined as the ratio of the planned costs incurred during the construction and the total estimated cost of the costs. Revenue and cost for the period are determined as the cost of the contract multiplied by the estimated percentage of completion.

The stage-of-completion calculation should not include unplanned bug fix costs and additional customer-reimbursable and non-reimbursable costs. At the same time, unplanned costs for correcting errors, additional costs compensated and non-compensated by the customer are subject to inclusion in the expenses of the current period of the income statement.

Example 2

Let's use Example 1 to illustrate the definition of the degree of completion "by cost".

1) The degree of completion of work at the reporting date, using the "costs" method, is determined as the ratio of actual costs (excluding building materials in the balance) to the total estimated cost of costs under the contract:

((5,000,000 + 6,000,000 + 1,500,000 + 1,000,000) / 33,000,000) × 100% = 41%.

2) The cost of construction work for the period will be determined by:

As actual costs excluding building materials in the balance plus

The cost of correcting poor-quality work, i.e.

41% × RUB 33,000,000 + 500 000 rub. = 13,500 rubles. + 500 000 rub. = 14,000,000 rubles.

3) Contract revenue for a period is defined as the total cost of the contract multiplied by the degree of completion:

RUB 40,000,000 × 41% = 16,400,000 rubles.

Thus, profit under the contract in the amount of RUB 2,400,000 will be recognized in the reporting period. (16,400,000 - 14,000,000).

The stage of completion of a construction work may be determined based on actual progress reports, i.e. reports that represent the actual amount of work completed and the actual costs incurred to complete that amount.

In this case, the actual data on the performance of work are taken as the basis for revenue and cost indicators for the period, which, in turn, must be adjusted for additional costs compensated by the customer (increase revenue and cost indicators) and for unplanned, uncompensated expenses, including expenses for correct construction errors.

Example 3

The Stroytrade company performs construction work for the Beta company under a contract worth 10,000,000 rubles. The estimated cost of the costs under the contract is 8,000,000 rubles. The contract provides for compensation of expenses for indexation of wages of employees. During the reporting period, additional labor costs compensated by the customer amounted to 500,000 rubles.

According to experts, for reporting period work completed by 30%.

1) Revenue from a construction contract is determined as follows:

RUB 10,000,000 × 30% + RUB 500,000 = 3,500,000 rubles.

(estimated based on stage of completion plus reimbursable costs).

2) The cost of construction work is:

RUB 8,000,000 × 30% + RUB 500,000 = 2,900,000 rubles.

Thus, under the construction contract, the Stroytrade company in the reporting period will recognize a profit in the amount of 600,000 rubles. (3,500,000 - 2,900,000).

RAS. In accordance with PBU 2/2008, when determining the stage of completion, the following can be taken as a basis:

- the proportion of costs incurred at the reporting date to the total costs under the contract, or

- the proportion of work performed as of the reporting date of the total volume of work.

According to the author, the last option for determining the stage of readiness is more reminiscent of the method “based on reports on completed work” described in IAS 11, since the method of determining the readiness of an object “based on accepted work” involves the acceptance of work, i.e. execution of the corresponding bilateral act .

It follows from this that such an option for determining the stage of completion of construction work, as “based on accepted work”, is not provided for in RAS.

Individual accounting of work contracts

The profitability of the contract according to IAS 11 must be determined separately for each construction contract. This provision of the standard is the key to the correct formation of income statement indicators, as well as the presentation of information in balance sheet.

It is allowed to combine two or more work contracts into one contract. In particular, when the contracts are so closely interconnected that they actually represent a single project with general rule arrived. Or when contracts are executed simultaneously or sequentially without interruption. Another situation is also possible, when several objects are being built at once within the framework of one contract. In this case, it is advisable to present the construction of individual facilities as independent construction contracts, if the costs and revenues for each facility can be allocated and accounted for separately.

Reflection of information in the report on financial position

According to IAS 11, a company's statement of financial position (balance sheet) must show the gross amount due from customers (payable to the customer) for work under a construction contract, which is a balance consisting of the following indicators:

Costs incurred plus

Recognized profits minus

Losses recognized minus

The amount of interim invoices issued (paragraph 42 of IAS 11).

The gross amount of work contracts should be formed in balance sheet automatically, if the accounting entries are correctly made.

Costs under a construction contract are accounted for accumulatively on the account of the contract:

Dt"contract account"

ct"Settlements with suppliers", "Settlements with employees", "Materials", etc.

When revenue is recognized for the reporting period, an entry is made in the debit of the contract account:

Dt "Account of the contract"

CT “Profit and Loss Statement Revenue”

When recognizing the cost of construction work for the reporting period, a credit entry is made on the contract account:

Dt"Cost of income statement"

ct"contract account"

When issuing interim invoices, a debt is formed under a construction contract:

Dt"Receivables"

ct"contract account"

Upon receipt of payment from the customer receivables"closing":

Dt"Cash"

ct"Receivables"

After reflecting the indicated accounting records the rolled-up balance formed on the account of the contract will be the gross amount of the completed construction work to be presented in the balance sheet:

Separately, as part of accounts receivable (accounts payable) the balance sheet will reflect the actual state of settlements with the customer on invoices issued.

According to IAS 11, gross amounts for various work contracts must be presented on a gross basis in the balance sheet.

Next, we will consider what requirements for correspondence of accounts in this case are put forward by Russian accounting legislation, in particular PBU2 / 2008 “Accounting for construction contracts” (when registering correspondence, the name of the articles will be used, not account numbers).

Accounting for costs under the contract is carried out on the account "Work in progress" (account 20):

Dt"WIP"

ct"Materials", "Settlements with personnel", "Settlements with third parties", etc.

As indicated above, in domestic accounting, expenses incurred in connection with upcoming work should be accounted for as deferred expenses with subsequent write-off as revenue is recognized under the contract (clause 16 PBU 2/2008).

Recognition of expenses under the contract in terms of work performed is carried out by posting:

Dt"Profit and Loss Statement" (cost of sales)

ct"WIP"

Accounting for revenue under the contract, determined as soon as it is ready, is carried out in accordance with clause 26 of PBU 2/2008 as a separate asset, i.e.

Dt"Revenue not presented for payment"

ct"Profit and Loss Statement" (sales revenue)

When issuing interim invoices, the unreported revenue accrued as soon as it is ready is transferred to receivables:

Dt"Receivables"

ct"Revenue not presented for payment"

Thus, in the Russian balance sheet, contract work is reflected in the form:

work in progress;

Deferred expenses;

Unclaimed accrued revenue (separate asset);

Negative difference between invoiced revenue and unreported revenue (separate liability),

Accounts receivable (on issued invoices);

Accounts payable (advance payments received).

For comparison, let's compare the indicators in terms of contracts for accounting (financial) statements in two accounting systems:

Below we will consider an example of how indicators are formed under a construction contract for financial statements under IFRS and for financial statements prepared in accordance with Russian accounting rules.

Example 4

On January 1, 2004, the ABC Company (contractor) entered into a contract for the construction of a building in the amount of $1,100,000 for a period of 3 years.

In 2005, an increase in the cost of remuneration to $1,200,000 was agreed.

The initial cost estimate for the contract was $750,000. Due to the customer's fault, additional costs in 2004 amounted to $50,000.

ABC calculates completion rate based on costs.

We will show the calculation of income and expenses for each of the reporting periods.

Information on the contract during the entire construction period is presented in the table:

1. Consider IFRS accounting.

Contract status: $1,100,000 minus $750,000 - the contract is profitable.

