Declaration Uniform requirements 44 ФЗ. How to make up in paper

Changes in 44-FZ, which have entered into force in 2018, have affected the declarations on the compliance of the procurement participant with certain requirements. Here new sample Declarations on the compliance participant in the purchase requirements.

1. Declaration - a prerequisite

When carrying out trades different ways Customers establish a number of conditions, compliance with the participant must be confirmed by declaring what is mandatory condition To participate in the auction. This rule concerns 44-FZ, and 223-ФЗ, since there are so-called "unified requirements", which are equally used for trading in accordance with the Law on contract system, and for tenders held on the basis of the procurement law by certain types of legal entities.

We note that the information submitted during declaration should be valid, since the customer can check them, and when inaccuracy is detected, it is obliged to remove the participant (part 9 of Art. 31).

If you turn to the norms of the Federal Law No. 44, then the conditional allocation of two types of declaration can be seen:

declaration of compliance with uniform requirements for procurement participants;
on the accessories of a candidate for small business entities (SMP) or socially oriented non-commercial organizations (Sono).

The first type of application implies that the person who wishes to take part in the tender corresponds to the provisions of PP. 3-10 h. 1 Art. 31 of the Law on the Contract System. We talked more about this in the article on the requirements for procurement participants.

The second type of proclamation is the declaration of belonging. This condition is enshrined with Articles 51, 66, 73 of the Federal Law No. 44. FZ No. 209-FZ establishes the criteria for which one or another can be attributed to the subjects of the SMP. At the same time, in accordance with the joint letter of the Ministry of Economic Development and FAS dated 04.04.2014, the provision of other documents as part of the application, which confirm the status of the SMP or Sono, except for the declaration of belonging to the SMP Subject, is not provided. So, if the customer rejected an application that contained the declaration of this kind of information, it can be expected to be an administrative responsibility in accordance with the Code of Administrative Offenses of the Russian Federation.

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2. Changes in the form of a declaration in 2018

From January 9, 2018, new changes in 44-FZ have entered, which affected the declaration. First of all, it is necessary to draw attention to the introduction of a new item, which refers to the unified requirements and is subject to compulsory declaration by the tender member (paragraph 7.1 part 1 of Article 31 of the FZ-44): only legal entities are allowed to participate, which for two years before the moment Participation in procurement was not attracted to administrative responsibility for illegal remuneration on behalf of the Yurlitz (Art. 19.28 of the Administrative Code of the Russian Federation).

Also, adjusted by P.7 Part 1 of Art. 31 ФЗ №44: specified by the compositions of crimes of the Criminal Code, the conviction for which will not allow to participate in the tender:

illegal participation in business activities;
getting and giving bribes;
mediation in bribery.

3. Video instructions How to prepare documents for a tender

For a guaranteed result in tender purchases You can seek advice from the experts of the entrepreneurship support center. If your organization belongs to small businesses, you can get a number of advantages: Advanced by state contracts, short time settlements, conclusion of direct contracts and subcontracts without a tender. And work only at favorable contracts with minimal competition!

The declaration is filled in accordance with Art. 4 of the Federal Law of July 24, 2007 No. 209-FZ, paragraph 11 of the situation, approved. Government Decree of December 11, 2014 No. 1352, order of the Ministry of Economic Development of 31.05.2017 No. 262, clarifications of the Ministry of Economic Development.

In the declaration, depending on the compliance, the criteria must confirm the assignment to the subjects of small or medium-sized businesses. In this case, the declarant must be specified:

name of the procurement participant;
location address;
INN / CAT, number and date of issuance of a certificate of registration;
OGRN;
information on compliance with the criteria for assigning SMP, as well as information on produced goods, works, services and activities (in tabular form).

Declaration can be handed over to paper or in in electronic format. In paper form, the declaration is filled with black, purple or blue ink. The filling of the electronic form of the declaration should be made by capital letters of the Courier NEW font with a height of 16 - 18 points.

Mandatory to fill in the table are points from 1 to 11.

Paragraphs 1 and 2 according to the corresponding criteria specified in the column 5 are affected by "yes" or "does not exceed at the time of filling." If desired, in column 5, you can specify the actual indicator.

