44 fz more or less. Actual changes in the contract system for procurement participants. Procurement methods

Date: 05/29/2019

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 referred to as the law) is once again undergoing changes. The amendments were made by Federal Law No. 71-FZ dated May 1, 2019 and a number of other regulatory legal acts. Let's consider the key changes in the law on the contract system in relation to procurement participants.

From 05/01/2019 Customers are obliged to purchase services for the organization of recreation and health improvement of children through contests with limited participation in electronic form. This means that the order of participation in this procurement for procurement participants is changing. When participating in procurement, applicants confirm their experience in the execution (taking into account succession) of contracts (agreements) for the provision of services for organizing children's recreation and their health improvement over the past three years prior to the date of filing an application for participation in the procurement. At the same time, the cost of a previously executed contract (agreement) is at least 20 percent of the initial (maximum) price of the current contract, agreement (lot price). In confirmation, the procurement participant must submit in the application package a copy (s) of the previously executed contract (contracts) and (or) agreement (s) concluded by the procurement participant with the customer under 44-FZ or 223-FZ, and also submit documents confirming the execution of these contracts and (or) agreements without applying penalties (fines, penalties) to the contractor (paragraph 9 of Appendix No. 2 to Government Decree No. 99 of 04.02.2015).

From 05/12/2019 the following changes take effect.

For each day of delay in the performance of the contract by the supplier (executor, contractor), the customer charges penalties. Earlier, in the previous version of the law, the customer had the opportunity to set a penalty in the amount of more than one three hundredth of the key rate. Now the amount of the penalty is fixed - one three hundredth of the key rate of the value of the obligations not fulfilled by the supplier (executor, contractor). The fine is accrued for each day of delay in fulfilling the obligation stipulated by the contract, starting from the day following the day of expiration of the term for fulfilling the obligation established by the contract. Such penalty is established by the contract in the amount of one three hundredth of the key rate of the Central Bank effective on the date of payment of penalties. Russian Federation from the amount not paid on time. In case of a different procedure for calculating fines or penalties established by law, special rules apply. For example, when calculating penalties in a contract for the supply of hot or cold water, penalties are prescribed in accordance with Part 6.2 of Article 13 of the Federal Law of December 7, 2011 No. 416-FZ “On Water Supply and Sanitation”. The fine is set in the amount of one hundred and thirtieth of the refinancing rate of the Central Bank of the Russian Federation, effective on the day of actual payment, from the amount not paid on time for each day of delay, starting from the next day after the date of the due date of payment until the day of actual payment.

The term for payment by the customer of the delivered goods, the work performed (its results), the service rendered by the supplier (executor, contractor), individual stages of the execution of the contract is no more than thirty days from the date of signing the acceptance document by the customer. And when purchasing from small businesses or socially oriented non-profit organizations(hereinafter SMP and SONO) - fifteen working days from the date of signing the acceptance certificate. Another payment term may be established by the legislation of the Russian Federation, for example, in order to ensure the defense capability and security of the state, as well as in a number of other cases established by the Government of the Russian Federation.

For a procurement participant, the deadline for appealing against the actions of a customer, an authorized body, a specialized organization, an operator of an electronic site, a procurement commission has changed when filing a complaint with the federal executive body authorized to exercise control in the field of procurement (hereinafter - FAS). Part 3 of Article 105 of the law defines a five-day period for appealing against actions from the date of placement in a single information system(hereinafter referred to as the UIS) of the protocol for consideration and evaluation of applications for participation in the tender, the protocol for the consideration and evaluation of applications for participation in the request for quotations, the protocol for the request for proposals, and in case of determining the supplier (contractor, performer) in a closed way from the date of signing the relevant protocol. At the same time, any procurement participant is entitled to appeal against the provisions of the documentation or notice of procurement, and after the publication of the final protocols, only the participant who submitted an application for participation in the procurement. With regard to electronic procedures, part 4 of Article 105 establishes the same five-day period for appealing against the actions of a customer, an authorized body, an authorized institution, a specialized organization, a procurement commission, its members, an official of a contract service, a contract manager, an operator of an electronic site, an operator of a specialized electronic site . Previously, such a period for appealing against the results of any purchase was 10 days.

Also, the period for consideration and verification by the Federal Antimonopoly Service of the received information about the supplier (executor, contractor) for entering into the register of unscrupulous suppliers (hereinafter - RNP) from the customer has been reduced, it has been reduced to five working days from the date of receipt of information. In the previous edition, the period was 10 working days. Recall that, according to the law, the customer is obliged to submit information about the procurement participant to the register of unscrupulous suppliers if the procurement participant evades the conclusion of the contract when it is signed by the winner of the procurement; when the contract is terminated due to the customer's unilateral refusal to perform the contract due to material breaches by the supplier of the terms of the contract or in the event of termination of the contract with the supplier (contractor, performer) by a court decision due to material breaches of the terms of the contract.

From 07/01/2019 a complaint filed by a participant, information about which is included in the register of unscrupulous suppliers, will not be considered by the FAS. At the same time, the condition must be observed that the customer, during the procurement, established in the procurement documentation and the procurement notice the requirement that the procurement participant be absent from the RNP.

To confirm qualifications in procurement conducted on the electronic platform certain types goods, works, services, in respect of participants of which the Government of the Russian Federation has established additional requirements, the accredited procurement participant must send to the operator of the electronic site (hereinafter referred to as the ES operator) electronic documents for each object of procurement for which the Government has established such requirements. Here we are talking about the purchases specified in parts 2 and 2.1 of article 31 of the law, for example, services for organizing summer recreation, or audit and consulting services. This will allow you to participate in purchases with additional requirements. Within five working days after receiving the documents, the ES operator for each type of product makes a decision to place the documents in the register of participants. The ES operator refuses to place documents if the procurement participant has not submitted all the documents that the Government has determined, or has provided documents with violations.