2004 (in $)

Actual costs: 450,000

Planned costs: 800,000

Completion percentage: 56.25% (450,000 / 800,000)

Revenue for the period: 1,100,000 × 56.25% = 618,750

Period Costs: 800,000 × 56.25% = 450,000

For presentation in the income statement for 2004:

Revenue: 618,750

Cost: (450,000)

Profit: 168,750

2005 (in $)

Actual costs: 650,000

Planned costs: 800,000

Percent complete: 81.25%

Cumulative revenue (for 2 periods):

1,200,000 × 81.25% = 975,000

800,000 × 81.25 = 650,000

For presentation in the income statement for 2005:

Revenue: 975,000 - 618,750 = 356,250

Cost: (650,000 - 450,000) = (200,000)

Profit: 156,250

2006 (in $)

Actual costs: 800,000

Planned costs: 800,000

Percent complete: 100%

Cumulative revenue (for 3 periods): 1,200,000

For presentation in the income statement for 2006:

Revenue: 1,200,000 - 975,000 = 225,000

Cost: (800,000 - 650,000) = (150,000)

Profit: 75,000

Accounting records in accounting according to international standards will be presented in the form of standard "airplanes":

Postings under the above contract, which must be performed in two accounting systems, are comparable in the table:

For comparison, we will present in the table information on the contract, which is formed in the IFRS statements and prepared in accordance with Russian accounting standards on an interim date (31.12.04).

Under a building contract one party (contractor) undertakes to build a certain object on the instructions of the customer or perform other construction work within the time period established by the contract, and the other party (customer) undertakes to create the necessary conditions for the contractor to perform the work, accept their result and pay the stipulated price (Article 740 of the Civil Code) .

By its legal nature, a construction contract:

• • consensual (generates civil rights and obligations from the moment the parties reach an agreement; the subsequent transfer of a thing or the commission of other actions is already carried out for the purpose of their execution);
  • compensated;
  • bilateral (generates obligations for both parties).

Features of a building contract:

1. 1. the main distinguishing feature of a construction contract, which distinguishes it as a separate type of contract, is the nature of the work and the special area in which they are carried out: the work performed by the contractor consists in construction of a specific object or represents another type of construction work;
   2. on the side of the customer is an additional (compared to a conventional contract) obligation to create the necessary conditions for the contractor to do the work.

Parties to a building contract

The parties to the building contract are

• • customer;
  • contractor.

As a customer any subject of civil law can act:

1. 1. individual;
   2. entity;
   3. public legal entity represented by its authorized body.

Several investors can also act on the side of the customer.

As a contractor A building contract may include:

• • individuals and legal entities that have the necessary knowledge, skills and abilities to perform the relevant construction work.

If the fulfillment of obligations under a construction contract is related to the performance by the contractor entrepreneurial activity, the latter in cases provided for by law, must have a license allowing to engage in certain types of construction activities.

More about subcontracting

At the same time, the relations developing in the field of construction contracting are characterized by a complex structure of contractual relations of its participants. A very common situation is when a customer concludes a construction contract with a general contractor, who, in turn, engages other persons specializing in certain construction works, subcontractors, to fulfill their contractual obligations. In this case, construction subcontracts are concluded between the general contractor and subcontractors. With such a structure of contractual relations, the peculiarity of the legal status of the general contractor is that he is responsible to the customer for all the consequences of non-fulfillment or improper fulfillment of contractual obligations by subcontractors (clause 1 of article 313 and article 403 of the Civil Code), and to subcontractors - responsibility for non-fulfillment or improper fulfillment by the customer of his obligations under a construction contract (Article 706 of the Civil Code).

So, in one of the cases, the subcontractor applied to court of Arbitration with a claim for the recovery of the cost of work from the general contractor, as well as interest for the use of other people's funds (Article 395 of the Civil Code). The general contractor did not recognize the claim, referring to the fact that non-payment for the work performed by the subcontractor occurred due to the lack of Money at the customer. The arbitration court did not agree with the objections of the general contractor and satisfied the claims, referring to the fact that the contractor, unless otherwise provided by law or the contract, has the right to involve subcontractors in the performance of its obligations. However, in this case, he is liable for non-fulfillment or improper fulfillment by the customer of obligations under the work contract to the subcontractor. Since the fact that the subcontractor performed the work and their cost were confirmed by the case materials and were not disputed by the parties, the subcontractor reasonably demanded that the general contractor pay for the work performed, regardless of whether the customer had settled with the general contractor (See clause 9 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 24 January 2000, No. 51 "Review of the practice of resolving disputes under a construction contract."

Contents of a building contract

The essential terms of a construction contract are the terms:

1. 1. about the subject;
   2. about the price;
   3. about the term;
   4. on the composition and content of technical documentation, as well as the deadline for its provision by a particular party.

Subject of the building contract

Construction contract price

The construction contract may also provide for other obligations of the customer to ensure that the contractor performs construction work, in particular:

• • on the transfer to the contractor for use of the buildings and structures necessary for the performance of work;
  • ensuring the transportation of goods to the contractor;
  • temporary connection of power supply networks, water and steam pipelines to land plot where construction work is being carried out;
  • provision of other services to the contractor in the course of construction work.

The distribution of obligations between the parties to a construction contract to provide construction with materials and equipment is regulated in a special way (Article 745 of the Civil Code). These obligations may be assigned by the contract to either party or to both parties, indicating specific types of materials (parts, structures), as well as equipment, which must be provided by the customer and the contractor, respectively. In order to streamline the relationship of the parties in paragraph 1 of Art. 745 of the Civil Code includes a provision establishing a presumption: the obligation to provide construction with materials or equipment is borne by the contractor, unless the construction contract provides that the construction in whole or in a certain part is provided by the customer.

The party responsible for providing the construction with materials and equipment is liable for the discovered impossibility of using the materials or equipment provided by it without deteriorating the quality of the work performed, unless it proves that the impossibility of using them arose due to circumstances for which the other party is responsible. In cases where the obligation to provide construction materials and equipment is assigned to the customer and the latter provided materials and equipment of inadequate quality, thereby making it impossible to use them without deteriorating the quality of the work performed, he must, at the request of the contractor, replace the relevant materials and equipment. If the customer does not fulfill this requirement of the contractor, the latter has the right to refuse the construction contract (i.e., terminate it in unilaterally) and require the customer to pay the price of the contract in proportion to the part of the work performed.

Responsibilities for the implementation of construction work under a construction contract are assigned to the contractor. The contractor must build the facility provided for by the construction contract, or perform other construction work within the time period established by the contract.

In accordance with Art. 708 of the Civil Code, the start and end dates for the performance of work are indicated in the contract, and by agreement of the parties, the contract may also provide for the completion of individual stages of work (interim dates). It can be seen from this norm that, in relation to any work contract, and, consequently, to a construction contract, which is its separate type, the condition on the initial and final deadlines for the performance of work by the legislator is given the value of an essential condition of the contract. Judicial arbitration practice also proceeds from the fact that a construction contract is considered not concluded if it does not contain a condition on the term for the performance of work.

Example

Thus, the general contractor applied to the arbitration court with a claim to recover from the customer the fine established by the construction contract for the delay in the transfer of technical documentation for the performance of work. Objecting to the stated claim, the defendant referred to the fact that since the contract does not contain a condition on the term for the performance of work, it is considered not concluded. The court, refusing to satisfy the claim, also indicated that the condition on the deadline for completion of work is an essential condition of the contract, and it was absent in this contract, and therefore it should be considered not concluded (Article 432 of the Civil Code). Therefore, the customer did not have an obligation to transfer the documentation, therefore, the penalty established by this agreement is not recoverable (See clause 4 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 24, 2000 No. 51).