SMEs that are not LLC, in these graphs put fiwers.

In paragraphs with 3 to 6, you must specify "yes" or "no" depending on the compliance with the conditions given in them.

Paragraphs 7 and 8 are filled, respectively, only cells 7-4 and 8-4 actual meanings.

Paragraph 9 indicates license information with the listing of all data from the register or the EGRIP: Series and license number, date of issue, date of commencement, expiration date, the name of the licensed type of activity, which is issued a license, information about the address of the implementation of the licensed type of activity , the name of the licensing body that issued or re-implemented a license, information on the suspension of the license, UAH and the date of the introduction to the EGRUL (JRIP) of the record containing the specified information. If there is no licenses, it is indicated "no".

In clause 10 of the table, the data is indicated from the Incorporation or the USP with the listing of OKVED2 and OKPD2 codes.

In paragraph 11, you need to specify the actual activities made by the SMP subjects of the goods, the work performed, the services provided with the transfer of OKVED2 codes and OKPD2.

Unreliable information in the Declaration of SMEs

The inclusion of unreliable information to the SMEs Declaration may entail:

removing the SME member from participation in the definition of a supplier (contractor, contractor) or a refusal to conclude a contract with the winner of the provider's definition (contractor, performer) at any time before the contract is concluded;
termination of the concluded contract with the recognition of the person of the SMEs declined to conclude a contract;
adoption by the Customer's decision on unilateral refusal to execute a contract for procurement;
the inclusion of SMEs in the register of unscrupulous suppliers in the event of a contract for the procurement contract.

Would like to work with state or municipal orders commercial organizations. After all, by concluding a contract with the customer financed from the budget, and fulfilling its obligations in a timely manner, the company is guaranteed to pay for its work, since such contracts are concluded only if there are funds for it.

However, often entrepreneurs fear to participate in the auction, considering this sphere through the corrupt, and the trading procedures themselves are too confusing.

In most cases, the first and second opinion is incorrect: participation in procurement for state needs is not too difficult procedure. True, to participate in the auction, organization or entrepreneur must meet a number of requirements.

What does FZ-44 say

The fundamental regulatory act regulating the procurement in the public sector is the Federal Law No. 44-FZ "On the contract system in the field of procurement of goods, works, services for state and municipal needs", adopted in 2013, and began its operation from January 1, 2014 of the year. More often, this law is familiar to the law on the contract system, or simply FZ-44.

Despite the rather large volume and dryness of the wording, a large number of references from the article to the article, this regulatory act regulates in detail and clearly The entire procurement process for state employees (as funded from the budget of the Russian Federation, budgets of the regional and municipal levels).

It sets:

Principles and goals of such purchases;
Requirements for members of trading procedures;
Requirements for compiling customers of documentation for procurement (with a detailed description of the goods / work required by the customer / work, the price that he is willing to pay and project a contract that will be concluded with the winner of the auction);
Order of conduct different species procurement (auctions, contests, quotations of quotations and suggestions);
Procurement options without trading ( single supplier/ contractor / artist);
Features of purchases through electronic trading platforms (ETP), registration of bidders on them;
The exact procedure for concluding a contract with the winner in procurement, the order of its execution and change (allowed only in certain cases);
Responsibility for violations allowed by both the customer and supplier.

It should be noted that procurement legislation is also based On the provisions of the Budget Code, the Civil Code, the Law on Competition, other laws, but it is FZ-44 that establishes special standards for bidders.

The webinar dedicated to the state procurement according to the FZ-44 is presented in the following video.

What is a conformity declaration and why it is needed

As you know, trading happens electronic (these are auctions carried out on ETP), and ordinary to participate in which it is not necessary to accredit on trading platform (Competitions, quotations, proposals).

Despite the difference in the procedure for procurement types and in the documentation that the Customer is, in any case, or who want to participate in the auction should be correctly and gently fill out an application for participation.

In addition to the proposal of goods / work / the services needed by the Customer, the consent to fulfill the terms of the contract attached to the procurement documentation, the participant must submit some specific information about itself as a potential supplier / executor / contractor on the state contract, declaring your compliance with the established conditions.

