The construction process is associated with a lot of unexpected work that requires immediate permission. Creating a reserve of funds to cover unforeseen work and costs is a way to protect against the risks caused by various obstacles in the construction process.

According to its structure, the reserve of funds for unforeseen work and costs in the basic price level is divided into 2 parts: the customer and the contractor.

The customer can spend his part of the reserve on:

• payment for additional work. These works can be caused by the specification by the customer in the prescribed manner at the stage of the construction project in comparison with the architectural space-planning indicators and technological solutions, the specification of design solutions, as well as the replacement, at the initiative of the customer, of individual building structures and materials provided for in the working drawings;
• clarification of the cost when identifying during the construction process works that are not taken into account in the working drawings and estimate documentation;
• payment for other works and expenses that are subject to compensation in accordance with regulatory legal acts at the expense of the reserve of funds for unforeseen work and expenses. For example, reimbursement of costs associated with the occurrence of extreme weather conditions (the recommendation is contained in the resolution of the Collegium of the Ministry of Construction and Architecture dated 09.12.2009 No. 408).

The contractor, in turn, uses part of the reserve for:

• reimbursement of costs incurred during the performance of work in the event of a change at the initiative of the contractor organization of the methods of performance of work;
• replacement of mechanisms;
• replacement in accordance with the established procedure of individual building structures and materials provided for in the design and estimate documentation, without deteriorating technical characteristics.

The reserve of funds for unforeseen work and expenses is provided for by the consolidated estimated calculation of the cost of construction. Directly in the estimate documentation developed in the base price level as of January 1, 2006, the calculation of the reserve is carried out from the amount of the estimated cost of work and costs included in chapters 1-12 of the CSR (clause 42 of the Instruction for determining the estimated cost of construction and compiling estimate documentation, approved by the Decree of the Ministry of Construction and Architecture dated December 03, 2007 No. 25, as amended on November 25, 2013 No. 36) and is indicated in a separate line in column 9 with distribution in columns 3-8.

But, as you know, from January 1, 2012, the estimate documentation for the construction of facilities, regardless of funding sources, is developed on the basis of resource consumption standards in kind. Therefore, it makes no sense to consider in detail the procedure for including a reserve of funds for unforeseen work and costs in the estimate documentation drawn up at the base price level as of January 1, 2006.

However, at present there are still a number of objects with an estimated cost in the basic price level. In this regard, let us pay attention only to some points. In particular, the contractor has at its disposal a part of the reserve of funds for unforeseen work and expenses, which is:

• 1.5% - for industrial facilities, as well as engineering networks, roads and landscaping, for which an independent project is being developed. Manufacturing sectors: industry, agriculture, forestry, transport, communications, construction, trade and public catering, logistics and marketing, procurement, information and computing services, organizations engaged in real estate transactions, organizations engaged in general commercial activities to ensure the functioning of the market, geology and exploration of subsoil, geodetic and hydrometeorological services, other activities in the sphere of material production;
• 1% - for non-industrial facilities, residential buildings. Non-production sectors: housing construction, public utilities, public services, health care, physical culture and social security, education, culture and art, science and scientific services, finance, credit, insurance, pensions, management, public associations.

The reserve of funds for unforeseen work and expenses is not charged on the cost of materials, products and structures and the cost of equipment, furniture and inventory supplied under contracts from outside the Republic of Belarus.

Reserve accounting in NRR

A somewhat different situation has developed when calculating the reserve for unforeseen work and expenses based on the RRR.

In accordance with sub. 33.1 Instructions on the procedure for determining the estimated cost of construction and drawing up estimate documentation based on resource consumption standards in physical terms was approved by the Decree of the Ministry of Construction and Architecture No. 51 of November 18, 2011, as amended of March 28, 2016 No. 9, the reserve of funds for unforeseen work and costs is calculated as a percentage of the total of chapters 1-11 in columns 3-9 and is accepted as a separate line in the SSR as follows:

1) at the stage of architectural design:

a) for construction carried out according to individual projects:

• industrial facilities - 4%;
• non-industrial facilities (except for residential buildings), as well as engineering networks, roads and landscaping, for which an independent project is being developed - 3%;
• residential buildings - 2%;

b) for construction carried out according to standard and reusable individual projects:

• industrial facilities - 2%;
• non-production facilities, incl. residential buildings - 1.5%;

2) at the stage of a construction project - in the amounts established by subpara. 1a, 1b p. 1 of this list, with a coefficient of 0.8;

3) during the construction of experimental facilities - in the sizes established by subpara. 1a, 1b p. 1 of this list, using a coefficient of 1.25.

For objects that include buildings, structures with different sizes of the reserve of funds for unforeseen work and costs, the amount is determined based on the specific weight of the estimated cost of the corresponding building, structure.

However, these funds provided for by the SSR are not distributed between the customer and the contractor. Instruction No. 51 does not provide for the accrual of a reserve of funds for unforeseen work and expenses, transferred to the contractor's disposal.

In the estimate documentation in accordance with sub. 33.1 of Instruction No. 51 includes a reserve of funds for unforeseen work and customer costs. The customer can use them to compensate for the increase in construction costs caused by changes in the volume and nature of work. As a result, the question arises: how can the contractor take into account the costs caused by various unforeseen circumstances during the construction process when forming the price of his offer? This moment is exacerbated by the provisions of the Regulations on the procedure for the formation of an unchanged contractual (contract) price for the construction of facilities, approved by the Council of Ministers of November 18, 2011 No. 1553, as amended on November 10, 2014 No. 1061, taking into account which an unchanged contractual (contract) price is formed. When forming the price of his proposal, the contractor can apply a risk factor in the calculation of the cost, which compensates for various unforeseen circumstances that have arisen in the process of construction and installation work.

The maximum value of the risk coefficient is currently not provided by law.

Justification of the risk factor is only necessary if requested by the customer. Also, there is no list of unforeseen circumstances that the contractor may take into account when applying this coefficient.

Thus, the contractor has the right to independently determine the value of this coefficient when forming the price of his proposal for the purpose of concluding a construction contract with the customer.

