General requirements for the creation and functioning of a special procurement commission under 223-FZ

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Published: September 20, 2018

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The procurement commission is a panel of specialists created by customers in accordance with Federal Law-223 in order to solve certain problems. The direct question of the formation, operating procedure of the procurement commission, its functions and area of ​​responsibilities is not provided for.

• Purchasing commission: how is it appointed
• Composition of the commission and powers of its participants
• Functions and work procedure of the procurement commission, its rights and responsibilities
• Documentation of the work of the procurement commission
• Responsibility of commission members

What is it for?

In practice, controversial situations often arise when employees and employers interpret the rules of law and the procedure for their application differently. Quite often such disagreements develop into conflict. The creation of a CTS allows them to be resolved within the enterprise, without the involvement of third parties. Exceptions are cases when the resolution of disagreements is permitted by law only in court under Art. 391 of the Labor Code of the Russian Federation: for example, on reinstatement, on transfer, on refusal to hire, etc. This is the answer to the question why labor dispute commissions are formed - to resolve conflicts between the collective of workers or its members and the administration of the organization . Essentially, this is a body at the enterprise to whose help an employee resorts if he believes that his rights have been violated.

Functions and work procedure of the procurement commission, its rights and responsibilities

The regulations on the work of the procurement commission must contain its definition, a list of tasks to be solved, goals and functions assigned to it.

The purpose of forming a procurement commission is to determine the winner of the purchase, with whom the contract will be signed by the customer in the future.

To achieve this goal, the procurement commission is assigned the following functionality:

1. Reviewing applications from participants for compliance with notification and documentation requirements.
2. Selection of the procurement winner in accordance with the procedure specified in the procurement documentation.

The basic principle of the commission’s work is collegiality. It allows you to increase the objectivity of decisions made.

The purchasing commission may be vested by the customer with the following rights:

1. Make a decision to postpone the procedure.
2. Answer questions received from procurement participants regarding procurement documentation.
3. Request clarification regarding the provisions of applications from participants.
4. Involve experts to evaluate and select the winner.
5. Make a decision on admission or refusal of admission of a participant.
6. Correct errors in applications from participants in the prescribed manner.
7. Conduct negotiations with participants.
8. Make decisions about rebidding.
9. Analyze the received expert opinions and assessments from the participants.
10. Make a decision on selecting the winner of the procurement , refusing to carry out the procurement, or removing the participant from participation in the procurement.
11. Coordinate changes in contracts concluded based on procurement results.
12. Preliminary approval of notices and procurement documentation.
13. Make a decision to complete the procedure without choosing a winner.
14. Perform other functions provided for by regulations and organizational documents.

Stages of creation

Step 1. Initiative

Both an individual employee and a representative body have the right to take the initiative (Article 384 of the Labor Code of the Russian Federation). The representative body or manager who has received a written application for the creation of a CCC is obliged to send its representatives within 10 days to coordinate all issues with the initiator. This obligation is specified in Art. 384 Labor Code of the Russian Federation. To begin the procedures, a written proposal is required, on the basis of which an order is created. On the part of the employer, the CTS can be formed on the basis of an internal memo, for example.

Step 2. Determination of composition

The number of members is not defined by law; it is only stated that their number from both sides must be equal. In addition, the administration is obliged to provide the material and technical base for activities. Thus, labor dispute commissions consist of representatives of the administration and the representative body of the collective in equal shares (Article 384 of the Labor Code of the Russian Federation). The specific composition is determined by the decision of the employer and the trade union organization. In the order on creation, it is necessary to indicate the composition of the labor dispute commission by name.

Step 3. Issuing an order

The order is issued in a form approved by the organization; a unified form is not provided for such a case. In the text of the order, include all the details required for the administrative document:

• place and date of compilation;
• name, indication of the reason for publication;
• approved decisions: on the creation, appointment of personnel, allocation of premises and other material resources;
• composition by name indicating from whom a particular member is acting;
• manager's signature;
• a note on written familiarization of all members.