The need to submit this kind of information is established in Art. 31 FZ-44. This article regulates uniform requirements for participants, regardless of the type and cost of procurement, the organizational and legal form of the person applying to the contract.

So in order to participate in the auction, it is necessary answer the following requirements:

Not to be in stage / / competitive production;
The activities of the applicant should not be suspended by the decision of the administrative bodies (on the day of submission of the application);
There should be no arrears or debt on various payments, taxes, etc., exceeding the cost of the participant's assets according to the accounting data for the previous reporting period. This requirement is important refinement - except when it is provided in a legitimate order / installment payments to payments, or these payments have already been executed, or the decision to recover by the participant appeals in the Arbitration Court);
The lack of a firm's leadership or from a physical participant, punishment in the form of deprivation of the right to engage in any activity related to the subject of procurement, or to hold a certain position;
If the purchase is associated with intellectual rights, the participant must have such rights;
Lack of conflict of the interests of the customer and the procurement participant. Under this, it is usually understood either related communication, marriage relationships, or the participation of the parties to the procurement in the same organizations on the right of membership (for example, the head of the Customer's organization is simultaneously a co-founder of the company appropriate for the conclusion of the contract).

These requirements must give a guarantee The fact that the organization or entrepreneur is sustainable, and are able to fulfill their obligations under the contract. That is why the customer presents them according to the FZ-44 to any participant in any procurement pursued according to the contract on the contract system (with the exception of minor purchases worth up to 100 thousand rubles, which can be concluded in a simplified manner, under Article 93 of the FZ-44).

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What should declare procurement participant

FZ-44 in Art. 31. setsThe following requirements may be presented to the applicants for the conclusion of a contract for the state of law, to non-commercial (i.e., not for profit) organizations, other additional requirements (in particular, they can establish a special decree of the Government of the Russian Federation).

Also FZ-44 gives customers law (And the customer enjoys this right by 100%) to avoid those organizations / entrepreneurs who are listed in the special register of unscrupulous suppliers to trades. This registry is publicly available on the website of the state procurement (with recent PORS - EIS), and even if such an organization serves its bidding, and will suggest best conditions The execution of the contract - it will be rejected from participation in the auction.

Depending on purchases declaration may be required:

Compliance with the unified requirements to be presented to the participants;
Accessories for small businesses / non-profit organization.

In any case, the compliance is confirmed in a declarative form that does not require reinforcement by any additional documents or information.

Rules for registration of conformity declaration

Interestingly, the FZ-44 does not establish a special form to the conformity declaration, and others regulatory acts It is not approved. This is just a document, in a declarative, declarative form. announcedthat the procurement participant meets all the established law and documentation on the purchase of requirements.

Methods of registration Declarations:

Prepare a document in an arbitrary form, but the repeating requirements listed in Part 1 of Article 31 of the Law on the Contract System;
Copy part of the competitive / auction documentation of the Customer on the participant requirements, replacing the words "must comply with" to "correspond."

To call a declaration compiled document, or not called - is not a fundamental point, the main thing is the availability of the document itself as part of the application for participation.

It is important to know that the law the customer is forbidden to demand From the participant not provided for by Art. 31 compliance information. Otherwise, it threatens to customer with administrative punishment, recognizing the purchase of inappropriate law and its cancellation. Therefore, if even the documentation includes unnecessary requirements, they can not be declared, and the procurement itself appeal to the control body (as a rule, this is the territorial administration of the Federal Antimonopoly Service of the Russian Federation).

What documents are needed to declaration

Often participants in procurement, wanting to confirm the Declaration of Compliance, include additional documents in their application (for example, over the past period, tax declarations (and other documents). This should not be done, since the documents not provided for by the Customer in the purchase documentation, not Considered.

It should be known that the absence of the declaration itself is the reason for rejecting the application of the participant as a whole. Opportunities to additionally submit a declaration after rejecting the application, the law is not provided. therefore it is important to arrange correctly Such a simple document as a declaration of compliance at the stage of preparation of the application, and remember that for providing unreliable information about conformity (if they open) the Customer is obliged to refuse to conclude a contract with a participant who submitted an inaccurate declaration, even if he is recognized as the winner in the procurement procedure.

