Current changes in the contract system for procurement participants. Current changes in the contract system for procurement participants Sales under 44 Federal Laws

• On 09/07/2018
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• 44-FZ, EIS, Request for quotations, Request for proposals, Competition, NMCC, SMP, Electronic auction, ETP

Among the suppliers in public procurement There are several preferential categories. They need to be given certain benefits. Let's consider who they are intended for and how the customer needs to act.

Preferential categories of government procurement participants

The contract system was created not only to make budget spending more transparent, but also to provide participants with equal access to procurement. This promotes fair competition. At the same time, preferences are provided for certain groups. The government order includes three categories of beneficiaries:

• small businesses and socially oriented non-profit organizations ( SMP and SONO);
• organizations of disabled people ( OI);
• correctional system institutions ( UIS).

Rules for assigning participants to each category and links to regulations are presented in the following diagram.

Registration in ERUZ EIS

From January 1 2020 year to participate in tenders under 44-FZ, 223-FZ and 615-PP registration is required in the ERUZ register ( Single register procurement participants) on the portal UIS (Unified Information System) in the field of procurement zakupki.gov.ru.

We provide a service for registration in the ERUZ in the EIS:

SMP and SONO

Organizations of disabled people

Correctional institutions

Article 30 44-FZ

Article 29 44-FZ,
Resolution No. 341 of 04/15/14

Article 28 44-FZ,
Resolution No. 649 of 07/14/14

SMP: Small businesses that meet the criteria of the law of July 24, 2007 No. 209-FZ.
Main criteria:

• revenue excluding VAT up to 800 million rubles;
• average number of employees up to 100 people;
• share of commercial companies (not SMEs) in authorized capital– no more than 49%

SONO: Organizations in the forms provided for by the law of January 12, 1996 No. 7-FZ (except for state corporations, state-owned companies, political parties). They carry out the activities listed in Article 31.1 of Law No. 7-FZ.

All-Russian public organizations disabled people (PD), their unions:

• 80% of members are disabled;

Organizations whose capital consists 100% of contributions from the IO:

• the average number of disabled people in relation to others is at least 50%;
• the share of the salary of disabled people in the wage fund is at least 25%.

Organizations from the list contained in Government Decree No. 89 dated 01.02.2000.

The following table provides basic information on benefits, their scope and method of provision.

Table. Benefits for emergency medical services and public health organizations, IP institutions, organizations of disabled people

How are preferences provided to preferential categories?

Benefits for OI and UI

The specified categories are provided with benefits if the procurement object is included in the list from the relevant resolution (No. 341 and No. 649, respectively). The customer determines the object of purchase and checks with these regulations. If the product is included in one of them, it is necessary to establish benefits for the corresponding category of participants.

The advantages for penal institutions and organizations of disabled people are as follows: the contract will be concluded at a price 15% higher than that included in the application of such a participant. From the wording of the law it may seem that the advantage may be less than 15%, but this interpretation is erroneous. The advantage is assumed to be 15%, but the contract may be awarded at a price not higher than NMCC (letter of the Ministry of Economic Development 10.15.2014 No. D28i-2197).

The lists of resolutions indicate codes according to the OKPD2 classifier. It has a certain structure (shown below using the example of class 13 "Textiles and textile products"). The benefits extend to all lower levels of the code structure.

OKPD2 structure

For example, a customer needs electric portable lamps. This procurement object corresponds to the code OKPD2 27.40.21.110. We check Resolution No. 341 and see that it includes a code 27.40.2 “Lamps and lighting devices.” The procurement object required by the customer is included in the structure of this code. Accordingly, it is necessary to establish an advantage in procurement for organizations of people with disabilities.

Important! If you need to purchase different items, make sure that they are all included in the list. Only then is it worth including them in one purchase. If you need to buy goods other than the list, follow different procedures.

The advantage must be established in planning documents and duplicated in procurement documentation and the draft contract. It should also be indicated that the contract cannot be concluded at a price higher than the NMCC. Below is an excerpt from the auction documentation containing a reservation about preference for preferential categories:

How participants confirm their membership in a specific category

To take advantage, the participant must belong to the UIS or OI category. This must be documented. The confirmation method depends on the method of purchase:

1. If this , electronic auction, request for proposals in electronic form, then the participant must submit documents(copies thereof), which will confirm the right to receive the corresponding benefits.
2. If carried out email request quotes, then the participant provides declaration in electronic form, which is formed using ETP tools.