The work performed by the contractor under the construction contract is carried out on the basis of the customer's assignment. However, this circumstance does not deprive the contractor of independence in organizing the performance of work and in choosing the method of carrying out the work. Even granting the customer certain powers to supervise and control the progress of work does not infringe on the independence of the contractor.

When carrying out work on the construction of an object or other construction work provided for in a building contract, the contractor must comply with numerous public law requirements established by applicable law.

The contractor, in the course of carrying out work under a construction contract, is prohibited from using materials and equipment provided by the customer, or following the instructions of the latter, if this may lead to a violation of the requirements for environmental protection and safety of construction work that are mandatory for the parties (clause 2 of article 751 of the Civil Code) .

The person carrying out the construction is also obliged to provide access to the territory where the construction, reconstruction or overhaul object, representatives of the developer or customer, state construction supervision authorities, provide them with the necessary documentation, conduct construction control, ensure the maintenance of as-built documentation, notify the developer or customer, representatives of state construction supervision authorities about the deadlines for completion of works that are subject to verification, ensure the elimination of identified shortcomings and not to proceed with the continuation of work until the drawing up of acts on the elimination of identified shortcomings, to ensure control over the quality of the building materials used.

In the course of construction work, it may be necessary to conserve construction, including for reasons beyond the control of the parties to the contract (natural disaster, termination of construction financing, refusal of investors to fulfill their obligations, etc.). The consequences of the conservation of construction are provided for in Art. 752 GK. In this case, the customer is obliged to pay the contractor in full for the work completed until the moment of conservation, as well as to reimburse the costs caused by the need to stop work and the conservation of construction, taking into account the benefits that the contractor received or could receive as a result of the termination of work. The agreement of the parties, usually concluded in connection with the mothballing of construction, may provide for the obligation of the contractor, after the cancellation of mothballing, to renew the building contract on the same or other terms and continue the construction of the facility or other construction work.

control and supervision of construction works

The customer in the construction contract is endowed with very broad powers to control and supervise the actions of the contractor to fulfill the obligations arising from this contract (Article 748 of the Civil Code). These powers include the ability to check the progress and quality of work performed, including compliance with the deadlines for their implementation (work schedule), the quality of materials provided by the contractor, as well as the correct use of materials provided by the customer.

With the control and supervision carried out by the customer over the progress and quality of the work performed (more precisely, with their result), not only rights are associated for the customer, but also certain obligations. If, in the course of an appropriate audit of the contractor’s activities, any deviations from the terms of the construction contract that may worsen the quality of work, or other shortcomings, are discovered, the customer is obliged to immediately notify the contractor about this. If this is not done, the customer subsequently loses the right to refer to the shortcomings discovered by him.

The ability of the customer to give the contractor binding instructions based on the results of control and supervision over the performance of work is limited by the fact that they should not contradict the terms of the construction contract. In addition, the obligation of the contractor to fulfill the instructions of the customer received in the course of construction extends only to those instructions of the latter that do not constitute interference in the contractor's operational and economic activities. As a general rule, the exercise of control and supervision over the performance of work under a construction contract is the right of the customer: in accordance with paragraph 4 of Art. 748 of the Civil Code, a contractor who has improperly performed work is not entitled to refer to the fact that the customer did not exercise control and supervision over their implementation.

The only exceptions are cases where the obligation to exercise control and supervision over the progress and quality of work performed is assigned to the customer by law. So, according to part 4 of Art. 53 of the Town Planning Code, the contractor and the customer in the process of construction, reconstruction, overhaul should monitor the performance of work that affects the safety of the capital construction object. They should also monitor the safety of building structures and sections of engineering and technical support networks, if the elimination of identified in the process building control shortcomings is impossible without dismantling or damaging other building structures and sections of engineering and technical support networks, for the compliance of these works, structures and sections of networks with the requirements technical regulations and project documentation. Based on the results of monitoring the performance of these works, certificates of examination of works, structures, sections of engineering and technical support networks are drawn up.

In order to exercise control and supervision over construction, the customer may engage an engineer (engineering organization) by concluding an agreement with him on the provision of appropriate services to the customer. In this case (an engineering organization) acts on behalf of the customer, including in relations with the contractor (Article 749 of the Civil Code).

cooperation between the parties to the construction contract

A characteristic feature of a construction contract is the inclusion in its content of obligations for the cooperation of the parties. According to paragraph 1 of Art. 750 of the Civil Code, in cases where obstacles to the proper execution of a construction contract are found during construction and related work, each of the parties is obliged to take all reasonable measures in its power to eliminate such obstacles.

Specificity legal nature obligations for cooperation of the parties in the construction contract lies in the fact that they represent an element of the joint activity of the customer and the contractor aimed at a common goal - the construction, reconstruction or overhaul of a capital construction object. An assessment of the circumstances that may be recognized as obstacles to the proper execution of a construction contract, as well as the measures that each of the parties to the agreement must take to eliminate the relevant obstacles, can only be carried out on the basis of the principles of reasonableness, good faith and fairness.

In this case, the party that has not fulfilled its obligation to take reasonable measures depending on it to eliminate the relevant obstacles, loses the right to compensation for losses caused by the fact that these obstacles were not eliminated. Judicial arbitration practice proceeds from the fact that non-fulfillment by a party under a construction contract of an obligation to cooperate may be taken into account when applying measures of liability for non-fulfillment of a contractual obligation.

Thus, the customer applied to the arbitration court with a claim to recover from the contractor a penalty fee for the delay in completing work under a contract for the construction of a residential building. The contractor, objecting to the claim, referred to the fact that all the construction and finishing works of the house were completed on time, but the customer does not accept the results of the work, since the house is not connected to the water and heat supply system, which cannot be done, since the city administration refuses to temporarily turn off the supply of heat and water in order to connect the house's communications to the citywide resource supply system. During the consideration of the case, it was established that letters were repeatedly sent to the customer, the municipal enterprise for the operation of housing, with a request to assist in obtaining permission for these works and coordinating their schedule, which were left unanswered. The customer was invited to meetings with the city authorities, where the issue of the possibility of changing the method of connecting the facility was discussed, but did not attend them. Since the contract provided for the participation of the customer in the development of a schedule for the production of work on connecting the house to city communications and in obtaining permission from the city administration to temporarily disable the relevant communications, his failure to fulfill his obligations to cooperate was the only reason why the contractor did not put the object into operation. The arbitration court rejected the customer's arguments that the obligation to connect the facility was assigned to the contractor, and dismissed the claim (See paragraph 17 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 24, 2000 No. 51).

delivery and acceptance of the results of work

The customer, having received the contractor's message about the readiness for the delivery of the work performed, must immediately begin to accept their result. The customer is obliged to organize and carry out the acceptance of the result of work at his own expense, unless otherwise provided by the construction contract. In acceptance of the result of work performed Both parties must be involved contracts: the customer and the contractor, and in cases provided for by law, also representatives of state bodies and local governments.

Delivery by the contractor and acceptance of the result of work by the customer are drawn up by an act which must be signed by both parties. If one of the parties refuses to sign the act of acceptance of the result of the work, then this is noted in the act, which in this case is signed by only one party. Such a unilateral act of acceptance of the result of work does not lose its legal significance and can be recognized by the court as invalid only if the court recognizes the motives for the refusal of one of the counterparties under the construction contract to sign the act are justified. At the same time, it should be taken into account that the customer has the right to refuse to accept the result of the work only if such shortcomings are found that exclude the possibility of its use for the purpose specified in the construction contract and cannot be eliminated by the contractor or customer.