On the peculiarities of the state procurement procedure at a single supplier according to 44-ФЗ described in the following video:

Declaration on the conformity of uniform requirements is one of those documents that the Supplier applies to the application for participation in the public procurement. Recently, there are new rules for design.

Why need a declaration

In the procurement documentation, the State Transportation can establish the requirements for the Contractor. Participants must confirm that they correspond to them, otherwise they will not be allowed to trades. As a confirmation, a declaration of confirmation of the auction participant n. 3-9 h. 1 Article. 31 44-FZ or additional conditions Organizer. The rule refers to procurement not only by law on the contract system, but also by 223-ФЗ, since in both cases there are uniform requirements for participants.

Processing applications, the organizer checks the supplier's documents, including the Declaration. If it turns out that information in it does not correspond to reality, then the participant will be removed. Such a condition is contained in part 9 of Article 31 44-FZ. Therefore, intensify reality for the sake of participation does not make sense.

What are the declarations

In the Law on the Contract System, you can find two types of declaration:

Compliance with the participant with unified requirements.
Belonging to small business entities (SMP) or socially oriented non-profit organizations (Sonko).

The first document confirms that it complies with the mandatory requirements of all participants of the state procurement. They are set out in PP. 3-11 h. 1 Art. 31 44-FZ. To confirm compliance for each sub-item, does not need a separate document. All information, the main and optional, can be included in one. Therefore, a separate declaration of absence in the register of unscrupulous providers 44-ФЗ, for example, will not be required.

The second document confirms that refers to the SMP or Sonko. This is necessary in the auction, to participate only such organizations. The parameters for which the organization will be considered a subject of small entrepreneurship or socially oriented, are set out in the Federal Law No. 209. In 2018, this law made amendments. Now, to be small business entities, you need:

Comply with the requirements of the number, turnover, etc.
Being in the register of small business entities.

This means that as a declaration of belonging to the SMP, you can use an extract from this registry.

What has changed since 2018

In July 2018, large-scale changes in 44-ФЗ entered into force. They affected the declaration. Part 1 of Article 31 44-FZ completed another item 11, and now it is necessary to participate a sample of a new meeting of the participant's compliance with the requirements of 44-ФЗ. The condition was added that the supplier has no restrictions on participation in public procurement.

Another meaningful change in the 2020 conformity declaration is due to the fact that from July 01, 2018 it is not necessary to draw up a document on paper. Advertigrate matches can be automatically at the time of submission of the application on the trading platform. To do this, put an extra daw.

When to make and serve

In paper form, prepare a sample of the declaration of compliance with 44-ФЗ 2020 simultaneously with another documentation for purchasing and apply as part of the application. If you plan to declare compliance electronically, you do not need to cook. The main thing is to put a tick in the form of submission of the application on the trading platform.

Sample declaration of compliance with the requirements of Art. 31 44-FZ (2020) will be needed to participate in an open competition, which is carried out in paper form. Article 51 44-FZ states that the participant will need to declare compliance with paragraphs 3-9 of Article 31. Do not forget about the new 11 item.

During participation in electronic procedures, it is more convenient to declare electronically using the ETP functional (Article 54.4). But you can attach scan paper documents by the old way. Both are legitimate.

In the request for quotations, both electronic and paper, it will take to declare compliance with paragraph 1 of part. 1 tbsp. 31. This condition applies to electronic quotes. To do this, you can also use a sample of the Declaration of Purchase Participant 2020.

It is especially attentive to be, participating in the request of proposals. 44-FZ requires that the documentation for such a procedure indicates that the participant fully complies with Article 31. That is, all conditions, including new item 11. Therefore, be sure to check that you use the updated sample.

How to make up in paper

No questions for the document is not established. You can make it in free form, better on the official form. Be sure to verify that the text contains all the conditions listed in Article 31 44-FZ:

no liquidation is carried out;
activity is not suspended;
no debts on taxes, fees and other required payments to the budget;
the leadership and chief of organization of the organization do not have a criminal record under articles 289, 290, 291, 291.1 of the Criminal Code of the Russian Federation;
over the past two years, the organization has not been held accountable under Article 19.28 of the Administrative Code;
there is no conflict of interest between the participant and the procurement organizer;
there are no restrictions for participation in public procurement.