Actions of the customer if the beneficiary wins

The winner belongs to the UIS. His application must include a requirement to provide benefits. If there is one, the advantage must be provided.

The winner belongs to the OG. His application must include a statement of category eligibility. Before signing a contract, he must send a request for benefit to the customer. If a claim is made, the contract price must be set taking into account the benefit.

Attention! If the winner avoided concluding a contract, and the participant following him belongs to preferential categories, then he should also be given an advantage.

Contract price

Let us show with an example how to calculate the contract price if the beneficiary wins. Let the subject of purchase be included in the list from Resolution No. 341, which means that an advantage is given to organizations of people with disabilities. Initial contract price - 300,000 rubles. The winner is the application of a subject of the OP category with a price 270,000 rubles. The size of the advantage is 15%.

Let's calculate the contract price. The following formula is used:

Settlement price = PO Price * 15% + PO Price

The calculation is: 270,000 * 15% + 270,000 = 310,500 rubles.

The estimated price, taking into account the provided advantage, is higher than the initial (maximum) price. Thus, a contract with the organization of disabled people will be concluded at a price of 300,000 rubles, that is, according to the NMCC.

Benefits for SMP and SONO

Customers are required to purchase from small and non-profit enterprises at least 15% of the total annual procurement volume (AGP). First of all, you need to correctly determine this volume. If you make a mistake in the calculations or fail to maintain this limit, you can receive a fine of 50,000 rubles.

Formula for calculating SGOZ:

When the SGOZ is calculated, you need to take from it 15% - this will be the minimum purchase from SMP and SONO. However, when planning purchases, you need take this percentage with a reserve, after all, some of them may not take place. In this case, the customer risks not reaching the 15% volume and receiving a fine.

Setting a purchasing advantage

Small Business Advantage Worth Establishing in those procurements for which they are able to supply objects. Thus, you should not announce a purchase for SMP and SONO if the object is, for example, medical services or fuel. Because companies that provide such goods and services are rarely classified as small businesses.

When procurement objects from SMP are selected, this must be reflected in planning documents, procurement documentation and the contract. There are two important points that need to be written:

1. Payment. If the contract is concluded with SMP or SONO, then no more than 15 working days should pass from the moment of signing the acceptance documents to the day of payment.
2. Fines. Penalties will be charged for late payments. In all other cases, facts of non-fulfillment or improper execution of the contract are punishable by fines. These conditions must be specified in mandatory. It is necessary to indicate a fixed amount of the fine, determined based on the value of the contract, as well as the entire fine line. For small businesses the sizes are:
   • if the contract price is up to 3 million rubles, the fine is 3%;
   • with a contract price from 3 to 10 million rubles - 2%;
   • with a contract price of 10 to 20 million rubles - 1%.

An example of the wording of the penalty clause is shown in the following image.

Example of wording on penalties

What else does the customer need to know?

Don’t forget to check the winning bidder if it was announced for SMP and SONO. The application must contain a declaration of its membership in this category. But it doesn’t hurt to check the information with the relevant register on the Federal Tax Service website.

Getting the required volume of purchases from small companies is not always easy. To simplify the task, it is advisable engage SMP and SONO as subcontractors. The procurement documentation must establish requirements for the supplier, who is not itself a small enterprise, to hire SMP and SONO as co-executors. In this case, it is necessary to establish the exact amount of attraction in in value terms and write it down in the draft contract.

Government customers make 15% of all purchases from non-profit socially oriented organizations.

What does 44-FZ regulate?

• Planning, monitoring and audit of procurement.
• Selection of suppliers.
• Conclusion of contracts and their execution.
• Procurement control.

What is not regulated by 44-FZ?

• Procurement of services from international financial organizations.
• Procurement of services for state protection judges, officials, court participants and other people.
• Procurement precious metals And precious stones to replenish the State Fund.
• Procurement related to the support of facilities and information systems for the 2018 FIFA World Cup and the 2017 FIFA Confederations Cup.
• Purchasing free legal assistance or defense in court.
• Procurement of election commissions for elections and referendums.
• Payment for participation in procurement.

Who adopts legal acts under 44-FZ?