The formula for calculating the risk coefficient is not established by regulatory documents. This way is possible:

K p \u003d 1 + P / C,

where K p - the desired risk factor;

P - the cost of risks for the construction object or for a specific period;

C - the cost of the construction object or the cost of work performed during a specific period.

But when setting the price of his proposal, the contractor should take into account that the use of a significant risk coefficient may make his proposal uncompetitive in comparison with other proposals submitted to the customer.

You need to know that according to the norms of the Regulations on the procedure for organizing and conducting procurement procedures for goods (works, services) during the construction of facilities, approved by the Council of Ministers of January 31, 2014 No. 88, as amended on July 30, 2015 No. 650, the customer (organizer of contract bidding) has the right to demand justification and calculation of the participant's offer price, indicating the method of its determination, as well as other documents provided for in the tender documentation. In addition, when conducting contract tenders, the contractor's offer using the risk coefficient, incl. during the procedure for reducing the originally offered price, may exceed the starting price. At the same time, it should be borne in mind that additional work not provided for by the project documentation is not taken into account when calculating the risk coefficient, since they are not related to unforeseen circumstances.

Issues arising in practice

1. What funds are used to pay for the costs of additional work and volumes?

Answer: The estimate documentation is compiled in accordance with Instruction No. 51. The reserve of funds for unforeseen work and customer costs is included in the estimate documentation in accordance with sub. 33.1 Instruction No. 51. Costs for additional work and volumes not taken into account by the approved estimate documentation are paid by the customer in the manner set forth in paragraph 38 of Instruction No. 51, namely, this increase is compensated for by the reserve of funds for unforeseen work and costs and savings on other items within the cost of construction as a whole.

Note. The clarification is contained in the letter of RUE "RSTC" dated April 2, 2013 No. 09-922 "On the use of funds for unforeseen work and costs."

1. The customer requires to exclude the reserve of funds for unforeseen work and the cost of the customer's material in the acts of work performed. Is it legal?

Answer: Yes, if this condition is stipulated in the contract.

The accrual of a reserve of funds for unforeseen work and the cost of customer materials is determined by contractual relations. The clarification is contained in the letter of RUE "RNTC" dated October 22, 2008 No. 07-2374 "On the customer's materials transferred to the contractor."

It should be noted that this clarification is relevant for facilities whose estimated cost is calculated at the base price level, since there is a part of the contractor in the structure of the reserve for unforeseen work and costs.