Additionally, you can add that the participant is not included in the RNP.

This is how a new sample looks like, taking into account changes of 01.07.2018 and with additional points about RNP:

Declaring features of 223-ФЗ

223-FZ does not establish requirements for participants. The customer who purchases on this law itself determines the requirements and enshrines them in the procurement position. As a rule, they do not differ from those indicated in paragraph 3-9 h. 1 Art. 31 44-FZ. But it is not worth participating in the purchase of 223-ФЗ to use a standard declaration of compliance as a sample, even if they completely coincide. The customer will be able to reject the participant and will be right. This confirms the decision of the Zabaikal Territory No. 04-20-984 / 2018 from 03/23/2018.

You can take the basis of a declaration of 44-ФЗ, but be sure to delete all the references to the contract on the contract system and make sure that it coincides with the requirements that the customer places. Here is a universal sample of the declaration of 223-ФЗ.

Supreme Court of the Russian Federation

Appeal definition

Appeal College Supreme Court Russian Federation As part of:

chairman of Manokhina G.V.,

members of the college Zaitseva V.Yu., Merkulova V.P.,

when secretary,

with the participation of the prosecutor Masalova L.F.

considered in the open court session Administrative work on an administrative statement of PSK Avangard LLC on recognition of the fourth sub-paragraph 1.3 of paragraph 1 of the Ministry of the Ministry economic Development Of the Russian Federation and the Federal Antimonopoly Service No. 23275-It / D28I, ATS / 45739/15 dated August 28, 2015 "On the position of the Ministry of Economic Development of Russia and the FAS of Russia on the application of the Decree of the Government of the Russian Federation of February 4, 2015 No. 99" Establish additional requirements for procurement participants separate species of goods, works, services, cases of assigning goods, works, services to goods, works, services, which, due to their technical and (or) technological complexity, innovative, high-tech or specialized nature, are able to put, fulfill, provide only suppliers (contractors, performers ) having the necessary level of qualification, as well as documents confirming the compliance of the procurement participants with the specified additional requirements "

according to the appeal of the Ministry of Economic Development of the Russian Federation on the decision of the Supreme Court of the Russian Federation of August 22, 2016, which is administrative statement of claim LLC "PSK Avangard" is satisfied.

Having heard the report of the judge of the Supreme Court of the Russian Federation Zaitseva V.Yu., explanations of representatives of the Ministry of Economic Development of the Russian Federation and the Federal Antimonopoly Service K. and S., who supported the arguments of the appeal, representatives of Psk Avangard LLC F. and L., objected to satisfaction Appeal complaint, the conclusion of the prosecutor of the General Prosecutor's Office of the Russian Federation Masalova L.F., who believed the appeal of the unreasonable, the appeal board of the Supreme Court of the Russian Federation

installed:

The Ministry of Economic Development of the Russian Federation (hereinafter referred to as the Ministry of Economic Development of Russia) and the Federal Antimonopoly Service (hereinafter referred to as FAS Russia) on August 28, 2015 published a letter No. 23275-it / D28I, AC / 45739/15 (hereinafter referred to as the letter) their position on the application of the decree of the Government of the Russian Federation of February 4, 2015 No. 99 "On the establishment of additional requirements for participants in procurement of certain types of goods, works, services, cases of assigning goods, works, services to goods, works, services, which due to Their technical and (or) technological complexity, innovative, high-tech or specialized nature are capable of putting, performing, to provide only suppliers (contractors, performers), which have the necessary level of qualifications, as well as documents confirming the compliance of the procurement participants with these additional requirements "(hereinafter referred dated February 4, 2015 № 99).

In subparagraph 1.3 of clause 1 of the letter, it is indicated that when purchasing construction works, it is necessary to be guided by the fact that according to a note to position 2 (erroneously named in a letter 2) of Appendix No. 1 to the decision of February 4, 2015 No. 99 requires the existence of a contract The execution of works related to the same group of construction works on which the contract is concluded. At the same time, the following construction groups are used: work on the construction, reconstruction and overhaul of capital construction facilities; Work on the construction, reconstruction and overhaul of objects that are not objects of capital construction (temporary buildings, kiosks, canopies and other similar buildings) (paragraphs first - third).

