Declaration uniform requirements 44 fz. How to compose on paper

Changes to 44-FZ, which entered into force in 2018, also affected the declaration of compliance of the procurement participant with certain requirements. Let's bring new pattern declarations of compliance of the procurement participant with the requirements.

1. Declaration is a prerequisite

When bidding different ways customers establish a number of conditions, compliance with which the participant must confirm by declaring, which is prerequisite to participate in the auction. This rule applies to both 44-FZ and 223-FZ, since there are so-called "uniform requirements" that apply equally to trading in accordance with the Law on contract system, and for tenders held on the basis of the Law on Procurement by Certain Types of Legal Entities.

Please note that the information submitted during the declaration must be valid, since the customer can check them, and if it is found to be unreliable, he is obliged to remove the participant (part 9 of article 31).

If we turn to the norms of Federal Law No. 44, we can notice the conditional allocation of two types of declaration:

declaration of conformity with the uniform requirements for procurement participants;
about the candidate's belonging to small businesses (SMEs) or socially oriented non-profit organizations(SONO).

The first type of application implies that the person who wishes to take part in the tender complies with the provisions of paragraphs. 3-10 hours 1 tbsp. 31 of the Law on the contract system. We talked about this in more detail in the article on the requirements for procurement participants.

The second type of proclamation is the declaration of ownership. This condition is enshrined in articles 51, 66, 73 of the Federal Law No. 44. Federal Law No. 209-FZ establishes the criteria by which a person 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 the Federal Antimonopoly Service of 04.04.2014, the submission of other documents as part of the application that confirm the status of the NSR or SONO, except for the declaration of belonging to the subject of the NSR, is not provided. So, if the customer rejected the application, which contained the declaration of such information, he may be subject to administrative liability in accordance with the norms of the Code of Administrative Offenses of the Russian Federation.

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2. Changes in the declaration form in 2018

From January 09, 2018, new changes entered into 44-FZ, which affected the declaration. First of all, it is necessary to pay attention to the introduction of a new clause, which refers to uniform requirements and is subject to mandatory declaration by the tender participant (clause 7.1 of part 1 of article 31 of the Federal Law-44): only legal entities are allowed to participate, which within two years before the moment participation in the procurement were not held administratively liable for illegal remuneration on behalf of a legal entity (Article 19.28 of the Code of Administrative Offenses of the Russian Federation).

Also, paragraph 7 of part 1 of Art. 31 of Federal Law No. 44: the offenses of the Criminal Code are specified, a conviction for which will not allow participation in the tender:

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

3. Video instruction on how to prepare documents for the tender

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The declaration is filled out in accordance with Art. 4 of the Federal Law of July 24, 2007 No. 209-FZ, clause 11 of the Regulations, approved. Government Decree No. 1352 dated December 11, 2014, Order No. 262 of the Ministry of Economic Development dated May 31, 2017, clarifications from the Ministry of Economic Development.

In the declaration, depending on compliance with the criteria, it is necessary to confirm the assignment to small or medium-sized businesses. At the same time, in relation to the declarant, it is necessary to indicate:

name of the procurement participant;
location address;
TIN / KPP, number and date of issue of the certificate of registration;
OGRN;
information on compliance with the criteria for inclusion in the NSR, as well as information on manufactured goods, works, services and activities (in tabular form).

The declaration may be submitted on paper or in in electronic format. In paper form, the declaration is filled out in black, purple or blue ink. filling electronic form declarations must be made in capital letters in Courier New font, 16 to 18 points high.

Items 1 to 11 are required to be filled in the table.

In paragraphs 1 and 2, if the criteria specified in them are met, in column 5, “yes” or “does not exceed at the time of filling” is entered. If desired, in column 5, you can indicate the actual indicator.

SMEs that are not LLCs put dashes in the indicated columns.

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

In paragraphs 7 and 8, only cells 7-4 and 8-4 are filled, respectively, with actual values.

Paragraph 9 indicates information about licenses with a listing of all data from the Unified State Register of Legal Entities or EGRIP: series and license number, date of issue, date of commencement of validity, date of expiration, name of the licensed type of activity for which the license was issued, information about the address of the place of implementation of the licensed type of activity , the name of the licensing authority that issued or reissued the license, information on the suspension of the license, the state registration number and the date of making an entry in the Unified State Register of Legal Entities (EGRIP) containing the specified information. If there are no licenses, "none" is indicated.

