It is legislatively established that the prerogative of choosing the management of the property of apartment buildings lies exclusively with the owners of the premises. When they delay making a choice or refuse to make any decision in principle, the municipal authorities organize and conduct an open municipal competition. In some cases, it is declared invalid, on the basis that the complete absence of participants in the event is documented. The publication describes in detail the process of properly conducting a competition to select a new management company.
Grounds for holding an open competition (OK)
An open competition to select a new management company is held when the owners of apartment buildings have not chosen the type of house management due to:
- the inability of residents to get together and come to some kind of common decision
- lack of implementation of the decision made at the meeting
- on the basis of recognition in court of the insolvency of the meeting and the adoption of a decision
- all attempts to reconvene were unsuccessful
- the majority of residents ignored the earlier decision and did not conclude agreements with the management company
- residents did not submit the appropriate papers for state registration of a special private utility company
- a new building was built and an operating permit was obtained
There are often cases when the administration of a district or city refuses to hold open competitions, not wanting to fulfill the obligations regulated by Article 161 of the Housing Code. In other words, the organizer covers those management companies that must be replaced by decision of the meeting of residents. In arbitration practice, there are cases when a local government authority independently granted the right to manage a house to a company, without conducting an OK. And this does not comply with the requirements of the antimonopoly law on the protection of competition, Part 1 of Art. 13 Federal Law.
Who is the initiator?
In this situation, the right to initiate a competition to select a management company may, depending on the situation, belong to different entities.
First of all, the initiative can come from the residents of the apartment building themselves, who ask the administration to participate in their fate , and propose the most effective and profitable management organization as part of the competition.
Also, the initiative can come from the administration itself if the residents have broken the contract with one management company and are in no hurry to choose a new one within the established monthly period.
a developer company that rents out a property can contact and ask the local government to take a closer look at certain companies so that they can subsequently offer their candidacy to the residents and exercise control over the house.
Also, the initiative may come from the management company, which for some reason has ceased its cooperation with the residents, and is now looking for a worthy replacement . True, such situations occur very rarely.
Legislation
The main and main law on the activities and selection of management companies is the Housing Code. Basic rules and regulations:
- Art. 162 regulates the prerequisites for starting the process of open competition for the selection of a management organization
- In Art. 164 describes the reasons why an OK should be carried out by the municipality
- If we are talking about new objects, then Art. 161 Residential Complexes of Russia, the organizer places an announcement on its website about the beginning of the competitive selection
- Article 200 regulates the time period for receiving notifications from the housing office and the selected management company
- Federal Law 189 dated February 29, 2004 fixes the implementation of the Housing Code and the activities of regulatory institutions
Conclude a management agreement without competition
As we said, according to the Rules approved by the RF Government No. 75, if a competition is declared invalid, the compulsory medical insurance holds a new competition. Its winner enters into a management agreement with each owner of the premises in the apartment building.
The compulsory medical insurance cannot impose a specific management organization on the owners of premises. He holds an open competition for the selection of a management company only if the residents of the house have not independently chosen a manager within the established time frame.
At the same time, the owners, until the day of the competition, have the right to choose a management company at a general meeting. If they have exercised their right, an open competition is not held (clause 39 of the Rules).
The Housing Code of the Russian Federation stipulates the possibility of concluding an agreement for the management of apartment buildings without holding an open competition if this competition is declared invalid (clause 8 of Article 161 of the Housing Code of the Russian Federation).
This means that the compulsory health insurance company can choose a temporary MA for the home. The rule on choosing a temporary management organization applies to houses for which there is a high risk of being left without management or which were unilaterally abandoned by the management company without objective reasons. In this case, the compulsory health insurance company, according to the recommendation of the Ministry of Construction of the Russian Federation, may appoint a temporary management organization.
The management agreement with the temporary management authority will be valid until the management organization is selected on a competitive basis. The owners of the premises cannot be forced to conclude such an agreement; this is not provided for by law.
Such a management agreement cannot be concluded if an open competition for the selection of a management organization was not held at all. Local self-government cannot refuse to hold an open competition. Any owner of premises in a house can, through the court, demand that the local self-government body choose a management organization (clause 7 of article 161 of the Housing Code of the Russian Federation).
How to set the price of a management contract
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Tender documentation and organization of inspection of apartment buildings
The municipal competition prohibits any negotiations with applicants before the start of bidding. Before the official announcement of the start of bidding, the administration and the initiative group draw up the following documents:
- Certificate of general technical condition of premises
- Schedules of recent examinations by specialized specialists and their expert opinion
- List of mandatory functional duties required to maintain the premises and surrounding area
- Management contract
- Regulated procedure for holding an open competition by the organizer
- Application for appearing in the auction
- Minutes of the meeting and voting results
By organizing an inspection of the entire property fund of the microdistrict, we mean drawing up a special report on the technical condition of the building premises. The event is carried out by compulsory medical insurance with the involvement of specialized specialists (if necessary).