Thus, when purchasing the work of the construction specified in position 2 of Appendices No. 1 to the decree of February 4, 2015 No. 99 (including at current repairs), the procurement participant is recognized as appropriate additional requirements in the presence of the following conditions (fourth paragraph):

the procurement participant presented confirmation of the execution of one contract over the past three years to fulfill its construction, and (or) reconstruction, and (or) overhaul. At the same time, confirmation of the experience of the execution of the contract (agreement) by the implementation of other construction works (for example, at current repairs) is not allowed (paragraph five);

the participant of the procurement was confirmed by the experience of the construction of construction on a single construction facility, a similar object, the performance of construction works on which is the object of purchase, namely: in the case of the purchase of works by the construction of capital construction, confirming the availability of experience will be the performance of construction workers under the object of capital construction ; In the case of procurement of construction works on an object that is not an object of capital construction is to carry out the work of the construction under an object that is not an object of capital construction (paragraph sixth).

LLC "PSK Avangard" (hereinafter referred to as the Company) appealed to the Supreme Court of the Russian Federation with an administrative statement, in which he requested to recognize the fourth paragraph of subparagraph 1.3 of clause 1 of the letter to the part of the procurement of construction additional demand in the form of experimental experience Relevant work on the work on current repairs, referring to the fact that the contested order has a normative nature and does not comply with the actual meaning of explanatory regulations of the decision of 4 February 2015 No. 99, and also contradicts paragraph 3 of Part 2 of Article 31 of the Federal Law of April 5 2013 No. 44-FZ "On the contracting system in the field of procurement of goods, works, services for state and municipal needs" (hereinafter referred to as the Federal Law of April 5, 2013 No. 44-FZ) and paragraph 2 of Part 1 of Article 15 of the Federal The Law of July 26, 2006 No. 135-FZ "On Protection of Competition". The administrative plaintiff pointed out that the application of a resolution of February 4, 2015 No. 99 in interpretation given to him by writing leads to a presentation to persons performing work only on the current repairs not provided for by the current legislation of the requirements. Thereby limited to the access of society to state and municipal procurement On the execution of work on the current repairs in the event that the initial (maximum) contract price exceeds 10 million rubles.

By the decision of the Supreme Court of the Russian Federation of August 22, 2016, the administrative statement of the Company was satisfied.

Disagreeing with this decision, the Ministry of Economic Development of Russia filed an appeal complaint, in which he asks for its abolition due to improper definition by the court circumstances that are important for administrative case. It refers to the fact that the letter is not a regulatory legal act, does not contain clarification of legislation, and is exclusively information, reference. This circumstance, according to the administrative respondent, is confirmed by the fact that the letter does not contain signs characterizing the regulatory legal act listed in paragraph 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 29, 2007 No. 48 "On the practice of consideration by the courts of cases about challenging regulatory legal Acts are completely or in part. " Notes that the letter does not have provisions that bind someone to apply the positions stated in it, and for its non-use is not provided for responsibility. In this regard, the administrative respondent considers an unreasonable conclusion of the court of first instance that the letter in the contested part orients the relevant officials Apply in practice the requirements of position 2 of Appendix No. 1 to the decree of February 4, 2015 No. 99 in the interpretation set out in it.

In objections to the appeal, society asks to refuse to satisfy it, leaving the decision of the court of first instance without changing.

The Ministry of Justice of the Russian Federation presented a review on the appeal, in which he asks to consider it without the participation of his representative and leave the court decision unchanged. Supports its position on this administrative caseThe letter dated August 16, 2016 No. 01-94174 / 16 is that the requirement of the administrative plaintiff is reasonable and is subject to satisfaction.

After checking the case file, discussed the arguments of the appeal, the Appeals Board of the Supreme Court of the Russian Federation. The foundations for its satisfaction and cancellation of the court decision does not find.