Olga Kuryakova, budgeting specialist

Question: Construction work began in 2008. At the time of the development of design and estimate documentation (hereinafter referred to as the “Design and Employment Documentation”) for the facilities, temporary bridges and access roads, there were no territorial estimate standards (of the Krasnodar Territory), the estimate and regulatory base for 2008-2009. was not released in its entirety. In order to avoid forced downtime and, as a result, failure to meet the deadlines for the completion of facilities, the specified design and estimate documentation was developed using the current federal estimated standards for the release of 2000-2007.
At present, FGU "Glavgosexpertiza" has put forward a requirement to recalculate the estimated cost of construction of temporary access roads and bridges on them into the prices of the "reference" production base for 2008-2010.
As of October 1, 2010, all temporary bridges have been built and are in actual operation at the time of the comprehensive delivery of the design and estimate documentation to the Federal State Institution "Glavgosexpertiza". The cost of the scope of work performed was determined according to the estimates developed at the “RD” stage, and the work performed by the contractor was delivered in full according to the design and estimate documentation for the release of 2001-2007. with payment of all accounting and tax payments.
This state of affairs complies with the "Requirements for the preparation of estimate documentation for the development of design and working documentation for the construction of facilities financed with the involvement of federal budget funds", approved by the order of Russian Railways. According to the specified "Requirements ...", the norms and prices of the approved "reference" base SNB-2001 / 2008-2009 can be used in the preparation of the design and estimate documentation issued after August 18, 2009, and the previously issued design estimate using the rates and prices of the SNB-2001 / 2007 is not subject to recalculation.
It should be noted that the recalculation of the base cost to the current level was carried out according to the recalculation index of the Ministry of Regional Development for the 3rd quarter of 2010 in the Krasnodar Territory for the type of construction "other objects". The calculated index for “other facilities” does not take into account the specifics of the construction of bridges and tunnels, as well as the range of relevant materials and mechanisms (for example, the use of reinforced sheet piles delivered from Nizhny Tagil, imported bridge and tunnel structures, imported tunneling and drilling equipment, etc.). d.). It should be noted that in accordance with the contract, construction was carried out both in 2008 and 2009. At the same time, the cost of the scope of work performed was determined taking into account the recalculation indices valid at the time of the work, for example: the index in the 3rd quarter of 2009 was -5.5; at the level of the 4th quarter of 2009 -5.58; FGU "Glavgosexpertiza" to determine the current value proposes to apply the indices of the 3rd quarter of 2010 in the amount of 4.84. We believe that recalculation indices should not be lower than those for which implementation was accepted and taxes paid. We propose to take the indices of the 4th quarter of 2009 to determine the cost at the current price level.
In addition, we believe that the requirements of FGU Glavgosexpertiza for the General Designer and the Customer regarding the recalculation of design and estimate documentation are based on an incorrect interpretation of the existing regulatory framework in construction, in particular:
- the cost of metal superstructures, high-strength bolts and supporting parts, which was accepted according to the industry (JSC Russian Railways) collections of the estimated cost of materials and structures, is underestimated, as for materials and structures, the cost of which was absent in the Federal collections of estimated prices for materials and structures;
- the costs of rail transportation and road transportation over 30 km are illegally excluded with the reference to the fact that the cost of transportation is included in the cost of materials according to the FSSC-2001 (in this case, the norms given in the TSC-2001 collection are indicated, which contradicts clause 4.24 of the MDS 81- 35.2004);
- transport and procurement and storage costs are underestimated to 3% for general construction materials, which cannot be accepted, since it clearly contradicts clause 4.60 of MDS 81-35.2004, which explicitly states: if it is impossible to determine transport costs from calculations (even for equipment), these costs can be determined by consolidated indicators, that is, by a percentage of the selling price;
- Excluded from the consolidated estimate calculation are the costs of enhanced protection of objects by specialized security organizations, which contradicts the requirements of the letter of the Ministry of Regional Development of the Russian Federation dated August 13, 2008 No. 20070-CM / 08;
- the premium for putting the facility into operation was excluded from the composition of the consolidated estimate, which clearly contradicts clause 9.8 of Appendix No. 8 of MDS 81-35.2004;
- in terms of changing the standard for unforeseen expenses, as noted by the expert, from 10% to 3%. In accordance with Article 48.1 of the Urban Planning Code, railway transport infrastructure facilities are classified as technically complex facilities, bridges with spans of more than 100 m and the deepening of the underground part below the ground level by more than 10 m are unique objects. All these parameters are inherent in objects, and therefore, in the summary estimates of the cost of construction, a reserve of funds for unforeseen work and costs should be included in the amount of 10%, which does not contradict clause 4.96 of MDS 81-35.2004.
- an illegal requirement was put forward to account for the cost of refundable amounts according to the general index of recalculation of construction and installation works. Since the return amounts take into account the cost of the returned materials, therefore, it is necessary to take into account the return amounts according to the indices for materials, which will comply with the letter of the Ministry of Regional Development of the Russian Federation dated February 02, 2009 No. from the cost of title temporary buildings and structures is unreasonable;
- - Excluded from local estimates are the costs of repair and maintenance of temporary earth-carrying roads, which contradicts clause 1.1.10 of the technical part of FER-2001-01;
- when adjusting the design and estimate documentation at the base price level, according to the comments of the Federal State Institution "Glavgosexpertiza", design institutes apply a reduction factor of 0.4 to the cost of unit prices for the installation of b / n piles published in the collection "Additions and changes to FER-2001 / 2008-2009 » issue 2, which contradicts the meaning of the letter of the Ministry of Regional Development of the Russian Federation dated August 20, 2010 No. 30424-KK / 08. In this regard, the General Designer continues to issue design and estimate documentation at the base price level, taking into account the application of a coefficient of 0.4, thus underestimating the total cost of building an object by 60% according to the local estimate, which inevitably entails a reduction in costs for chapters 8-12 of the consolidated estimate calculation in base and current price levels. As of December 10, 2010, an explanation was received from the Ministry of Regional Development of the Russian Federation No. 39988-KK/08 dated November 26, 2010, regarding the application of a coefficient of 0.4 (in the basic price level, this coefficient is not applied).
The conversion factor for the cost of work using imported high-performance equipment is calculated by the Customer (JSC Russian Railways) and amounts to a meager value - from 2.58 to 2.82, including the index for mechanisms 1.94 - up to 1.86 (III quarter 2010 G.). Thus, a precedent can be created when the limit of the cost of w / n columns at the current level with a coefficient of 0.4 will be lower than the limit of the cost of work performed when calculating by type and work package;
- FGU "Glavgosexpertiza" requires the exclusion from local cost estimates for the construction of technological shelters, referring in its decision to the fact that this type of cost is taken into account by the norms of winter rises in prices. However, this remark cannot be taken into account due to the fact that the costs, taking into account the winter rise in prices in the amount of 0.14-0.28%, do not cover the costs of constructing technological shelters provided for by the PIC. According to the note to clause 1 of the general provisions of GSN 81-05-02-2007, the costs of installing special technological shelters must be determined additionally in accordance with design solutions. Therefore, the requirement of FGU Glavgosexpertiza to exclude the coefficient 1.1 applied on the basis of the technical part of paragraph 3.8 of FER-2001-30 to the cost of work performed in technological shelters is not legitimate and cannot be accepted;
- the requirements of the Federal State Institution "Glavgosexpertiza" on the inclusion of the turnover of reinforced concrete slabs in local estimates are not legitimate, since they contradict MDS 81-35.2004 and clause 3.7 of the GSN 81-05-01-2001;
- the cost of building temporary bridges in the consolidated estimates is unreasonably underestimated by 50% against local estimates;
- the remark of the Federal State Institution "Glavgosexpertiza" on the accounting of refundable amounts for the cost of dismantled soil, stone, ASG of construction sites, temporary access roads cannot be accepted. Re-use of soils is not possible. Due to the tight deadlines for the construction of facilities, work on backfilling dams, access roads, and sites is carried out simultaneously at all facilities, and the use of the same soil in several areas is physically impossible.
It should be noted that the development of estimated working documentation and the determination of the cost of work performed are carried out according to the estimated regulatory framework 2001/2007, in accordance with the "Requirements ..." of Russian Railways.
Based on the foregoing, the unjustified remarks of the Federal State Institution Glavgosexpertiza and subsequent exclusions from the cost estimates will lead to an artificial reduction in the estimated cost of construction of facilities. This, in turn, will cause losses, and in the future may cause bankruptcy of contractors and, as a result, a delay in the construction of a combined (road and railway) road.
Please look into the current situation.

The parties should determine in the contract the amount of the reserve at the disposal of each of the parties. Reimbursement of the contractor's costs from the reserve for unforeseen work and costs is made if there is documentary evidence of the costs incurred.

Rationale:

Under a work contract, one party (contractor) undertakes to perform certain work on the instructions of the other party (customer) and hand over its result to the customer, and the customer undertakes to accept the result of work and pay for it (Article 702 of the Civil Code of the Russian Federation). As a general rule, the contract specifies the price of the work to be performed or methods for determining it, including by drawing up an estimate. The price of the work (estimate) can be approximate or firm. The contractor is not entitled to demand an increase in the fixed price, and the customer does not have the right to demand its reduction, including in the case when at the time of the conclusion of the work contract it was impossible to provide for the full amount of work to be performed or the costs necessary for this. (Article 709 of the Civil Code of the Russian Federation).