• The president Russian Federation;
• Government of the Russian Federation;
• Federal executive authorities;
• Rosatom;
• Roscosmos;
• Organs state power subjects of the Russian Federation and local governments.

44-FZ is based on the provisions of the Constitution, Civil and Budget Codes of the Russian Federation

Principles of the contract system

Important Definitions

State customer is an organization that needs goods and services and pays for the purchase. For example, hospitals, schools, universities, scientific institutes,

Provider- legal or individual, including individual entrepreneurs who participate in the procurement and supply goods and services.

Zakupki.gov.ru— website of the unified information system (UIS), where customers publish purchases and reports. The EIS contains registers of all concluded contracts, unscrupulous suppliers, complaints against customers and other important information.

Initial contract price (IMC)— the cost of delivery of goods, which is set by the customer. The NMC must be justified. Suppliers cannot offer a price higher than the NMC.

Electronic marketplace— a website on which customers place purchases, suppliers submit applications for participation in purchases, and electronic auctions are held.

Specialized electronic platform — a website with access via secure communication channels, where closed purchases are carried out.

Application for participation- these are documents and information that the supplier submits in written or electronic form to participate in the procurement.

Unified Information System (UIS)

Currently contains

• Information about purchases, the ability to search for them,
• Contract templates,
• Standardization rules
• Information about market prices for goods,
• Procurement plans, schedules,
• Reporting on completed contracts,
• Register of unscrupulous suppliers.
• Unified registration and register of procurement participants.
• Unified catalog of goods, works and services.
• Publication of procurement under RF PP No. 615 (major repairs).

Coming in 2020

• A system for recording the actions of procurement participants in the Unified Information System and on 8 federal ETPs.

Access to information on the EIS is free. If information about the same purchase, customer, contract, etc. on the UIS and in another source is different, then priority goes to the information on the UIS.

EDI organization

Suppliers can submit applications for participation in procurement via electronic trading platforms. In cases determined by the government, electronic document management may also pass through the EIS. All documents are signed electronically:

• Customers receive electronic signature free from the federal treasury. They work with it in the EIS and on the ETP.
• Suppliers require a signature to participate in e-procurement. Since July 1, 2018, the system uses qualified signatures in public procurement. Suppliers can obtain a signature from an accredited certification authority.

National regime

The national regime was introduced to give advantages to suppliers Russian goods and goods from other Eurasian Economic Community member countries. Read more about him here.

Procurement methods

Depending on the source of income, government customers can make purchases under both 44-FZ and 223-FZ. According to 44-FZ, if an organization spends budget money. According to 223-FZ, if it spends its own and it has a procurement provision.

Planning

* From October 1, 2019, customers will plan purchases only according to 3-year schedules; purchase plans will be cancelled. Until the end of 2019, it is still necessary to draw up a procurement plan and schedule.

During an inspection or upon a complaint from a supplier, the FAS may recognize the purchase as unfounded. Then it is adjusted or cancelled. The perpetrators are brought to administrative responsibility.

All government purchases are regulated. The quantity, price, characteristics of goods and services are established by the federal and local legislation of the Russian Federation.

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Can the government customer formulate the parameters of the goods to be supplied in such a way that in the end only one manufacturer can supply such goods? It would seem that the negative answer is obvious, because 44-FZ, which has been in force for almost a year, is based on the principle of ensuring competition. However, several arbitration courts immediately decided otherwise.

1. Is there only one manufacturer? No problem. Suppliers are different.

The state customer held an electronic auction for the supply of food products for pregnant women and nursing mothers. One of the auction participants challenged the results of the auction, pointing out that only milk formula from one Dutch company fit the parameters presented by the defendant.

When considering the claim, the courts of three instances had to answer the question: can the state customer formulate such parameters of the goods proposed for delivery that correspond to the goods of only one manufacturer. According to the plaintiff, such actions are unacceptable - they lead to a limitation in the number potential participants auction “The Department has significantly narrowed the parameters of goods that can be supplied based on the results of the auction, which has led to an unreasonable limitation on the number possible participants procurement and created an advantage for the winner,” the losing auction participant stated as an argument.

In turn, the courts unanimously considered such actions of the state customer to be lawful. They indicated that "compliance technical specifications, defined by the customer in the technical specifications, of the products of only one manufacturer is not an unconditional basis indicating a restriction of competition.” The goods with the parameters proposed by the customer, according to the courts, “can be supplied by an indefinite number of suppliers.”

