We work with a budget institution. Part 3

This is the third article from the cycle about working with budgetary institutions. If you forgot what you are talking about, you can reread the previous parts ( part 1 , part 2 ).
Today we will cover the following topics:
- long way from promise to commitment;
- technical problems pitfalls;
- Execution can not be pardoned to change can not be left, or how legislation affects the technical task;
- again KOSGU;
- other.

Chapter 0. Boring but ordinary

In the previous article, we:

• We learned that the customer can spend money in different ways and in accordance with different laws;
• made sure that in the case of purchases from a single supplier, the customer is limited to some marginal amounts;
• got acquainted with the Schedule - a document containing information on procurements planned by the customer;
• found out that the PCD plan and the Schedule are closely related, and the general informatization leads to seemingly strange dependencies.

Chapter 1. Terms of Reference - is it important?

So, having received from the customer an offer from which it is impossible to refuse to develop some kind of software for him for a certain amount of money, we brought the customer to a nervous breakdown and undertook some surveys in order to obtain additional information. Do we know what exactly the customer wants?

Much has already been said about the importance of the technical assignment (hereinafter - TZ), so we will not break into the open door: you are all experts in your field and you know better than many that should be spelled out in the TK.

Let us clarify the boundary conditions: the software we need to develop is a file copying program (yes, the idea from this article is used ). What exactly needs to be clarified before starting work, and what is not, and the controversy that has developed around, read there in the comments. For those who for some reason cannot read this article, a very simple example:

Suppose the TZ states that the program should work in Windows OS Windows XP Windows Vista Windows 7 and higher, but the supported file systems are not specified. Theoretically, it can be assumed that since the program should work under a specific operating system, then there are no problems: we will be guided by ntfs, fat, exfat and refs. Does it follow from the operating conditions of the program only under Windows OS that such file systems as ext2 / 3/4, btrfs, reiserfs and others can be ignored by us? No, it should not.
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One could argue that such a situation is incredible. And if the customer has Linux in dual-channel (was or is) or the transition to open source software took place (yes, partially, yes, not everywhere, yes, crooked - but nonetheless) - this is where the partitions containing information with other file systems come from, but the program itself copying should work without fail from under Windows? In life, anything happens.

Of course, when we deliver the result of the work to the customer, the expert commission (or already proving our case in court), we can explain for a long time that these file systems are not supported by the claimed OS natively, that additional software must be installed to work with such filesystems. And the customer may object to this, that additional software is expensive and even incompatible with any other existing software or hardware, and in general: the customer does not want to reinstall something else - he wants his program to simply work. Do you have a chance to prove your case? Of course. Wouldn't it have been easier to prevent this problem at the stage of drafting the TK? Of course it's easier.

If we are talking about the delivery of computers, then for the customer, when he is just beginning negotiations with you, it may be excusable to write something like:

Item number	Name	Unit measurements	Qty	Price per unit, rub.	Cost, rub.
one	Computer	PC.	ten	10,000	100,000

But after finding out what the customer really needs, the specification may well take the following form (the price is naturally fantastic, but this is just an example):

Item number	Name	Unit measurements	Qty	Price per unit, rub.	Cost, rub.
one	System unit "NoName" Intel Core i5-4460 (3.2GHz) / 8Gb / 1Tb / GTX960-2Gb / DVD-RW / Win10 / Black	PC.	ten	10,000	100,000

What is the importance of the technical task?
We talked a lot about promises, but only they will not be full - now let's talk about commitments. The only (almost only) legitimate obligation of the budget institution before you is a contract. And you need a contract on paper or in the form of an electronic document. But what about the form of transactions, which can be written or oral (article 158 of the Civil Code)? Believe me, this is not our case. Only contract.

Yes, there is an opportunity to deliver the goods to the customer without a contract and receive a signed invoice; you can even get a signed certificate of completed work from the customer without having an agreement on hand. But remember that one of the goals stated in the very first article is to minimize risks, and working without an agreement increases these risks, all other conditions being equal. No contract - there is only a promise of commitment.

The subject matter of the contract is one of its most important conditions (of course, others are important, and we will talk about some of them later in more detail), which is not limited and is not limited to the clause containing the words “The Customer entrusts, and the Contractor undertakes ... ", or a clause with the title" subject of the contract. "

If we are talking about the delivery of goods, then the subject of the contract will be contained, inter alia, in the specification (table above), and if we talk about our long-suffering software to copy files to the development of which we will start at a pace not earlier than in a couple of centuries , then the subject of the contract will be contained, including, in the technical specifications. Agree, “software development” is too general a formulation, “software development for copying files” is only slightly better. But if, in addition to these words, the contract contains TK and other information that allows recording in a form understandable for both parties (and in the event of difficulties, for the court) the form that the contractor is obligated to do, then we will receive the subject matter of the contract.