In accordance with paragraph 3.5.9.1 of the "Guidelines for determining the cost of construction products on the territory of the Russian Federation MDS (81-1.99)", the consolidated estimated construction cost includes a reserve of funds for unforeseen work and costs, intended to reimburse the cost of work and costs, the need for which arises in the process of developing working documentation or during construction as a result of clarification of design decisions or construction conditions for the facilities (types of work) provided for in the approved project.

The reserve is determined from the total of chapters 1-12 in the amount of no more than 2% for social facilities and no more than 3% for industrial facilities.

For unique and particularly complex construction projects, the amount of funds for unforeseen work and costs can be increased in each specific case in agreement with the Gosstroy of Russia.

The specified funds are shown in a separate line with the distribution in columns 4 - 8. Part of the reserve of funds for unforeseen work and costs provided for in the consolidated estimate, in the amount agreed by the customer and the contractor, may be included in the fixed contract price for construction products.

When making settlements between the customer and the contractor for the actual amount of work performed, this part of the reserve is not transferred to the contractor, but remains at the disposal of the customer.

It should be noted that in the estimated and regulatory framework of both 1984 and 1991, the maximum amount of funds for unforeseen work and costs was significantly higher - up to 10%.

And although this paragraph of the "Guidelines for determining the cost of construction products on the territory of the Russian Federation MDS (81-1.99)" stipulates the possibility of increasing the maximum amount of funds for unforeseen work and costs, but only for unique and especially complex objects, and even then only for agreement with the Gosstroy of Russia in each specific case.

It seems that the established procedure can lead to a sharp increase in the number of objects and construction projects financed from the budget, submitted for re-approval and this is always

There will be valid reasons, since the cost of construction of enterprises, buildings and structures can not always be determined with an accuracy of 2-3 points.

If we take the materials of the American estimate firm "Mish" (translated by the company "Co-invest", Moscow), then it says that the estimate is nothing more than a unique guess. But it is far from always possible to guess with an accuracy of 2-3 percent. And it is no coincidence that in the materials of the same Minz company, the accuracy of the calculation in determining the cost of construction at different stages is given from 30% to 5%. 30% - when the expert determination of the cost of construction, which is done in about 1 hour, 5% - when determining the cost of construction on the basis of estimates for working drawings, for which a period of three weeks is determined.

God be with them, with the Americans. But after all and have us order before was roughly such a same. For objects of standard housing construction, the amount of funds for unforeseen work and costs was 2%, that is, the same amount as now. But already for housing and civil construction projects being built according to individual projects, the amount of funds for unforeseen work and costs amounted to 3% and even 5%, and for especially complex and unique construction projects - 10%.

For industrial facilities and construction sites, the amount of funds for unforeseen work and costs ranged from 3% to 10%.

At the same time, there was a certain gradation of the amount of funds for unforeseen work and costs when determining the cost of construction at various stages:

When determining the cost of construction at an early stage, when the cost of construction was determined on the basis of aggregate indicators, the amount of funds for unforeseen work and costs was the highest.

When determining the cost of construction at the stage of working drawings for individual construction objects, the amount of funds for unforeseen work and costs was somewhat less.

When determining the cost of construction at the stage of working drawings for individual reuse projects, the amount of funds for contingencies and costs was even less.

And finally, when determining the cost of construction at the stage of working drawings on the basis of standard projects, the amount of funds for unforeseen work and costs was the smallest, as mentioned above, and did not exceed 2%.

At the same time, when determining the cost of construction of typical residential and public buildings and engineering networks and communications on the basis of price lists for construction (and this, no matter how you say it, is an aggregated indicator), the amount of funds for unforeseen work and costs was not the largest as in aggregated indicators, but the smallest , as for typical construction.

With such an order, a certain common sense was felt, and this order, tested by time and existed for several decades, I think, justified itself. In the prescribed manner, when the amount of funds for unforeseen work and costs is set within 2-3 percent for both standard objects and objects, the cost of which is determined by analogues, UPSS, price lists for a consumer unit of construction products and other average indicators, sound meaning is hard to find.

Okay, let's leave common sense alone, although we don't want to. But even in legal terms, the established procedure for determining the amount of funds for unforeseen work and expenses does not look brilliant. The fact is that there is a well-known resolution of the Central Committee of the CPSU and the Council of Ministers of the USSR dated March 13, 1986 No. 328. And in the appendix to this Decree, the maximum amounts of funds for unforeseen work and costs for reconstruction and technical re-equipment are given. So, the marginal amounts of funds for unforeseen work and costs given in this document range from 6% to 10%. And even if not only the Central Committee, but also the CPSU itself is long gone, but the Resolution was signed not only by the leadership of the then ruling party, but also by the Government of the country. And Russia announced that it is the successor of the USSR and the laws of the USSR, and the Decrees of the Government of this country are valid until other laws, other Decrees of the Government of Russia on these issues come out. But there were no other resolutions. Neither the Government of the USSR, nor the Government of Russia. This means that the said Decree of March 13, 1986 No. 328 has not lost its force to this day. And the status of the Government is much higher than the status of one of the divisions of this Government. Therefore, until now, until the Government of Russia reconsiders the maximum amount of funds for unforeseen work and expenses, given in the Appendix and the Resolution of the Central Committee of the CPSU and the Council of Ministers of the USSR dated March 13, 1986 No. 328, this document should be guided. And there are no reservations that, they say, the USSR has long been gone, there cannot be.

Moreover, in the Civil Code of Russia, in Article 744, paragraph 1, it is said that the customer has the right to make changes to the technical documentation, provided that the additional work caused by this does not exceed ten percent of the total construction cost indicated in the estimate and does not change the nature of the stipulated in a construction contract. Therefore, sources for covering additional costs should also be provided. But what then to be, if the right to make changes is given in the amount of up to 10%, and the maximum amount of funds for unforeseen work and costs is only 2-3%? Run every time

Gosstroy of Russia for permission? You don't run.

And after all, this time the document is not the former USSR. Russian Civil Code. And the status of this Civil Code of Russia will be higher even than the status of the Decree of the Government of Russia.