In connection with the receipt of a written proposal dated January 10, 2020 from the representative body of workers (trade union committee) of Status LLC on the creation of a CTS, in pursuance of the provisions of Art. 384 Labor Code of the Russian Federation

I ORDER:

1. Create a CTS LLC “Status” consisting of six people. Send on behalf of the employer to the CTS:

• Deputy Director for Commercial Affairs V.V. Trunov;
• Deputy Chief Accountant Osin I.I.;
• Head of the office management department Turin I.N.

2. The remaining composition of the commission shall be determined taking into account the opinion of the representative body of workers.

3. Provide an assembly hall for meetings. Provide the commission with all necessary information within one business day.

4. I reserve control over the execution of the order.

From employees:

• Minina G.I., engineer, deputy. chairman of the trade union committee;
• Kirsanov A.T., storekeeper, member of the trade union committee;
• Tarasyuk S.S., salesman, member of the trade union committee.

Director of Status LLC Klimov A.A. (signature)

The order has been familiarized (signatures of members of the CCC)

Purchasing commission: how is it appointed

According to Part 1 of Art. 2 FZ-223, when purchasing goods and services, customers must be guided not only by this law, but also by other legal acts: the Constitution, the Civil Code and other federal laws.

There is no direct indication of the need to create a procurement commission in 223-FZ. But the Civil Code has a corresponding article (447), which states that the winner of the competition can be a participant selected by decision of the commission. Therefore, at a minimum, when conducting procurement activities through a competition, such a commission should be created.

According to Part 2 of Art. 2 FZ-223, the procurement regulations are a document regulating the customer’s procurement, and which must contain procurement requirements, the procedure for preparing and conducting procurement procedures and the conditions for their application.

Thus, it is the Customer’s Regulations that must contain the regulations for procurement activities, the procedure for creating a commission and the requirements for its members (in particular, with regard to education and the number of members).

The commission can be created for various reasons . For example, from the perspective of the subject of procurement, it is permissible to create a separate commission for the procurement of inventory items or research work. From the point of view of the procurement procedure, there are: competitive, quotation, auction and other types of commission. From the point of view of the duration of the commission, a distinction is made between permanently functioning and temporary ones created for a specific purchase.

Procedure for consideration

The Labor Code of the Russian Federation does not separately regulate the competence of the commission on labor disputes (in general terms it is indicated in Article 385 of the Labor Code of the Russian Federation). But since it considers individual disputes, it is authorized to make decisions on the following issues:

• timely receipt of remuneration for work;
• payment of earnings in full;
• bringing to financial responsibility;
• scheduling vacations, etc.

The CCC does not make decisions on issues for which a different procedure for consideration has been established (judicial - under Article 391 of the Labor Code of the Russian Federation).

Disagreements are resolved in a short time: within 10 days, in the presence of the employee (Article 387 of the Labor Code of the Russian Federation). The CCC has the right to call witnesses, experts, etc. It is competent, its decisions have legal force if at least half of the composition is present (Article 387 of the Labor Code of the Russian Federation).

Composition of the commission and powers of its participants

The customer can create a procurement commission under 223-FZ according to the rules specified in 44-FZ.

The commission may include not only company employees, but also third parties. At the same time, it is allowed to engage independent experts only under an agreement indicating the rights, duties and responsibilities of the persons involved.

Traditionally, the following groups of participants in the commission are distinguished:

1. Chairman of the purchasing committee . He carries out general management of the commission, conducts its meetings, appoints responsible members of the commission (for example, for opening envelopes), announces information required for announcement, conducts rebidding, determines the procedure for considering received issues, and brings up for discussion the issue of involving experts in the work.
2. Deputy Chairman , who performs the functions of the chairman in his absence.
3. Ordinary members of the commission . Their tasks include familiarization with the materials of the ongoing procurement, making a decision on its compliance with the rules and Procurement Regulations, forming an opinion regarding the admission or refusal of admission of a procurement participant, assessing and comparing applications from procurement participants.
4. Secretary of the commission . He keeps minutes of meetings, informs members about the agenda, organizes technical support for meetings, informs about the need to replace commission members, and promptly sends materials on the agenda items to commission members.