Another novelty in the law is the maintenance of registers of accredited procurement participants. Operators of electronic platforms will post registers of accredited procurement participants on electronic platforms. The registers include the following information about the procurement participant:

  1. name, company name (if any), if the procurement participant is entity;
  2. surname, name, patronymic (if any), if the procurement participant is individual, including those registered as individual entrepreneur;
  3. identification number of the taxpayer of the procurement participant;
  4. date of accreditation on the electronic site;
  5. other information and documents.

A procurement participant registered in the EIS and accredited on an electronic site is entitled to participate in all electronic procedures conducted on an electronic site. Registration of a procurement participant in the EIS and accreditation of a procurement participant on an electronic site are carried out for a period of three years. Not earlier than six months before the expiration date of the registration period, the participant must register for a new period. Four months before the expiration date of his registration in the EIS, he is notified automatically by the system. At the same time, the participant has the right to apply for participation in electronic procedures three months before the expiration date of his registration in the EIS.

Doing unified register procurement participants is carried out by the federal executive body authorized by the Government of the Russian Federation.

Innovations in relation to the electronic auction are significant and have long been needed. The size of the initial maximum contract price (hereinafter referred to as IMCC) increases with the deadline for submitting applications within seven calendar days. At the moment, the NMCC is three million rubles, from July 1, the price threshold will be three hundred million rubles. That is, all large purchases of customers will be carried out much faster than before. When purchasing construction, reconstruction, overhaul or the demolition of a capital construction project (tenders for real estate), applications will be accepted for at least seven calendar days at the NMCC worth up to two billion rubles.

If the customer establishes additional requirements for procurement participants in the notice of procurement and in the procurement documentation, only those procurement participants who have placed supporting documents in the register of participants will be able to submit bids. At the same time, the operator sends these documents to the customer within the time limits established by law. The participant has no obligation to submit documents in the second part of the application.

The customer will consider the first parts of applications for at least one, maximum three working days from the date of the deadline for submission of applications. The electronic auction will be held on the first working day after the closing date for consideration of the first parts of applications. If the customer cannot determine the quantity of products to be supplied in the documentation and the notice of purchase, during the electronic auction during the bidding itself, the participants reduce the initial amount of prices for the units of goods, work or services.

If, during an electronic auction, the price of the contract is reduced to half a percent of the NMCC or lower, such an auction is held for the right to conclude a contract. At the same time, such an auction is held by increasing the price of the contract, taking into account the following features:

  1. such an auction is held until the contract price reaches no more than one hundred million rubles;
  2. a participant in such an auction is not entitled to submit proposals for a contract price higher than the maximum transaction amount for this participant specified in the decision to approve or conclude transactions on behalf of the procurement participant as a result of such an auction;
  3. the amount of the security for the execution of the contract is calculated based on the NMCC specified in the notice of the auction;
  4. "auction step" is up to 5 percent of the contract price specified in paragraph 1.

Also, innovations will affect electronic auctions for the execution construction works. When included by the customer in the description of the procurement object project documentation, the first part of the participant's application will contain only consent to work. Consideration of the first parts of applications by the customer, the procurement commission in this case is not as a procurement stage. A participant who has submitted consent and an application for participation in the procurement to the ES operator is automatically admitted to bidding, provided that such an application has not been returned to the procurement participant. The auction takes place 4 hours after the deadline for submitting applications for participation in the purchase. The second part of the received applications is considered by the customer, the procurement commission in the usual manner.

The changes also affected the size of the security for applications for participation in the electronic auction. Application security is:

  1. from one second percent to one percent of the initial (maximum) contract price, if the initial (maximum) contract price is from five million rubles to twenty million rubles;
  2. from one second percent to five percent of the initial (maximum) contract price, if the initial (maximum) contract price is more than twenty million rubles.

From 07/01/2019, participants will be able to provide bank guarantees as security for applications for an electronic tender or auction (part 52, article 112 of the law).

Article 37 of the law regarding anti-dumping measures There was a price cap.

more than fifteen million rubles and there was a decrease in the price offered by the participant by twenty-five percent or more of the NMTsK, the contract is concluded only after such a participant provides a security for the performance of the contract one and a half times more than the amount of the security for the performance of the contract specified in the documentation and the notice of purchase, but not less than in the amount of the advance payment ( if the contract provides for the payment of an advance).

If, during a tender or auction, the initial (maximum) price of the contract is fifteen million rubles or less and there was a decrease in the price offered by the participant by twenty-five percent or more of the NMCC, the contract is concluded only after such participant provides a security for the performance of the contract one and a half times the size of the security for the performance of the contract, or information confirming the good faith of such a participant as of the date of filing the application, with the simultaneous provision of such a participant in ensuring the execution of the contract established by the procurement documentation.

The good faith of the procurement participant is confirmed only by contracts executed without penalty, which can be selected from the register of contracts by the number of the register entry. A bona fide participant must, within one year prior to the date of filing an application for participation in a tender or auction, execute three or more contracts (in this case, all contracts must be executed without the application of penalties (fines, penalties) to such a participant, or within two years before the date of filing applications for participation in a tender or auction of four or more contracts (in this case, at least seventy-five percent of the contracts must be executed without the application of penalties (fines, penalties) to such a participant, or within three years before the date of filing an application for participation in the tender or auction of three or more contracts (in this case, all contracts must be executed without the application of penalties (fines, penalties) to such a participant. In this case, the price of one of the contracts must be at least 20 percent of the NMCC established in the notice and procurement documentation.

A number of amendments to the law relate to the essential terms of the contract and enforcement of the contract. Let's consider them.

Part 1 of Article 34 of the Law has been supplemented following condition. If the quantity of goods (works, services) is not determined, the contract must contain the procedure for determining the quantity of goods supplied, the volume of work performed, services rendered based on customer requests. If the contract is divided into stages of delivery of goods, performance of work, provision of services, the price of each stage is set in the amount reduced in proportion to the reduction of the NMTsK. For example, a contract includes four stages of delivery of goods, performance of work, and provision of services. The winner of the purchase during the auction reduced the NMTsK by five percent. In this case, the customer in the contract reduces the price of each stage by five percent.