Features of consideration of administrative cases on challenging acts containing explanations of legislation and possessing regulatory properties (hereinafter referred to as regulatory properties) are regulated by Article 217.1 of the Administrative Judicial Code of the Russian Federation. By virtue of paragraph 1 of part 5 of the title of the article on the results of the consideration of the administrative case on challenging the act with the regulatory properties, the court makes a decision on meeting the stated requirements in whole or in part, if the challenge act is fully or in part does not meet the actual meaning of the regulatory provisions clarified by him, establishes Uncipient regulations not provided for by clarified regulations, extending to an indefinite circle of individuals and designed for repeated use. In this case, such an act is recognized as not entirely or in part from the date of its adoption or otherwise determined by the date.

The letter formulated the position of the Ministry of Economic Development of Russia and the FAS of Russia regarding the application of the provisions of the Resolution of February 4, 2015 No. 99 in connection with the incoming issues.

The specified ruling is made in accordance with Federal law Of April 5, 2013 No. 44-ФЗ, part 2 of article 31 of which it is envisaged that the Government of the Russian Federation has the right to establish the procurement of certain types of goods, works, services, the procurement of which are carried out by conducting contests with limited participation, two-stage competitions, closed contests With limited participation, closed two-stage contests or auctions, additional requirements, including availability: financial resources for the execution of the contract; on the right of ownership or other legally foundation equipment and other material resources for the execution of the contract; experience related to the subject of the contract, and business reputation; need quantity specialists and other employees of a certain level of qualifications for the execution of the contract.

The Government of the Russian Federation also establishes a list of documents confirming the compliance of the procurement participants with the following requirements (part 3 of this article).

Position 2 of Annex No. 1 to the decree of February 4, 2015 No. 99 (as amended on the day of adoption of the applicable decision) contains an additional requirement for procurement participants when performing construction works included in codes 41.2, 42, 43 (except code 43.13) All-Russian Classifier Products by types of economic activity (OKPD2) OK 034-2014, in case the initial (maximum) contract price (the price of lot) exceeds 10 million rubles, namely: the existence of execution experience (taking into account the succession) of the contract (contract) for the implementation of the relevant The works of construction over the past 3 years before the date of submission of an application for participation in the relevant competition or auction. In a footnote to this position, this requirement is specified, it is noted that the existence of the execution of a contract for the performance of work relating to the same group of construction works, on the execution of which a contract is concluded. At the same time, the following construction groups are used: work on the construction, reconstruction and overhaul of capital construction facilities; Works on the construction, reconstruction and overhaul of facilities that are not objects of capital construction (temporary buildings, kiosks, canopies and other similar buildings).

From the above provisions it follows that such an additional requirement, as the experience of executing a contract (contract) for the execution of construction works, is concluded for procurement participants in case of procurement objects are works included in codes 41.2, 42, 43 (except code 43.13) of the All-Russian Production classifier by types of economic activity (OKPD2) OK 034-2014, related to construction teams for construction, reconstruction and overhaul of capital construction and facilities that are not capital construction sites (temporary buildings, kiosks, canopies and other similar buildings), With the initial (maximum) contract price (lot price) Over 10 million rubles.

After analyzing the contents of the fourth subparagraph 1.3 of paragraph 1 of the letter, the court of first instance correctly indicated that the letter to the listed works of construction, for which additional requirements for procurement participants are established, and work on the current repairs.

Meanwhile, federal law of April 5, 2013 No. 44-FZ, by a resolution of February 4, 2015 No. 99, other regulatory legal acts that have greater legal force, the Ministry of Economic Development of Russia and the FAS Russia are not entitled to provide explanations on the application of the named resolution The Government of the Russian Federation, as well as independently establish additional requirements for procurement participants, so the court of first instance came to the correct conclusion that the contested letter was published with exceeding the powers of administrative respondents.

At the same time, the court was legitimately taken into account that the legislation of the Russian Federation delimits the concepts of "overhaul" and "current repairs". In this regard, it is impossible to recognize the reasonable argument of an appeal that under the Government of the Russian Federation dated February 4, 2015 No. 99, the concept of "repair" should be understood as two types of its varieties - capital and current, since such a statement contradicts as a literal interpretation This resolution and regulatory legal acts regulating legal relations in the field of urban planning activities in the Russian Federation, as reasonably indicated in the appealed decision.