The number and composition of the commission is determined at the discretion of the customer. It is recommended not to expand the composition of the commission too much and form it on the terms of an odd number of participants with voting rights (for example, 3 or 5 people). This may make sense when it is necessary to make collegial decisions by a majority vote.

When determining the composition, it is worth including in the commission members persons with a profile adequate to the procurement being carried out (for example, with special education or skills).

Also, the customer should take care of the reserve composition of the commission in advance . The persons who receive the rights and duties of members of the commission in the absence of the main composition should be indicated here.

Making a decision by the commission

Adopted secretly by a simple majority of those present, according to Art. 388 Labor Code of the Russian Federation. The decision of the labor dispute commission prepared based on the results of consideration of the issues must contain:

• name of the company and structural unit;
• the essence of the dispute and the date of contacting the authority;
• name list of members;
• the essence of the decision made and the rationale;
• results of the voting.

Legal documents

• Labor Code
• Art. 391 Labor Code of the Russian Federation
• Art. 386 Labor Code of the Russian Federation
• Art. 384 Labor Code of the Russian Federation
• Art. 385 Labor Code of the Russian Federation
• Art. 391 Labor Code of the Russian Federation
• Art. 387 Labor Code of the Russian Federation
• Art. 388 Labor Code of the Russian Federation

What disagreements should be considered?

The commission is obliged to consider the following types of disputes:

• whether the changes prescribed in the employment contract were lawfully implemented;
• unlawful introduction of amendments and additions to the contract, making a decision to cancel them;
• conditions for guaranteed wages, payment of bonuses, additional payments for part-time work, payment for night and overtime hours;
• payment of additional bonuses for length of service;
• on determining the working time limit, and additional rest;
• about violation of the legal rights of employees to regular labor leave;
• about violation of the provision of additional benefits provided for by law, labor or collective agreement;
• on the illegality of monetary penalties for disciplinary violations;
• identifying valid reasons for absenteeism when an employee is removed from work.

Examples of debates that the body may allow

What kind of conflicts in the workplace can lead to a dispute?

Example . The employee did not show up for work for a certain time, for a good reason, with a supporting document. But due to some reasons, he was unable to notify management on time about the reason for his absence from the workplace.

The manager, having assembled a disciplinary commission, decided to dismiss him due to absenteeism. Based on the commission's act, an order was drawn up. This order was not signed by the employee for familiarization purposes, which the manager did not pay attention to. The dismissed employee came out with an appeal to create a CCC to resolve his conflict. The commission decided to reinstate him to his job with payment of money for the days of his absence due to dismissal.

One more example. The employer, due to a decrease in the financial performance of the enterprise, decides to reduce the working day, and based on this, the wages of the staff are reduced. These changes are not provided for in the employment contract. The team, upon receipt of the next payment, seeing the changes, contacts the CTS. The members of the commission decide to restore the previous wages to employees and pay the missing funds based on the wages they previously received.

Composition of the collegial body

How is the district administrative commission formed? To take part in the activities of the body under discussion, you must be 18 years of age. Inclusion in the composition is permitted with the written consent of the person. Such a young age is allowed due to the fact that the composition includes not only local government officials and deputies. It is customary to invite representatives of the public to work.

Its representatives cannot have foreign citizenship, a residence permit or a similar document giving the right to permanent residence in the territory of a foreign state.

The composition of collegial structures is not limited only to municipal or regional civil servants. By agreement with federal bodies, their representatives may also be included in the commissions. Officials in the administrative affairs commission cannot constitute more than half of the number of participants.

