Who carries out the construction? Developer, general contractor? Are these equivalent definitions of the person carrying out the construction? We will analyze this further. We also consider the legislative regulation of such a status, the rights and obligations of such persons, their responsibility, and main functions.
The person carrying out the construction is either the developer or the person who was the developer or the customer involved on the basis of the relevant contract. But can it be physical or only legal status is allowed? The answer is unequivocal: it must necessarily meet the requirements for persons carrying out construction. They are detailed in part 2 of article 52 No. 190 (2004). In turn, this federal law was updated, edited in the latest version - Federal Law No. 148 (2008).
A person carrying out construction is also an entity engaged in reconstruction, overhaul in relation to capital construction objects . It produces those varieties of work that affect safety, the general condition of capital development objects. Hence, this activity can only be carried out by individual entrepreneurs or legal entities that have certificates on the possibility of admission to such work issued by self-regulatory organizations.
As for other types of construction, overhaul or reconstruction works, legal entities and individual entrepreneurs, as well as ordinary citizens - individuals can deal with them.
The person carrying out the construction is either the developer himself, or the individual / legal entity that was involved by the developer, the customer on the basis of the contract. It must necessarily comply with the requirements of Russian legislation for companies and entrepreneurs engaged in construction.
We decided who is the person carrying out the construction. Close to this are the following concepts:
- Designer - prepares project documentation.
- Firms or entrepreneurs engaged in the reconstruction of capital facilities.
- Subject performing overhaul of construction objects.
Who are developers?
Let us compare these seemingly similar definitions: developers and construction workers. Are these equivalent concepts or not?
The Town Planning Code of the Russian Federation defines a developer as an individual or legal entity that provides various construction measures, major repairs, and reconstruction in relation to capital construction objects on its land plot (or on the land plot of another copyright holder). Also, it is the developer who performs such procedures as engineering surveys, preparation of project papers for the implementation of construction, major repairs or reconstruction of the building.
The developer can act not only according to his interests, but also for the benefit of customers, which can be a variety of legal entities, individual entrepreneurs, Russian, foreign citizens and so on. Some categories of clients of developers are:
- State bodies of the Russian Federation.
- Management bodies of extrabudgetary state funds.
- The structure of local self-government of constituent entities of the Russian Federation.
Relationship of concepts
How are the customer, the developer, the person carrying out the construction related? Here are a few examples:
- The customer can act as a client of both the developer and the person who carries out the construction.
- The developer can act as both the person carrying out the construction and the customer in the event that he delegates the construction work to a third party - physical or legal.
- The subject carrying out the construction is the party that is directly involved in the work (construction, repair, reconstruction). Accordingly, it cannot be a customer, but it can be both the builder himself and the party to whom he entrusted certain works with respect to capital development objects.
We will touch on the general provisions of the documentation that governs the responsibility of persons carrying out construction, their rights, functions, duties. Here is the important thing to highlight here:
- The Party carrying out the construction is a legal entity or an individual organizing, coordinating construction work, as well as the reconstruction and / or overhaul of a capital development object. Also, it must ensure compliance with all points of design documents, technical regulations, safety during the entire construction work.
- The person carrying out the construction, who completed the work, is fully responsible for their quality, compliance with the entire range of requirements of design documents.
- In his activity, this person is guided by the following legislative acts: Town Planning Code of the Russian Federation, Civil Code, regulatory documents governing both the conclusion and execution of construction contracts.
- Upon concluding the relevant contract with the customer, the person carrying out the construction shall be vested with the functions of the general contractor prescribed in the Civil Code of the Russian Federation, but only if the contract for the construction contract with the customer / developer does not imply that he fulfills the contractual obligations only on his own.
- Persons carrying out construction are required to have a certificate of admission to construction work issued by an authorized organization.
This is the most common clause of provisions. It is included in all orders for the appointment of the person carrying out the construction. The functions here are the following:
- Organization and / or coordination of construction, overhaul, reconstruction of capital development facilities.
- Performance of work on the erection, installation of building structures, engineering systems of the facility in accordance with the design and working documents. It is carried out both on their own and with the involvement of third parties.
- Ensuring the development of the necessary organizational and technological documents, construction projects.
- Drawing up and further approval of work schedules, delivery of necessary building materials, structures, products, equipment for construction work, reconstruction, overhaul.
- Acceptance of works completed by them from subcontractors, payment in accordance with the concluded subcontract contract.
- Determining the responsibilities of subcontractors for the supply of building materials, structures, products, equipment necessary for work.