New grounds for changing the essential terms of the contract have appeared in the law:

1. Procurement of works on construction, reconstruction, overhaul, demolition of a capital construction facility, preservation of cultural heritage sites. You can change the contract up to 10 percent of the price.

2. If the contract is concluded for a period of at least one year and its price is equal to or exceeds the amount established by the Government. At the same time, circumstances arose under which the execution of such a contract due to circumstances beyond the control of the parties without changing its conditions is impossible, by decision of the Government, the highest executive regional or municipal authority, changes can be made to the contract. In this case, the following conditions must be met:

  1. Procurement for construction, reconstruction, overhaul, demolition of a capital construction facility, preservation of cultural heritage sites.
  2. As a result of the changes, the term of the contract will not increase, and the price will not increase by more than 30 percent.

3. If the contract for the performance of works on construction, reconstruction, overhaul, demolition of a capital construction object, preservation of cultural heritage objects cannot be executed due to circumstances beyond the control of the parties or if the contract is not executed on time due to the fault of the contractor. In this case, it is possible to extend the period of performance of the contract once for a period that does not exceed the period of performance at its conclusion. If the violation of the deadlines was due to the fault of the contractor, then the extension of the deadline is possible when the counterparty pays the penalty.

4. A contract with a single supplier may be amended in accordance with clauses 1, 8, 22, 23, 29, 32, 34, 51 of part 1 of article 93 of Law No. 44-FZ.

With regard to contract enforcement and warranty obligations. The customer has the right to establish in the documentation and the draft contract the requirement to provide warranty obligations, if necessary. Acceptance documents are drawn up after the supplier submits the security of warranty obligations in the manner and within the time limits established by the contract. The amount of security for obligations should not exceed 10 percent of the NMCC.

The procurement participant independently determines the method of ensuring the performance of the contract, warranty obligations (making Money or bank guarantee), the period of validity of the bank guarantee. At the same time, the period of validity of the bank guarantee must exceed the period of fulfillment of obligations stipulated by the contract by at least one month. Counterparties will be able to change the security of the contract during its execution.

In relation to small businesses and socially oriented non-profit organizations (hereinafter referred to as SMP and SONO), the procedure for providing security for the performance of a contract has been simplified. Now participants from among the SMP and SONO have the right not to provide security if, within three years prior to the date of application, they have executed at least three contracts without penalty. The sum of the prices of such contracts must not be less than the NMTsK, which is indicated in the notice and the procurement documentation. Information about executed contracts is confirmed from the register of contracts. Contracts with succession do not count. The rule also applies when the customer applies anti-dumping measures.

The contract includes a mandatory condition on the timing of the return by the customer to the supplier (contractor, performer) of funds deposited as security for the performance of the contract (if such a form of security for the performance of the contract is used by the supplier (contractor, contractor). calendar days from the date of fulfillment of all obligations by the counterparty.When purchasing from SMP and SONO, the period is 15 calendar days.

The legislator secures the right to conclude a contract with the second participant in the event that the customer terminated the contract unilaterally, by a court decision or by agreement of the parties. The second participant is the bidder who, during the procurement, offered Better conditions after the winner. Participant number two has the right to refuse to conclude a contract. At the same time, if the termination of the contract was unilateral, the contract with the second participant, the customer, is concluded only after the information about the winner is entered in the RNP.

When concluding a contract with the second participant, it is necessary to reduce the volume of products and the price in proportion to the fulfilled obligations.

With regard to purchases from sole supplier The following changes will come into effect on July 1st. The limit for small purchases has been increased under clause 4 of part 1 of Article 93 of the Law. The maximum price limit for direct purchases will be RUB 300,000 instead of the previous RUB 100,000, which will greatly facilitate the life of both the Customer and the supplier in relation to “inexpensive” but important purchases. An increase in the price limit to one million rubles when purchasing medicines from a single supplier by decision of the medical commission, instead of the previous two hundred thousand, introduces a change in paragraph 28 of part 1 of Art. 93 of Law No. 44-FZ.

From 31.07.2019 there are changes in relation to purchases from a single supplier under paragraph 5 of part 1 of Article 93 of Law No. 44-FZ. The amount of direct purchases of cultural and educational institutions will be six hundred thousand rubles instead of the previous four hundred, with a maximum annual volume of such purchases of thirty million rubles. Thus, procurement participants entering into direct contracts under paragraph 5 of part 1 of Article 93 with customers in the field of culture and education will have an increase in the price limit for concluding contracts.

From 01.10.2019 if the contract provides for phased execution and payment of an advance, the customer must include in the notice and in the contract a condition on the amount of the advance in respect of each stage as a percentage of the stage price. If the payment is provided, the advance payment shall be specified in the notice. From July 1, it is not allowed to pay an advance to a participant in respect of which anti-dumping measures are applied.

From 01.01.2020 GIS "Independent Registrar" begins its work. The system is designed to monitor and record the actions and inaction of procurement participants and customers. The main task of the system is to monitor, among other things, the performance of the UIS, as well as electronic platforms. Now customers and procurement participants can independently install and use the program. From January 1, 2020, work in the program will be mandatory for all parties involved in the procurement process under 44-FZ.

Summing up, we can conclude that 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” has undergone significant changes for both procurement participants and customers. Will this give the desired result, will it make it easier complex system procurement activities of the customer and involvement at all stages in this activity of procurement participants, time will tell. It remains for us to learn how to apply the introduced norms of legislation and expect the practice of applying innovations.

List of materials used:

  1. Federal Law No. 44-FZ of 05.04.2013 “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” as amended on 01.05.2019;
  2. Federal Law No. 71-FZ of May 1, 2019 “On Amendments to the Federal Law “On the Contract System in the Procurement of Goods, Works, and Services for State and Municipal Needs”;
  3. Overview of changes in procurement under 44-FZ since May 2019. N. Kozlova.

15% of all purchases are made by state customers from non-profit socially oriented organizations.

What regulates 44-FZ?

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

What does not regulate 44-FZ?

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

Who adopts legal acts under 44-FZ?