Paragraph 10 of the table indicates data from the Unified State Register of Legal Entities or EGRIP with the transfer of OKVED2 and OKPD2 codes.

In paragraph 11, it is necessary to indicate the types of activities actually carried out, the goods produced by the NSR entities, the work performed, the services rendered, listing the OKVED2 and OKPD2 codes.

Inaccurate information in the SME declaration

The inclusion of false information in the SME declaration may result in:

removal of an SME participant from participating in the selection of a supplier (contractor, performer) or refusal to conclude a contract with the winner of the determination of a supplier (contractor, performer) at any time before the conclusion of the contract;
termination of the concluded contract with the recognition of the SME person as having evaded the conclusion of the contract;
adoption by the customer of a decision on unilateral refusal to execute the procurement contract;
inclusion of an SME person in the register of unscrupulous suppliers in the event of termination of the procurement contract.

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

However, entrepreneurs are often afraid to participate in tenders, considering this area to be completely corrupt, and the tender procedures themselves too confusing.

In most cases, both the first and second opinions are wrong: participation in public procurement is not a very difficult procedure. True, in order to participate in the auction, an organization or an entrepreneur must meet a number of requirements.

What does FZ-44 say

The fundamental normative act regulating procurement in the public sector is Federal Law No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”, adopted in 2013, and effective from January 1, 2014 of the year. More often and more commonly, this law is referred to as 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 article to article, this normative act defines in detail and clearly the entire procurement process for state employees (both financed from the budget of the Russian Federation, budgets of the regional and municipal levels).

He establishes:

Principles and purposes of such purchases;
Requirements for bidders;
Requirements for the preparation of procurement documentation by customers (with detailed description the goods/works/services required by the customer, the price he is willing to pay and the draft contract to be concluded with the winning bidder);
Order of conduct various kinds procurement (auctions, competitions, requests for quotations and proposals);
Opportunities for procurement without bidding (at sole supplier/contractor/performer);
Features of procurement through electronic trading platforms (ETP), registration of bidders on them;
The exact procedure for concluding a contract with the winner in the procurement, the procedure for its execution and changes (allowed only in certain cases);
Responsibility for violations committed by both the customer and the supplier.

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

A webinar on public procurement in accordance with Federal Law-44 is presented in the following video:

What is a declaration of conformity and why is it needed

As you know, there are auctions electronic (these are auctions held on the ETP), and ordinary , for participation in which it is not necessary to be accredited to trading platform(competitions, requests for quotations, offers).

Despite the difference in the procedure for conducting types of procurement and in the documentation that the customer draws up for this, in any case, or who wish to participate in the auction, must correctly and accurately fill out the application for participation.

In addition to the actual offer of goods/works/services required by the customer, consent to fulfill the terms of the contract attached to the procurement documentation, the participant must provide some specific information about himself as a potential supplier/executor/contractor under the state contract, declaring its compliance with the established conditions.

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

So, in order to participate in the auction, you must meet the following requirements:

Not to be in the stage / / of bankruptcy proceedings;
The activity of the applicant should not be suspended by decision of the administrative authorities (on the day of application);
There must be no arrears or arrears on various payments, taxes, etc., exceeding ¼ of the value of the participant's assets according to accounting data for the previous reporting period. There is an important clarification to this requirement - except in cases where a deferral / installment plan for the payment of these payments has been legally granted, or these payments have already been executed, or the decision on their collection by the participant is being appealed in the arbitration court);
The absence of the management of the company or the participant-individual, punishment in the form of deprivation of the right to engage in any activity related to the subject of the procurement, or to hold a certain position;
If the purchase is related to intellectual property rights, the participant must have such rights;
No conflict of interest between the customer and the procurement participant. This is usually understood as either kinship, marriage, or participation of the procurement parties in the same organizations on the right of membership (for example, the head of the customer's organization is at the same time a co-founder of the company claiming to conclude a contract).

Specified Requirements must guarantee the fact that the organization or entrepreneur is sustainable and able to fulfill its obligations under the contract. That is why the customer presents them in accordance with FZ-44 to any participant in any procurement conducted in accordance with the Law on the contract system (with the exception of small purchases worth up to 100 thousand rubles, which can be concluded in a simplified manner, according to Article 93 FZ-44).

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What must the bidder declare?