In some cases, the acceptance of the result of the work must be preceded by preliminary tests. The obligation of the parties to carry out such preliminary tests may be provided for by law or contract, or arise from the very nature of the work performed. In such cases, acceptance of the result of the work performed can be carried out only with a positive result of these tests (clause 5, article 753 of the Civil Code).

For those construction contracts that provide for intermediate deadlines for the implementation of individual stages of work, the rules on the consequences of accepting the result of a separate stage of work by the customer (clause 3 of article 753 of the Civil Code) are of particular importance. Acceptance by the customer of a separate stage of work entails the transition to it and the risk of the consequences of loss or damage to the accepted result, which occurred through no fault of the contractor. This rule will not apply if the construction contract, which does not contain conditions for the customer to accept certain stages of work, provides for the preparation of interim acts that record the amount of work actually performed by the contractor in order to further finance construction. The signing of such interim work acceptance certificates does not mean the transfer to the customer of the risk of the destruction of the object.

The delivery by the contractor and the acceptance by the customer of the real estate object built under the construction contract give grounds for the customer to raise the question of state registration ownership of the relevant property (Article 219 of the Civil Code). In the same manner, the customer acquires the right of ownership to the unfinished construction object in the event of early termination of the construction contract.

payment for work performed

Payment for the work performed by the contractor under a construction contract is made by the customer in the amount determined by the estimate, on time and in the manner prescribed by law or the contract (clause 1 of article 746 of the Civil Code). As a general rule, Art. 711 of the Civil Code, the customer must pay for the work performed by the contractor after the final delivery of the result of the work performed to him and on condition that the work is performed properly and within the agreed time. The construction contract may provide for advance payment for the work or its individual stages or payment by the customer of advance payments. Thus, the parties to the construction contract are given the opportunity to determine themselves both the price ( estimated cost works), as well as the procedure for its payment. In this case, the contract may indicate both the price of the work and the methods for determining it..

Thus, the contractor applied to the arbitration court with a claim to recover from the customer the cost of the work performed on the basis of an act signed by both parties. The plaintiff referred to the fact that a specific price of work was established in the contract based on the basic level estimated prices and application in the calculation of current indices of cost indicators determined by the regional center for pricing on the day of delivery of work. The specific type of indices was specified in the work acceptance certificate signed by the customer. Objecting to the claim, the customer expressed the opinion that the use of indices should be formalized as an addition to the contract, and since this was not done, their use in calculations is illegal. As the court found, the contract determined that the price of the work consists of two parts: the estimated price, expressed as a specific amount, and the variable, expressed by the current value index. Consequently, the method for determining the price is agreed in a form that allows it to be calculated without additional approvals, which is confirmed by the absence of disagreements between the contractor and the customer for a long time on the cost of work when making intermediate payments. The contract does not establish that each change in the recommended price index requires a corresponding amendment to the terms of the contract regarding the cost of work, therefore the claim was subject to satisfaction in the amount determined by the contractor (see clause 6 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 24, 2000 No. 51 ).

Risks in a construction contract

The distribution of risk between the parties to a construction contract is governed by mandatory rules. According to paragraph 1 of Art. 741 of the Civil Code, the contractor bears the risk of accidental loss or accidental damage to the construction object that is the subject of the construction contract until the acceptance of this object by the customer.

At the same time, in cases where the construction object, prior to its acceptance by the customer, died or was damaged due to the poor quality of materials or equipment provided by the customer for construction or the execution of erroneous instructions from the customer, the contractor has the right to demand payment of the entire estimated cost of work. With the general presumption of placing the risk of accidental loss or accidental damage to the construction object on the contractor, the burden of proving these circumstances obviously lies with the contractor.

In addition, in order to receive payment for the entire estimated cost of construction work under these circumstances, the contractor must also prove that, having discovered the unsuitability or poor quality of materials or equipment provided by the customer, or the possibility of adverse consequences for the customer, following his erroneous instructions, he immediately warned the customer about This suspended the work on the construction of the facility. Otherwise, these circumstances cannot serve as a basis for the contractor's claim to pay him the cost of the completed construction work (clause 2 of article 741, clause 1 and 2 of article 716 of the Civil Code).

With regard to the risk of accidental loss or accidental damage to materials, equipment and other property used for the performance of a construction contract, the general provision that such risk shall be borne by the party that provided the relevant property shall apply, unless a different procedure for allocating the risk is provided for by the contract. 1 article 705 of the Civil Code).

However, in the event of a delay in the delivery of the construction object, admitted by the contractor, in addition to the risk of accidental loss or accidental damage to the construction object, as well as materials, equipment and other property belonging to the contractor, the risk of accidental loss or damage to property provided by the customer will be imposed on him. And vice versa, in case of delay in acceptance of the construction object by the customer, he will bear the risk of accidental loss or accidental damage to both the construction object itself and materials, equipment and other property provided by the contractor (paragraph 2 of article 705 of the Civil Code).

All listed risks can be covered by insurance. The obligation of the party bearing the corresponding risk to insure it may be stipulated by the construction contract. By agreement of the parties, the construction contract may also provide for the obligation of the contractor to insure the risk of liability for causing harm to other persons during construction (paragraph 1 of article 742 of the Civil Code). Such insurance is carried out primarily in favor of those persons who may be harmed, and in their interests. When insuring the specified liability on the basis of the relevant terms of the construction contract, the costs of the insured (contractor) for the payment of insurance premiums to the insurance organization may be included in the total estimated cost of construction. The insurance does not release the respective party to the contract from the obligation to take the necessary measures to prevent the occurrence of insured event(Clause 2, Article 742 of the Civil Code). The party in whose favor the insurance has been carried out retains the opportunity to recover from the counterparty the amount of losses not covered by the insurance indemnity.

Liability for violation of a construction contract

Violation of the terms of the construction contract both by the contractor and by the customer entails for the party that committed the violation the application of the general rules on liability for non-performance or improper performance of an obligation and, above all, the obligation to compensate for losses caused to the counterparty as a result of a breach of the contract.

For the contractor, the fulfillment of an obligation arising from a building contract in all cases associated with the implementation of entrepreneurial activities. Therefore, unless otherwise provided by law or the contract, the only grounds for relieving the contractor from liability for violation of the contract may be the impossibility of the proper performance of the obligation due to force majeure (clause 3 of article 401 of the Civil Code) that he has proved. Similarly, the responsibility of the customer, who participates in the construction contract in the course of entrepreneurial activity, is built.

In cases when acting as a customer non-profit organization , not pursuing entrepreneurial goals, such a customer is liable for violation of a construction contract only if he is guilty of the violation, but on condition that the burden of proving the absence of guilt lies with the customer (clauses 1 and 2 of article 401 of the Civil Code).

Contractual Quality Assurance Formula is expressed by the following norm: the contractor, unless otherwise provided by the construction contract, guarantees the achievement by the construction object of the indicators specified in the technical documentation and the possibility of operating the facility in accordance with the construction contract during the warranty period provided for by the contract (clause 1 of article 755 of the Civil Code).

Thus, a characteristic feature of the procedure for holding the contractor liable for the shortcomings of the construction work object is presumption of contractor's liability for all defects found within the warranty period, placing on the latter the burden of proving the existence of circumstances determined by law, which alone can serve as a basis for exempting the contractor from liability.

In cases where the construction contract does not establish a warranty period for the result of construction work (i.e. there is no contractual quality guarantee), we can talk about a legal quality guarantee. By virtue of such a guarantee, claims related to defects in the result of the work may be presented by the customer, provided that they were discovered within a reasonable time, but within five years from the date of transfer by the contractor of the result of the work to the customer. However, in this case, the burden of proving the existence of circumstances that may serve as grounds for the responsibility of the contractor lies with the customer: the contractor is liable if the customer proves that the relevant shortcomings arose before the transfer of the result of the work to the customer or for reasons that arose before that moment (clause 2 and 4, article 724, article 756 of the Civil Code).

