It is necessary to distinguish between the instructions of supervisory authorities in the field of fire safety, which, by virtue of Art. 6 and 37 Federal Law No. 69-FZ dated December 21, 1994 are binding, and various instructions and appeals from customer representatives to the contractor, as part of the execution of the contract construction contract. The possibility of the customer issuing such orders is regulated by the contract itself - see "".

“The customer has the right to exercise control and supervision over the performance of work that the parties have provided for in . At the same time, he does not have the right to interfere in the operational and economic activities of the contractor (Clause 1, Article 748 of the Civil Code of the Russian Federation). Both have certain rights and responsibilities during such control and supervision.

What rights and responsibilities does the customer have when exercising control and supervision?

The relationship between the customer and the contractor within the framework of a construction contract is regulated by the provisions of two codes: Civil (Civil Code of the Russian Federation) and Urban Planning (Civil Code of the Russian Federation). At the same time, Article 748 of the Civil Code of the Russian Federation gives the customer certain rights to control and supervise the execution of work, and Article 53 of the Civil Code of the Russian Federation assigns specific responsibilities for so-called construction control.

What control and supervision rights does the Civil Code of the Russian Federation provide to the customer?

The customer has the right to exercise control and supervision over the performance of work under a construction contract, namely for:*

• progress and quality of work performed. This means, for example, that the customer has the right to send his representative, who will monitor the contractor’s fulfillment of his obligations under the contract and get acquainted with the parameters of the work;
• compliance with work deadlines (schedule). The customer has the right to monitor the deadlines for completing the work, send written warnings about violation of the deadlines for completing certain stages of work, demand payment of the late penalty established in the contract, etc.;
• the quality of materials provided by the contractor. The customer has the right to control the compliance of the materials provided by the contractor with those indicated in the estimate, monitor their expiration date, the authenticity of the manufacturer, etc.;
• the correct use of these materials by the contractor. In order to carry out this form of control, the customer needs to have the necessary knowledge. A general contractor may have this knowledge. In other cases, a customer who does not have special knowledge can monitor, for example, the correct warehousing, storage, and transportation of materials.

This rule is established in paragraph 1 of Article 748 Civil Code RF.

What responsibilities for construction control does the Urban Planning Code of the Russian Federation impose on the customer?

In construction contract relations, the customer is also vested with the powers of so-called construction control. The customer has the right to carry it out during construction, reconstruction, and major repairs of facilities capital construction in order to verify the compliance of the work performed:

• project documentation;
• requirements of technical regulations;
• results engineering surveys;
• requirements urban plan land plot.

These powers of the customer are established in Article 53 of the Town Planning Code of the Russian Federation.

The law establishes not just the right, but the obligation of the customer (or a person authorized by him) to carry out such construction control, namely:

• control over the implementation of work that affects the safety of the capital construction project and, in accordance with the technology of construction, reconstruction, and major repairs, control over the implementation of which cannot be carried out after the completion of other work;
• control over the safety of building structures and sections of engineering support networks, if the elimination of those identified during the implementation construction control deficiencies are impossible without dismantling or damaging other building structures and sections of utility networks;
• control over the compliance of the specified works, structures and network sections with the requirements of technical regulations and design documentation.

Before monitoring the safety of building structures, the customer must monitor the implementation of all work that, firstly, affects the safety of such structures and, secondly, in accordance with the technology of construction, reconstruction, and major repairs, control over the implementation of which cannot be carried out after:

• performing other work;
• testing of such structures in cases provided for by the design documentation and the requirements of technical regulations.

Based on the results of monitoring the implementation of the specified work, the safety of the specified structures, sections of engineering support networks, inspection reports of the specified work, structures, sections of engineering support networks are drawn up.

If deficiencies are identified in the work after inspection, the customer must carry out it again after the contractor eliminates the identified deficiencies (clause 5 of Article 53 of the Civil Code of the Russian Federation).

The difference is this.

The responsibilities assigned to the customer by the Town Planning Code of the Russian Federation relate to safety issues of both the construction process and the use of the constructed facility. In other words, these are requirements that society as a whole is interested in observing. Therefore, if the customer does not carry out such construction control, he may be brought to administrative liability in accordance with Article 9.4 of the Code of Administrative Offenses of the Russian Federation. It provides for significant fines, and in case of repeated violation, even administrative suspension of activities.

Cases of such administrative offenses are considered officials executive authorities authorized to carry out state construction supervision (Article 23.56 of the Code of Administrative Offenses of the Russian Federation). Such a body is the Federal Service for Environmental, Technological and Nuclear Supervision (clause 1 of the Decree of the Government of the Russian Federation of July 30, 2004 No. 401 “On Federal service on environmental, technological and nuclear supervision"). If it is necessary to apply punishment in the form of administrative suspension of activities, the case is considered by a judge of the arbitration court (part 2 of article 23.1, paragraph 3 of part 3 of article 23.1 of the Code of Administrative Offenses of the Russian Federation).

In order to challenge a decision to impose administrative liability, it is necessary to prove that in fact the customer properly carried out construction control. To do this, it is worth using, for example, correspondence with the contractor, as well as corresponding entries in the work log.

Example from practice: the court declared the decision of the construction supervision authority illegal, since the customer proved the fact of carrying out construction control

The customer filed a claim with the arbitration court against the Main Directorate of State Construction Supervision of the Moscow Region to declare it illegal and cancel the resolution in the case of administrative offense under Part 1 of Article 9.4 of the Code of Administrative Offenses of the Russian Federation.

According to the Glavgosstroynadzor of the Moscow Region, the customer did not exercise control over the work, namely: the installation of metal structures was carried out without quality certificates, the base of the football field was made with sand that did not meet the requirements of GOST, there was no protocol for checking the compaction coefficient of the base, results on the strength of reinforced concrete concrete There are no grandstand floorings, the requirements of paragraph 4 of Article 53 of the Town Planning Code of the Russian Federation (the norm establishing the obligation to monitor the execution of work) are violated.