FZ-44 in art. 31 establishes that other requirements may also be imposed on applicants for concluding a contract for state needs: on belonging to a small business, to non-profit (that is, not created for profit) organizations, other additional requirements (in particular, they can be established by a special decree of the government of the Russian Federation).

Also FZ-44 gives customers the right(and the customer uses this right 100%) not to allow those organizations / entrepreneurs that are included in a special register of unscrupulous suppliers to bidding. This registry is publicly available on the public procurement website (more recently - EIS), and even if such an organization submits its bid, and offers best conditions execution of the contract - it will be rejected from participation in the auction.

Depending on purchase declarations may be required:

Compliance with the uniform requirements for participants;
Belonging to a small business/non-profit organization.

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

Rules for issuing a declaration of conformity

Interestingly, FZ-44 does not establish a special form for the declaration of conformity, and other regulations it is not approved. This is just a document, in a declarative, declarative form announcing that that the procurement participant complies with all requirements established by law and procurement documentation.

Design methods declarations:

Prepare a document in any form, but repeating the requirements listed in part 1 of article 31 of the Law on the contract system;
Copy part of the tender/auction documentation of the customer about the requirements for the participant, replacing the words "must comply" with "complies".

Calling the document a declaration or not calling it is not a fundamental point, the main thing is the presence of the document itself as part of the application for participation.

It is important to know that the law the customer is not allowed to demand from the participant not provided for by Art. 31 compliance details. Otherwise, it threatens the customer with administrative punishment, recognition of the purchase as inconsistent with the law and its cancellation. Therefore, even if excessive requirements are included in the documentation, they can not be declared, but the purchase itself can be appealed to the control body (as a rule, this is the territorial department of the Federal Antimonopoly Service of the Russian Federation).

What documents are required for the declaration

Often procurement participants, wishing to confirm the declaration of conformity, include in their application additional documents(for example, for the past period, tax returns (and other documents). This should not be done, since documents not provided by the customer in the procurement documentation are not considered.

You should be aware that the absence of the declaration itself is a reason for rejecting the participant's application as a whole. Opportunities to additionally submit a declaration after the rejection of the application, the law does not provide. That's why important to get it right such a simple document as a declaration of conformity at the stage of preparation of the application, and remember that for providing false information about compliance (if they are revealed), the customer is obliged to refuse to conclude a contract with the participant who submitted the false declaration, even if he is recognized as the winner in the procurement procedure.

The features of the public procurement procedure from a single supplier in accordance with 44-FZ are described in the following video:

The declaration of conformity with uniform requirements is one of those documents that the supplier attaches to the application for participation in public procurement. Recently, new rules for registration have been in force.

Why is a declaration needed?

In the procurement documentation, the state customer may establish requirements for the contractor. Participants must confirm that they meet them, otherwise they will not be allowed to bid. As confirmation, the declaration of conformity of the auction participant, clauses 3-9 of part 1 of Art. 31 44-FZ or additional conditions organizer. The rule applies to procurement not only under the Law on the contract system, but also under 223-FZ, since in both cases there are uniform requirements for participants.

When processing applications, the organizer checks the supplier's documents, including the declaration. If it turns out that the information in it is not true, then the participant will be removed. Such a condition is contained in part 9 of article 31 of 44-FZ. Therefore, embellishing reality for the sake of participation does not make sense.

What are declarations

In the Law on the contract system, two types of declaration can be found:

Compliance of the participant with the uniform requirements.
Belonging to small businesses (SMEs) or socially oriented non-profit organizations (SONCOs).

With the first document, the supplier confirms that he complies with the mandatory requirements for all participants in public procurement. They are set out in paragraphs. 3-11 hours 1 tbsp. 31 44-FZ. To confirm compliance for each sub-item, it is not necessary separate document. All information, basic and additional, can be included in one. Therefore, a separate declaration on the absence of 44-FZ unscrupulous suppliers in the register, for example, will not be required.

With the second document, the supplier confirms that it belongs to the SMP or SONKO. This is necessary in the auction, for participation in which only such organizations are allowed. The parameters by which an organization will be considered a small business or socially oriented entity are set out in Federal Law No. 209. In 2018, this law was amended. Now, to be a small business, you need:

Meet the requirements for the number, turnover, etc.
Be in the register of small businesses.

This means that an extract from this register can be used as a declaration of belonging to the NSR.