- Comprehensive construction control, including the conformity of the used building materials, products, compliance with technological regulations, work and project papers.
- Maintaining all necessary construction documentation.
- Ensuring occupational safety at construction sites, as well as the general safety of construction work for the population of nearby areas, the environmental situation.
- Construction site management. This also refers to ensuring the protection of the facility until it is accepted by customers.
- Fulfillment in full of the requirements of the local government to maintain order in the territory adjacent to the construction site.
The concept of building control
The representative of the person carrying out the construction is obliged to carry out construction control. We will analyze specifically what it is:
- Input control of design documents for the construction object, which are provided by the developer or customer.
- Quality control of used building materials, structures, products, equipment that are supplied for the construction, repair, reconstruction of the facility.
- Verification of compliance in full with established standards, rules for warehousing and storage of applied construction products.
- Verification of compliance with the sequence and composition of various technological operations during the implementation of the event: construction, overhaul, reconstruction.
- Joint with the customer survey of works that are called hidden.
- Interim acceptance of already erected building structures, which may affect the safety of the facility under construction.
- Interim acceptance of networks related to engineering and technical support.
- Acceptance of completed stages and completed types of work.
- Joint verification with customers of the compliance of a fully constructed facility with the requirements of design and working documents prepared on their basis, the results of engineering surveys, the requirements of town-planning plans for this land allotment, and relevant technical regulations.
The rights of the representative of the person carrying out the construction, as well as the contractor himself, are expressed in the following:
- Select subcontractors to perform certain types of construction work, both upon agreement with the customer, and completely independently. This right is guaranteed by orders to the person carrying out the construction.
- Conclude subcontract and contract in the manner approved by Russian law.
The representative of the person carrying out the construction is, accordingly, the entity representing the interests of the contractor. Most often it is he who concludes construction contracts with the customer or the developer.
As for the responsibilities of persons who carry out reconstruction / construction / overhaul, then the following is highlighted:
- Such a person is obliged to carry out this construction event in accordance with the assignment that was provided to him either by the customer or by the developer. This refers to various design documents, requirements for urban planning of land plots, requirements of current technological regulations. At the same time, the contractor is obliged to ensure the safety of third parties at the construction site (comply with labor safety requirements), take care of the environment (comply with environmental laws), and worry about the safety of cultural heritage sites.
- The person who carries out the construction is obliged to keep a general journal of the work performed, and executive documentation required by law. It must notify its customer (or builder), as well as state supervisory authorities about the completion dates of those works and processes that are subject to mandatory verification. When identifying errors, deficiencies, the contractor must completely eliminate the deficiencies identified by the verifiers. He proceeds to continue work on the plan only when the competent authorities draw up an act on the complete elimination of the deficiencies found. The person carrying out the construction fully controls the quality of the building materials used for the work.
- Organizations and construction companies are obliged to strictly comply with the instructions of customers received during the construction of the facility, but on the condition that these instructions do not contradict the initial requirements, the terms of the contract for a construction contract, do not constitute interference in the operational and economic activities performer.
- If during construction work, major repairs or reconstruction of a cultural heritage object is discovered, the person carrying out the construction must immediately stop fulfilling the terms of the contract. Then it informs about the find the government bodies of the Russian Federation, dealing with the problems of preservation of such objects valuable for culture and future generations.
The membership of persons carrying out construction under contracts with customers and developers also has a certain responsibility. Consider the standard provisions of contracts dedicated to her:
- An individual entrepreneur or an organization carrying out construction is fully responsible to its customer for the fulfillment of all contractual obligations to carry out all the work that is due at all stages. In particular, this ensures the high-quality and timely completion of construction and installation tasks, special types and cycles of work, the construction site is equipped with the necessary engineering and technological equipment, building materials and working structures.
- Persons who carried out the construction are fully responsible to their customers for the consequences of non-fulfillment or improper performance of obligations by their designated subcontractors.
- Before the subcontractors themselves, the organizations and individual entrepreneurs carrying out the construction are responsible for the improper performance or non-fulfillment by the customer of the terms of the contract for subcontracting (for example, in terms of payment for the services provided or work performed).
- Both the variety and the size of the responsibility of the persons carrying out the construction for non-fulfillment of their obligations or their improper performance are established by the local contract (subcontract) and civil law generally applicable on the territory of the Russian Federation.
So, the persons carrying out the construction can be both legal entities and individuals (IE), having permission to carry out construction work. Their rights, obligations, and responsibilities must be enshrined in a contract for a subcontract. The performers themselves and their representatives are obliged to act within the framework of the Civil Code and Civil Code of the Russian Federation.