The logic of the courts is simple. It doesn’t matter that there is only one manufacturer - different suppliers can supply the goods purchased from him. However, it is unlikely that this is exactly the interpretation that the creators expected. contract system in the field of public procurement.

By the way, the fact that the plaintiff (the losing bidder in the auction) was not the manufacturer of the goods purchased by the defendant acted as another argument for the courts. “The plaintiff is not limited in the choice of counterparties from whom he can purchase goods, including according to the characteristics proposed by the defendant,” the courts noted (decision of the Court of Justice of the Kirov Region dated May 13, 2014, resolution 2 of the Arbitration Court dated July 21, 2014, resolution of the Court of Justice of the Volga- Vyatka District dated November 20, 2014 in case No. A28-2624/2014).

2. When formulating an application, you should not focus on the number of manufacturers.

Courts in other regions have also reached the same conclusions as in the case discussed above. At the same time, new, to put it mildly, controversial, arguments appear.

Thus, the regional OFAS received complaints regarding two electronic auctions for the purchase of baby food. The arguments of the complaint are the same - the parameters of the purchased goods correspond to the goods of a single manufacturer. The antimonopoly agency supported the arguments of the complaint and saw in the actions of the state customer a limitation on the number of participants in the auction. At the same time, the regional OFAS referred to the letter of the FAS Russia dated December 26, 2012 No. AK/44401/12. In this letter, the FAS pointed out the inadmissibility of establishing in procurement documentation requirements that can only be met by one manufacturer of dry milk formula.

The AS of the Republic of Sakha (Yakutia) did not agree with the antimonopoly authority (case No. A58-5173/2014). According to the court, the auction was held specifically for the supply of goods, and not for their production (manufacturing), therefore, the number of potential suppliers is unlimited. “Since the subject of an open auction is “supply” and not “production/manufacturing”, the fact that dry fermented milk mixture ... is the only product on the market that meets the requirements established by the auction documentation cannot in itself be considered as a restriction of competition, since how a product with parameters established by the customer can be offered for delivery by an unlimited number of suppliers...”, the court of first instance indicated in its decision dated 07.11.14.

A similar case was considered by the Administrative Court of the Republic of Bashkortostan (decision dated October 10, 2014 in case No. A07-9320/2014, currently appealed to the 18th Arbitration Court). As in Yakutia, the regional OFAS recognized the complaint of the participant in the electronic auction as justified. According to the department, the customer did not justify the establishment of specific parameters for the content of substances in the protein mixture (protein content of 40 g, fat 20 g and carbohydrates 30 g), although the corresponding GOST R 53861-2010 establishes a range of values ​​for each component (protein - from 40 to 75 g, fats – from 5 to 20 g, carbohydrates – from 10 to 30 g). Moreover, the protein mixture of only one manufacturer was suitable for the specific parameters of substance content established by the state customer.

The arbitration court, in turn, invalidated the decision of the Federal Antimonopoly Service, finding no violations of the legislation on the contract system. “Arguments that... that specific product indicators limit competition, since they relate only to one type of product produced in the Russian Federation... cannot be charged as a violation of antimonopoly legislation, since Federal Law No. 44-FZ does not provide for the customer’s obligations when determining requirements for the procurement object should be guided by the number of market participants, manufacturers (suppliers, performers),” the court stated.

The decisions of the courts of first instance have not yet entered into force. Perhaps the judges of higher courts will approach the decision of the case differently than their colleagues in the Volga-Vyatka District. After all, an unreasonable limitation on the number of manufacturers of purchased goods, even with an unlimited number of suppliers, does not contribute to the development of competition and does not meet the goals of the legislation on the contract system in the field of public procurement.