Furthermore. In the same article 744 of the Civil Code of the Russian Federation, paragraph 3 says that "the contractor has the right to demand, in accordance with article 450 of this code, a revision of the estimate if, for reasons beyond his control, the cost of the work exceeded the estimate by at least ten percent."

It turns out that when the customer makes changes to the technical documentation, entailing an increase in the estimated cost by 10.5%, the contractor has the right to demand a revision of the estimate, and if the increase in cost is 9.5%, he does not. Customers have the opportunity to cash in on contractors in a completely legal way. Is it good?

This situation has developed as a result of the fact that the maximum amount of funds for unforeseen work and costs for a long time was determined at a rate of 10%. Here / the legislative base has already been brought to this. And then the Gosstroy of Russia sharply reduced the norm of the reserve of funds for unforeseen work and costs. What to do with the legislation?

This and other questions of this kind will be discussed in detail in book 5 of the series planned for release under the heading "To help the estimator" - "Contracts and prices in construction". Here, one thing can be said - the best way to eliminate all these inconsistencies and connect what does not fit together is to change the maximum amount of funds for unforeseen work and expenses upwards, restoring the norm of the maximum amount of funds for unforeseen work and expenses in the amount of ten percent.

It seems that they will do the same for the objects of extrabudgetary financing. After all, the customer will not have enough funds in the first place.

And one more question cannot be ignored.

In the last paragraph of clause 3.5.9.1 of the "Guidelines for determining the cost of construction products on the territory of the Russian Federation MDS (81-1.99)" it says: "Part of the reserve of funds for unforeseen work and costs provided for in the consolidated estimate, in the amount agreed by the customer and contractor, may be included in the fixed contract price for construction products. When making settlements between the customer and the contractor for the actual amount of work performed, this part of the reserve is not transferred to the contractor, but remains at the disposal of the customer. "

It's not at all clear what is meant here. It has always been considered in the Guidelines for the determination and application of contract prices in construction that it is stipulated that that part of the reserve of funds for unforeseen work and costs, which was included in the contract price, was transferred to the contractor, and the rest of the customer spent, so to speak, at his own discretion. Here it seems to be included in the contract price and is not transferred to the contractor.

However, the issue here is more serious. This is not just an incident. The fact is that for many years, starting from the estimated regulatory framework as early as 1969, and possibly earlier, there was a procedure for dividing the reserve of funds for unforeseen work and the cost of the contractor's reserve for unforeseen work and the cost of the customer's reserve for unforeseen work and expenses. The contractor's reserve for unforeseen work and costs was established in the form of a percentage rate, charges on object estimates and in the form of the same percentage rate (usually 1-2 percent, but not less than 1%) was charged (without decoding) on ​​the cost of work performed in acts acceptance of work performed, signed by the customer and contractor on a monthly basis. This reserve of the contractor for unforeseen work and costs was intended to compensate the contractor for his additional costs and losses in the process of performing work related to the activities of the contractor, changing the technology of construction production, replacing mechanisms against those taken into account by unit prices, replacing materials without agreement with the customer and the design organization for more expensive, change in transport schemes for the delivery of materials, etc., etc. The contractor does not have a crane (or other mechanism) accounted for by unit prices, there is a more expensive one - the difference is compensated from the contractor's reserve for unforeseen work and costs; the contractor does not have reinforcement of the required diameter right now, but it is necessary to urgently concrete the structures and it is necessary to install reinforcement of a slightly larger diameter - the difference is from there; there is no possibility of delivering bricks by rail due to not completing the wagon norm or due to the lack of the wagons themselves, they have to be transported by road, which is much more expensive - the difference is again compensated from the same reserve. And many other examples on the same topic. And, what is very important, all these compensations for the unforeseen costs of the contractor were carried out without deciphering the practical costs, only by accruing the contractor's reserve for unforeseen work and costs. So it was convenient. But the contractor's reserve for unforeseen work and costs did not include the following types of work:

Costs associated with clarifying the scope of work on working drawings when approving estimate documentation at an earlier stage

Estimated errors identified after the approval of the estimate documentation, including arithmetic errors

Additional costs caused by changes in design decisions in working drawings against design decisions in a previously approved project (and most of the estimated errors could be attributed to them, since the development of design documentation in the approved part of the project was not deep and often in the approved part of the project there simply were not those or other design solutions, underground channels, for example, and all this appeared in the working drawings)

Customer's instructions on the need to perform certain additional work not included in the design and estimate documentation

Instructions of the selection committee about the same when drawing up acts of acceptance of objects into operation.

It turns out that all additional costs associated with a change in the scope of work or with the clarification of prices were compensated from the customer's reserve for unforeseen work and costs. Estimates were prepared for these unforeseen costs and they were drawn up as a separate line in the acts of acceptance of work performed as work performed. And from the contractor's reserve for unforeseen work and costs, as mentioned above, the additional costs of the contractor were compensated, associated with a change by the contractor in the technology of construction production, replacement of mechanisms against those provided for by unit prices, replacement of materials at the initiative of the contractor and more expensive ones, a change in the scheme for delivering materials and etc. That is, additional costs associated with changes in physical volumes were not included in the contractor's reserve for unforeseen work and costs.

With the transition to contract prices in construction in our country, it was determined that the contract price includes the contractor's reserve for unforeseen work and costs without fail and part of the customer's reserve for unforeseen work and costs - at the discretion of the parties, the customer and the contractor, as agreed.

Since 1994, with the introduction of the "Procedure for determining the cost of construction and free (contractual) prices for construction products in the conditions of the development of market relations," Gosstroy of Russia introduced serious changes to the existing situation. Not only was the size of the reserve for unforeseen work and expenses sharply reduced, but the contractor's reserve for unforeseen work and expenses, which was accrued on the cost of work performed as a percentage, was practically eliminated.