The court considered the arguments of Glavgosstroynadzor of the Moscow Region unfounded and satisfied the customer’s claim, indicating the following: “The customer exercises systematic control over the construction of the stadium, confirmation of this is correspondence with the contractor and entries in the work log section 5 “Remarks of regulatory bodies and services” made by the customer’s legal representative (manager technical supervision group)". The court also took into account the fact that the customer carried out checks on the execution of the general contract for the construction of the stadium and, having discovered significant violations, took all possible measures to suspend its construction. In addition, the court took into account that, after the measures had been taken, the customer orally addressed, with the provision of all incriminating documents, the head of the territorial department of Glavgosstroynadzor of the Moscow Region with a request to take more stringent measures against contractor(solution Arbitration Court Moscow Region dated January 18, 2007 in case No. A41-K2-24400/06, upheld by the decision of the Tenth Arbitration Court of Appeal dated March 5, 2007).

In turn, the rights granted by the Civil Code of the Russian Federation relate to the commercial interests of the customer himself (they allow him to ensure that the terms and costs of construction are not violated).

In contrast to control, construction supervision is, first of all, control over the compliance of the cost of construction (reconstruction, expansion, technical re-equipment of enterprises or facilities) with duly approved projects and estimates (clause 6.1 of the Regulations on the customer-developer (single customer, directorate enterprise under construction) and technical supervision, approved by Decree of the USSR State Construction Committee dated February 2, 1988 No. 16). If the customer does not exercise his rights, which are given to him by paragraph 1 of Article 748 of the Civil Code of the Russian Federation, he will experience other negative consequences provided for by the Civil Code of the Russian Federation.

A customer who, while monitoring and supervising the performance of work, discovers deviations from the terms of the construction contract that may worsen the quality of the work, or other shortcomings, is obliged to immediately notify the contractor about this (Clause 2 of Article 748 of the Civil Code of the Russian Federation). Moreover, we are talking about the customer’s obligation to declare them at any stage of the work, including acceptance. If he does not do this, he will lose the right to further refer to the shortcomings he discovered.

Example from practice: the court rejected the customer’s claim against the contractor due to the fact that the customer did not express his comments when monitoring both the progress of the work and its acceptance

The contractor and the customer entered into a contract agreement, under the terms of which the contractor agreed to perform the work of constructing a pile foundation with his equipment.

In pursuance accepted obligations the contractor completed the work of driving the piles into the ground and transferred the result of the work to the customer according to the acceptance certificates for the work performed, and the customer signed the specified documents and paid for the work performed.

The customer accepted the contract work and signed the acceptance certificates for the work performed without any comments. Subsequently, he filed a claim in court to recover unjust enrichment resulting from overpayment under the contract.

As the court established, “the customer, who has the right to carry out by virtue of Article 748 of the Civil Code Russian Federation control and supervision of the progress and quality of the work performed, during the execution of the work did not declare the contractor’s failure to comply with the depth of immersion of the piles, therefore, taking into account the provisions of paragraph 2 of the mentioned rule of law, the customer lost the right to refer to deficiencies discovered by him subsequently.” The court also took into account the fact that the customer did not provide evidence that, when accepting the work performed, he was deprived of the opportunity to study the work log containing information about the volume of work carried out by the contractor.”

Thus, the court came to the conclusion that the customer did not provide evidence that the defendant performed work under the contract with defects (resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated October 5, 2010 in case No. A38-7250/2009).

However, some courts indicate that the control and supervision of the customer over the performance of contract work is a right, and not an obligation, of the customer. Moreover, this does not mean construction control, the obligation for which is established by Article 53 of the Civil Code of the Russian Federation, but control and supervision established by Article 748 of the Civil Code of the Russian Federation. Based on this, in disputes about the quality of the work performed, they do not take into account the contractor’s arguments that the customer did not report shortcomings during the monitoring and supervision of the work.

Practical example: the court did not take into account the fact that the customer did not find shortcomings in monitoring and supervising the execution of contract work, and only partially satisfied the contractor’s demand for debt collection under the contract

The contractor filed a lawsuit against the customer to collect debt for services provided under contract agreements for the performance of certain types and complexes of work on the construction of a multi-story residential building.

The customer in the court of first instance raised objections regarding the quality of the contract work performed by the plaintiff, and asked to appoint a forensic construction examination to substantiate the objections. An expert appointed by the court came to the conclusion that the contractor violated the requirements of technical standards and rules during production construction work and the remediability of these shortcomings.

Taking into account that the work was carried out with defects, the court partially satisfied the contractor's claim. At the same time, the court stated: the contractor’s argument “that the defendant does not have the right to refer to obvious shortcomings in the work performed by virtue of paragraph 2 of Article 748 of the Civil Code of the Russian Federation, since he should have discovered these shortcomings during the implementation of control and supervision over the performance of contract work, cannot be taken into account. In accordance with paragraph 1 of Article 748 of the Civil Code of the Russian Federation, control and supervision of the customer over the performance of contract work is the right, and not the obligation of the customer” (resolution of the Federal Antimonopoly Service of the Volga District dated April 9, 2010 in case No. A06-2296/2009).

The argument stated in last example, the customer should use it if he discovered deficiencies as a result of the work not during control and supervision, but after completion of their implementation, for example. Then the contractor’s argument that the customer should have discovered the deficiencies during control and supervision becomes invalid, since the customer cannot be forced to carry out such control.

If the customer carried out specific measures to control the work (for example, checking the depth of immersion of piles) and did not identify any shortcomings, and even more so subsequently signed the work acceptance certificates, then the contractor will be able to use the argument that the customer during the work control did not declare any shortcomings (for example, in checking the depth of immersion of piles, which took place on such and such a date with the drawing up of such and such an inspection report) and, accordingly, cannot refer to them by virtue of paragraph 2 of Article 748 of the Civil Code of the Russian Federation.

What can the customer do to monitor the performance of work under a construction contract?

1. Monitoring the progress and quality of work performed means, for example, that the customer has the right to send his representative, who will monitor the contractor’s fulfillment of his obligations under the contract, get acquainted with the parameters of the work, and for this purpose make an audio recording, video and photograph of the object, its part , equipment, materials, documents. The customer has the right to make comments and ask questions to the contractor about the pace of work, the degree of compliance of the already completed part of the work with the project.