Violation of a construction contract in the form of inadequate quality of construction work, in addition to compensation for losses and payment of a penalty, may entail other negative consequences for the contractor, which, however, do not relate to measures of property liability. In cases where the work was performed by the contractor with deviations from the work contract that worsened the result of the work, or with other shortcomings that make it unsuitable for the use stipulated in the contract or for normal use, the customer has the right, at his choice, to demand from the contractor:

• • gratuitous elimination of deficiencies within a reasonable time;
  • commensurate reduction of the price established for the work;
  • reimbursement of their expenses for the elimination of deficiencies, when the right of the customer to eliminate them is provided for by the contract.

Concerning responsibility of the customer , then it is built according to the general rules on civil liability for non-fulfillment or improper fulfillment of obligations, taking into account the fact that the main obligation of the customer is to pay for the result of the completed construction work, the delay in the performance of which entails the payment of interest for the unlawful withholding of other people's funds (Art. 395 GK).

2.5

1. The concept and types of capital construction

Capital construction is the activity of state bodies, local governments, individuals and legal entities, aimed at creating new and modernizing existing fixed assets of production and industrial purpose. It is one of the most important industries material production, the basis for the development of all its other branches, serves as the main source of expanded reproduction. Capital construction as one of the branches of material production also includes activities for the implementation of design and survey work, the preparation of technical documentation necessary for the implementation of construction, installation, commissioning and other special capital works.

Construction is a set of buildings and structures, the construction of which is carried out on one or more construction sites on a single project. A construction object is each separate building or structure (with all equipment, tools and inventory related to it, galleries, flyovers, internal engineering networks etc.), for which a separate project and estimate were drawn up.

The types of capital construction are new construction (new building), expansion, reconstruction and technical re-equipment of existing enterprises, buildings and structures, i.e. their modernization.

New construction - the construction of a complex of objects of newly created enterprises, buildings and structures, individual industries that are being built on new construction sites and after commissioning will be on an independent balance sheet, i.e. there is a new organization - a legal entity.

Expansion of existing enterprises - the construction of additional production facilities, new separate workshops and facilities on their or adjacent territory, or the implementation of work to expand such workshops and facilities already existing at enterprises. This type of capital construction also includes the construction of branches and production facilities of existing enterprises, which, after commissioning, will not be on an independent balance sheet.

Reconstruction of existing enterprises - the reorganization of existing workshops and facilities associated with the improvement of production and an increase in its technical and economic level based on the achievements of scientific and technological progress. Such reorganization is carried out according to a complex project for the reconstruction of the enterprise as a whole, and, as a rule, without expanding existing buildings and structures.

Technical re-equipment of existing enterprises - a set of measures to improve the technical and economic level of individual industries, workshops and sites. It is carried out according to projects and estimates for individual facilities or individual types of work, and, as a rule, without expanding production capacity.

Depending on whether capital construction is being carried out on the developer's own resources or third-party specialized construction, installation and other organizations of the construction profile are involved, there are three construction methods:

• contract method, when construction is carried out with the involvement of specialized construction, installation and other organizations of the construction profile;
• economic method, when construction is carried out by the developer's own forces;
• a mixed method, when one part of the work is carried out by the developer's own resources (usually these are general construction works for the construction of buildings and structures), and the other part is carried out by third-party specialized organizations (sanitary and electrical work, installation of technological equipment, etc.).

The main method of capital construction is contracting. Work in this way is carried out under a construction contract.

2. The concept of a construction contract

The terms of the contract shall remain in force during the entire term of the contract. In cases where, after the conclusion of the contract, the legislation establishes conditions that worsen the position of at least one of the parties, the contract may be amended.

Conclusion and execution of a construction contract

1. Conclusion of a construction contract

Preliminary development and approval in the prescribed manner of certain documents binding on both parties, the availability of which is necessary for concluding a construction contract (the so-called planned prerequisites or grounds for concluding a contract), is not provided for by the current legislation. As noted above, the conclusion of the contract, the choice of the counterparty and the determination of the terms of the contract (which do not contradict the law) are referred by law to the competence of the parties to the contract.

However, for the contract to be valid, the parties must first obtain certain documents. For the customer - a building permit issued by the local government, and for the contractor - a license (permit) to carry out construction activities.

According to this Temporary Regulation, the object is presented by the contractor for acceptance after completion of all work on the object stipulated by the contract. Acceptance of completed construction objects is carried out by the customer or another person authorized by the investor. The customer may involve the user of the object (operating organization), developers of technical documentation, specialized organizations and other legal entities and individuals in the acceptance, creating, if necessary, a selection committee.

Acceptance for operation of industrial facilities, the construction of which is carried out at the expense of the federal budget, is carried out taking into account the industry specifics established by the ministries of the Russian Federation and other federal executive authorities in agreement with State Committee of the Russian Federation for construction and housing and communal services, state acceptance committees appointed by these bodies. The executive authorities of the constituent entities of the Russian Federation may establish, in agreement with the said State Committee, the specifics of the procedure for accepting objects in the respective territories.

Production facilities, the construction of which is carried out at the expense of funds federal budget, are subject to acceptance only when they are prepared for operation and the production of products (performance of work, provision of services) has begun on the installed equipment in the amount stipulated by the construction contract.

Acceptance of a completed construction facility is formalized by an act, the form of which (sample) is given in Appendix 1 to the Temporary Regulations for the Acceptance of Completed Construction Objects. The acceptance certificate is the basis for the final payment for all work performed by the contractor under the contract.

Payment for the work performed by the contractor is made by the customer in the amount provided for by the estimate, on time and in the manner established by law or the contract. In the absence of relevant instructions in the law or the contract, payment for the work is made after the final delivery of the result of the work.

This form of payment is the most progressive and beneficial for the customer. In this case, the contractor is interested in the end result of his activity, which is reduced or completely lost during gradual, phased or, for example, monthly payment the work actually done by them. However, the significant cost and duration of capital construction requires advance payment of the contractor's activities, and he has the right to demand payment of an advance payment or a deposit only in cases and in the amount specified in the law or contract (clause 2 of article 711 of the Civil Code). Therefore, the payment procedure agreed upon by the parties, taking into account their mutual interests, is an important means of effectively organizing their relationship.

4. Features of the contract for the construction of turnkey facilities

Such an agreement is concluded between the customer and the contractor (general contractor) and provides for the latter to complete the cycle: design, construction, installation and special construction works, commissioning of the facility.

The main responsibility of the customer is to provide the general contractor with documentation on the basis of which the object is being designed: development projects for microdistricts, quarters, urban complexes, villages and rural settlements; approved feasibility studies for the construction of industrial facilities and large public buildings and structures, etc.

The main responsibilities of the general contractor include:

• ensuring the development of the construction part of the design and estimate documentation on their own or under an agreement with design organizations;
• ensuring timely and high-quality performance of construction, installation and other special construction works;
• completing facilities with equipment, structures and materials; Ensuring the commissioning of the facility within the period stipulated by the contract, etc.

The cost of work under the contract is determined by agreement of the parties. The costs of the general contractor until the object is handed over to the customer are covered by his own funds and received bank loans.

The customer settles accounts with the general contractor after signing the object acceptance certificate. The general contractor makes final settlements with subcontractors after they complete the work packages in accordance with the price established at the conclusion of the subcontract.

