Hello dear colleague! Surely, you perfectly understand the meaning of the term preference. This is a certain advantage or benefit that is given to someone. Such benefits may be provided to governments, businesses or organizations to support certain activities. 44-FZ also provides for a number of preferences, which will be discussed later in this article. We'll take a closer look at what these benefits are and who can benefit from them. So let's get started...

1. Preference: what does it mean according to 44-FZ?

The goal of Federal Law No. 44-FZ is not only to create an open and competitive environment for public procurement, but also to support certain categories of suppliers involved in these procurements.

According to the requirements of 44-FZ, preferential terms are provided for 3 categories of participants:

Let's now take a closer look at what preferences are provided for each category of participants.

2. Preferences for NSR and SONKO under 44-FZ

Before talking about the benefits for SMP and SONCO established by 44-FZ, I propose to understand in detail what kind of participants they are and what requirements they must meet.

Small business entities (SMEs) must meet the requirements of Article 4 of the Federal Law of July 24, 2007 No. 209-FZ "On the development of small and medium-sized businesses in the Russian Federation".

Firstly , Russia's share in authorized capital SMP should beno more than 25% , and the share of foreign jur. persons and legal persons (who are not SMEs) in the authorized capital should beno more than 49% .

Secondly , the average number of SME employeesshould not exceed 100 people inclusive.

Thirdly , revenue without VAT or book value of assetsshould not exceed 800 million rubles (Note: Income limits are determined by Decree of the Government of the Russian Federation No. 265 dated April 4, 2016).

We figured out the subjects of small business, we move on ...

Socially oriented non-profit organizations (SONKO) - organizations in the forms provided for by Chapter II of the Federal Law "On Non-Commercial Organizations" dated January 12, 1996 No. 7-FZ(excluding state corporations, state companies and political parties).

These organizations must carry out the activities listed in Article 31.1 of Law No. 7-FZ:

• social service, social support and protection of citizens;
• provision of legal assistance on a gratuitous or preferential basis to citizens and non-profit organizations and legal education of the population, activities to protect the rights and freedoms of man and citizen;
• measures for medical rehabilitation and social rehabilitation, social and labor reintegration of persons engaged in illegal consumption of narcotic drugs or psychotropic substances;
• etc. (total 18 activities).

Now let's look at the benefits that 44-FZ establishes for these categories of participants.

Purchasing volume

Customers are obliged to purchase from SMP and SONCO in the amountnot less than 15% total annual purchases (GPO). At the same time, such purchasesshould not exceed 20 million rubles (part 1 of article 30 of 44-FZ).

Important point: Participants who do not belong to this category cannot take part in the procurement.

Also, for Customers, Article 7.30 of the Code of Administrative Offenses of the Russian Federation provides for liability for non-compliance with the norms of the law on placing an order with SMP and SONKO.

According to Part 11 of Article 7.30 of the Code of Administrative Offenses of the Russian Federation, the procurement of goods, works, services to meet state and municipal needs from the SMP, SONCO in an amount less than the amount provided for by the legislation of the Russian Federation on the contract system in the field of procurement entails the imposition of an administrative fine on officialsin the amount of 50,000 rubles .

SMP and SONCO on subcontract

Customer during the purchaseRIGHT to install in the notice, a requirement for a supplier who is not an SMP or SONCO to involve subcontractors, co-executors from among the SMP, SONCO in the execution of the contract (part 5 of article 30 of 44-FZ).

Reduced payment terms under the contract

If the purchase is carried out only among the SMP and SONKO, then the contract includes a mandatory condition for the Customer to pay for the delivered goods, work performed, services rendered on time n e more than 15 working days from the date of signing by the Customer of the acceptance document (part 8 of article 30 of 44-FZ). For other purchases (not for SMP and SONKO), this period is no more than 30 calendar days.

The size of the OIC is calculated from the offered price

In the event that a contract is concluded based on the results of a procurement among SMPs and SONCOs, the amount (abbreviated as OIC), including that provided taking into account, is set from the price at which the contract is concluded, but cannot be less than the amount (part 6 of article 96 44 -FZ). In all other purchases, the size of the OIC is set from the NMCC, and not from the proposed price of the winner.

OIC can not be provided

The procurement participant with whom a contract is concluded based on the results of the procurement among the SMP and SONCO is exempt from providing the OIC, including taking into account anti-dumping measures, if such participant provides informationabout 3 executed contracts without fines and penalties within 3 years prior to the date of application to participate in the purchase. Whereinthe sum of the prices of such contracts must be at least the NMTsK specified in the notice of procurement and procurement documentation(part 8.1 of article 96 of 44-FZ).

What does it mean? This means that if a participant (SMP, SONKO) has 3 executed contracts under 44-FZ over the past 3 years, for which fines and penalties have not been charged, then he can provide information about these contracts to the Customer and not provide contract performance security. The main thing is that the total price of these three contracts should not be less than the NMTsK of the purchase in which he won.

For the convenience of checking and providing such information, there is an excellent service that allows you to determine in a matter of seconds whether you need to provide the OIC to the Customer for a specific purchase or not.