2. Monitoring compliance with deadlines for the completion (schedule) of work means, for example, that the customer has the right to monitor the deadlines for the completion of work, send written warnings about violation of the deadlines for the completion of individual stages of work, and demand payment of the late penalty established in the contract.

3. Control over the quality of materials provided by the contractor means that the customer has the right to control the compliance of the materials provided by the contractor with those indicated in the estimate, monitor their expiration date, the authenticity of the manufacturer, etc.

4. Monitoring the correct use of materials by the contractor implies that the customer has the necessary knowledge. A general contractor may have this knowledge. In other cases, the customer, who does not have special knowledge, can monitor, for example, the correct warehousing, storage, transportation of materials, as well as ensure that only qualified contractor personnel who have professional knowledge to use the material correctly work with the material. To do this, the customer has the right to demand from the contractor confirmation of the qualifications of the relevant personnel (diplomas, certificates, certificates of completion of courses, etc.).

The listed powers of the customer are disclosed in more detail in paragraph 6 of the Regulations on carrying out construction control during the construction, reconstruction and major repairs of capital construction projects, approved by Decree of the Government of the Russian Federation of June 21, 2010 No. 468. This document is a by-law mandatory for the parties to the construction contract contract in accordance with paragraph 8 of Article 53 of the Civil Code of the Russian Federation. According to this document, in order to control the actions of the contractor, the customer has the right to carry out the following activities:

a) check for completeness and compliance established deadlines performance of incoming inspection by the contractor and the reliability of documentation of its results. Incoming control means quality control building materials, products, structures and equipment supplied for construction;

b) check the contractor’s performance control activities on compliance with the rules of warehousing and storing the products used and the reliability of documenting its results;

c) check the completeness and compliance with the established deadlines for the contractor to control the sequence and composition technological operations on the implementation of construction of capital construction projects and the reliability of documenting its results;

d) inspect together with the contractor hidden work and carry out intermediate acceptance of erected building structures that affect the safety of a capital construction project, sections of engineering and technical support networks;

e) check, together with the contractor, the compliance of the completed construction project with the requirements of the design and prepared on its basis working documentation, the results of engineering surveys, the requirements of the urban planning plan of the land plot, the requirements of technical regulations;

f) carry out other measures for the purpose of carrying out construction control, provided for by the legislation of the Russian Federation and (or) the concluded agreement.

What can be required from the contractor as part of control and supervision of work performance

The contractor is obliged to comply with the customer’s instructions received during construction, unless such instructions contradict the terms of the construction contract and do not constitute interference in the operational and economic activities of the contractor. This rule is established in paragraph 3 of Article 748 of the Civil Code of the Russian Federation. However, if such instructions are a deviation from the terms of the contract and the customer is aware of this, the contractor who performed the work according to such instructions is released from liability for poor quality work.

Example from practice: the court rejected the customer’s claim against the contractor on the grounds that the controversial work was agreed upon by the customer and did not contradict the terms of the contract

The customer filed a claim against the contractor for the recovery of losses incurred in connection with improper fulfillment of obligations under contracts for the construction of a railway line.

The main complaint of the customer was a poorly assembled track grid made from old rails.

The court, citing paragraph 3 of Article 748 of the Civil Code of the Russian Federation, indicated that the use of old rails and sleepers during the construction of the railway track was agreed upon by the contractor with the customer and the project developer. Thus, according to the court, the contractor acted in accordance with the customer’s instructions, which did not contradict the terms of the contract. The customer was aware of the contractor's use of old rails and sleepers. The court also took into account that the customer did not make a statement that this was a deviation from the terms of the contract and could worsen the quality of the work. Based on these arguments, the court refused to allow the customer to recover damages from the contractor (Resolution of the Federal Antimonopoly Service of the North-Western District dated November 30, 2004 No. A05-2749/04-4). In addition to the features of a construction contract described above, general rules on construction contracts also apply. In particular, about the limits of the customer’s interference in the operational and economic activities of the contractor, see ".

Currently, in Russia, as in many other rapidly developing countries, enormous investments are being made in various areas, including the infrastructure sector, oil and gas industry and mining industry. However, it should be noted that the previous wave of large-scale capital investments in Russia occurred decades ago, so the current generation of specialists has not yet worked with investments of this size and has not encountered projects of such technological complexity.

Given the lack of necessary own experience, to realize these impressive investment programs Companies in the resource sector are forced to engage multiple contractors in design, equipment manufacturing, construction and project management.

According to our estimates, such enterprises spend more than half of the total project budget on paying contractors.

The situation is complicated by the fact that the level of qualifications and available resources of most local contractors are insufficient to carry out projects of such complexity. In this regard, Russian manufacturers are forced to rely heavily on foreign contractors, who, however, despite the serious successes they have achieved on an international scale, still have limited experience in implementing similar projects in Russia.

In such a situation, having a strategy for working with contractors is a necessary condition for the successful implementation of a company’s investment program.

First, manufacturers must answer four important questions.

• Which work and tasks within the project should the company perform independently, and which should be outsourced?
• What should be the company's long-term strategy for developing its own project management competencies, taking into account the long-term portfolio of projects?
• What role should the customer company play within the contractual relationship?
• What are the success factors and typical mistakes important to keep in mind to increase the likelihood of a successful relationship?

Companies that have developed the competence to work with contractors are able to increase the efficiency of design solutions, reduce costs and shorten project implementation time. All these factors contribute to the growth of capitalization and are an undeniable advantage in competition.

Independent performance of work and outsourcing of work

Which work should the customer company do in-house, and which should be outsourced? The optimal solution is largely determined specific situation and depends on the specifics of the relevant company, the characteristics of the region, as well as the scale and nature of the project. When making such a decision, it is necessary to strive to minimize project risks and maximize the expected useful value of the project. At the same time, it is important to remember that outsourcing work does not allow shifting the main risks associated with the implementation of large-scale projects to the contractor, since no contractor is able to take on the same risks as the customer: he simply may go bankrupt, after which In any case, the customer will have to assume all these risks.

To answer the question above, you must first list all the critical project tasks, and then analyze and evaluate the internal and external available resources needed to complete each of these tasks.