What has changed since 2018

In July 2018, large-scale changes to 44-FZ came into force. They also touched on the declaration. Part 1 of Article 31 of the 44-FZ was supplemented with another paragraph 11, and now a sample of a new declaration of conformity of the participant with the requirements of 44-FZ is required to participate. A condition was added that the supplier has no restrictions on participation in public procurement.

Another significant change in the declaration of conformity 2020 is due to the fact that from 07/01/2018 it is not necessary to draw up a document on paper. Compliance can be declared automatically at the time of application on the trading floor. To do this, you need to put an additional checkbox.

When to compose and submit

In paper form, prepare a sample declaration of conformity 44-FZ 2020 at the same time with other documentation for participation in the procurement and submit as part of the application. If you plan to declare compliance electronically, then you do not need to prepare anything. The main thing is to put a tick in the application form on the trading platform.

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

When participating in electronic procedures, it is more convenient to declare electronically using the ETP functionality (Article 54.4). But you can attach a scan of a paper document in the old fashioned way. Both methods are legal.

In the request for quotations, both electronic and paper, it will be necessary to declare compliance with paragraph 1 of part 1 of Art. 31. This condition also applies to electronic quotes. For this, you can also use the sample declaration of the procurement participant in 2020.

You need to be especially careful when participating in the request for proposals. 44-FZ requires that the documentation for such a procedure indicate that the participant fully complies with article 31. That is, all conditions, including new item 11. Therefore, be sure to check that you are using an updated sample.

How to compose on paper

There are no document requirements. You can issue it in a free form, preferably on an official letterhead. Be sure to check that the text contains all the conditions listed in article 31 of the 44-FZ:

there is no liquidation;
activity has not been suspended;
there are no debts on taxes, fees and other obligatory payments to the budget;
the management and chief accountant 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 liable under Article 19.28 of the Code of Administrative Offenses;
there is no conflict of interest between the participant and the organizer of the procurement;
There are no restrictions on participation in public procurement.

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

This is how the new sample looks like, taking into account the changes from 07/01/2018 and with additional points about RNP:

Features of declaration according to 223-FZ

223-FZ does not establish requirements for participants. The customer, who purchases under this law, determines the requirements himself and fixes them in the Procurement Regulations. As a rule, they do not differ from those specified in paragraphs 3-9 of Part 1 of Art. 31 44-FZ. But it is not necessary to use the standard declaration of conformity as a sample to participate in the purchase under 223-FZ, even if they completely match. The customer will be able to reject the participant and will be right. This is confirmed by the decision of the Federal Antimonopoly Service of the Trans-Baikal Territory No. 04-20-984/2018 dated March 23, 2018.

You can take the declaration under 44-FZ as a basis, but be sure to remove all references to the Law on the contract system from it and make sure that it matches the requirements that the customer makes. Here is a universal sample declaration under 223-FZ.

SUPREME COURT OF THE RUSSIAN FEDERATION

APPEALS DETERMINATION

Board of Appeal Supreme Court Russian Federation composed of:

presiding Manohina G.V.,

members of the board Zaitsev V.Yu., Merkulova V.P.,

with secretary G.,

with the participation of the prosecutor Masalova L.F.

reviewed in open court session administrative case on the administrative claim of LLC "PSK Avangard" for recognition as invalid in terms of paragraph four, subparagraph 1.3 of paragraph 1 of the letter of the Ministry economic development of the Russian Federation and the Federal Antimonopoly Service No. 23275-EE/D28i, АЦ/45739/15 dated August 28, 2015 "On the position of the Ministry of Economic Development of Russia and the Federal Antimonopoly Service of Russia on the issue of application of the Decree of the Government of the Russian Federation dated February 4, 2015 No. 99 "On establishing additional requirements for procurement participants certain types goods, works, services, cases of attributing goods, works, services to goods, works, services that, due to their technical and (or) technological complexity, innovative, high-tech or specialized nature, are able to supply, perform, provide only suppliers (contractors, performers ) having the required level of qualification, as well as documents confirming the compliance of procurement participants with the specified additional requirements"