  • President of Russian Federation;
  • Government of the Russian Federation;
  • Federal authorities executive power;
  • "Rosatom";
  • Roskosmos;
  • 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,

The supplier- a legal or natural person, including an individual entrepreneur, who participates in the procurement and supplies goods and services.

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

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

Electronic marketplace- a site where customers place purchases, suppliers submit applications for participation in purchases, and electronic auctions are held.

Specialized electronic platform- a site with access via secure communication channels, on which closed purchases are carried out.

Application for participation- these are documents and information that the supplier submits in writing or electronically in order to participate in the procurement.

Unified Information System (UIS)

Now contains

  • Information about purchases, the possibility of their search,
  • contract templates,
  • rationing rules,
  • Information about market prices for goods,
  • Procurement plans, schedules,
  • Reporting on executed contracts,
  • Register of unscrupulous suppliers.
  • single sign-on and a register of procurement participants.
  • Single catalog goods, works and services.
  • Publication of purchases according to RF PP No. 615 (overhaul).

Coming in 2020

  • The system for fixing the actions of procurement participants in the EIS and at 8 federal ETPs.

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

Organization of EDI

Suppliers can apply for participation in procurement on 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 of charge at the federal treasury. They work with her in the EIS and at the ETP.
  • Suppliers need a signature to participate in e-procurement. Since July 1, 2018, the public procurement system has been using qualified signatures. Suppliers can obtain a signature from an accredited certification authority.

National Treatment

The national regime was introduced to give advantages to suppliers of Russian goods and goods from other EurAsEC member countries. More about him we.

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 the organization spends budget money. According to 223-FZ, if she spends her own and she has a provision on purchases.

Planning

Procurement plans*

Schedules

This is the basis for the schedules.

 You cannot make a purchase that is not included in the schedule.
  • Identification code,
  • Target,
  • Object / objects,
  • The amount of financial security,
  • Implementation timeline,
  • Rationale,
  • Information about technological complexity, which limits the choice of supplier,
  • Whether public discussion of the purchase is necessary. It is required if the purchase is more than 1 billion rubles.

In the description of each purchase there is:

  • Name, number, requirements for goods and participants,
  • purchase method,
  • NMC of each contract,
  • Additional requirements for procurement participants, if any,
  • The amount of security for the application and performance of the contract,
  • Month and year of the purchase announcement,
  • Information about the banking support of the contract,
  • Application of procurement evaluation criteria, etc.
Formed for 3 years. This is the duration of the federal budget law. Formed for the financial year.
Plans can be changed.

They come into force within 10 working days after the approval of the budget.

They are published in the EIS, on their websites and in any print media within 3 working days after approval, if they are not a state secret.

They come into force within 10 working days after the approval of the budget.

Published in the UIS within 3 working days after approval, if they do not constitute state secrets.
In the plan, you need to justify the object of each purchase in accordance with the standard costs.

In the schedule, you need to justify the NMC.

Customers also take into account purchase quotas in various ways and must make 15% of all purchases from small businesses and socially oriented organizations.

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

When checking or following a complaint from a supplier, the FAS may recognize the purchase as unreasonable. Then it is corrected or cancelled. The perpetrators are brought to administrative responsibility.

All public procurements are standardized. The quantity, price, characteristics of goods and services are established by federal and local legislation of the Russian Federation.

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

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

(see text in previous edition)

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

(see text in previous edition)

4) the procurement documentation must contain an image of the supplied goods, which allows to identify it and prepare 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) the procurement documentation must contain information about the place, start and end dates, procedure and schedule for the participants in the procurement to inspect a sample or mock-up of the goods for the supply of which the contract is concluded, if such documentation contains a requirement that the supplied goods comply with the sample or mock-up of the goods for delivery which the contract is concluded;

6) the procurement documentation must contain an indication of the international generic names of medicinal products or, in the absence of such names, chemical, grouping names, if medicinal products are the object of procurement. 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 purchasing medicines in accordance with paragraph 7 of part 2 of Article 83, paragraph 3 of part 2 of Article 83.1 of this Federal Law, indicate the trade names of these medicinal products. This 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 generic names or in the absence of such names with chemical, grouping 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 generic names (in the absence of such names with chemical, grouping names) and trade names. The provisions of this paragraph shall not apply when determining the supplier of medicinal products with whom a state contract is concluded in accordance with Article 111.4 of this Federal Law;

(see text in previous edition)

7) the delivered goods must be new goods (goods that were not in use, under repair, including which were not restored, which had no replacement of components, consumer properties were not restored), unless otherwise provided description of the procurement object;

8) the procurement documentation for the procurement of construction, reconstruction, overhaul, demolition of a capital construction facility must contain project documentation approved in the manner established by law on urban planning, except for the case when the preparation of 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 object . The inclusion of project 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 to determine the compliance of the purchased goods, work, services with the requirements established by the customer. At the same time, 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 previous edition)

3. It is not allowed to include in the procurement documentation (including in the form of quality requirements, technical specifications product, work or service, performance requirements ( consumer properties) goods) requirements for the manufacturer of the goods, for the procurement participant (including the requirements for the qualification of the procurement participant, including the availability of work experience), as well as the requirements for business reputation procurement participant, requirements for the availability of production capacities, 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 the provision of services that are the subject of the contract, unless the possibility of establishing such requirements for a 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 volume of guarantees for their quality, for warranty service of the goods (hereinafter referred to as warranty obligations), for the costs of operating the goods, for the mandatory installation and adjustment of the goods, to the training of persons involved in the use and maintenance of the goods, are established by the customer, if necessary. If the supplier of machinery and equipment is determined, the customer shall establish in the procurement documentation the requirements for the warranty period of the goods and (or) the volume of guarantees for their quality, for the warranty service of the goods, for the costs of servicing the goods during the warranty period, as well as for installation and adjustment goods, if it is provided for by the technical documentation for the goods. If a supplier of new machinery and equipment is determined, the customer shall establish in the procurement documentation the requirements for providing a guarantee from the manufacturer and (or) supplier of this product and for the period of validity of such a guarantee. The provision of such a guarantee is carried out together with this product.