The description of project tasks should cover all stages of work (creation of a basic design, development of design documentation, procurement, preparation of working documentation, construction, coordination of contractors, project management, performance of customer functions) for each of the objects being built (main installations, general plant facilities, etc.). d.).

For each task, it is necessary to evaluate the most significant risks associated with its implementation, the company's own skills and resources, and the skills and resources of contractors.

Most often, customer companies perform the following types of work on their own: preparing a feasibility study for an investment project, selecting technologies, selecting equipment suppliers, monitoring the volume and quality of work, risk management, managing the activities of contractors.

Thus, a certain petrochemical company entrusted management Russian project with a budget of about $3 billion to its own group of managers with only experience in production management. Due to their lack of necessary experience, serious problems soon arose during the implementation of the project, including compliance with the schedule and estimation of the project budget. Subsequently, the involvement of a PMC company with the parallel strengthening of the customer’s project team with experienced specialists made it possible to strengthen the necessary competencies.

Problems can also arise for contractors, who sometimes find themselves in a difficult position due to the fact that they overestimate their skills. Let us give a very typical example. A certain customer company decided to entrust the design of a large and complex processing facility to one of the Russian design institutes, which asked for the lowest price among all tender participants for its services. In the example we gave, the customer, due to the low price of the contractor’s services, initially managed to slightly reduce the cost of design, but in fact, within the framework of this project, he provided the institute with a kind of training ground. Ultimately, the results presented by the contractor turned out to be extremely unsatisfactory, and therefore the project had to be re-done at a separate cost. It would be much safer to involve in the design those contractors who have repeatedly performed similar work, even if their services would cost a little more.

Development of a long-term strategy: developing your own competencies for project implementation

Quite simple within the framework of one project, the question of selecting work for outsourcing becomes much more complex when it is necessary to complete a portfolio of projects and at the same time develop one’s own competencies.

As with individual projects, when applied to a group investment projects There is no universal model regarding the optimal selection of internal or external contractors.

Some companies, such as DuPont, view the ability to implement projects in-house as a critical competitive advantage and have created their own fully staffed design departments.

Some enterprises use both their own resources and the capabilities of contractors. At the same time, as a rule, they form a certain set of internal skills and competencies based on the specifics of the proposed competitive projects (in relation to specific technologies, regions, etc.).

In some industries, almost all players prefer to completely outsource projects: for example, the vast majority of combined cycle gas plants are currently built under EPC contracts (EPC - engineering, procurement and construction), when the project is implemented in in full entrusted to contractors.

When deciding to develop your own skills, you must first answer the following questions.

• Is the project portfolio so large that the company needs to create its own skills to implement it?
• When and under what conditions will the need to use most of the relevant skills arise (is there enough time for them to develop)?
• What skills does the company currently have?
• What is the quality of the resources offered in the market and how accessible are they projected to be?
• What specific skills need to be developed taking into account the specifics of the project portfolio?

For example, one of the large mining companies came to the conclusion that it was advisable to create its own division with skills in the following areas: project management (for this it was necessary to form a group of highly qualified project managers), selection of contractors and interaction with them. At the same time, the functions of design, management of construction and installation works and organization of equipment supplies were transferred to subcontracting. The corresponding decision was made taking into account the following factors:

• the company had a portfolio of projects, the implementation of which required seven to eight years - a period during which it was possible not only to develop one’s own skills, but also to recoup the investment in creating its own design unit;
• the success of projects in the future was to become the basis competitive advantage the company as it sought to build its own development skills;
• The company already had a team with successful experience in managing capital construction projects.

Deciding on the degree of use own resources The company greatly influences the organization of work when creating a qualified customer service for large projects (with a budget of 500 million to 1 billion dollars). In this case, the number of employees in the company’s project office can range from 30 to 60 people, depending on the contract model.

As another example, we can cite the ICT group, which, due to the lack of a quality offer on the Russian design market, decided to develop its own skills in this area. As a result, the group acquired a small Israeli EPC company, which enabled it to successfully implement several large-scale projects.

There are situations when it is advisable for companies to rely on the implementation design work with the support of external engineering companies. This option is preferable in the following cases:

• the customer company has absolutely no experience in managing large projects, and attracting highly qualified personnel seems difficult;
• there is a need to use the knowledge and experience gained by contractors when implementing similar investment projects for other customers;
• the portfolio of projects is very heterogeneous, or the company simultaneously implements several projects from the portfolio, and the experience acquired during the implementation of individual projects is not applicable in the future.

At the same time, you need to understand that engaging foreign EPC contractors, even those with extensive experience, is associated with certain risks, including when the project is carried out on a turnkey basis. Not all foreign EPC companies are able to perform high-quality work in compliance with Russian design standards and rules, prepare and agree on special technical conditions, and develop design documentation, which must be officially approved by state examination bodies.

When interacting with Russian contractors performing construction and installation work, it is often much more effective to involve domestic specialists, since foreign EPC companies are reluctant to take on the functions of managing construction contractors, and there are often cases when they are not able to solve problems on their own, without the participation of the client’s employees. emerging issues at the construction site.

Regardless of how much work is being contracted out, clients must provide a minimum level of control in the following areas: project scope definition, project management, delivery of goods and services, contractor performance management, project team interaction with existing businesses ( ongoing projects).

Selecting the optimal contract model

There are three most common project delivery models:

• project management by the customer’s own resources;
• engaging a contractor on the basis of an EPCM contract (EPCM - engineering, procurement and construction management), when responsibility for the implementation of the project is distributed between the customer and the contractor;
• engaging a contractor on the basis of an EPC contract, when responsibility for the implementation of the project from design to commissioning rests entirely with the contractor.

Thus, the main difference between these models is the structure of the distribution of responsibility and risk. It is obvious that when independent execution of the project, the customer assumes all responsibility and risks, whereas under an EPCM contract they are distributed between the customer and the contractor, and when using the EPC model, the main part of the risks falls on the shoulders of the contractor. At the same time, payment schemes differ for different contract models.

The EPC model is characterized by a fixed price and requires significantly higher skill levels on the part of the contractor. When setting a fixed price for the entire scope of work, the contractor bears full responsibility for the budget, timing and achievement of technical indicators of the project. In this case, he has the authority to enter into direct contracts with subcontractors (EPC contracts) and equipment manufacturers. Any increase or decrease in the cost of the project (design, construction, equipment or materials) compared to the planned cost is charged to the EPC contractor.