The verification steps are very simple:

1. You follow the link;
2. In the window that opens, enter your TIN and registry number the purchase in which you won;
3. Click on the "Check" button;
4. Receive information on executed contracts;
5. Copy the received information to the site when signing the contract or prepare an information letter (in free form) for submission to the Customer.

Reduced fines

The amount of the penalty for non-fulfillment or improper fulfillment by the supplier (determined based on the results of the procurement among SMP and SONCO) of obligations under the contract is establishedin the amount of 1% of the price of the contract (stage), but not more than 5 thousand rubles and not less than 1 thousand rubles (Clause 4 of Decree of the Government of the Russian Federation No. 1042 dated August 30, 2017 No.).

When conducting purchases on a general basis, the fines are much higher (See clause 3 of the RF GD No. 1042 dated August 30, 2017):

3. Preferences for organizations of the disabled under 44-FZ

MUST provide benefits to organizations of people with disabilities in relation to the price of the contract they offer, the sum of prices for units of goods, work, services in the amount of up to 15%in the manner established by the Government of the Russian Federation and in accordance with the lists of goods, works, services approved by the Government of the Russian Federation (part 3 of article 29 of 44-FZ).

The list of such goods (works, services) is established by Decree of the Government of the Russian Federation dated April 15, 2014 No. 341 “On providing benefits to organizations of disabled people when determining a supplier (contractor, performer) in relation to the contract price they offer, the sum of prices for units of goods, work, services” (together with the Rules for Providing Benefits to Organizations of Disabled Persons in Determining a Supplier (Contractor, Performer) in Relation to the Price of the Contract Offered by Them, the Sum of Unit Prices of Goods, Works, Services).

Organizations of the disabled — all-Russian public organizations persons with disabilities (including those created as unions of public organizations of the disabled) and organizations whose authorized (share) capital consists entirely of contributions from all-Russian public organizations of the disabled (Article 29 44-FZ).

Criteria for classifying organizations as organizations of persons with disabilities

All-Russian public organizations of the disabled (OI), their unions: 80% of members are disabled

Organizations, the authorized (reserve) capital of which is 100% of the contributions of the OI:

— average headcount disabled in relation to other employees - at least 50%;

- share wages disabled people in the wage fund - at least 25%.

How does the 15% preference under 44-FZ work?

Let us assume that the Customer is purchasing goods from the list of RF PP No. 341 dated April 15, 2014, and the documentation establishes a 15% advantage for organizations of the disabled. The initial maximum contract price is 100,000 rubles.

Participant No. 1 (non-OG) offered a price - 85,000 rubles. And Participant No. 2 (OI) in his application indicated the price - 80,000 rubles. Participant No. 2 won because he indicated the price lower. But since the Customer established a 15% preference for organizations of the disabled, Participant No. 2 can exercise his right and send a request to the Customer to increase the price he offered by 15%. Thus, the contract with Participant No. 2 will be concluded at a price of 80,000 + 15% = 92,000 rubles.

The only rule in this case is that the price at which the contract will be concluded with the winner does not exceed the NMTsK established in the documentation. In our case, this rule is observed, because NMTsK - 100,000 rubles, and the contract, taking into account the preference of 15%, was concluded for 92,000 rubles.

If Participant No. 2 (OI) won with a price of 90,000 rubles and used his right to receive an advantage of 15%, then the contract would be concluded with him for 100,000 rubles, and not for 103,500 rubles (90,000 + 15% ).

4. Preferences of the penal system under 44-FZ

When making purchases, with the exception of purchases from a single supplier, the CustomerMUST provide institutions and enterprises of the penal system with advantages in relation to the price of the contract offered by them, the sum of the prices of units of goods, work, services in the amount of up to 15%in the manner established by the Government of the Russian Federation and in accordance with the lists of goods, works, services approved by the Government of the Russian Federation (part 2 of article 28 of 44-FZ).

The list of goods (works, services) is established by Decree of the Government of the Russian Federation dated July 14, 2014 No. 649 “On the procedure for providing institutions and enterprises of the penitentiary system with advantages in relation to the contract prices they offer, the sum of unit prices of goods, work, services” .

Institutions and enterprises of the penitentiary system - organizations from the list contained in Decree of the Government of the Russian Federation No. 89 dated February 1, 2000 (as amended on November 22, 2018) “On approval of the list of types of enterprises, institutions and organizations included in the penitentiary system”.

Such institutions include: logistics and military supply bases, construction departments, educational institutions and so on.

The working principle of the 15% preference for penitentiary institutions is the same as in the above example for organizations of the disabled. The difference lies only in the list of goods (works, services), which is established for the penal system by RF PP No. 89 dated February 1, 2000.

And finally, there is another general preference for organizations of the disabled and institutions of the penal system. Its essence is as follows.

If the procurement is carried out in accordance with Articles 28 and 29 of the 44-FZ, the procurement participant is an institution or enterprise of the penal system or an organization of the disabled and the NMCC ismore than 20 million rubles , the size of the application securitycannot exceed 2% NMCC (part 17 of article 44 of 44-FZ).