(see text in previous edition)

5. Features of the description of certain types of objects of procurement may be established by the Government of the Russian Federation.

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

Government procurement is a large market for suppliers. In 2018, public procurements totaling more than 8 trillion rubles were published in the Unified Procurement Information System, of which more than 1 trillion rubles. given to small businesses.

Public procurement is regulated the federal law No. 44 "On the contract system". It spells out all the rules for conducting the procurement procedure: from its planning, placement in the EIS to the fulfillment of all obligations under the contract.

Who can participate in public procurement

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

Organizations, individual entrepreneurs or individuals who:

  • Are in the process of liquidation, at the stage of bankruptcy or bankruptcy proceedings.
  • Have a 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 prior to the filing of the application.
  • Have a conflict of interest with the customer or other procurement participant (close family ties).
  • They are an offshore company.
  • They are included in the register of unscrupulous suppliers.
  • Subject to restrictions on participation in procurement established by the Government of the Russian Federation.

The participant must confirm that he can participate in public 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 public procurement participants

Customers may present additional requirements for the qualifications of participants, their experience, business reputation, financial resources and equipment. Such requirements are established if the purchase concerns the reconstruction of a cultural heritage object, the construction of a capital construction object, the repair of roads and other works 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 in personal account at the federal ETP.

The customer may require that the procurement participant meet the requirements for performance certain activities– had 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 the rights to the results of intellectual activity. This requirement is mandatory if, under the contract, the customer receives the rights to the results of intellectual activity. Requirements are not established if, under the contract, the supplier creates or performs a work of literature or art, finances the distribution or screening of a national film.

Preferences for participants

Some participants in public 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 (SMEs) and socially oriented non-profit organizations (SONCOs).

In addition to SMP and SONCO, preferences in public procurement are provided to:

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

Procurement types

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

  • open competition
  • limited entry competition
  • two-stage competition
  • electronic auction
  • request for proposals
  • request for quotations
  • purchase from a single supplier (carried out in cases limited by law).

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

  1. At the minimum price offered during the purchase - auction, request for quotations.
  2. According to the best combination of price and terms of the contract, proposed in bids or final proposals - in tenders and requests for proposals.

What it takes to win

How to participate

Auction

lowest price

Submit an error-free bid, reduce the price at an online auction.

Competition

Send an application specifying the price, characteristics of the goods and other conditions for the execution of the contract with documents confirming them.

Quote request

lowest price

Send an application in which you agree to the terms of the contract, describe the goods and offer a price.

Request for proposals

The best combination of price and execution conditions

Send an application specifying the price, characteristics of the goods and other conditions for the execution of the contract with documents confirming them. Conditions can be improved once after opening all applications.

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

Where public procurement is carried out

All purchases under 44-FZ are carried out in electronic form. They are held at eight federal electronic trading platforms (ETP): EETP, RTS-tender, Sberbank-AST, ZakazRF, NEP, the Auction House of the Russian Federation, ETP GPB, TEK-Torg.

To participate in auctions under 44-FZ, you need to register with the EIS. It gives access to public procurement at eight federal ETPs, as well as to purchases for overhaul under 615-PP and tenders under 223-FZ for small and medium-sized businesses. Registration in the EIS is free and valid for three years.

Since the procurement is carried out in electronic form, an enhanced qualified signature is required to participate in them. You will need it to register in the EIS, send an application, participate in the auction and sign a contract.

Ensuring the application, contract and warranty obligations

When submitting a purchase order under 44-FZ, the participant must provide the application security. So he will confirm his intention to participate in the tender. The amount of the bid security depends on the size of the initial maximum contract price (IMCC):

  • if the NMTsK is from 0 to 20 million rubles, then the application security is from 0.5 to 1% of the NMTsK
  • 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 a bank guarantee. It will be returned to all participants after the winner is determined.

The winner of the purchase, when signing the contract, must provide security for the performance of the contract. So he confirms that he will fulfill his obligations under the contract. The size of the contract security is from 10 to 30% of the NMCC. You can provide it with money to the customer's account or with a bank guarantee. The customer will fully return the security if the supplier fulfills all obligations under the contract.

Also, the state customer may require the provision of warranty obligations. If such a requirement is established in the procurement, the customer can sign the acceptance certificate only after providing the security. The size of the security for guarantee obligations is no more than 10% of the NMTsK.

Reducing the initial price of the contract by 25%

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

  1. In purchases from the NMTsK more than 15 million rubles. the winner must provide the contract security increased by 1.5 times.
  2. In purchases from NMTsK less than 15 million rubles. the winner can provide either one and a half security of the contract, or confirm his good faith and provide security in the usual amount (indicated in the documentation). Good faith is confirmed by three contracts for the last 3 years, which were executed without penalty. At the same time, the price of one of the contracts must be at least 20% of the NMTsK current purchase.

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

Register of dishonest suppliers

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

Reasons why the winner of the purchase can get into the RNP under 44-FZ:

  • If he won the purchase (or became the only admitted participant in the purchase) and refused to conclude an agreement with the customer.
  • The company won the purchase, but signed the contract later than the required time.
  • 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 violated the obligations under the contract.
  • The customer decided to terminate the contract unilaterally.

At the same time, if the contract is terminated by agreement of the parties, then 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 participants in public procurement, 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 it must be remembered that violation of the requirements of 44-FZ at any stage of the procurement entails fines for the customer, and the participant threatens to be entered into the register of unscrupulous suppliers.

One of the brightest innovations of the Law on the Constitutional Court was the unified rules for describing the object of procurement. Analyzing the first results of the current practice of describing procurement, the article concludes that not all participants in the contract system lawfully apply the provisions of Art. 33 of Law No. 44-FZ, the rules for describing the object of procurement.

From this article you will learn:

  • rules for describing the object of procurement;
  • responsibility for violations in the description of the procurement;
  • requirements for indicators of quality and conformity of goods during the purchase;
  • requirements for the technical characteristics of the objects of procurement;
  • a penalty for not indicating the words “or equivalent” in the description of the procurement object together with the trademark.