When using the EPCM model, the contractor and the customer share the functions of selecting work performers and managing the project among themselves and thus distribute responsibility and risks. The minimum degree of risk for the contractor is ensured by the approach when all contracts with subcontractors are concluded only by the customer, and the EPCM contractor only provides project management services based on fixed rates and a pre-agreed amount of remuneration. Cost plus fee pricing provides for the contractor to be reimbursed for the customer's approved costs associated with the construction of the project and to be compensated in the form of an agreed profit margin or a flat fee for project management. In this case, the EPCM contractor enters into contracts with subcontractors on its own behalf and is responsible to the customer for failure of the subcontractors to fulfill their obligations. Another variant of the EPCM model is a contract with a guaranteed maximum price (guaranteed maximum price) - it uses a “cost plus fee” scheme, but with an indication of the maximum, “indicative” amount of costs. If this value is exceeded, the contractor fully or partially compensates for the overexpenditure from the amount of his own remuneration. This scheme assumes that the responsibility and risks associated with the cost of equipment and construction work are assumed by the customer. At the same time, the customer must be more actively involved in project management (for example, when signing subcontracts) and control not only the actual performance of work and its quality, but also the amount of resources spent by contractors.

Each approach has its own advantages and disadvantages, so the choice of one method or another depends on the specific conditions of the project.

The main advantages of the fixed price approach (EPC contract) are as follows:

• the contractor has a higher responsibility for adhering to the budget, and therefore the likelihood of significant deviations from the project estimate is reduced;
• higher quality of project development before signing a contract;
• higher rates of project implementation after the conclusion of the contract, since the contractor does not need to coordinate all its actions with the customer;
• control is limited to checking the completeness and quality of work already completed, and therefore requires less high skills and fewer resources on the part of the customer.

Unfortunately, in Russia there are practically no examples of successful implementation of large projects on a fixed price basis. If engineering companies declare their readiness to work under such conditions, then often, having no experience of this kind of projects, they simply do not imagine all the difficulties that they will face. In this regard, the customer needs to approach the conclusion of such contracts with great caution, since ultimately no engineering company will be able to compensate for all losses in the event of a project failure.

Thus, the fixed price model is applicable only for small projects with an easily determined and predictable scope of work and costs (for example, during the construction of individual general plant facilities or when preparing a package of working documentation after FEED design (project stage in Russian terminology). In the case of large ones projects, preference should be given to contractors who have experience in implementing similar projects in the recent past under similar conditions, preferably in Russia.

The EPCM model also has its advantages:

• the customer is able to more effectively control project costs and key decisions;
• this is a cheaper option since the contract price does not include the risk premium, which can range from 10 to 30%;
• The preparation of proposals from engineering companies is significantly accelerated, and the range of potential contractors is expanded.

At the same time, such a model requires significantly more active participation of the customer organization in the implementation of the project. In addition to performing work at a fixed price, it is necessary to control the volume of resources used, select subcontractors, enter into contracts for the provision of services and the supply of capital equipment, which often significantly slows down the implementation of the project and can affect its cost. In addition, a contractor whose services are paid on a reimbursement basis actual expenses, may not have sufficient motivation to complete the project in the shortest possible time. At the same time, the corresponding costs, as a rule, turn out to be significantly overestimated, since the contractor tries to use any excuse to increase the volume of work performed. Thus, when implementing a project on the basis of reimbursement of actual costs, the issue of developing internal skills for interaction with contractors becomes even more pressing.

In practice, it is often necessary to resort to combined schemes. So, for example, a certain large oil company when concluding contracts for the construction of a complex oil refinery plant after the FEED design stage, it proposed to use a fixed-price scheme to prepare detailed documentation and support the purchase of equipment, while construction management was transferred to the contractor on the basis of reimbursement of actual costs. Thus, the customer fixed the cost of work with a relatively predictable scope, and took on the risk associated with the high uncertainty of the scope of construction management work.

There is a misconception that if the contract obliges the contractor to complete the project on time, with proper quality and at a fixed cost, then the customer may not control the progress of the project. In fact, monitoring the contractor's activities is necessary for any type of contract. The participation of the customer helps to resolve many issues at an early stage, disciplines the contractor, and makes it possible to find solutions that best meet the interests of the customer (for example, in the selection of equipment, control systems, instrumentation and automation, with which the customer already has experience).

Regardless of the contracting model, when implementing several large projects, the company must create its own competence center for managing capital construction projects. The main function of such a center is to assist project teams in organizing interaction with engineering contractors. The most important success factor is the presence of an experienced, well-resourced customer project team that is able to effectively monitor the actions of the engineering contractor. The size of a client's project team can vary significantly depending on the approach chosen. For example, for a $1 billion plant construction project, the project team size for the EPC model will be 20-25 people, while the EPCM model will require 50-60 specialists.

Selecting a contractor

Selecting a contractor and concluding a contract is the next important stage of project implementation. At this stage, many companies make the following typical mistakes:

• the scope of the project and the boundaries of the contractor’s responsibility are not clearly stated;
• too few companies are invited to participate in the tender;
• Insufficient time is allocated for preparing proposals;
• the customer company knowingly gives preference to individual candidates, which becomes known to other tender participants;
• to select a contractor, they are guided by criteria that are not directly related to the success of the project (for example, the contract price or the company’s reputation); this does not take into account the company’s experience in implementing projects in a given country, as well as the experience and composition of specialists who will directly carry out work on the project;
• the company does not conduct additional negotiations with contractors who have passed all stages of preliminary quality selection aimed at reducing the cost of work and improving the terms of cooperation;
• during negotiations, the customer reduces the price so much that in the event of negative developments, the project becomes unprofitable for the contractor.

The most important stage of selection is a clear definition of the scope of project work and the boundaries of responsibility. To be sure of the result, it is useful to conduct a series of preliminary consultations with experienced contractors to ensure that the terms of reference are complete and clear. It is also necessary to provide the opportunity feedback on the part of contractors during the tender and preparation of proposals and be prepared to make prompt and clear explanations to all tenderers regarding the scope of the design work.