Thus, in this contract, the contractor assumes all responsibilities for the organization and provision of construction, freeing the customer from them. On the latter, in fact, there remains only the obligation to pay for the result of the work, and only after its acceptance (without advance payment). Therefore, a contract for the construction of turnkey facilities is considered one of the most progressive forms of capital construction.

5. Property liability for violation of the terms of the construction contract

Such liability can be established both in a contractual manner, i.e. by agreement of the parties, and normative order, i.e. prescribed by law or other legal acts. It occurs in accordance with the general provisions on civil liability for breach of obligations: the debtor is obliged to compensate the creditor for losses caused by non-performance or improper performance of obligations. Losses are understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (actual damage), as well as lost income that this person would have received under normal conditions of civil circulation, if his right was not violated (lost profit) (Article 15, 393 of the Civil Code). Since the parties to a construction contract are usually entrepreneurs, this responsibility arises regardless of whether the parties are guilty of non-performance or improper performance of contractual obligations (clause 3 of article 401 of the Civil Code). If the construction contract for non-fulfillment or improper fulfillment of contractual obligations provides for the collection of a penalty (fine, penalty), the damages shall be recovered minus this penalty. But the contract may provide otherwise: the recovery of only the penalty, the recovery of losses in the full amount in excess of the penalty, the recovery of either the penalty or damages.

The application of measures of property liability to the counterparty in the event of a violation by him of obligations under a construction contract is a right, not an obligation, of the injured party.

Along with the civil liability of the parties to a construction contract for violation of its terms, construction legislation also provides for administrative liability for violations in the field of construction. Such responsibility is established by the Law of the Russian Federation of December 17, 1992 "On the administrative responsibility of enterprises, institutions, organizations and associations for offenses in the field of construction."

In accordance with paragraph 1 of Art. 2 of this Law, enterprises, institutions, organizations and associations, regardless of their departmental affiliation and forms of ownership, for violations of the mandatory requirements of regulatory acts in the field of construction in the performance of design, construction and installation works, in the production of building materials, structures and products, resulting in a decrease in the strength parameters of the products building materials, structures and products, reduction or loss of strength, stability, reliability of buildings, structures, structures, their parts or individual structural elements, are subject to an administrative fine. The amount of fines for various offenses is determined in fixed sums, which were indexed several times by decrees of the Government of the Russian Federation.

6. Modification and termination of a building contract

A change in the content of the contract may take place, for example, when the customer makes changes to the technical documentation for the construction object (it determines the volume, content of work and other requirements for the construction object), entailing additional work at a cost exceeding 10% specified in estimate of the total cost of the work. The introduction of such changes in the technical documentation is carried out on the basis of an additional estimate agreed by the parties (paragraphs 1, 2 of article 744 of the Civil Code).

Termination (cancellation) of a construction contract may take place for various reasons. They can be conservation or complete cessation of construction, systematic violation by the contractor of the deadlines for the implementation of construction and installation works or their poor quality, systematic violation by the customer of obligations stipulated by the contract, recognition of the customer as insolvent (bankrupt) in the prescribed manner, etc. In addition, the customer (investor) has the right to terminate or suspend the contract at any time with compensation to the contractor for the losses caused by this, including lost profits.

Termination or suspension of capital construction (hence, the operation of a construction contract) is also possible by decision of the competent state body in cases of natural disasters and other manifestations of force majeure, the introduction of a state of emergency, if during the construction process it turned out that its continuation would lead to a violation of the established laws sanitary-hygienic, environmental and other norms, legally protected rights and interests of citizens, legal entities and the state.

Contract for the performance of design and survey work

1. Design and surveys for capital construction

Design for capital construction - the process of creating a project for a capital construction object, is one of the stages of the investment process in the field of capital construction.

Surveys for capital construction - the process of preparing (in the course of a comprehensive study of the natural conditions of the area, site, section, route of the projected construction, local building materials and water supply sources) materials necessary for the development of economically viable and technically sound solutions for the design and construction of facilities.

Technical documentation (or construction project) - a set of documents, including feasibility studies, drawings, explanatory notes and other materials that determine the scope and content of work on the construction site, as well as other requirements for these works.

Design estimates are materials prepared as a result of the development of technical documentation and estimates for the construction site. Construction without the availability of design and estimate documentation is not allowed.

Design can be carried out in one or two stages. When designing in one stage, a detailed design is developed with a summary estimate of the cost of construction. When designing in two stages, a project is first developed with a summary calculation of the cost of construction (first stage), and then - working documentation(second stage), compiled on the basis of the project after its approval in the prescribed manner. Design in two stages is carried out in the construction of technically complex facilities and in complex natural conditions construction.

The legal form of mediation of relations for the development of the relevant design and estimate documentation is a contract for the performance of design and survey work.

As in contractual relations for a construction contract, the conclusion of an agreement for the performance of design and survey work, the choice of a partner (counterparty), the definition of obligations, any other conditions of the relationship that do not contradict the law, is the exclusive competence of the parties to the agreement, and the main legal document, regulating the production, economic and other relations of the parties, along with the current legislation, is the agreement concluded by them (Article 7 of the Law on Investment Activities).

2. Elements and content of the contract for the performance of design and survey work

The parties to the contract for the performance of design and survey work are the customer and the contractor (designer, prospector). They may be the same persons as under the construction contract. However, the contractor under the mentioned contract can also act as a customer in cases where the obligation to develop the relevant technical documentation lies with him, and he does not have the opportunity to perform such work on his own.

In relation to design and surveys for capital construction, especially in the presence of a significant number of design and survey organizations, designers and surveyors - individual entrepreneurs, it is important to protect customers from the production of low-quality design and estimate documentation. The institution of licensing serves to achieve this goal - the issuance of permits (licenses) for the performance of special types of work that require appropriate certification of the contractor. The list of such types of work and the procedure for issuing licenses is determined by law (clause 2, article 6 of the Law on Investment Activities).

For the contract for the performance of design and survey work, as well as for the construction contract, the system of general contracting is typical: the contract for the performance of the entire range of design and survey work is concluded by the customer with the leading design organization - the general contractor, who, in order to perform certain types of design and survey work , sections and parts of technical documentation concludes subcontract agreements with specialized design and survey organizations. For the performance of certain types of work, sections or parts of technical documentation, the customer has the right, with the consent of the contractor, to conclude direct contracts.

The subject of the contract for the performance of design and survey work is the result of the work of the contractor (designer, surveyor). For design organizations, this is the design and estimate documentation (its part, section) made on the instructions of the customer (general designer), necessary for the implementation of construction and installation works, and for survey organizations - materials received on the instructions of the customer (general designer) necessary for the correct and economically expedient solution of the main issues of design (production of design estimates), construction and operation of enterprises, buildings and structures. The design task, as well as other initial data necessary for the preparation of technical documentation, are usually developed by the customer and transferred to the contractor. But the assignment for the execution of design work can also be prepared by the contractor on behalf of the customer. In this case, the task becomes binding on the parties from the moment it is approved by the customer. The contractor has the right to deviate from the requirements contained in the design assignment and other initial data only with the consent of the customer (Article 759 of the Civil Code).

The contract for the performance of design and survey work indicates the subject of the contract (the name of the project documentation, requirements for its quality and technical level), the composition and content of the design and estimate documentation, the term of the contract, the terms of development and stages of issuance of documentation, the price, the procedure for delivery and acceptance of documentation, property liability of the parties for violation of the terms of the contract, other essential conditions that ensure the interests of the parties.