Rules for describing the object of procurement according to 44-FZ

According to paragraph 1 of part 1 of Art. 33 of the Law on the contract system, the customer, when describing the procurement object in the documentation, must be guided by the following rules:

  • the description of the procurement object must be objective;
  • 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 object of procurement shall not include requirements or instructions regarding trademarks, service marks, trade names, patents, utility models, industrial designs, the name of the place of origin of goods or the name of the manufacturer, as well as requirements for goods, information, works, services, provided that such requirements entail a limitation on the number of bidders, unless there is no other way that provides a more accurate and clear description of the characteristics of the subject matter of the procurement;
  • the procurement documentation may contain an indication of trademarks if, in the performance of work, the provision of services, it is supposed to use goods, the supply of which is not the subject of the contract.
    Wherein prerequisite is the inclusion in the description of the procurement object of the words " or equivalent

Let's consider the five main violations of customers in the description of procurement objects identified by the Federal Antimonopoly Service of Russia.

Violation #1.

Goods quality indicators are not established

As mentioned above, by virtue of the provisions of Art. 33 of the Law on the COP, the description of the procurement object must be objective. The description of the procurement object shall indicate the functional, technical and quality characteristics, operational characteristics of the procurement object (if necessary). However, not all customers comply with this requirement.

Example

In clause 2.1.1 technical requirements to the system block of the documentation about the auction regarding the processor it is indicated - "not weaker than the Intel Core i3-4130";
Clause 2.4 of the technical requirements for a server type 1 of the auction documentation regarding the processor states "at least two processors of type no worse than E5-2690v2";
Clause 2.5 of the technical requirements for a server type 2 of the auction documentation for the processor states "at least one processor of type not lower than Intel Xeon E3-1240v3".

Thus, from these provisions it is impossible to determine the indicators of goods corresponding to the needs of the customer. At the same time, from the position of the FAS Russia, the actions of the customer, who did not properly establish the functional, technical and qualitative characteristics, operational characteristics of the procurement object, with the exception of cases of incompatibility of goods on which other trademarks are placed, violate paragraph 1 of part 1 of Art. 33 of the Law on the Constitutional Court (decision and order of the Federal Antimonopoly Service of Russia dated April 22, 2014 in case No. K-657/14).

It must be taken into account that, according to Part 2 of Art. 33 of the Law on the COP procurement documentation in accordance with the requirements specified in Part 1 of Art. 33 of the Law on the COP, should contain indicators that allow you to determine the compliance of the purchased goods, work, services with the requirements established by the customer. At the same time, the maximum and (or) minimum values ​​of such indicators are indicated, as well as the values ​​​​of indicators that cannot be changed.

What the FAS Russia says

Currently, some customers allow violations of the above rule. For example, in accordance with the auction documentation, the customer sets the following minimum and maximum values: “the total length of the fastening is not less than 150.1 mm and not more than 114.4 mm”, “the length is not less than 0.57 m and not 0.71 m”.

As follows from the decision and order of the Federal Antimonopoly Service of Russia dated March 28, 2014 in case No. K-381/14, when considering the complaint, the customer's representative explained that a technical error had been made in the specified paragraph of the auction documentation. At the same time, the FAS Russia concluded that in the auction documentation by the customer, in violation of Part 2 of Art. 33 of the Law on the Constitutional Court does not establish indicators to determine the needs of the customer.

A similar conclusion about the lack of indicators in the procurement documentation to determine the compliance of the goods (building materials) used in the work was made in the decision of the Federal Antimonopoly Service of Russia dated April 22, 2014 in case No. K-657/14. So, in accordance with paragraph 17 terms of reference the auction documentation, the customer established, including the following requirement for concrete used in the work under the contract: “The minimum compressive strength at the age of 28 days must be more than 27.3 and less than 33.6 (more than 270 and less than 340 )".

According to part 2 of Art. 33 of the Law on the Constitutional Court in accordance with the requirements specified in Part 1 of Art. 33 of the Law on 44-FZ, should contain indicators that allow you to determine the compliance of the purchased goods, work, services with the requirements established by the customer. At the same time, the maximum and (or) minimum values ​​of such indicators are indicated, as well as the values ​​​​of indicators that cannot be changed.

Thus, the customer has not defined indicators that make it possible to determine the compliance of the concrete used in the work with the customer's requirements, and the unit of measurement of the indicator "ultimate compressive strength" has not been established, which is a violation of clause 1, part 1, art. 64 of the Law on the Constitutional Court.

How to describe the object of procurement when there are no GOSTs, technical regulations, specifications?

Violation #2.

Setting product performance requirements inappropriately

In accordance with paragraph 2 of part 1 of Art. 33 of the Law on the COP, when drawing up a description of the procurement object, it is allowed to use, if possible, standard indicators, requirements, symbols and terminology relating to the technical and qualitative characteristics of the procurement object, established in accordance with technical regulations, standards and other requirements provided for by the legislation of the Russian Federation on technical regulation. If the customer does not use such standard indicators, requirements, symbols and terminology when describing the procurement object, the procurement documentation must contain a justification for the need to use other indicators, requirements, symbols and terminology.

However, one of the customers in the instructions for filling out the first part of the auction documentation application contains a list of frequently encountered regulatory documents that should be taken into account when preparing an application for this auction: GOST 1709–75, 22245–90, 16442–80, 9548–74, 7399 -97, 14791-79, 6465-76, 3262-75, 10503-71, 30108-94, 23732-2011, 25328-82, 28013-98, 7931-76, 26869-86, 9128-2013, 23558-94 , 8267–93, 52128–2003, 24909–81, 53299–2009, 26602.5–2001, 24699–2002, 7827–74,9.014–78, 2228–81, 53301–2009, 30674–99, 18599– -78, 10178-85, 9179-77, 125-79, 12820-80, 22266-94, 22266-94, 30884-2003, 30108-94, 8420-74, 20259-80, 18477-79, 52605-2006 , 14918–80, 52325–2005, 6527–68, 28196–89, 50597–93, 12.4.026–2001, 52875–2007, 17608–91, 51728–01, 5583–78, 3134–78, 15860–84 , 949-73, 17811-78, 23567.10-93, 9410-78, 10036-75, 9467-75, 20448-90, 10923-93, 9097-82, 7805-70, 6631-74,... 23683-89, as well as other GOSTs that regulate the materials presented in the appendix to the technical for the task, if these GOSTs are related to the work being done. If the GOSTs presented in this list are outdated, then this GOST number should be used, but in the current edition (with a different index after the number).