In this "Order ..." Gosstroy of Russia indicated that the reserve of funds for unforeseen work and costs (already without distribution to the unforeseen contractor and unforeseen customer) is intended to compensate the contractor for additional physical volumes of work identified during the construction process. Additional estimates for contingency work and costs should be prepared for these additional physical volumes of work. These additional physical volumes of work must be included by name in the acts of acceptance of work performed and signed by the customer and contractor. About the contractor's reserve for unforeseen work and costs, as well as compensation for those costs of the contractor that were compensated from this reserve, as mentioned above, not a word was said in this document, as if they ceased to exist with silence about these costs. And the majority of customers (and regulatory authorities, of course) began to understand everything literally and skip only additional physical volumes at the expense of the reserve of funds for unforeseen work and costs, in extreme cases - price adjustments.

But such a position is methodologically incorrect. A number of contractor's costs turned out to be unaccounted for.

It seems that in such a situation, the contractor will have the right to present to the customer for compensation from the reserve of funds for unforeseen work and costs not only additional physical volumes and price adjustments, but all his additional costs identified during the construction process, including:

Compensation for additional costs of contractors due to underestimation of material consumption rates in elemental estimated norms

See book I from the series "To help the estimator" - "Estimates for construction work", ch. 2;

Compensation for additional costs of contractors when the construction technology at the facility differs from the technology adopted and taken into account by the estimated norms and unit prices - see the same book, Ch. 2;

Compensation for additional costs of contractors when the actual amount of costs for temporary buildings and structures exceeds the limit rates, due to the fact that additions are included in the list of title temporary buildings and structures, and the marginal rates of costs for temporary buildings and structures are not increased - see chapter 4 of this book;

Compensation for additional costs of contractors in connection with a change in the methods of delivery and distances of transportation of local building materials, since the estimated prices for local building materials, products and structures, both in the 1984 base and in the 1991 base, take into account transportation costs from the condition of the shortest distance of their transportation and the most economical delivery methods (mainly by rail);

Compensation for the additional costs of the contractor in connection with the blocking of roads for drying in the autumn-spring periods and the need to direct vehicles to a detour or pay for the purchase of passes for heavy-duty trucks;

Compensation for additional costs of contractors in connection with the need to replace mechanisms taken into account by elemental estimated norms and unit prices for those that contractors have. (This is not only the replacement of taps, this is the use of plastering stations instead of mortar pumps and much more);

Compensation of expenses of contractors when using bricks and mortar of higher grades than the average included in the prices;

Compensation of costs of contractors if it is necessary to replace materials with more expensive ones;

Compensation for the additional costs of the contractor for the relocation of heavy construction equipment (cranes, excavators, pile drivers) by tractors on trailers, with a small amount of work performed using this equipment, and therefore the costs of relocation included in the cost of machine shifts, and therefore in unit rates will not suffice.

Etc.

But it would probably be more correct to return to the procedure in which part of the reserve for unforeseen work and expenses is allocated to the contractor at a percentage rate, and is provided for the same purposes as before and is spent in the same manner.

It seems that for objects of budget financing, customers and contractors will be able to resolve this issue on their own, in order to avoid later, during the construction of the facility, many minor disputes,

In accordance with clause 3.5.9.2. "Methodological guidelines for determining the cost of construction products on the territory of the Russian Federation MDS (81-1.99)", additional funds for reimbursement of costs that emerged after the approval of project documentation in connection with the introduction of new legislative and regulatory acts should be included in the consolidated estimate calculation of a separate line (in the relevant chapters) with a subsequent change in the final indicators of the cost of construction and approval of the clarifications made by the authority that approved the project documentation, and for construction projects financed from the federal budget - in the manner established by the State Construction Committee of Russia.

The procedure for using the reserve of funds for unforeseen work and costs is given in the Guidelines for determining the cost of construction products on the territory of the Russian Federation (MDS 81-35.2004). According to paragraph 4.33 of this document, a part of the reserve of funds provided for in the consolidated estimate, in the amount agreed by the customer and the contractor, may be included in the fixed contract price.
In this case, the part of the reserve of funds transferred to the contractor is intended to cover the risks of the contractor associated with a possible increase in the cost of materials and structures, third-party services, an increase in wages, etc. during the construction period.

According to paragraph 6 of Article 709 of the Civil Code of the Russian Federation, the contractor is not entitled to demand an increase in the fixed price, and the customer to reduce it, in the event that at the time of the conclusion of the work contract it was impossible to provide for the full amount of work to be performed or the costs necessary for this.

In accordance with paragraph 4.96 of MDS 81-35.2004, when paying for work performed at a fixed contract price, the contractor does not need to decipher the expense of the part of the reserve included in the fixed contract price. Calculations for individual limited costs must be carried out in accordance with the accepted contractual terms.

In the event that settlements between the customer and the contractor are carried out for the work actually performed, then the entire reserve of funds for unforeseen work and costs provided for in the consolidated estimate remains at the disposal of the customer and is not included in the price of the work performed.

If the state (municipal) construction contract does not provide for the condition for using the reserve of funds for unforeseen work and costs to pay for additional work or costs incurred during the construction of the facility and not provided for by the design and estimate documentation (firm contract price), then the reserve funds for unforeseen work and costs, taken into account in a fixed contract price, in accordance with clause 4.96 of the Methodology for determining the cost of construction products on the territory of the Russian Federation, approved by the Decree of the Gosstroy of Russia dated 05/03/2004 No. 15/1 (MDS 81-35.2004), in acts acceptance of work performed is not deciphered and is paid by the customer at the rate agreed upon when forming the contract price.

If it is necessary to perform additional work that exceeds the amount of the reserve of funds for unforeseen work and costs provided for by the contract price, changes are made to the design and estimate documentation, and the estimate documentation is subject to mandatory re-verification of the reliability of determining the estimated cost of the capital construction object, the construction of which is financed with the involvement of federal budget funds . At the same time, additional work is recommended to be carried out on the basis of a separate contract or an addendum to the main contract.

QUESTION: How is the reserve of funds for unforeseen work and expenses distributed between the Customer and the Contractor?