As noted above, the determination of the terms of the contract by law is within the competence of the parties, but they should not contradict the current legislation. So, by virtue of paragraph 1 of Art. 6 of the Law on Investment Activities, the parties are obliged to comply with the norms and standards, the procedure for establishing which is determined by law. Therefore, for example, when determining the composition and content of the design and estimate documentation to be developed, the parties are obliged to be guided by the requirements of sanitary, environmental and other standards established by law, comply with uniform rules for the preparation of documentation, etc.

The price for the technical documentation to be developed is negotiated at the conclusion of the contract. The customer and the contractor (designer, prospector) are involved in its establishment, regardless of the form of ownership their activities are based on. The excess of costs in comparison with the price stipulated by the contract, allowed by the contractor without agreement with the customer, is compensated by the designer, prospector at his own expense.

The terms of the contract shall remain in force for the entire duration of the contract. In cases where, after its conclusion, the legislation establishes conditions that worsen the position of the parties, the contract may be amended (clause 2, article 7 of the Investment Activity Law).

3. Conclusion and execution of a contract for the performance of design and survey work

Work under a contract for the performance of design and survey work may be financed from the same funds as work under a construction contract. The contract for the performance of design and survey work is concluded at the discretion of the parties, their mutual agreement (Article 7 of the Law on Investment Activities). There are no "planned grounds" or "planned prerequisites" binding on both parties. The contract may be concluded for the performance of both the entire complex of works, and their individual stages, parts, sections. The procedure for concluding a contract for the performance of design and survey work is not defined. When concluding it, the parties are guided by the general provisions on the conclusion of the contract.

The contract for the performance of design and survey work is concluded in writing. There is no mandatory form of such an agreement for the parties. The parties have the right to draw up an agreement in a form arbitrarily developed by them. At the same time, they can use the form of a construction contract given in the above-mentioned Guidelines for drawing up a contract for construction in the Russian Federation (taking into account the specifics of a contract for design and survey work). The main obligation of the contractor (designer, prospector) is to perform the work stipulated by the contract within the time period established by it and in accordance with the design assignment and other initial data, in compliance with the requirements of regulatory and technical documents on design issues, including building codes and rules, that are mandatory for him , process design norms, standards and specifications on the Construction Materials, parts and designs, etc.

The contractor's responsibilities also include:

• coordination of the finished technical documentation with the customer, and, if necessary, together with the customer, its coordination with the competent state bodies and local governments;
• carrying out the defense of the completed technical documentation in the authority approving it;
• making, at the request of the approving authority and within the time limits set by it, changes to the technical documentation submitted for approval at no additional charge, if the requirements of the approving authority do not contradict the design assignment;
• making, without payment and within the time limits agreed with the customer, changes to the completed technical documentation related to the correction of errors made in it, etc.

The contractor has the right to transfer the completed technical documentation to third parties only with the consent of the customer.

The main obligation of the customer is to accept the technical documentation developed by the contractor (designer, prospector) in accordance with the terms of the contract and pay for it.

The customer is also obliged, unless otherwise provided by the contract:

• use the technical documentation only for the purposes stipulated by the contract, do not transfer it to third parties and do not disclose the data contained in it without the consent of the contractor;
• assist the contractor in the performance of design and survey work to the extent and on the terms stipulated in the contract;
• participate together with the contractor in coordinating the finished technical documentation with the relevant state bodies and local governments;
• reimburse the contractor for additional expenses caused by a change in the initial data for the performance of design and survey work due to circumstances beyond the control of the contractor;
• attract the contractor to participate in the case on a claim brought against the customer by a third party in connection with the shortcomings of the drawn up technical documentation or performed survey work.

4. Examination and acceptance of technical documentation

In accordance with the Decree of the Council of Ministers - the Government of the Russian Federation of June 20, 1993 "On the state examination of urban planning and design estimates", projects for the construction, reconstruction, expansion and technical re-equipment of enterprises, buildings and structures in the Russian Federation (hereinafter referred to as construction projects ) regardless of sources of funding, forms of ownership, prior to their approval, they are subject to state examination in the Main Directorate of State Non-Departmental Expertise under the State Committee of the Russian Federation for Construction and Housing and Communal Complex, organizations of state non-departmental expertise in the constituent entities of the Russian Federation, industry expert divisions of ministries and departments and others specially authorized bodies.

Such examination is carried out in accordance with the Procedure for conducting state examination of urban planning documentation and construction projects in the Russian Federation, approved by the State Construction Committee of Russia on October 29, 1993 on behalf of the Council of Ministers - the Government of the Russian Federation. The aforementioned resolution of the Council of Ministers - the Government of the Russian Federation established that:

• construction projects carried out at the expense of state capital investments financed from the republican budget of the Russian Federation are approved by the Gosstroy of Russia (currently - the State Committee of the Russian Federation for Construction and Housing and Communal Services) or in the manner established by it jointly with the interested federal ministries and departments ;
• construction projects carried out at the expense of capital investments financed from the budgets of the constituent entities of the Russian Federation are approved by their respective government bodies or in the manner established by them;
• construction projects carried out at the expense of own financial resources, borrowed and attracted funds of investors (including foreign investors) are approved directly by customers (investors).

Acceptance of technical documentation is formalized by an act. The form of such an act binding on the parties is not established by law; it is drawn up in an arbitrary form developed by the parties themselves. The act usually notes whether the technical documentation complies with the terms of the contract, gives a brief description of it, fixes the effectiveness of the technical documentation and on the basis of what it is determined, indicates the price stipulated by the contract, as well as the amount of the surcharge or discount to the price in percent, taking into account the fulfillment of the terms of the contract. Based on the stipulated price and the advance paid, as well as the amount of the allowance and discount, the act indicates the amount to be transferred to the contractor (designer, prospector). The final payment for fully completed technical documentation is made after its acceptance and confirmation by the customer of the compliance of design solutions with the technical and economic indicators established in the design assignment, with a positive conclusion of the examination.

5. Amendment, termination of the contract and property liability for violation of its terms

A change in the content of the contract for the performance of design and survey work may take place when the customer makes changes to the technical documentation, provided that the additional work caused by this exceeds ten percent of the total construction cost indicated in the estimate. In this case, an additional estimate agreed by the parties is drawn up.

The customer (investor) has the right to terminate the contract at any time with compensation to the contractor for the losses caused by this, including lost profits (clause 1, article 17 of the Investment Activity Law).

Cancellation (termination) of the contract is also possible at the initiative of any of the parties in the event of a systematic violation by the counterparty of contractual obligations with compensation by the guilty party to the other party for losses incurred in connection with the termination of the contract. The basis for terminating the contract is also the recognition of the customer as insolvent (bankrupt) in accordance with the established procedure.

The Civil Code contains instructions on the responsibility of only the contractor under this contract. He is responsible for the improper preparation of technical documentation and the performance of survey work, including deficiencies subsequently discovered during construction, as well as during the operation of the facility created on the basis of technical documentation or survey work data. If deficiencies are found in the technical documentation or in survey work, the contractor, at the request of the customer, is obliged to eliminate these deficiencies free of charge, as well as compensate the customer for the losses caused, unless otherwise provided by law or contract (Article 761 of the Civil Code).

Since in the Law on Investment Activity, as in other legislative acts, there are no special instructions on the responsibility of the customer under the contract for the performance of design and survey work, the customer for violation of the terms of this contract must be fully liable in accordance with the provisions of Art. 15, 393 GK. As noted above, the responsibility of the customer in full in the event of unilateral termination of the contract by him is provided for in paragraph 1 of Art. 17 of the Investment Activity Law.