The above example of the provisions of the auction documentation indicates that the customer has not properly established the requirements for indicators of conformity of goods used in the performance of work, the needs of the customer. In addition, from the position of the FAS Russia, the customer has not established which GOST corresponds to the product, and therefore it is not possible for the procurement participants to compare GOST with the product when filling out an application for participation in the auction.

Considering the above, the Commission of the FAS Russia considered that the instructions for filling out the application for participation in the auction, established by the customer, do not allow the procurement participants to form an application for participation in the auction properly.

Reasonable complaints of procurement participants are not uncommon, indicating that the requirements for the indicators of purchased goods are indicated in the terms of reference, which contradict the GOST specified in the documentation.

Example

Clause 4 "Polyethylene film" of the terms of reference establishes the following characteristics of the product: "The static coefficient of friction should be up to 0.5." At the same time, according to GOST 10354–82, the requirement for compliance with which is specified in the auction documentation, the static friction coefficient is set in the range of 0.1–0.5. At the same time, from the position of the FAS Russia, the requirement for the indicator "Static friction coefficient", established in clause 4 "Polyethylene film" of the terms of reference, does not meet the requirements of GOST 10354–82, which does not allow filling out an application for participation in the auction (decision and order of the FAS Russia dated 06/04/2014 in case No. K-893/14).

As a result of an unscheduled inspection conducted by the FAS Russia, it was revealed that Annex No. 2 to the documentation on the auction for the purchase of finished metal products for the product "Three-tier storage rack for batteries", including the following requirements:

  • The rack must be made in the form of a metal structure and comply with GOST 16140–77.
  • Material sheet steel, steel 3 GOST 19903–74, grade St3ps of ordinary quality, in accordance with GOST 14637–89, equal-shelf angle: for shelves 32 × 32, for racks 45 × 45 GOST 8509–93.

The customer also established the following requirement: “To protect the floors and ensure the stability of the racks, squares of at least 60 × 60 mm from St3ps steel of ordinary quality, at least 2 mm thick, must be welded to the lower part of the legs.”

In accordance with GOST 14637–89, the standard applies to hot-rolled carbon steel plate of ordinary quality, manufactured with a width of 500 mm or more, with a thickness of 4 to 160 mm inclusive.

Thus, the indication by the customer in the auction documentation of the requirement for the thickness of steel from which squares of at least 60 × 60 mm in size, “at least 2 mm” must be made, does not comply with GOST 14637–89, which misleads the procurement participants and does not allows you to fill out an application for participation in the auction properly.

Specified actions of the customer violate paragraph 1 h. 1 Article. 64 of the Law on the Constitutional Court and contain signs of an administrative offense, the responsibility for which is provided h. 4.2 Article. 7.30 of the Code of Administrative Offenses of the Russian Federation (decision and order of the Federal Antimonopoly Service of Russia dated December 03, 2014 in case No. K-1779/14).

Violation #3.

Establishment of conflicting requirements in the description of the procurement object

As follows from the decision of the Federal Antimonopoly Service of Russia dated May 26, 2014 in case No. K-831/14, the actions of the customer, who established conflicting requirements for the provision of services in the tender documentation, violate clause 1, part 1, art. 50 of the Law on the contract system and contain signs of an administrative offense under Part 4.2 of Art. 7.30 Administrative Code of the Russian Federation.

So, according to par. 1.1.2 and 1.2. Table 2 of Section IV "Description of the object of procurement of works (services)" (hereinafter - Table 2) of the tender documentation as amended on 07.05.2014, the contractor must agree with the customer no later than three working days before the seminars-meetings, information letters, program, handouts and documents and (or) materials for the discussion of each seminar-meeting.

At the same time, according to these types of services in Table 5 of Section IV "Description of the object of procurement of works (services)" (hereinafter - Table 5) of the tender documentation as amended on 07.05.2014, the customer must agree within five working days on the program of each seminar-meeting. Also, according to paragraph 2.1.1 of Table 2, the contractor must agree with the customer on the description of the system of tactical targets for 2015; in Table 5, for these types of services, agreement is not required. In accordance with paragraphs. 1.4.1 and 2.4.1 of Table 2, the contractor must agree with the customer on the forms of expert opinions and summary expert opinions; in Table 5, for these types of services, agreement is not required.

Therefore, the requirements set for the services provided in Table 2 contradict the requirements set out in Table 5.

Similarly, considering the applicant's complaint about the unlawful actions of the customer when describing the M/FTD B737NG simulators with a full-size imitation of the flight deck of B737NG aircraft, the FAS Russia concluded that there were conflicting requirements in the description of the procurement object.

According to the Applicant, since the object of the procurement is the supply of M/FTD B737NG simulators with a full-size imitation of the flight deck of B737NG aircraft, then an objective description of this procurement object will be an indication of the compliance of the elements of the simulators with the actual design of the flight deck of B737NG aircraft.

At the same time, according to the requirements of the tender documentation, the simulator must include the following hardware, including “for B737NG FCU, MCDU (left and right), ECAM Control Panel, Switching Panel (switching panel)”, which refers to the cabin components crew of an Airbus 320 aircraft.

In accordance with the terms of reference of the tender documentation, the simulator must include the following hardware: “for B737NG FCU, MCDU (left and right), thrusters, ECAM Control Panel, Switching Panel (switching panel), steering wheels and control pedals.”