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

After hearing the report of the judge of the Supreme Court of the Russian Federation Zaitsev V.Yu., explanations of the representatives of the Ministry of Economic Development of the Russian Federation and the Federal Antimonopoly Service K. and Sh., who supported the arguments of the appeal, representatives of PSK Avangard LLC F. and L., who objected to the satisfaction of the appeal, the conclusion of the prosecutor of the Prosecutor General's Office of the Russian Federation Masalova L.F., who considered the appeal unfounded, the Board of Appeal 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 the FAS Russia) on August 28, 2015 jointly issued a letter No. their position on the application of Decree of the Government of the Russian Federation of February 4, 2015 No. 99 "On the establishment of additional requirements for participants in the procurement of certain types of goods, works, services, cases of classifying goods, works, services as goods, works, services, which, due to their technical and (or) technological complexity, innovative, high-tech or specialized nature can only be supplied, performed, provided by suppliers (contractors, performers) with the required level of qualification, as well as documents confirming the compliance of procurement participants with the specified additional requirements "(hereinafter referred to as the Resolution February 4, 2015 No. 99).

Subparagraph 1.3 of paragraph 1 of the Letter states that when procuring construction works, it is necessary to be guided by the fact that, according to the note to position 2 (erroneously named paragraph 2 in the Letter) of Appendix No. 1 to Resolution No. 99 of February 4, 2015, experience in contract execution is required for the performance of works related to the same group of construction works, for the performance of which the contract is concluded. In this case, the following groups of construction works are used: construction, reconstruction and overhaul capital construction objects; works on the construction, reconstruction and overhaul of objects that are not objects of capital construction (temporary buildings, kiosks, sheds and other similar buildings) (paragraphs one - three).

Thus, when making a procurement for the performance of construction works specified in position 2 of Appendix No. 1 to Resolution No. 99 of February 4, 2015 (including current repairs), the procurement participant is recognized as complying with additional requirements if there are following conditions(paragraph four):

the procurement participant submitted confirmation of the execution of one contract over the past three years for the performance of exclusively construction and (or) reconstruction and (or) major repairs. At the same time, confirmation of experience in the execution of a contract (agreement) by the performance of other construction works (for example, for current repairs) is not allowed (fifth paragraph);

the procurement participant confirmed the experience of performing construction work on one construction object, similar to the object, the performance of construction work on which is the object of procurement, namely: in the case of procurement of construction work on a capital construction object, the experience will be confirmed by the performance of construction work on a capital construction object ; in the case of procurement of construction works for an object that is not a capital construction object, the execution of construction work for an object that is not a capital construction object (sixth paragraph).

PSK Avangard LLC (hereinafter referred to as the Company) filed an administrative claim with the Supreme Court of the Russian Federation, in which it asked to invalidate the fourth paragraph of subparagraph 1.3 of paragraph 1 of the Letter in the part imposing on participants in the procurement of construction works an additional requirement in the form of experience in performing relevant works in relation to current repairs, referring to the fact that the contested order is of a normative nature and does not correspond to the actual meaning of the explained regulatory provisions of the Decree of February 4, 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 contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - Federal Law of April 5, 2013 No. 44-FZ) and clause 2 of part 1 of Article 15 of the Federal Law of July 26, 2006 No. 135-FZ "On Protection of Competition". The administrative plaintiff pointed out that the application of Resolution No. 99 of February 4, 2015, as interpreted by the Letter, leads to the presentation of requirements not provided for by the current legislation to persons performing work only on current repairs. This limits the access of the Company to state and municipal procurement for the performance of 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 dated August 22, 2016, the administrative claim of the Company was satisfied.

Disagreeing with this decision, the Ministry of Economic Development of Russia filed an appeal in which it asks for its cancellation due to the incorrect determination by the court of the circumstances relevant to the administrative case. Refers to the fact that the Letter is not a normative legal act, does not contain clarifications of the legislation, but is of an exclusively informational, reference nature. This circumstance, in the opinion of the administrative defendant, is confirmed by the fact that the Letter does not contain the features characterizing the normative legal act listed in paragraph 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 29, 2007 No. acts in whole or in part. He notes that there are no provisions in the Letter obliging anyone to apply the positions set forth in it, and liability is not provided for its non-application. In this regard, the administrative defendant considers unreasonable the conclusion of the court of first instance that the Letter in the disputed part orients the relevant officials to 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 forth therein.

In objections to the appeal, the Company asks to refuse to satisfy it, leaving the decision of the court of first instance unchanged.