State contract for the performance of contract work for state needs

1. The concept of a state contract for the performance of contract work for state needs

Under the state contract for the performance of contract work for state needs (hereinafter referred to as the state contract), the contractor undertakes to perform construction, design and other work related to the construction and repair of production and non-production facilities and transfer them to the state customer, and the state customer undertakes to accept the work performed and pay them or ensure their payment (clause 2 of article 763 of the Civil Code).

In accordance with the state contract, contracting, construction, design and survey work necessary to meet the needs of the Russian Federation or a subject of the Russian Federation. These works are financed at the expense of the relevant budgets and extrabudgetary sources.

Government contracts are intended for:

• implementation of federal and interstate targeted programs;
• development and creation of production potential in accordance with the objectives of the structural policy of the Government of the Russian Federation;
• development of a nationwide network of transport, energy, communications and environmental monitoring;
• construction of some of the largest and most important social and environmental facilities of national importance;
• development of fundamental and applied scientific research;
• maintaining required level defense capability and security of the country (clause 20 of the Procedure for the Procurement and Supply of Products for Federal State Needs, approved by Decree of the Government of the Russian Federation of June 26, 1995 N 594).

The fundamental norms on the state contract are contained in § 5 Ch. 37 of the Civil Code "Contract work for state needs". It is planned to adopt a special law on contracts for state needs. The main by-laws that regulate relations for the performance of contract work for state needs at the present time are:

Federal Law of May 6, 1999 "On tenders for placing orders for the supply of goods, performance of work, provision of services for state needs";

The main provisions of the procedure for concluding and executing state contracts (contracts of work) for the construction of facilities for federal state needs in the Russian Federation, approved by the Decree of the Council of Ministers - the Government of the Russian Federation of August 14, 1993 N 812 (hereinafter - the Basic Provisions). The parties to the state contract are the state customer and the contractor. The state customer is a state body that has the necessary investment resources, or an organization endowed with such resources by the relevant state body. Legal entities and citizens engaged in entrepreneurial activities can act as a contractor (Article 764 of the Civil Code).

2. Grounds and procedure for concluding a state contract

In accordance with Art. 765 of the Civil Code, the grounds and procedure for concluding a state contract for the performance of contract work for state needs is determined in accordance with the provisions of Art. 527 and 528 of the Civil Code, establishing the grounds and procedure for concluding a state contract for the supply of goods for state needs. The state contract is concluded on the basis of the order of the state customer for the performance of works for state needs, accepted by the contractor (clause 1 of article 527 of the Civil Code), and orders for the purchase of works for state needs are placed at auctions (competitions), unless otherwise expressly provided by federal laws and decrees of the President of the Russian Federation (clause 1 of the above-mentioned Decree of the President of the Russian Federation of April 8, 1997).

The procedure for organizing and holding such competitions is determined by the above-mentioned federal law on tenders for the placement of orders for state needs, the Regulations on contract tenders in the Russian Federation, approved by the order of the State Committee of the Russian Federation for State Property Management and the State Committee of the Russian Federation for Architecture and Construction dated April 13, 1993 N 660-r / 18- 7 and the Basic Provisions for the Organization and Conduct of Contract Bidding (Tenders) for the Construction of Facilities (Construction, Installation and Design Works) for State Needs, approved by the Gosstroy of Russia on May 6, 1997. Since the state contract for the performance of works for state needs is concluded on a competitive basis , its conclusion with the winner of the competition is mandatory (clause 4 of article 527 of the Civil Code). As for the winner of the tender, the conclusion of a state contract is obligatory for him only in cases established by law, and on the condition that the state customer will compensate for all losses that may be caused to the contractor in connection with the execution of the state contract. However, the condition on compensation for such losses does not apply to a state-owned enterprise (paragraphs 2, 3 of article 527 of the Civil Code). The procedure for concluding a state contract is as follows. The draft state contract is developed by the state customer (by agreement of the parties, such a project can be developed by the contractor). The contractor (or state customer) who has received the draft state contract, if he has no objections to the terms of the state contract, signs it no later than thirty days and returns one copy of the state contract to the other party.

If the party that received the draft state contract has objections to its terms, it shall draw up a protocol of disagreements within thirty days and send it along with the signed state contract to the other party or notify it of the refusal to conclude a state contract.

The party that received the state contract with the protocol of disagreements must, within thirty days, consider the disagreements, take measures to agree on them with the other party and notify the other party of the acceptance of the state contract in its wording or the rejection of the protocol of disagreements. If the protocol of disagreements is rejected or the specified period expires, unsettled disagreements under a state contract, the conclusion of which is mandatory for one of the parties, may be submitted by the other party no later than thirty days for consideration by an arbitration court. If the party, for whom the conclusion of a state contract is obligatory, evades its conclusion, the other party has the right to apply to the arbitration court with a demand to compel this party to conclude a state contract.

Since the state contract for the performance of contract work for state needs is concluded on a competitive basis, in accordance with paragraph 4 of Art. 528 of the Civil Code must be concluded no later than twenty days from the date of the competition.

Mandatory (essential) conditions of the state contract are the conditions:

• on the volume and cost of the work to be performed;
• about the dates of its beginning and end;
• on the amount and procedure for financing and payment for work;
• on ways to ensure the fulfillment of obligations (clause 1 of article 766 of the Civil Code).

Since the state contract is concluded on a competitive basis, these conditions, by virtue of paragraph 2 of Art. 766 of the Civil Code, must be reflected in the terms of the competition.

In the event that state bodies reduce the funds of the relevant budget allocated to finance contract work, the parties agree on new terms, and, if necessary, other conditions for the performance of work. At the same time, the contractor has the right to demand from the state customer compensation for losses caused by the change in terms (clause 1 of article 767 of the Civil Code).

In case of failure to meet the deadlines established by the state contract for the commissioning of enterprises, buildings, structures, launch complexes and queues, as well as individual facilities budget financing and preferential government lending their construction is suspended by the body that allocated these funds. The decision to complete the construction is made in the prescribed manner at the proposal of the state customer, agreed with the Ministry of Economy of the Russian Federation, the Ministry of Finance of the Russian Federation, the State Committee of the Russian Federation for Construction and the Housing and Communal Complex and other interested ministries and departments (clause 8 of the Basic Provisions).

The procedure for payment for the work performed is determined by clause 5 of the Basic Provisions.

The state customer allocates an advance payment to the contractor, ensures timely and continuous financing of construction. The size and timing of the advance payment, the procedure for its repayment, as well as the conditions for interim settlements for the work performed within 95 percent of their value are established at the conclusion of a state contract. If, through the fault of the contractor, the scope of work provided for by the schedule of their production, the amount of the presented interim payment for the actually performed work is reduced by the cost of the work not completed, or payments are delayed until the lag is eliminated.

The final settlement is made within a month after the acceptance of the facility as a whole or its turn, launch complexes, as well as individual buildings and structures, unless a different settlement period is provided for in the state contract.

In the event of a delay in the terms established by the state contract for the transfer of the advance payment, payment for the work performed and final settlements, the state customer shall reimburse the contractor for the losses caused as a result of this, including the costs of paying interest rate for a loan.

The state customer is responsible for the timely transfer of equipment for installation, if this obligation under the state contract is assigned to him. The amount of sanctions for the untimely transfer of equipment for installation is established at the conclusion of the contract (clause 7 of the Basic Provisions). The contractor, in case of violation through his fault of the deadlines established by the state contract for the commissioning of enterprises, buildings, structures, launch complexes and queues, as well as individual facilities, shall pay a fine in the amount of one thousandth of the cost of the work provided for by the state contract, for each day of delay until the actual completion construction (clause 9 of the Basic Provisions).