How to draw up and submit a competitive application for managing an apartment building
The competition cannot be held, and the meeting is considered invalid if MAs with incorrectly completed applications were admitted. When filling out, it is important to provide the following information:
- name and legal form of management of the organization
- OKPO code, place of registration
- Bank details
- document indicating the applicant’s compliance with the previously established rules for bidding
- receipt of deposit of funds as security for the application for participation (this is optional and is determined by the organizer of the competition)
- recent financial balance of the company
- details of the director and chief accountant
The form must be computer-typed, printed and signed by the manager of the enterprise.
How is the winner determined?
When the initiators of the competition are the residents of the house, the winner is determined by voting. The votes cast are recorded by a special commission in the minutes of the meeting. The commission consists of: a chairman, a deputy and a secretary. People are elected to this position from among the initiative group of residents or representatives of local government bodies. The results obtained are calculated by a previously selected commission and recorded in a special protocol.
If the total number of votes cast for one management organization does not exceed 51%, then the meeting is considered invalid. It is necessary that more than half of the residents vote for 1 company. Moreover, more than ⅔ of all homeowners must be present at the meeting itself. If the number of people present is smaller, the results are considered biased.
It is also important that voting takes place in one room - door-to-door collection of votes or aggressive campaigning is unacceptable. When the local administration initiates the bidding, then during voting its vote is added to the main ones.
RF PP No. 1541 from 01.01.19 changed the approach to the selection of management organizations through an open competition. Now the organizers independently approve the only list of works and services. Participants do not offer to do more work for an approved price, but are able to perform specific services for less money.
The winner is the company that is able to complete the specified work at a lower cost.
From 01/01/19, 2 new requirements for participants appeared:
- No debts to resource supply companies for 2 or more periods
- Absence of arrears in payment of administrative fines for committing offenses in the field of commercial activities for the management of apartment buildings
Housing and communal services news
Until 2021, the competition was won by the agency with the largest amount of work and services in terms of cost. December decrees of the Government of the Russian Federation dated December 14, 2018 No. 1541 and December 21, 2018 No. 1616 change the procedure for selecting a management organization for apartment buildings.
Before they came into force, the local self-government body, as the organizer of an open competition for the selection of a management authority, itself established the amount of fees for the maintenance and repair of residential premises. Management organizations, when submitting an application to participate in the selection, automatically agreed to service the house at the price proposed by the municipality.
The winner of the competition was the management company that, for the established fee, was willing to perform the largest amount of additional work and services in terms of cost. The selection participants themselves set the cost of such work and services, and these prices were not subject to verification. Such a condition led to completely absurd situations, which, however, were recognized as legitimate in court, since they did not violate the requirements of RF PP No. 75.
For example, an open competition for the management of several houses in the Leningrad region was won by a management company that offered additional work and services with a total value of 999 quadrillion 999 trillion 999 billion 999 million 999 thousand 999 rubles.
The AS of St. Petersburg and the Leningrad Region in case No. A56-10392/2014 found no violations. The local self-government body could take another route: independently establish the cost of additional work and services. But in this case, if the cost was known in advance, the participants declared the maximum price, and the winner was the one who brought the application first.
Starting from 2021, the competition is won by the management company with the lowest fee for the list of services. RF PP No. 1541, effective January 1, 2021, changed the approach to the selection of management organizations through an open competition. Firstly, the concept of “additional list of works” has been removed from the document. Now there is only one main list of works and services. It is approved by the competition organizer. Secondly, the winner is the company that offers to complete the specified list for the lowest fee.
That is, the competition participants are now offering not to do more work for the same cost, but to perform a specific list of works and services for less money than other management organizations. The one who offers the smallest fee wins.
At the same time, according to paragraphs 59, 76–78 of the RF PP No. 75 as amended by the RF PP No. 1541:
- Participants in the selection can reduce the fee step by step by 0.1%, but not more than 10% of the initial price. Otherwise, a new competition is held, at which the starting price is calculated anew.
- If no one applied for the competition, then the cost of work and services increases by 10%, but not more than 1.5 times higher than the municipal tariff.
- If several participants offer the same minimum amount of payment at once, the winner of the competition is the participant who submitted an application for participation in the competition first.
Also, from January 1, 2021, two new requirements for competition participants appeared:
— the applicant has no debt to the resource supplying organization for 2 or more billing periods, confirmed by reconciliation acts or a court decision;
— and the applicant’s lack of debt to pay administrative fines for committing offenses in the field of business activities in the management of apartment buildings.