Guide to the contract system:

A Guide to Procurement Disputes:

1. When describing the procurement object in the procurement documentation, the customer must be guided by the following rules:

1) the description of the procurement object shall indicate the functional, technical and quality characteristics, operational characteristics of the procurement object (if necessary). The description of the procurement object should not include requirements or instructions regarding trademarks, service marks, trade names, patents, utility models, industrial designs, the name of the country of origin of the goods, requirements for goods, information, works, services, provided that such requirements or the instructions entail a limitation on the number of procurement participants. It is allowed to use an indication of a trademark in the description of the procurement object, provided that such an indication is accompanied by the words “or equivalent”, or subject to the incompatibility of goods on which other trademarks are placed, and the need to ensure the interaction of such goods with goods used by the customer, or subject to the purchase of spare parts parts and Supplies to machines and equipment used by the customer, in accordance with technical documentation for the specified machines and equipment;

2) use of indicators, requirements, when drawing up a description of the procurement object, symbols and terminology relating to technical characteristics, functional characteristics (consumer properties) of goods, work, services and quality characteristics object of procurement, which are provided for by technical regulations adopted in accordance with the legislation of the Russian Federation on technical regulation, documents developed and applied in the national standardization system, adopted in accordance with the legislation of the Russian Federation on standardization, other requirements related to determining the conformity of the supplied goods, carried out work, services provided to the customer's needs. If the customer, when drawing up a description of the procurement object, does not use the indicators, requirements, symbols and terminology established in accordance with the legislation of the Russian Federation on technical regulation, the legislation of the Russian Federation on standardization, the procurement documentation must contain a justification for the need to use other indicators, requirements, symbols and terminology;

(see text in the previous edition)

3) description of the procurement object may include specifications, plans, drawings, sketches, photographs, results of work, testing, requirements, including with regard to testing, test methods, packaging in accordance with the requirements of the Civil Code of the Russian Federation, markings, labels , confirmation of conformity, processes and production methods in accordance with the requirements of technical regulations, documents developed and applied in the national standardization system, technical specifications, as well as regarding conventions and terminology;

(see text in the previous edition)

4) the procurement documentation must contain an image of the supplied goods, allowing it to be identified and the preparation of an application, a final offer, if such documentation contains a requirement that the supplied goods correspond to the image of the goods for the supply of which the contract is concluded;

5) procurement documentation must contain information about the place, start and end dates, procedure and schedule for inspection by procurement participants of a sample or mock-up of the goods for the supply of which a contract is concluded, if such documentation contains a requirement that the supplied goods correspond to the sample or mock-up of the goods for delivery whom the contract is concluded;

6) the procurement documentation must contain an indication of the international nonproprietary names of medicines or, in the absence of such names, chemical, group names, if the object of purchase is medicines. When purchasing medicines included in the list of medicines, the purchase of which is carried out in accordance with their trade names, as well as when making purchases medicines in accordance with clause 7 of part 2 of Article 83, clause 3 of part 2 of Article 83.1 of this Federal Law has the right to indicate the trade names of these medicines. The specified list and the procedure for its formation are approved by the Government of the Russian Federation. If the object of procurement is medicines, the subject of one contract (one lot) cannot be medicines with different international nonproprietary names or, in the absence of such names with chemical, group names, provided that the initial (maximum) contract price (lot price ) exceeds the limit value established by the Government of the Russian Federation, as well as medicines with international nonproprietary names (in the absence of such names with chemical, group names) and trade names. The provisions of this paragraph do not apply when determining the supplier of medicines with whom the contract is concluded. government contract in accordance with Article 111.4 of this Federal Law;

(see text in the previous edition)

7) the delivered goods must be a new product (goods that have not been used, repaired, including those that have not been restored, which have not been replaced components, consumer properties have not been restored) unless otherwise provided by the description of the procurement object;

8) procurement documentation when purchasing construction, reconstruction works, major renovation, demolition of the facility capital construction must contain design documentation approved in the manner established by the legislation on urban planning activities, except if the preparation project documentation in accordance with the specified legislation is not required, as well as cases of procurement in accordance with parts 16 and 16.1 of Article 34 of this Federal Law, in which the subject of the contract is, among other things, the design of a capital construction facility. The inclusion of design documentation in the procurement documentation in accordance with this paragraph is the proper fulfillment of the requirements of paragraphs 1 of this part.

2. The procurement documentation, in accordance with the requirements specified in Part 1 of this article, must contain indicators that make it possible to determine the compliance of the purchased goods, works, services with the requirements established by the customer. In this case, the maximum and (or) minimum values ​​of such indicators are indicated, as well as the values ​​of indicators that cannot be changed.