Chapter 2. Terms of Reference - is it important? - 2

And what are we so attached to the technical task? It will be necessary - then we will correct, many times they did it without any problems. Well, let's see. During the development process, you discovered that something can be done much easier / more reliably / faster and ....

First, almost all changes to the contract are made solely by agreement of the parties (yes, there are other options by a court decision, and some can be changed unilaterally, but this is a completely different song), so you will have to make almost any changes obtain the consent of the customer (which does not always work).

Secondly, are you sure that you have the right to make any changes to the contract? Or what is the right of the customer?

Article 432 part 1 of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation):
"one. The contract is considered to be concluded if between the parties, in the form required in the applicable cases, an agreement has been reached on all the essential terms of the contract.
Essential are the conditions on the subject of the contract, the conditions that are named in the law or other legal acts as essential or necessary for contracts of this type, as well as all those conditions regarding which, according to the statement of one of the parties, an agreement should be reached. ”

Part 2 of Article 34 of 44-FZ:
“2. At the conclusion of the contract, it is indicated that the contract price is firm and is determined for the entire duration of the contract, and in cases established by the Government of the Russian Federation, the estimated value of the contract price or the price formula and the maximum contract price set by the customer in the procurement documentation are indicated. When entering into and executing a contract, it is not allowed to change its terms, except as otherwise provided for in this article and article 95 of this Federal Law. "

Since TK (in part or in full) is one of the components of the subject of the contract (and indeed is an integral part of the contract), it cannot be changed. In general, no conditions of the contract can be changed (with some exceptions). We open article 95 part 1, which states that "changing the essential terms of a contract during its execution is not allowed, with the exception of changing them by agreement of the parties in the following cases:".

Of the entire list, we might be interested in the following items:

• 1b) - the change in the contract price is proportional to the change in the volume of goods, works, services, but not more than ± 10%;
• 1a) - reduction of the contract price without changing the volume of goods, works, services (yes, sometimes it happens);
• 6 - change in the contract price and the volume of goods, works, services while reducing the limits of budget obligations communicated to the customer.

Please note that the agreement of the parties is necessary for all these cases, and for cases 1a) and 1b) the possibility of changing the conditions must also be provided by the contract. These points are quite interesting, and point 6 is also quite dangerous - perhaps, at another time, we will consider in more detail how they can be used to our advantage. But here we have nothing to do with the change in TK.

“Chef, is everything gone?” Not really. Article 95 contains, among others, part 7, which reads as follows:
“7. When executing a contract (with the exception of cases stipulated by the regulatory legal acts adopted in accordance with Part 6 of Article 14 of this Federal Law), by agreement of the customer with the supplier (contractor, performer), the delivery of goods, performance of work or provision of services, quality, technical and functional characteristics (consumer) which are improved compared with the quality and appropriate technical and functional characteristics listed in pin act. In this case, the relevant changes must be made by the customer to the register of contracts concluded by the customer. ”

If the customer does not mind, you can deliver the goods, do the work, provide the service of better quality. How to confirm that the quality has improved? There is no single recipe. With goods, usually simpler: for example, a larger hard disk can be considered an improved feature (there are exceptions: for example, the software with which the customer works does not see disks larger than 137 GB - then, instead of improved quality, we get something inoperative). If it is not about the product, then you can try to get an expert opinion (from a third-party organization or experts), which will confirm that something has improved.

Much worse, if the performance of the work in principle depends on the possibility of changing the TK, and not some pleasant but optional bonuses, such as improving reliability, simplifying and speeding up development, etc. In this case, you will have to invent something - it’s possible that the next crutches.

Important clarification:
There are different opinions on the possibility of changing the terms of the contract: some consider that only essential conditions cannot be changed, others that nothing can be changed at all, others that the situation should be looked at, fourth ones that it is impossible to change anything only in those agreements concluded the results of competitive purchases, etc., etc. Also, there are different opinions about what is relevant to the essential terms of the contract, and what to the insignificant. One of the reasons for this diversity is the regular curvature of lawmakers.

There are other ways to change the TK or not to get around it, but you can’t do that.

Naturally, it is impossible to accommodate all-all-all in the specification or specification - determine the level of detail yourself. Keep in mind that the tougher the TK, the less freedom you and the customer have, and making any changes can be very difficult.

And if you prefer a freer, framework, flexible TK? Subsequently, this may turn out to be protracted disputes with the customer and problems during the delivery and acceptance of work due to the fact that everyone misunderstood each other.

Chapter 3. Terms of Reference - Is it difficult?

If we are talking about competitive purchases, then as a first approximation we can get information about customer needs from the Plan-schedule (customers are required to include some basic information about the object of purchase in the PG) on the tab “Basic positions” (if forgotten - see the previous article) and the full ToR or specification is in the documentation on the relevant procurement. And what about simple agreements (clauses 4 and 5)?