Taking into account the fact that work on the overhaul and work on the current repairs differ from each other in content and have different legal regulation, the fourth paragraph of subparagraph 1.3 of paragraph 1 of the letter establishing an additional requirement for the participants of the procurement on the availability of the performance of the contract for the construction of construction work , reconstruction and overhauls in the implementation of procurement to perform work on the current repairs, it goes beyond the framework of adequate interpretation of the regulations of the decision of February 4, 2015 No. 99.

Reference to the appeal on the fact that the letter does not contain signs of the regulatory legal act listed in the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 29, 2007 No. 48 "On the practice of consideration by the courts of cases of challenging regulatory legal acts in whole or in part" affects the legality of the appealed decision. The letter is disputed by the Company in the part specified by him as an act containing the explanations of the legislation and possessing regulatory properties, in accordance with Article 217.1 of the Administrative Judging Code of the Russian Federation and is not evaluated from the point of view of its compliance with the criteria formulated by the Supreme Court of the Russian Federation for regulatory legal acts.

According to the sense of laws, enshrined in Article 217.1 of the Administrative Shipment Code of the Russian Federation, as well as taking into account the legal position of the Constitutional Court of the Russian Federation, set out in its decision of March 31, 2015 No. 6-P "on the case of verification of the constitutionality of paragraph 1 of part 4 Article 2 of the Federal Constitutional Law "On the Supreme Court of the Russian Federation" and paragraph of the third subparagraph 1 of paragraph 1 of Article 342 of the Tax Code of the Russian Federation in connection with the complaint of the open joint Stock Company Gazprom Neft, an act explaining current legislaturemay be subject to judicial verification in the procedure established for challenging regulatory legal acts, taking into account certain features, if this act: published by the public authority, another body or organization, vesting government authorities; Not individual character, i.e. The explanations contained in it are not related to the application of legislation with respect to certain individuals in specific cases; is mandatory for subordinate bodies (organizations, institutions) and their officials, which, by virtue of departmental subordination, should apply in their activities an explanatory regulatory situation in their activities exclusively in accordance with the meaning attached to him by their superior authority, the organization; It has regulatory properties, i.e. It establishes (changes, cancels) the rules calculated for the repeated use of the regulatory circle for the indefinite circle of persons regulated by the regulatory rate of legal relations, thereby providing an overall impact on social relations; contains clarifications outside the framework of adequate (coinciding, identical) interpretation (interpretation) of the provisions of legislation and entail a change in the legal regulation of the relevant public relations.

Paragraph fourth subparagraph 1.3 of clause 1 letter published federal bodies The executive authorities enshrines an additional requirement for the participants of the procurement for the execution of construction works as explained by regulatory provisions, i.e. It establishes a rule of conduct that extends to an indefinite circle of individuals and designed for repeated use, contains an explanation that goes beyond the adequate (identical) interpretation of the provisions of the Resolution of the Government of the Russian Federation of February 4, 2015 No. 99 and an entailing change in the legal regulation of public relations in the sphere of procurement of goods , works, services for providing state and municipal needs.

The argument of the Ministry of Economic Development of Russia that the letter is not compulsory for the subordinate government agenciesIt is refuted by the materials studied by the court of first instance, testifying that the contested position focuses on the relevant officials to apply in practice the requirements of the position 2 of Annex No. 1 to the decree of February 4, 2015 No. 99 in the interpretation set out in it.

Thus, the court of first instance by virtue of clause 1 of Part 5 of Article 217.1 of the Administrative Judging Code of the Russian Federation rightfully recognized the fourth paragraph of subparagraph 1.3 of paragraph 1 of the letter not in force in the Parts imposed on participants in the procurement of works of construction additional requirements in the form of experience Works on the current repairs.

The appealed judicial decision was made in compliance with the norms of procedural law and with the proper use of the norms of financial law. Of Article 310 of the Code of Administrative Judging of the Russian Federation, there are no foundations for cancellation of the decision on appeal.

Guided by Articles 308 - 311 of the Administrative Procedure Code of the Russian Federation, the Appeals Collegium of the Supreme Court of the Russian Federation

determined:

the decision of the Supreme Court of the Russian Federation of August 22, 2016 should be left unchanged, the appeal of the Ministry of Economic Development of the Russian Federation - without satisfaction.

Presidency

G.V.Manokhina

Members of the Collegium

V.Yu.zaytsev

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