Important factors for success in the selection process are impartiality towards tender participants and transparency of the procedure, because in order for the tender to be effective, it is necessary to ensure competitive conditions. Companies view the preparation of tender proposals as an investment in a potential contract. The lower the probability of winning a tender, the less money engineering companies are willing to invest. Thus, if there is an obvious candidate for the contract, competing contractors will be less interested in carefully preparing proposals, and they will determine the cost of services at the upper limit of the projected cost range. It is for this reason that a number of countries have introduced a legislative ban on the participation of companies engaged in FEED design in competitions for the provision of EPC services for the same projects.

In addition, it is very important to provide candidates with sufficient time to prepare their bids. As a rule, engineering companies need from four to six weeks for preparation in the case of a basic project or projects with reimbursement of actual costs incurred, and up to four to six months if it is necessary to estimate the cost of implementing a turnkey EPC project. If insufficient time is allocated for the assessment, then potential contractors are forced to make very rough forecasts and build in additional cost reserves in case the actual cost of the project turns out to be higher than expected.

When preparing a tender, you should first carefully analyze the market for engineering service providers and identify companies with the necessary experience and qualified resources to implement the project.

The analysis of proposals can be carried out in three stages. In this case, the first stage involves screening out companies that do not have the necessary experience, qualifications and resources, as well as companies with high risks of financial and operational stability ( bankruptcy risks, lawsuits and so on.). Next, it is necessary to conduct a qualitative comparison of candidates according to a number of predetermined criteria (experience in implementing projects in Russia, designing facilities using this technology, experience of key employees, history of cooperation) in order to identify two or three companies with the most attractive proposals. Finally, at the third stage, negotiations are held with the finalists on cost, timing, team and other terms of the contract.

Thus, the price of the bid only plays a role if it is made by a contractor with sufficient qualifications. When analyzing qualifications, it is necessary to consider a number of criteria, in particular the following factors.

Previous experience of contractors in the implementation of projects that are similar in terms of technology used and scale. By assigning a project to a contractor without relevant experience - even if he offered a more attractive price - the company takes on a risk, the cost of which may be commensurate with the amount of investment in the project. There are examples of facilities built by inexperienced contractors. These objects stopped almost immediately after being launched. major renovation, and in some cases were prohibited for use by authorities state supervision. The customer must decide for himself whether he is ready to make his project a training ground for the contractor, while generously paying for the training process. The contractor's financial responsibility for the result of the project almost never exceeds the amount of remuneration and does not cover all the costs incurred by the customer, not to mention the lost profit.

Experience working with local subcontractors and knowledge of local design and construction codes. It is no secret that foreign engineering companies are often unable to complete the entire range of work, including preparing the approved part of the design documentation or agreeing on special technical conditions. Skill in effectively organizing the work of local construction contractors also not always available. Often, engineering companies are ready to discuss a fixed price for construction services only if trusted foreign contractors are involved, which is associated with additional mobilization costs and administrative difficulties in obtaining work permits for foreign citizens.

The proposed managers and project participants on the contractor's side have experience in successfully implementing similar projects. This factor is extremely important, since in fact the work is performed not by an abstract company, but by specific specialists. Customers who are serious about forming project teams, when concluding a contract, set one of the most important conditions for the presence of a qualified project team that has passed an interview with the customer. According to numerous observations, the success of a project depends on the personal qualities of managers much more than on any other factors. Neither the company's reputation nor the size of the project team can compare in importance to the professionalism of the project manager.

For example, a large Russian processing enterprise, when implementing a large-scale project, attracted one of the best project management companies in the world. Unfortunately, due to the customer’s inexperience, he did not pay sufficient attention to the composition of the contractor’s team at the time of its formation. As a result, the level of specialists involved in the project turned out to be low, and it became necessary to almost completely replace the heads of areas on the contractor’s side. Problems in the relationship between the contractor and the customer significantly affected the psychological climate, the quality of solutions and the timing of the project.

Preparation and signing of the contract

Another extremely important and difficult stage of the relationship with an engineering contractor is the preparation and signing of a contract. In this area, EPC companies, having much more extensive experience, usually have an advantage over customers. That is why it is important for the customer to offer his own version of the contract, carefully prepared in advance and taking into account his interests, since a standard contract offered by an engineering company, as a rule, provides the contractor with minimal risks, shifting them to the customer.

When preparing a contract, in addition to lawyers, you should involve experienced specialists who were involved in this work on the part of the engineering company. In most cases, knowing the techniques used by engineering companies when preparing contracts and preventing requests for additional work will pay for hiring an expensive specialist many times over.

To ensure that candidates are clear about the client's expectations, they should be informed at the outset that the client's contract will be used for the project. In this case, all contractors wishing to participate in the tender will be forced to agree to this approach. At the same time, of course, they must understand that when choosing the winner of the tender, it will be necessary to negotiate the terms of the contract.

It is important that the contract lists all types of work and final products as accurately and completely as possible, indicating the features of the acceptance process and presentation format. The most complete description of the project work reduces the likelihood of additional services not specified in the contract or refusal to perform work not specified in the contract. It is important to remember that any questionable aspects not clearly stated in the contract will be subject to high probability used for applications for additional work. In some cases, even very reputable contracting companies pursue their own goals related to additional work.

The contract with the contractor should be carefully analyzed to determine the allocation of risks, and, where possible, clauses that increase the contractor's liability should be excluded from the contract. So, for example, it is important to stipulate that the result of the contractor’s work should not be the preparation of a set of documents for submission to the Glavgosexpertiza, but the receipt of its positive conclusion (that is, the contractor is obliged to carry out all work related to changing the project in response to comments received).

In addition, the contract must describe the interaction between the customer and the contractor - in the future this will greatly facilitate the customer’s control over the implementation of the project.

Effective organization of interaction with the contractor

Effective organization of work with the contractor significantly affects the effectiveness of the project. The following key areas of interaction with contractors can be identified:

• clear distribution of areas of responsibility between the parties;
• organization of work and accommodation of the project team;
• formation of effective and understandable mechanisms for information exchange, decision-making and overcoming disagreements for all project participants;
• creating an atmosphere of trust and focus on success, developing procedures for resolving conflict situations;
• transfer of knowledge and skills from the engineering company project team the customer (if this process is provided for by agreement of the parties).