If the competition does not take place, the LSG body independently appoints the MA from the compiled list. Decree of the Government of the Russian Federation dated December 21, 2018 No. 1616 changed the procedure for determining the management organization for houses for which the competition did not take place due to the lack of participants. According to the new rules of RF PP No. 1616, in this case the management organization is appointed by the local government body.
The municipality itself:
— decides what list of works and services and for what amount of payment will be performed by the management organization based on the minimum list and the tariff established by the local self-government body;
- appoints a management organization that will do this.
The MA is selected from a special list, which includes companies that have submitted the appropriate application, as well as all companies that, starting from January 1, 2021, participate in any open competition for the selection of a management organization (clauses 52, 53 of the RF PP No. 75).
Organizations are included in the list in chronological order: by the date of the application or the date of drawing up the protocol for considering applications for participation in the competition. The generated list is placed in the GIS Housing and Communal Services. A management organization can be removed from the list only after receiving an assignment for a house from the municipality. According to clause 8 of RF PP No. 1616, when determining a management organization to manage an apartment building, the local self-government body selects from the list the one that manages the smallest number of houses previously transferred to it for management in accordance with the norms RF PP No. 1616.
That is, it is not the total number of houses under management that is compared, but only the number of houses under management that the company manages based on the decision to select it as a manager from the list. If 2 or more management organizations manage an equal number of houses from the list, the local self-government body selects the management organization that is ahead of the rest of the applicants on the list.
A management entity can submit an application for exclusion from the list only if it has taken control of at least one house on the basis of its selection by the LSG body from the list (clause 8 of RF PP No. 1616).
Two new decrees of the Government of the Russian Federation changed the approach to the selection of management organizations for apartment buildings: where the owners did not choose or did not implement the form of management, which the management organizations refused, for which an open competition for the selection of management organizations did not take place.
A management organization, when submitting an application to participate in an open competition organized by a municipality, must keep in mind that it will automatically be included in the list of management organizations formed by the local self-government body in accordance with RF RF No. 1616. As part of the competition, the list of additional services of the management organization is no longer taken into account: the winner becomes the organization that is ready to carry out works and services approved by the municipality for the lowest fee.
Source: RosKvartal® - Internet service No. 1 for management organizations https://roskvartal.ru/deyatelnost-uk/9921/novye-pravila-vybora-uo-dlya-mnogokvartirnogo-doma-po-konkursu-i-bez
What to do if the competition for the management of an apartment building does not take place
RF PP dated December 21, 2018 No. 1616 radically changed the principle of selecting a management organization (MA) for MKD, because the auction did not take place due to the non-appearance of participants or owners. Now the new rules require the local government to independently appoint a new management company. According to the new document, the municipality independently determines:
- List of works, services and the amount of payment for which they will be performed by the MA
- Appoints an executive management company
Firms are included in the list by the date of filing the application or the date of drawing up the protocol of opening the envelopes and reviewing for the correct preparation of applications. Lists must be posted in the GIS Housing and Communal Services. The management company provides for the independent refusal of functional responsibilities only after receiving an appointment to the microdistrict. The municipality must select from the list the company that has fewer houses under service on its balance sheet.
Is it possible to appeal the results of the competition, the responsibility of the municipality
Often a real war breaks out between homeowners, municipal authorities and management companies. The main reason is the imposition of the MA without written notifications to homeowners. The situation does not arise out of the blue; it is often preceded by the inability of homeowners to independently organize and make a decision on the temporary management of their apartment complex. When residents delay making a decision, local governments come into play. From the point of view of the law, everything should happen transparently, but in reality, facts of rigging the results of the competition to “push” their management companies are increasingly being voiced. And often residents are faced with the fact of a competitive transfer of their house to the winning organization. It happens that there are no complaints - everyone is satisfied with the results of the competition.
But there are also cases in the opposite direction. Unfortunately, the passivity of the owners leads to the forced transfer of the property of the microdistrict to the municipality chosen by the municipality. In case of categorical refusal to comply with the results of an open competition, you can go to court. The results of a state competition can be challenged, but the problem of execution of decisions arises. The situation may drag on for many months, even years. In such cases, the municipality is fully protected: it sets tariffs and documents are also maintained in accordance with the law.
Participants
have passed the licensing procedure can participate in the competition . This means that they are law-abiding organizations that pay taxes and operate in accordance with the law.
In addition, such organizations are in good standing , and have more than once proven their functionality to many owners of premises in apartment buildings.
If a management company wishes to take part in the competition, but does not have a license , then in the near future it must go through the procedure to obtain it.
I can only leave those management organizations that have the opportunity to carry out their activities in a specific area of the city as participants in the competition.
There are other requirements that may be imposed on participants, but are not established individually by the administration.