ANSWER:

The summary estimate of the cost of construction includes a reserve of funds for unforeseen work and costs, intended to reimburse the cost of work and costs, the need for which arises in the process of developing working documentation or during construction as a result of clarifying design decisions or construction conditions for objects (types of work) provided in the approved project.

Part of the reserve of funds for unforeseen work and costs provided for in the consolidated estimate in the amount agreed by the customer and the contractor may be included in the fixed free (contractual) price for construction products. When making settlements between the customer and the contractor for the actual amount of work performed, this part of the reserve is not transferred to the contractor, but remains at the disposal of the customer. (Extract from the letter of the State Construction Committee of the Russian Federation dated December 29, 1993 No. 12-349 "ON THE PROCEDURE FOR DETERMINING THE COST OF CONSTRUCTION AND FREE (CONTRACTUAL) PRICES FOR CONSTRUCTION PRODUCTS IN THE CONDITIONS OF THE DEVELOPMENT OF MARKET RELATIONS" clause 3.5.9). 07/06/95 N VB-26/12-201, from 04/25/96 N VB-29/12-148).

According to paragraph 3.5.9.1 of the "Procedure for determining the cost of construction and free (contractual) prices for construction products in the conditions of the development of market relations" (letter of the Gosstroy of Russia dated December 29, 1993 N 12-349), part of the reserve for unforeseen work and costs is transferred by the Customer to the Contractor only in the case of a fixed contract price. When making payments between the customer and the contractor for the actual work performed, the entire reserve remains at the disposal of the customer. At the same time, we inform you that in connection with the release of the "Order ..." the letter of the Ministry of Architecture and Construction of the Russian Federation dated 17.01.92 N BF-39/12 has become invalid. (Extract from the letter of the Ministry of Construction of the Russian Federation dated 30.08.1995 No. 12-251 "On the RESERVE FOR UNEXPECTED WORKS").

QUESTION: Can the unforeseen costs of 2% be applied to repair work (major and current repairs)? Is there any documentary justification other than MDS 81-35.2004 ? How to apply in the estimate, where to insert and what is considered? What is included in contingency costs, except for what is written in the MDS 81-35.2004 ?

ANSWER:

A contingency of 2% is applied on capital a flax repair. Everything is described in the MDS (paragraph 4.96).

In the estimate, it is charged on the total before VAT (i.e., on the cost of construction and installation works, taking into account the costs of temporary buildings, winter appreciation, transportation of workers (if you take them).

To justify unexpected costs, when compiling the CS, is done separate calculation for work (the cost must be at least the reserve provided for in the estimate), which are not provided for in the estimate to the contract, are not additional work that occurred in the course of the work, but are necessary (for example, an error in the project documentation for repairs, if any ).

Unforeseen costs - limited amount. And if it is not enough, then it is necessary to make changes to the design and estimate documentation and take into account the costs of the unforeseen work that arose during the construction process. And if a firm contract price, taking into account the limit of unforeseen, does not cover the costs of the work that has arisen, then the contractor must sort out the "unforeseen costs" all on the "shelves" (make an estimate, cost estimate, etc.) for the customer, and the customer must determine whether this is necessary , because it's an additional cost. And this is prescribed in the contract necessarily i.e. "force majeure". When determining additional costs, everything must be prescribed in the contract MANDATORY.

QUESTION: Please provide clarification on the issue of including a reserve of funds for unforeseen work and costs in the consolidated estimate of the cost of construction.

ANSWER:

Based on the Methodology for determining the cost of construction products on the territory of the Russian Federation (MDS 81-35.2004 p. 4.96), as well as the order of the Ministry of Regional Development of the Russian Federation No. the calculation of the cost of construction includes a reserve of funds for unforeseen work and costs in the amounts established by regulatory documents. The above documents are included in the federal register of estimated standards.

Decree of the Government of the Russian Federation No. 628 dated 06/25/2012 "On the recognition of invalid clauses 31.1 and 31.2 of the Regulations on the composition of sections of project documentation and requirements for their content" from Government Decree No. 87 dated 02/16/2008 included by Decree of the Government of the Russian Federation No. 1006 dated 07.12.2010 (on inclusion in the summary estimate of the cost of construction of a reserve of funds for unforeseen work and costs).

QUESTION: The state expertise excludes the reserve from the consolidated estimate calculation, referring to the Decree of the Government of the Russian Federation No. 628 dated 06/25/2012. Is the expertise's remark legal?

ANSWER:

Given that the Regulations on the composition of sections of project documentation and requirements for their content, approved by Decree of the Government of the Russian Federation of February 16, 2008 No. 87 (hereinafter referred to as the Regulations) are intended to establish requirements for sections and content of project documentation, and not to the accounting procedure in budget documentation of certain types of costs, by Decree of the Government of the Russian Federation of June 25, 2012 No. 628, paragraphs 31 (1) and 31 (2) of the said Regulations were excluded.

According to paragraph 30 of the Regulations, the estimate documentation for the construction of capital construction projects, financed in whole or in part with the involvement of federal budget funds, is compiled using the estimated standards included in the federal register of estimated standards to be used when determining the estimated cost of capital construction objects, the construction of which is financed by federal budget funds (hereinafter referred to as the federal register of estimated standards).

The procedure for compiling estimate documentation is established by the Methodology for determining the cost of construction products on the territory of the Russian Federation (MDS 81-35.2004), included in the federal register of estimate standards.

Clause 4.96 of MDS 81-35.2004 (as amended by the order of the Ministry of Regional Development of the Russian Federation dated June 1, 2012 No. 220) establishes the procedure for accounting for the reserve of funds for unforeseen work and costs in the estimate documentation.

Given the above, the reserve of funds for unforeseen work and the costs of capital construction facilities, the construction, reconstruction or overhaul of which is financed with the involvement of federal budget funds, is determined in accordance with clause 4.96 of MDS 81-35.2004.