(see text in the previous edition)

3. It is not allowed to include in the procurement documentation (including in the form of requirements for quality, technical characteristics of a product, work or service, requirements for the functional characteristics (consumer properties) of a product) requirements for the manufacturer of the product, for the procurement participant (including requirements qualifications of the procurement participant, including work experience), as well as requirements for business reputation procurement participant, requirements for his availability production capacity, technological equipment, labor, financial and other resources necessary for the production of goods, the supply of which is the subject of the contract, for the performance of work or provision of services that are the subject of the contract, except in cases where the possibility of establishing such requirements for the procurement participant is provided for by this Federal Law.

4. Requirements for guaranteeing the quality of goods, work, services, as well as requirements for the warranty period and (or) the scope of providing guarantees of their quality, to warranty service of the product (hereinafter referred to as warranty obligations), to the costs of operating the product, to the obligation to install and adjust the product, to the training of persons involved in the use and maintenance of the product, are established by the customer if necessary. If a supplier of machinery and equipment is identified, the customer establishes in the procurement documentation requirements for the warranty period of the product and (or) the scope of providing guarantees of its quality, for warranty service of the product, for the costs of servicing the product during warranty period, as well as installation and adjustment of the product, if this is provided for in the technical documentation for the product. In the case of determining a supplier of new machinery and equipment, the customer establishes in the procurement documentation the requirements for the provision of a guarantee from the manufacturer and (or) supplier of this product and for the period of validity of such a guarantee. This warranty is provided with this product.

(see text in the previous edition)

5. Features of the description individual species procurement objects may be established by the Government of the Russian Federation.

6. Features of the description of procurement objects under the state defense order may be established by Federal Law of December 29, 2012 N 275-FZ “On the State Defense Order”.

Government procurement is a large market for suppliers. In 2018 in United information system procurement, public procurement with a total volume of more than 8 trillion rubles was published, of which more than 1 trillion rubles. given to small businesses.

Regulates government procurement the federal law No. 44 “On the contract system.” It sets out all the rules for conducting the procurement procedure: from its planning, placement in the Unified Information System to the fulfillment of all obligations under the contract.

Who can participate in government procurement

In procurement under 44-FZ, customers are state and municipal bodies and institutions, budgetary organizations. Any legal entity or individual, including individual entrepreneurs, can be a participant in public procurement.

Organizations, individual entrepreneurs or individuals that:

• They are in the process of liquidation, at the stage of bankruptcy or receivership.
• Have debt of more than 25% of the book value of assets.
• Have a criminal record for economic crimes under Art. 289, 290, 291, 291.1 of the Criminal Code of the Russian Federation.
• Brought to administrative responsibility under Art. 19.28 of the Code of Administrative Offenses of the Russian Federation (giving a bribe) within two years before filing the application.
• Have a conflict of interest with the customer or another procurement participant (close family ties).
• They are an offshore company.
• Included in the register of unscrupulous suppliers.
• Subject to restrictions for participation in procurement established by the Government of the Russian Federation.

The participant must confirm that he can participate in government procurement and does not apply to any of the requirements above, on each electronic trading platform (ETP) where he participates in procurement.

Additional requirements for participants in public procurement

Customers may impose additional requirements on the qualifications of participants, their experience, business reputation, financial resources and equipment. Such requirements are established if the procurement concerns the reconstruction of a cultural heritage site, the construction of a capital construction project, the repair of roads and other work from the list of the Government of the Russian Federation No. 99. The participant must confirm compliance with the requirements before submitting a purchase application by attaching documents to personal account on the federal ETP.

The customer may require that the procurement participant meet the requirements for performing certain activities - have an appropriate license to carry out work, membership in self-regulatory organizations etc.

The participant must have a patent, license agreement or other confirmation of rights to the results of intellectual activity. This requirement is mandatory if, as part of the contract, the customer receives rights to the results of intellectual activity. There are no requirements if, under the contract, the supplier creates or performs a work of literature or art, or finances the distribution or screening of a national film.

Preferences for participants

Some participants in government procurement are provided with benefits or priority when considering applications. For example, government customers are required to carry out 15% of the total volume of purchases among small businesses (SMB) and socially oriented non-profit organizations(SONKO).

In addition to SMP and SONKO, preferences in government procurement are provided to:

• institutions and enterprises of the penal system,
• organizations of disabled people,
• suppliers of goods from EAEU countries(Russia, Belarus, Kazakhstan, Armenia, Kyrgyzstan).