The Ministry of Justice of the Russian Federation submitted a response to the appeal, in which it asks to consider it without the participation of its representative and leave the court decision unchanged. Supports its position on this administrative case set out in the letter dated August 16, 2016 No. 01-94174/16, that the claim of the administrative claimant is reasonable and subject to satisfaction.

Having checked the case file and discussed the arguments of the appeal, the Appellate Board of the Supreme Court of the Russian Federation finds no grounds for its satisfaction and cancellation of the contested court decision.

Features of the consideration of administrative cases on contesting acts containing clarifications of the legislation and having regulatory properties (hereinafter referred to as acts having regulatory properties) are regulated by Article 217.1 of the Code of Administrative Procedure of the Russian Federation. By virtue of clause 1 of part 5 of the said article, based on the results of consideration of an administrative case on contesting an act that has regulatory properties, the court decides to satisfy the stated requirements in full or in part, if the contested act does not fully or in part correspond to the actual meaning of the regulatory provisions explained by it, establishes obligatory rules not provided for by the regulations being explained, which apply to an indefinite circle of persons and are designed for repeated application. In this case, such an act is recognized as not valid in full or in part from the date of its adoption or from another date determined by the court.

The Letter formulates the position of the Ministry of Economic Development of Russia and the Federal Antimonopoly Service of Russia regarding the application of the provisions of Resolution No. 99 of February 4, 2015 in connection with incoming questions.

This decision was made in accordance with federal law dated April 5, 2013 No. 44-FZ, part 2 of article 31 of which provides that the Government of the Russian Federation has the right to establish to the participants in the procurement of certain types of goods, works, services, the procurement of which is carried out through tenders with limited participation, two-stage tenders, closed tenders with limited participation, closed two-stage tenders or auctions, additional requirements, including the presence of: financial resources for the performance of the contract; on the right of ownership or otherwise legal basis equipment and other material resources for the performance of the contract; work experience related to the subject matter of the contract, and business reputation; required amount specialists and other employees of a certain level of qualification for the performance of the contract.

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

Position 2 of Appendix No. 1 to Resolution No. 99 of February 4, 2015 (as amended on the day the contested decision was made) contains an additional requirement for procurement participants when performing construction work included in codes 41.2, 42, 43 (except for code 43.13) of the All-Russian classifier products by type economic activity(OKPD2) OK 034-2014, if the initial (maximum) price of the contract (price of the lot) exceeds 10 million rubles, namely: experience in the execution (taking into account the succession) of the contract (agreement) for the performance of relevant construction works for the last 3 years before the date of filing an application for participation in the relevant competition or auction. In a footnote to this position this requirement is specified, it is noted that experience is required in the execution of a contract for the performance of works related to the same group of construction works for which the contract is concluded. In this case, the following groups of construction works are used: construction, reconstruction and overhaul of capital construction projects; works on the construction, reconstruction and overhaul of objects that are not objects of capital construction (temporary buildings, kiosks, sheds and other similar buildings).

It follows from the above provisions that such an additional requirement as experience in the execution of a contract (agreement) for the performance of construction works is imposed on procurement participants if the procurement objects are construction works included in codes 41.2, 42, 43 (except for code 43.13) of the All-Russian classifier of products by type of economic activity (OKPD2) OK 034-2014, related to the groups of construction works for the construction, reconstruction and overhaul of capital construction facilities and facilities that are not capital construction facilities (temporary buildings, kiosks, sheds and other similar buildings), with an initial (maximum) contract price (lot price) over 10 million rubles.

Having analyzed the content of the fourth paragraph of sub-clause 1.3 of clause 1 of the Letter, the court of first instance correctly pointed out that the Letter referred to the listed construction works, in respect of which additional requirements for procurement participants are established, include current repairs.

Meanwhile, Federal Law No. 44-FZ of April 5, 2013, Decree No. 99 of February 4, 2015, and other normative legal acts that have greater legal force do not have the competence of the Ministry of Economic Development of Russia and the Federal Antimonopoly Service of Russia to provide clarifications on the application of the said resolution of the Government of the Russian Federation, as well as independently establish additional requirements for procurement participants, therefore the court of first instance came to the correct conclusion that the disputed Letter was issued in excess of the authority of the administrative defendants.

At the same time, the court rightfully took into account that the legislation of the Russian Federation distinguishes between the concepts of "major repairs" and "current repairs". In this regard, it is impossible to recognize as justified the argument of the appeal that the term “repair” used in the Decree of the Government of the Russian Federation of February 4, 2015 No. 99 should be understood as two of its varieties - capital and current, since such a statement contradicts both a literal interpretation of this resolution, as well as normative legal acts regulating legal relations in the field of urban planning in the Russian Federation, as reasonably indicated in the contested decision.