Based on best practice, it is recommended to establish internal operating rules that define the roles and responsibilities of the client and contractor employees responsible for different types works The rules should indicate a list of decisions that must be agreed upon with the customer, determine the timing of approval and formulate a plan of action in case of deviation from the agreements.

The following approaches to organizing interaction contribute to an atmosphere of trust and effective cooperation. First, the customer and the contractor must be in the same room, work as a single team, systematically hold joint meetings, set goals and discuss the results of the work. Secondly, the parties must have common tools for monitoring the progress of the project and prepare uniform reporting for the client’s management. Third, when organizing meetings and discussing project progress with subcontractors, both parties must be present and actively involved in solving problems. Fourthly, the customer and the contractor must have a unified system of goals and priorities, which is a necessary condition for the successful search for optimal solutions and ways to complete the project in a short time.

An effective communication mechanism can be a common database of information requests and change requests, as well as a standard procedure for considering such requests - especially if they involve changes in the duration and cost of the project.

It is very useful when the contractor takes on the responsibility of training the customer, since this helps to improve the overall efficiency of the work and allows the customer to better understand the reasons for the various actions of the contractor, as well as to use project management tools more productively.

All of the above techniques allow a company to develop its own project management skills or, according to at least, learn to skillfully perform the tasks facing the customer during the implementation of large capital construction projects.

Thus, high-quality development of a contract strategy, competent management of the selection and work of contractors, especially in conditions of a shortage of own resources when implementing large-scale investment programs, are important factors successful implementation of projects. Skills in managing relationships with contractors can improve the quality of design solutions, reduce costs and reduce project implementation time. All these factors contribute to the successful implementation of the company’s development strategy and provide the company with an undeniable competitive advantage.

Guillaume Quiviger- McKinsey Partner, Dubai
Oleg Shiryaev- Junior Partner at McKinsey, Moscow

Project management in the field information technologies naturally associated with full responsibility to the customer. It is surprising that some project managers try to justify their own incompetence and lack of professionalism by pointing to unscrupulous performers. There is no logic in this - the customer works only with you, your subcontractors are unknown and uninteresting to him. Therefore, if you tell the customer:

“I was let down and set up, it’s not my fault”

then you will immediately put an end to your reputation as a manager.

You should remember one rule and always understand that one negative review cancels out all the positive ones. This is exactly the one" a spoon of tar"which spoils the entire barrel of honey that you may have been collecting for more than one year. It is worth noting that the same effect also applies to customers. When a customer tells you that, excuse me, the bank is letting me down or the investor is having problems and doesn’t have the money to pay for services yet, then you can safely stop further work with such a customer. Whoever you talked to, solve the problem. It is the employee with whom you are talking who must solve all the problems and shifting the problem to another, to put it mildly, is the highest form of disrespect for the opponent on the project.

Therefore, if you hire subcontractors without careful selection and do not control the progress of the project, then you are risking your main capital - your reputation on the Internet. Even if you have carefully selected the subcontractor, received a lot of positive recommendations about him, and so on. The key to successful project implementation is tough and functional system control. Lack of control over subcontractors sooner or later leads to restructuring or liquidation. So don’t wait until this unpleasant moment.

Stages of implementing a control system

The process of implementing a control system consists of the following stages:

• presentation of the control system for the subcontractor, reaching an agreement;
• receiving and sorting reports;
• reporting analysis;

Interaction with subcontractors is built on a voluntary, contractual basis; do not be mistaken and think that the status of a customer provides you with special privileges. Politeness and business etiquette should prevail in communication, especially when it comes to implementing a control system. Freelancers are initially freedom-loving workers, so its successful implementation depends on the form of presentation of the control system. The terms of cooperation should be as clear to the subcontractor as possible. He must see mutual responsibility and understand the seriousness of this system. The following template can be used as a sample for presenting a control system:

Hello.

Due to the geographical remoteness, as well as for the formation of an effective interaction scheme, a prerequisite for our cooperation is regular reporting. If you are fundamentally against regular and reliable reports on the work done, then our joint work is impossible.

In order for this process to take place with maximum comfort, I have prepared a standard form and several questions. Please review the sample report form and answer the questions below:

• What reporting frequency is optimal for you?
• What time of day do you plan to send report forms?
• Do you currently use your own reporting system?

A standard report form is attached to this letter.

Best wishes.

Pay attention to the form and style of the letter - it emphasizes that you categorically refuse to work with subcontractors who do not keep records, but at the same time you are liberal enough to work out convenient schedule reporting.

Typical form of control system

It is possible that some managers will consider the introduction of a strict control system an unnecessary step - one that constrains the creative possibilities of the subcontractor. IN in this case It should be clearly understood that it is difficult to report to someone who has done nothing and vice versa - a professional is proud of his work and will be happy to write to you all the details of its implementation. Moreover, if you immediately offer a clear form of a standard form, an example of which is given below:

Report No. 1, dated 04/14/07

(enter the full project name)

Date of receipt of technical specifications:

Enter the data

Accepted completion date: enter data

Deviation from the accepted schedule:

Enter the data

Done:

Indicate the work that was performed in accordance with the accepted terms of reference using the following form:

Current work:

Indicate the tasks, in accordance with the accepted technical specifications, the work on which is currently being carried out, using the following form:

Planned works:

Indicate the tasks, in accordance with the accepted technical specifications, the work on which is planned to be completed after the completion of the current work block, using the following form:

Comments and suggestions:

Enter additional information

The above form begins with a simple fixation of deadlines - this is more necessary for the subcontractor himself, since he gets the impression that you are providing him with the opportunity to track the completion of work according to the agreed schedule. He cannot change the issue date or the accepted completion date in any way, since he knows that you have identical copies of the documents and all data is checked.

Specifying deadlines is aimed at achieving only one goal; in case of missed deadlines, the subcontractor will independently track the delay from the schedule, actually confirming the failure to fulfill the terms of the original contract - this is a psychological technique that will save you from the potential need to “prove the guilt” of the subcontractor.