In some regions, customers are required to post information about each planned purchase (even in paragraphs 4, 5) on any electronic trading platform. These sites are used far from everywhere, depend on the region and have different functionality. The procedure for placing information on such sites is determined by local law, so it is impossible to predict in advance what exactly there will be indicated, but something interesting can be found.
In the general case, the only source of information for us is the customer.

Hand on heart: how often did you meet customers with perfectly tailored TK? No, we will increase the tragedy: have you often met customers with at least a normally composed TK? However, we are not quite talking about this, so let's just consider a few typical situations.

Situation 1. There are TK and we agree with him.
Even the usual collection and analysis of basic information necessary to assess the existing TK may well require considerable expenses. No matter how basic this information is, you still need to get it: to meet and talk with the customer; it is possible to spend time and energy on assisting the customer in filling out questionnaires and on their subsequent assessment; It may be necessary to get acquainted with the infrastructure of the customer or with some features of its activities. Naturally, you know much better how much information will be necessary and sufficient for you, and how you will receive and process this volume, so we will not go further.

Situation 2. The customer has developed his TK (quite sane enough), and even has the audacity to dare to insist on it, but in this TK, not everything suits us.
In addition to all of the above, you need to take into account the costs of discussing and making adjustments to the TOR (if the customer basically allows for adjustments).

Situation 3. TK is, but without tears you will not look at it.
There are two main options. If the customer understands the whole truth about his TK and agrees to any adjustments, then everything will be reduced to situation 4, which we will consider a little lower. But if he does not understand or understands, but does not want to make an adjustment (or cannot), then you will have to spend a lot of effort on reassuring the customer (or those higher authorities who have invented such TZ and now stand on their own). By the way, the fact that you convinced the customer (or a higher authority) of the need to adjust the TK here and now does not mean that they will let you work calmly later: the customer, even before signing the contract, can repeatedly demand changes in the TK, and after signing - demand make "as it should," and not as spelled out in "this stupid TK."

Also, instead of basic information, you may have to collect and evaluate a much larger volume: if the customer did not even have the strength to write more or less decent TK, what about the quality of the information he can provide? You can run into such surprises ... Most likely, in your practice more than once there have been situations where, it would seem, it goes without saying that something for granted turned out to be something opposite. The simplest everyday examples are: connecting the Internet to a customer in the absence of computers and other devices capable of using this Internet (the customer was sure that only the Internet was needed!), Or installing a wi-fi router when there was no Internet in principle (the customer was sure that wi-fi = Internet), or the purchase of software without minimum system requirements. But these are very simple examples in which the customer is the SSZB. And if you do not check the obvious (for you, but not for the customer!) Information, you will be the last?

Situation 4. The customer does not have a TK, and all he can do is pronounce / read from a piece of paper / depict with the language of gestures (underline) what he needs.
The situation is not uncommon, and you should not lament (or out loud) complain about stupid customers - the state’s imagination is so unlimited, and the belief in the capabilities of its own citizens is so great that the director of some rural school may well be faced with the need of landscaping and capital repairs. building and building a site (and this in the presence of the Internet, depending on the direction of the wind). And all this must be done yesterday and, preferably, without money.
The first reaction can be “again from the customer with tongs to pull out information, to write TK to oneself, and so on.” And “the same is great: set yourself the task and do it yourself - what could be better.” Well, let's not argue with any of the points of view - they all have the right to exist.

In general, in situations 1 and 2, just think again, is it really all simple and inexpensive, and in situations 3 or 4, first of all answer yourself one question: do you need it? Yes, like this - right in the forehead. After all, you can simply refuse, and not having spent a single drop of strength / nerves / time to assess and correct an obviously delusional TK or to write it from scratch.

Chapter 4. Again KOSGU

So, the customer is tortured to death gutted fully clutching his heart at your mention provided us with the necessary information, we properly assessed and supplemented it with the collected one personally, brought (or did not bring, because we considered it unnecessary) the PCD plan and Schedule ( incidentally measuring the time, how quickly processes occur both within the organization of the customer, and when interacting with higher authorities), clarified ambiguous points and almost agreed on the TK, and suddenly ... it turned out that a hundred This KOSGU does not correspond to the subject of the contract and TK.

First, not suddenly, because We already spoke about the possibility of such an option in the very first article (chapter 5, situation 3). Secondly, that the PFD plan and the schedule are subject to change, we are aware of, and realize that during long negotiations with the customer, the information we have collected needs to be periodically updated.

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And if the customer refuses to change the article KOSGU, but you want to work? About that, with which the above described situations are likely to lead, and what can be contrasted with this, in one of the following articles. And to agree to such working conditions or not - the decision will depend only on your risk assessment.

And if we article KOSGU so authentically and do not know? According to the PFD plan and the Schedule, it was not possible to determine, but the customer doesn’t explain anything, or is it unconvincing? Yes, and how to check that he is telling the truth?

Well, at a time when our space ships are plying the expanses of the Universe, people need to take their word for it, because great importance is attached to the principle of good faith of the parties ... No, it’s too early to surrender:

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