At the meeting of the Commission of the FAS Russia, the applicant presented documents and information that the FCU (flight control unit) is a technical component of the aircraft design, in this designation (name) is an integral part of the cockpit of the Airbus320 aircraft. In the cockpit of the aircraft and on the B737NG simulator, in place of the FCU, there is an MPC (Model Control Panel) element - a control panel for aircraft modes. MCDU (left and right) (Multipurpose Control Display Unit) - multipurpose control display, also applies to the cockpit of the Airbus320 aircraft, in the cockpit of the aircraft and on the B737NG simulator on site CDU (Control Display Unit) - control and indication unit, etc. .

Thus, the actions of the customer, who indicated conflicting requirements for the object of procurement in the terms of reference of the tender documentation, do not comply with clause 1, part 1, art. 33 of the Law on the contract system and violate paragraph 1 of part 1 of Art. 50 of the Law on the contract system and contain signs of an administrative offense under Part 4.2 of Art. 7.30 of the Code of Administrative Offenses of the Russian Federation (decision of the FAS Russia dated October 28, 2014 in case No. K-1545/14).

Violation #4.

Failure to specify specific requirements for the technical characteristics of procurement objects

It should be noted that the practice is a vivid example of not specifying specific requirements for the technical characteristics of purchased goods.

For example, in ch. 5 § 5.1 "Requirements for the supplied equipment" Table 2 "Parameters of technical support" in sub. 1.1 clause 1 of the auction documentation states: “screen resolution - at least 1920 × 1080” without specifying the unit of measurement; Clause 2 states: “Dimensions (LxWxH) no more than 870 × 770 × 1050” without specifying the unit of measurement. Thus, the actions of the customer, who established the description of the procurement object without indicating the units of measurement, do not comply with the requirements of the Law on KS and violate paragraph 1 of part 1 of Art. 64 of the Law on the Constitutional Court (decision of the FAS Russia dated October 29, 2014 in case No. K-1558/14).

In another case, clause 16.1 of the terms of reference of the auction documentation states: “Aluminum ventilation grille 600 × 300 - 4 pcs.” without specifying units of measure. Paragraph 1087 of the terms of reference of the auction documentation established “Air valve size 821 × 440 - 1 pc.” without specifying units of measure.

At the meeting of the Commission of the FAS Russia, the representative of the customer said that in accordance with clause 1.8 of GOST 2.307–68 (ST SEV 1976–79, ST SEV 2180–80) “ one system design documentation. Application of dimensions and limit deviations ”linear dimensions and their limit deviations in the drawings and specifications are called in millimeters, without indicating the unit of measurement.

However, the auction documentation does not contain an indication of the relevant normative document. Accordingly, the actions of the customer, who did not establish specific requirements for the technical characteristics of the goods, do not comply with paragraph 2 of part 1 of Art. 33 of the Law on the contract system and violate paragraph 1 of part 1 of Art. 64 of the Law, which contains signs of an administrative offense under Part 4.2 of Art. 7.30 of the Code of Administrative Offenses of the Russian Federation (decision of the FAS Russia dated 06/09/2014 in case No. K-915/14).

Violation #5.

Failure to indicate the words “or equivalent” in the description of the object of procurement

According to paragraph 1 of part 1 of Art. 33 of the Law on the Constitutional Court, the procurement documentation may contain an indication of trademarks if, in the performance of work, the provision of services, it is supposed to use goods, the supply of which is not the subject of the contract.

At the same time, a prerequisite is the inclusion of the words “or equivalent” in the description of the procurement object, except for cases of 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, as well as cases of procurement of spare parts and consumables to the machines and equipment used by the customer, in accordance with the technical documentation for the specified machines and equipment.

Thus, considering the applicant's complaint against illegal actions of the customer in terms of not indicating the words "or equivalent" to the trademark, the FAS Russia recognized the customer's actions as contrary to the legislation on the contract system.

According to paragraph 3 of the terms of reference of the auction documentation, the customer established a requirement for the supply of the “Self-rescuer “Shans”-E” without indicating the words “or equivalent”. At the meeting of the Commission of the FAS Russia, the applicant presented a certificate for the trademark "Chance", the copyright holder of which is NPK Pozhkhimzashchita LLC. At the same time, at the meeting of the Commission, the customer did not provide evidence that the designation "Self-rescuer" Chance "-E" is not a trademark.

Thus, according to the decision and order of the Federal Antimonopoly Service of Russia dated August 29, 2014 in case No. K-1279/14, the auction documentation contains an indication of the trademark “Self-rescuer “Chance”-E” without using the words “or equivalent”, which does not correspond to paragraph 1 hour 1 tbsp. 33 of the Law on the contract system, violates paragraph 1 of part 1 of Art. 64 of the Law on the contract system and contains signs of an administrative offense, liability for which is provided for in Part 4.2 of Art. 7.30 Administrative Code of the Russian Federation.

A similar practice has developed by virtue of the provisions of paragraph 1 of part 1 of Art. 33 of the Law on the Constitutional Court and in contract procurement. For example, at a meeting of the Commission of the FAS Russia, it was established that in Appendix No. 2 to the information card of the competition, the list of equipment and other material resources necessary to perform work under the contract contains an indication to a trademark without the words "or equivalent":

  • Grove GBT 35 truck crane or equivalent;
  • Tower crane Mitsuber MCT 8FR or equivalent;
  • Bulldozer KOMATSU D275AX-5 or equivalent

At the same time, from the position of the FAS Russia, the actions of the customer, who indicated in the tender documentation a trademark without the words “or equivalent”, do not comply with clause 1, part 1, art. 33 of the Law on the Constitutional Court and violate part 3 of Art. 56 of the Law on Constitutional Courts (decision of the FAS Russia dated May 13, 2014 in case No. K-759/14).

Taking into account the established administrative practice, the following conclusion can be drawn: when preparing procurement documentation for customers, authorized bodies should Special attention on the description of the object of procurement, taking into account the rules indicated by the Law on the Constitutional Court. At the same time, objectively describing the object of procurement, conflicting requirements should not be established, provided that the quality indicators of the purchased goods, works, services are properly established, allowing to determine the customer's need.

 

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