Note:

Naturally, in conflict situations, especially in business, the guilty party tries to reduce its responsibility as much as possible; sometimes this desire takes precedence over common sense. The introduction of a control system, first of all, structures the work process, but also prevents the distortion of facts and the making of false accusations. And although the scheme for selecting subcontractors described above almost certainly excludes the possibility of cooperation with mentally unstable people, you should always be prepared to consistently prove your own position based on facts.

Control system and its presentation

The next phase of the first stage is the presentation of the control system to the subcontractor and reaching agreements. The result is receiving a response from the subcontractor. In fact, in his answer you will be interested in only a few questions:

• Is the subcontractor ready to introduce a control system?
• What time of day will you receive the report?

These issues may be subject to negotiation. Because, in any case, the final word on such issues as “regularity of reporting” and “the system of control of work performed by the subcontractor” always remains with you. Therefore, if the answers to these questions do not satisfy you, explain that the option he proposed cannot be accepted and that this project can be transferred to work only on the conditions you provide. But as I already said - do not turn into an “SS officer” - this is unacceptable in voluntary and mutually beneficial cooperation.

An important point is the reception and storage of reports - reports must be in a single format (Word, PDF, etc.), have standardized names (for example, Report.Date.Short name of the project), and stored in a specially designated project folder (for example, reports).

It is unnecessary to talk about the value of this information and how it is stored, but you should pay attention to the schedule for receiving reports. The whole essence of the project work control system is its systematicity and unquestioning execution, so if a subcontractor does not fulfill its obligations to provide a timely report, this is a reason to look for a replacement.

Even a single failure, for any good reason (good reasons will be discussed later) is a precedent for failure to fulfill obligations.

This case must be agreed upon in advance mandatory- the subcontractor must clearly understand the consequences of neglecting the work control system and agree with the established penalties.

Penalties according to the system

When it comes to fines, the moment of truth comes for you - the irresponsible subcontractor has no money, no reputation, and certainly no desire to pay you any “fines” (the amount of which, in most cases, is taken “out of thin air”). Therefore, there is no need to talk about any kind of material compensation for your losses (unless you use a so-called trust), however, you can minimize the risk of disrupting the project deadlines, and the secure transaction service will insure you against material losses. And again, do not become a victim of misrepresentation of facts by a subcontractor in the event of a conflict situation.

The obligation to send regular reports must be clearly stated in the contract you enter into with the subcontractor or supported by written consent from the subcontractor.

Many of us do not tolerate “paperwork” and are not able to systematically adhere to the accepted schedule, so if you doubt your ability to follow the rules you have adopted, it is better not to waste time developing and implementing a system for monitoring work on projects. Because the policy of selective execution turns any system into another bureaucratic leech.

Signs of a Coming Crisis

It is generally accepted that subcontractor reports in most cases distort the facts in favor of the interested party. This is also a natural human trait that is especially acute when working with remote workers. Therefore, you should learn to determine the true state of things, since whether you can prevent an impending crisis depends on this skill. Fortunately, people's behavior is fairly standard, so you can identify problems using these simple signs:

The subcontractor violates the reporting schedule or his reports contain general phrases that are not supported by results that can be verified

First of all, look in the report for phrases like “engine restructuring”, “expanding functionality”, “universal use”, “introducing new technologies”. Perhaps the work is really being carried out - then this can be checked using the intermediate results. For example, a subcontractor claims that he has already “developed a new navigation mechanism and now all that remains is to set up general work main blocks of the engine" - ask to show the developed navigation in action. If in response the subcontractor begins to refuse immediate testing or, after your persistent request, still shows an obviously unfinished product, feel free to look for another subcontractor.

The subcontractor does not make contact within the agreed hours

If after the first signs, similar reports, general assurances and lack of interim results, you begin to actively ask about the progress of the work, the subcontractor simply gets tired of “making up” answers, he is tormented by his conscience and he firmly decides to finish the task and present it, and in the meantime take a break for negotiations. However, he still cannot gather his strength - the work is stalled and time is running out. In the end, due to the stress caused by his own laziness, he gives up and, without making contact, disappears.

After requesting interim results from the subcontractor, the Internet and electricity in the entire city are abruptly turned off for a period of more than one day

In fact, nothing has been done, nothing at all. And the main reason is that the subcontractor cannot start working, every day he looks through mail, forums, blogs - he hangs out. And every day he promises himself that the work is not difficult, he is talented and can do it in five or ten times less time than he indicated for you.

Remember, if you receive a report that says a block of interim work has been completed, request that work in full. In the request, be sure to indicate that intermediate results must be transmitted immediately, regardless of “lack of electricity” or “poor Internet service,” as well as with all working notes. If your request is not met, no work has been done.

Subcontractor reports force majeure

After a serious deviation from the schedule, the subcontractor unexpectedly declares force majeure and here you must be extremely careful. Because force majeure is a reason that is not verified or questioned. Most likely, you will receive a short message similar to a telegram: “Severe problems in the family, I urgently need to go to another country, I’ll be back in a week and will hand over the work right away. Sorry, but you understand.” In 99% of cases, if force majeure occurs after the inability to complete the project on time has been identified, there is no force majeure, you are being deceived, playing on your sympathy. Despite the apparent tragedy of the situation, you need to make an unequivocal decision to change the subcontractor, otherwise the project will fail (and regardless of whether it is true or false).

In such situations, it is important to be able to “switch places”, imagine that you have force majeure, all the money has been stolen, and you inform the subcontractor about this in the middle of the project.

Will he waste time on a project if he is not sure of payment?

Never mix business relationships and personal emotions, as they are not compatible.

A few days before the delivery of the project, the subcontractor asks to postpone the acceptance date

As soon as you receive a request to change the project acceptance date, urgently request all work completed to date - this is your full right. Moreover, if a contract was concluded that was insured by the secure transactions service, the subcontractor is obliged to provide you with all materials in the form of “sources”.

If you work according to the “pay as you go” scheme, he is obliged to upload all the developments to his own server. If the requirement is not met, the subcontractor has failed the project and is trying to gain time in order to have time to put together a crooked version in a couple of days and refine it for several more months.

This is a short list of reasons that often arise when working with subcontractors (freelancers) on the Internet.

Good luck and don't be offended