Taking into account the fact that overhaul works and current repair works differ from each other in content and have different legal regulation, paragraph four of subparagraph 1.3 of paragraph 1 of the Letter establishing an additional requirement for procurement participants about the experience of executing a contract for construction work , reconstruction and overhaul in the course of procurement for the performance of current repairs, goes beyond the scope of an adequate interpretation of the provisions of the Decree of February 4, 2015 No. 99.

The reference in the appeal to the fact that the Letter does not contain the features of a normative legal act listed in the resolution of the Plenum of the Supreme Court of the Russian Federation dated November 29, 2007 No. 48 "On the practice of courts considering cases on contesting normative legal acts in whole or in part" does not affects the legality of the contested decision. The letter is disputed by the Company in the part indicated by it as an act containing clarifications of the legislation and having regulatory properties, in accordance with Article 217.1 of the Code of Administrative Procedure of the Russian Federation and is not subject to assessment in terms of its compliance with the criteria formulated by the Supreme Court of the Russian Federation for regulatory legal acts.

Within the meaning of the legal provisions enshrined in Article 217.1 of the Code of Administrative Procedure of the Russian Federation, and also 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 checking the constitutionality of clause 1 of part 4 Article 2 of the Federal Constitutional Law "On the Supreme Court of the Russian Federation" and paragraph three subparagraph 1 of paragraph 1 of Article 342 of the Tax Code of the Russian Federation in connection with the complaint of an open joint-stock company Gazprom Neft, an act clarifying current legislature, may be the subject of a judicial review in the procedure established for challenging normative legal acts, taking into account certain features, if this act: is issued by a public authority, another body or organization endowed with state power; does not have an individual character, i.e. the clarifications contained therein are not related to the application of the law in relation to certain persons in specific cases; is mandatory for subordinate bodies (organizations, institutions) and their officials, who, by virtue of departmental subordination, must apply in their activities the explained normative provision exclusively in accordance with the meaning given to it by their higher body, organization; has normative properties, i.e. establishes (changes, cancels) rules designed for repeated application, binding on an indefinite circle of persons - participants in a legal relationship regulated by the rule being explained, thereby exerting a general regulatory effect on social relations; contains clarifications that go beyond the scope of an adequate (coincident, identical) interpretation (interpretation) of the provisions of the legislation and entail a change in the legal regulation of the relevant public relations.

Paragraph four of sub-clause 1.3 of clause 1 of the Letter issued federal authorities executive power, establishes an additional requirement not provided for by the regulatory provisions being explained to the procurement participants for the performance of construction work, i.e. establishes a rule of conduct that applies to an indefinite circle of persons and is designed for repeated use, contains an explanation that goes beyond the scope of an adequate (identical) interpretation of the provisions of Decree of the Government of the Russian Federation of February 4, 2015 No. 99 and entails a change in the legal regulation of public relations in the field of procurement of goods , works, services to meet state and municipal needs.

The argument of the Ministry of Economic Development of Russia that the Letter is not binding on subordinates government agencies, is refuted by the materials examined by the court of first instance, which testify that the disputed provision orients the relevant officials to apply in practice the requirements of position 2 of Appendix No. 1 to Resolution No. 99 of February 4, 2015 in the interpretation set forth in it.

Thus, the court of first instance, by virtue of paragraph 1 of part 5 of article 217.1 of the Code of Administrative Procedure of the Russian Federation, rightfully recognized the fourth paragraph of subparagraph 1.3 of paragraph 1 of the Letter as invalid in the part imposing on participants in the procurement of construction works an additional requirement in the form of having experience in performing relevant work in relation to current repair work.

The contested judgment was rendered in compliance with the norms of procedural law and with the correct application of the norms of substantive law. There are no grounds provided for by Article 310 of the Code of Administrative Procedure of the Russian Federation for reversing the decision on appeal.

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

determined:

the decision of the Supreme Court of the Russian Federation of August 22, 2016 is left unchanged, the appeal of the Ministry of Economic Development of the Russian Federation is not satisfied.

presiding

G.V. MANOKHINA

Board members

V.YU.ZAYTSEV

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