Boundaries of competence

Legislative acts of regions prescribe the rule on the creation of no more than one commission within a district or city, depending on which territorial-administrative unit we are talking about. That is, two bodies cannot be created simultaneously, serving the same territory and with the same competence.

Regarding the serviced territory: there are administrative commissions of the city and district (this also includes the urban district). If several commissions operate within a city or district, overlap of their areas of competence is not allowed.

Who is included in the

The composition includes a group of competent and representative personnel. From among them, a chairman and his deputy are selected. The created tariff and qualification commission at the enterprise may include:

• heads of workshop or site and other managers; technologists;
• highly skilled workers;
• representatives of the technical control service;
• employees of the industrial training department;
• HR department employees;
• salary department specialists, etc.

In addition to specialists, the qualification commission includes a representative of the workers’ trade union organization and a secretary who maintains all documentation.

Rules for drawing up an acceptance committee report

The acceptance certificate of the customer's commission, unless we are talking about an act of acceptance of construction and installation work, can be drawn up in free form. However, there are a number of requirements for the content of this document that must be complied with. These are, first of all, requirements for the content of the document. Among the information that must be completed mandatory are the following:

• contract number , and if there is information about the assigned procurement identification code, this code as well (necessary to facilitate the identification of the completed purchase and faster verification of the designated mandatory conditions for the execution of the contract);
• information about the subject of procurement in respect of which such procurement was carried out. A description of the subject of procurement must be provided with clear identification by name, formed in the same way as contained in the text of the contract or agreement or in the delivery statement or specification issued as an annex to the contract. If we are talking about the performance of work or the provision of services, then the description in the text of the acceptance committee act should be structured in the same way as in the corresponding annex to the contract, as well as in the documentation on the ongoing purchase (within the framework of the terms of reference for such a purchase);
• information about what the price of the concluded contract is (the price indicated in the text of the contract in the section devoted to the cost of emerging obligations), as well as the price of actual execution (in the event that it has been changed for some reason). If there are additional agreements that change the value of the contract, it is necessary to indicate values ​​based on these additional agreements;
• in the event that the parties violated the terms of fulfillment of their obligations, it is necessary to indicate the number of such violations, their typology (delay in fulfillment of obligations, improper fulfillment), as well as the application of various types of penalties;
• in the case of an examination, regardless of whether it is an external or internal examination, it will be necessary to provide a link to the conclusion of such an examination or indicate that, in accordance with the provisions of Article 94 of Federal Law No. 44-FZ, the customer, within the framework of its duties, carried out an examination of the results of execution contract or agreement;
• the customer’s decision to accept or not accept the results of the execution of a contract or agreement based on all available factual data regarding the contractor’s compliance with its obligations;
• the date of drawing up the act of the acceptance committee and the signatures of all members of such a committee who were present at the meeting and participated in making the decision.

Drawing up an act of acceptance of the results of contract execution indicates the customer’s decision to accept or not accept the actual results of the contractor’s work under the contract. If the customer indicates in such an act that he accepts the results, he has no less than fifteen and no more than thirty days to make payment. The specific period depends on whether we are talking about a contractor from the category of small businesses, or whether the contractor does not belong to such entities.

If the results are not accepted, the customer has the right to issue a unilateral refusal to perform, which could result in the counterparty being included in the Register of Unscrupulous Suppliers.

If we are talking about the acceptance of construction or installation work, then the KS-14 act form is used. In such an act, in addition to the information listed above for the general form of the acceptance certificate, the following information is also indicated:

• about those permits to perform various types of work that were issued to the contractor under the contract by licensing authorities;
• about who exactly performed certain works (whether subcontractors were involved, what organizations we are talking about, how much work was performed by them);
• about who issued the initial data for the design , as well as about who approved the generated design and estimate documentation;
• about the timing of all types of work;
• about the compliance of all results with the planned ones (documents are drawn up separately for capital construction projects that belong to the non-residential stock, and separately for those related to the residential stock);
• about the presence of installed equipment or the absence of equipment that should have been installed by the contractor under the contract;
• about the presence of additional work carried out to improve the territory located around the capital construction project (if such work is provided for by the prepared design and estimate documentation);
• about the cost of the object based on the generated design and estimate documentation;
• about the actual total cost;
• about the presence of additional conditions.