Types of procurement

Government customers can purchase goods, work or services in 7 ways:

• open competition
• limited participation competition
• two-stage competition
• electronic auction
• request for proposals
• request for quotation
• purchasing from sole supplier(carried out in limited cases by law).

Depending on the type of purchase, the winner is determined in one of two ways:

1. By minimum price proposed during the procurement - auction, request for quotations.
2. Based on the best combination of price and contract terms proposed in bids or final offers - in tenders and requests for proposals.

Also, customers under 44-FZ can hold closed tenders and auctions to purchase goods related to state secrets and ensuring the security of the country, services for the State Fund of Precious Metals and Stones, bailiffs and judges. Information about such procurements is not published in the public domain, and the customer sends invitations to potential suppliers to participate.

Where are government procurements carried out?

All purchases under 44-FZ are carried out electronically. They take place on eight federal electronic trading platforms (ETP): EETP, RTS-tender, Sberbank-AST, ZakazRF, NEP, Russian auction house, ETP GPB, TEK-Torg.

To participate in bidding under 44-FZ, you need to register in the Unified Information System. It provides access to government procurement on eight federal electronic trading platforms, as well as to procurement for major repairs under 615-PP and bidding under 223-FZ for small and medium-sized businesses. Registration in the EIS is free and valid for three years.

Since procurement is carried out electronically, participation in them requires an enhanced qualified signature. It will be needed to register in the Unified Information System, submit an application, participate in an auction and sign a contract.

Securing the application, contract and warranty obligations

When submitting a procurement application under 44-FZ, the participant must provide security for the application. This will confirm his intention to participate in the tender. The size of the application security depends on the size of the initial maximum contract price (IMCP):

• if the NMCC is from 0 to 20 million rubles, then the application security is from 0.5 to 1% of the NMCC
• if the NMCC is more than 20 million rubles, then the security is from 0.5 to 5% of the NMCC.

Security can be provided in cash or bank guarantee. It will be returned to all participants after the winner is determined.

The winner of the purchase must provide security for the performance of the contract when signing the contract. This way he confirms that he will fulfill his obligations under the contract. The contract security amount ranges from 10 to 30% of the NMCC. It can be provided in cash to the customer’s account or by a bank guarantee. The customer will return the security in full if the supplier fulfills all obligations under the contract.

The government customer may also require security warranty obligations. If such a requirement is established in the procurement, the customer can sign the acceptance certificate only after providing security. The amount of guarantee guarantees is no more than 10% of the NMCC.

Reduction of the initial contract price by 25%

If a contract with the winner is concluded at a price that is 25% or more below the NMCC, then anti-dumping measures are applied to the winner:

1. In purchases with NMCC more than 15 million rubles. the winner must provide contract security increased by 1.5 times.
2. In purchases with NMCC less than 15 million rubles. the winner can provide either one and a half contract security, or confirm his good faith and provide security in the usual amount (specified in the documentation). Good faith is confirmed by three contracts in 3 recent years, which were performed without penalties. In this case, the price of one of the contracts must be at least 20% of the NMCC of the current purchase.

In addition, if the NMCC decreases by 25% or more, the winner will not receive an advance payment if it was provided for in the purchase.

Register of unscrupulous suppliers

If a company is included in the Register of Unfair Suppliers (RNP), then it will not be able to participate in procurements under 44-FZ and other procurements if the customer establishes a corresponding requirement.

Reasons why the winner of a procurement may be included in the RNP under 44-FZ:

• If he won the procurement (or became the only admitted procurement participant) and refused to enter into an agreement with the customer.
• The company won the procurement, but signed the contract later than the required deadlines.
• The winner did not provide contract security, provided it late or with an error.
• If the contract is terminated by a court decision because the winner has seriously breached the obligations under the contract.
• The customer decided to terminate the contract unilaterally.

Moreover, if the contract is terminated by agreement of the parties, the company will not be included in the RNP. Inclusion in the RNP can be challenged in court.

Law 44-FZ explains in detail the rules of work for government procurement participants, regulates the parameters when choosing a winner, obliges the customer to conclude a contract with the winner and pay for the goods on time. Therefore, it is suitable for beginners. But we must remember that violation of the requirements of 44-FZ at any stage of the procurement entails fines for the customer, and the participant faces the risk of having the organization included in the register of unscrupulous suppliers.