QUESTION: When compiling the latest edition of MDS 81-35.2004 in clause 4.96. the last paragraph was removed from the previous wording, namely: “when paying for work performed under contracts with a fixed contract price, the reserve of funds for unforeseen work and costs in the acceptance certificates of work performed is not deciphered and is paid by the customer at the rate agreed upon when forming the contract price ". Does the new edition of the MDS allow:

- include a reserve for unforeseen work in full (3.0% for production facilities) when forming a firm contract price,

- include in the acts of acceptance of work performed and pay at the rate agreed upon when forming the contract price.

ANSWER:

In accordance with paragraph 4.96 of the Methodology for determining the cost of construction products on the territory of the Russian Federation (MDS 81-35.2004), as amended by the order of the Ministry of Regional Development of the Russian Federation dated June 1, 2012 No. 220, the reserve of funds for unforeseen work and costs is determined by the state customer in agreement with the main manager of the funds of the relevant budget for capital construction facilities for industrial purposes in an amount not exceeding 3 percent.

At the same time, the possibility of accounting for a part of the reserve of funds for unforeseen work and costs in the initial (maximum) price of the contract when preparing tender documentation is determined by the state customer in agreement with the main manager of the funds of the corresponding budget.
According to paragraph 4.1 of Article 9 of the Federal Law of July 21, 2005 No. 94-FZ “On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs” (hereinafter referred to as the Federal Law), the price of a state or municipal contract is fixed and cannot be changed in the course of its execution, with the exception of cases when a contract is concluded on the basis of clause 2.1 of part 2 of article 55, as well as cases established by parts 4.2, 6, 6.2 - 6.4 of article 9 of the said Federal Law.

Mutual settlements for the work performed (expenses) are carried out in the manner prescribed by the state contract, within the limits of a fixed contractual price.

Given the above, the need for the contractor to confirm the reserve of funds for unforeseen work and costs, included in the fixed contract price, is established by the state contract, and in the absence of such confirmation, the price of the state contract may be reduced.

QUESTION: During the examination of design and estimate documentation, FGU Glavgosexpertiza, referring to the order of the Ministry of Regional Development of Russia dated 06/01/2012 No. 220, demanded that the amount of funds for unforeseen work and costs be agreed with the customer. The customer replied that, in accordance with Decree of the Government of the Russian Federation dated June 25, 2012 No. 628 “On recognizing paragraphs 31(1) and 31(2) of the Regulations on the composition of sections of project documentation and requirements for their content as invalid”, the reserve of funds for unforeseen work and costs in the consolidated the estimate calculation is not included, and the order of the Ministry of Regional Development dated 06/01/2012 No. 220 was canceled.

ANSWER:

By Order of the Ministry of Regional Development of the Russian Federation No. 220 dated June 1, 2012, amendments were made to the Methodology for determining the cost of construction products in the Russian Federation (MDS 81-35.2004), approved by Resolution No. 15 of the State Committee of the Russian Federation for Construction, Housing and Communal Complex dated March 5, 2004 /1 (hereinafter referred to as the Methodology), including paragraph 4.96 of Section IV of the Methodology regarding the reserve of funds for unforeseen work and expenses.

In view of the foregoing, the amount of funds for unforeseen work and the costs of capital construction projects, the construction, reconstruction or overhaul of which is carried out with the involvement of funds from the budgets of the budget system of the Russian Federation, is determined in accordance with the above order and is included in the consolidated estimate calculation of the cost of construction.

QUESTION: Currently, our organization is checking and agreeing on the auction documentation for an open auction in electronic form for the right to conclude a state contract for construction.

For this object, there is available project documentation that has passed the state examination, an order for its approval, the limits of federal budget funds have been allocated for construction work for 2010.

In order to eliminate possible inaccuracies when calculating the initial (maximum) contract price, please:

1. Explain the procedure for accounting for the reserve of funds for unforeseen expenses when calculating the initial (maximum) price of the contract. The price of the state contract is firm.

2. Specify the procedure for calculating the initial (maximum) price of the contract, indicating the regulatory document for this type of calculation.

3. Clarify the procedure for paying the reserve of funds for unforeseen expenses during the construction of the facility.

ANSWER:

According to paragraph 1 of the Regulations on the Ministry of Economic Development and Trade of the Russian Federation, approved by Decree of the Government of the Russian Federation of August 27, 2004 No. 443, the federal executive body responsible for developing state policy and legal regulation in the field of procurement of goods and services for state and municipal needs is the Ministry of Economic Development and Trade of the Russian Federation.

In view of the foregoing, on the application of the provisions of the Federal Law of June 21, 2005 No. 94-FZ "On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs", including on the procedure for the formation of the initial (maximum) price state contract (inclusion in fixed prices of certain costs, including a reserve of funds) and the procedure for paying for work performed (other costs) under government contracts with a fixed contractual price, it is recommended to contact the Ministry of Economic Development of Russia.

At the same time, in accordance with paragraph 4.1 of Article 9 of Federal Law No. 94-FZ of June 21, 2005 “On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs”, the price of a state or municipal contract is fixed and cannot be changed during its execution, except for cases of conclusion of a contract on the basis of clause 2. 1 of part 2 of article 55, as well as cases established by parts 4.2, 6, 6.2-6.4 of article 9 of the said Federal Law.

In accordance with paragraph 1 of Article 6 of the said Federal Law, the determination of the initial (maximum) price of a state or municipal contract is carried out by the construction customer.

According to the Ministry of Regional Development of Russia, by decision of the customer, a part of the reserve for unforeseen work and costs, as a rule, not more than 50% of the standard funds, can be included in the initial (maximum) starting price of the bidding (auction).

In addition, the Ministry of Regional Development of Russia believes that the initial (maximum) price of the tender (auction) can be determined by the basic-index method using the indices of change in the estimated cost reported by the Ministry of Regional Development of Russia that were in force at the time of the announcement of the auction and forecast deflator indices established by the Ministry of Economic Development Russian Federation. Forecast deflator indices are recommended to be applied taking into account the scope of work planned for execution in a particular quarter, determined in accordance with the construction organization project (work schedule).
At the same time, mutual settlements for the work performed (expenses) are carried out in the manner prescribed by the state contract, within the limits of a fixed contractual price.