The contractor under a contract or agreement has the right to file a protocol of disagreements if he has any claims regarding the decision made by the customer.

However, the position outlined in this protocol must be justified, from a factual and legal point of view, with the provision of evidence that the customer was wrong in the decision he made.

Generated documents based on the results of acceptance of contract execution

All decisions made by the acceptance collegial body of a state or municipal customer are documented using special documents. In law enforcement practice, the term “generated” is used to combine all such documents. The acceptance committee prepares the following documents:

• protocol _ This document reflects the entire course of the meeting of the collegial body from the moment the issues that are on the agenda are announced until the acceptance certificate is signed. The text of the minutes must indicate information about who was present at the meeting, and also in the case of replacing one of the members, an indication of such replacement and a description of its reason is given. In addition, the text of the protocol indicates the issues put to vote (if it is held), as well as the results of such voting. Also, the text of the protocol indicates information about whether there were members of the commission whose position does not coincide with the position of the majority of members, and the annex to such a protocol indicates information about the content of the position of the dissenting member and its justification;
• act of acceptance of the results of contract execution . This document should not be confused with an acceptance certificate or other transfer document. This is due to the fact that according to the transfer document, goods are transferred as part of the execution of a contract or inventory items from the old owner (in the case of government procurement - from the supplier) to the new owner (state or municipal customer). The act of acceptance of the results of the contract is a document that substantiates the customer’s position on the possibility or impossibility of accepting the result of the work performed. In the event that the customer conducted an internal examination of the results of the execution of the contract, the results of such examination should also be reflected in the text of the drawn up act of acceptance of the results of the execution of the contract or agreement. In the event that we are talking about an external examination, in the certificate of acceptance of the results, the customer indicates that during the decision-making the results of the examination carried out with the involvement of third-party organizations or specially hired experts were taken into account;
• act in form KS-14 . This document is distinguished as a separate type, since currently it is not mandatory to fill out: the abolition of the obligation to fill out this document when accepting construction and installation work within the framework of state and municipal procurement occurred in 2013. However, despite this cancellation, its preparation is included in the acceptance measures to this day, since its content makes it possible to understand how clearly the estimated requirements of the state customer have been met. It is issued in cases where we are talking about the acceptance of completed construction work. Based on this document, the customer accepts or does not accept repaired or constructed buildings, structures and other capital construction projects.

Samples of documents: act of acceptance of goods, act KS-14, act of acceptance and transfer of goods, act of acceptance of work performed.

Activities of the medical commission

The basic form for the commission to exercise its functions is a meeting, which can be held both scheduled and unscheduled. The schedule of meetings is approved by the head of the medical organization of the commission, taking into account the establishment of the frequency of meetings at least once a week. Violation of the minimum frequency of scheduled meetings, even if a different schedule is provided for in the local act of the medical organization, is regarded as a violation of licensing requirements and entails administrative liability. (Resolution of the Kimry City Court of the Tver Region dated June 25, 2021 in case No. 5-61/2019)

An unscheduled meeting in situations requiring an urgent decision is held based on the decision of the manager as necessary.

Based on the results of the meeting, a decision is made, documented in the form of a protocol. More information about the minutes of the meeting of the medical commission is described in the article “Requirements for the execution of the decision of the medical commission (protocol of the medical commission).”

The decision of the medical commission (subcommittee of the medical commission) is considered adopted if it is supported by two thirds of the members of the medical commission (subcommittee).

The chairman of the medical commission is obliged to provide written reports on its activities to the head of the medical organization. The frequency of reports is quarterly and annually.