For all other purchaseswith NMTsK more than 20 million rubles, the amount of application security is set in the amount of 0.5% to 5% NMTsK .

So we have discussed with you what preferences are provided for by 44-FZ for procurement participants. However, in addition to the preferences we have considered, there is also Article 14 of the 44-FZ, which establishes preferences for domestic producers and manufacturers from the EAEU countries, but this is a topic for a separate article.

That's all I have today. I hope the information was useful to you. And if so, do not be too lazy to like and support the article with your voice. You can ask any questions on this topic in the comments below, I will be happy to answer them.

• On 07.09.2018
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• 44-FZ, EIS, Request for Quotations, Request for Proposals, Competition, NMTsK, SMP, Electronic Auction, ETP

Among the suppliers in public procurement There are several exempt categories. They need to be given certain benefits. Consider who they are intended for and how the customer should act.

Preferential categories of participants in public procurement

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

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

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

Registration in ERUZ EIS

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

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

SMP and SONO

Organizations of the disabled

Correctional institutions

Article 30 44-FZ

Article 29 44-FZ,
Decree No. 341 dated 04/15/14

Article 28 44-FZ,
Decree No. 649 dated 14.07.14

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

• revenue without VAT up to 800 million rubles;
• average number of employees up to 100 people;
• share commercial companies(not SMP) in the authorized capital - no more than 49%

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

All-Russian public organizations of the disabled (OI), their unions:

• 80% of members are disabled;

Organizations whose capital is 100% made up of contributions from the IO:

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

Organizations from the list contained in the Government Decree No. 89 dated February 1, 2000.

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

Table. Benefits for SMEs and SONOs, IP Institutions, Organizations of the Disabled

How preferences are granted to preferential categories

Benefits for OI and UIS

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

Benefits for penitentiary institutions and organizations of persons with disabilities are as follows: the contract will be concluded at a price 15% higher than that indicated in the application of such a participant. From the wording of the law, it may seem that the advantage may be less than 15%, but this interpretation is erroneous. It is understood that the advantage is 15%, but the contract can be concluded at a price not higher than NMTsK (letter of the Ministry of Economic Development of October 15, 2014 No. D28i-2197).

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

Structure of OKPD2

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

Important! If you need to purchase different items, make sure that they are all included in the list. Only then should you include them in one purchase. If you need to buy goods in addition to the list, follow different procedures.

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

How participants confirm their belonging to a particular category

To qualify for the benefit, the competitor must be in the UIS or OG category. This must be documented. The method of confirmation depends on the method by which the purchase is made:

1. If this , electronic auction, request for proposals in electronic form, then the participant must submit documents(their copies), which will confirm the right to receive the relevant benefits.
2. If carried out electronic request quotes, the participant provides declaration in electronic form, which is formed with the help of ETP.

Actions of the customer when the beneficiary wins

The winner belongs to UIS. His application must include a claim for benefits. If it is, the advantage must be given.

The winner belongs to the OG. In his application must be a statement of compliance with the category. Before signing the contract, he must send the customer a request for an advantage. If a claim is made, the price of the contract must be set according to the advantage.

Attention! If the winner evaded the conclusion of the contract, and the participant following him belongs to preferential categories, then the advantage should also be given to him.

Contract price

Let's use an example to show how to calculate the contract price if the beneficiary won. Let the subject of the purchase be included in the list from Decree No. 341, which means that preference is given to organizations of the disabled. Initial price of the contract - 300 000 rubles. The application of a subject of the OI category with a price 270 000 rubles. The benefit is 15%.

Calculate the price of the contract. The following formula is applied:

Estimated Price = OG Price * 15% + OG Price

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

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

Benefits for SMP and SONO

Customers are required to purchase from small and non-profit enterprises at least 15% of the total annual purchases (GPO). First of all, you need to correctly determine this volume. If you make a mistake in the calculations or do not meet this limit, you can get a fine of 50,000 rubles.

The formula for calculating the SHOZ:

When the SLOZ is calculated, you need to take from him 15% - this will be the minimum purchase from the NSR and SONO. However, when planning purchases, you need take this percentage with a margin, because some of them may not take place. In this case, the customer runs the risk of not collecting the 15% volume and getting a fine.

Establishing an advantage in purchasing

Small Business Advantage Worth Installing in those purchases, the objects of which they are able to deliver. So, you should not announce a purchase for the SMP and SONO if the object is, for example, medical services or fuel. Since companies that supply such goods and services are rarely classified as small enterprises.

When the objects of purchase from the SMP are selected, it is necessary to reflect this in the planning documents, procurement documentation and the contract. There are two important moments to be written:

1. Payment. If the contract is concluded with SMP or SONO, then no more than 15 working days should pass from the moment of signing the acceptance documents to the day of payment.
2. Penalties. Penalties are charged for late payment. In all other cases, the facts of non-performance or improper performance of the contract are punishable by fines. These conditions must be written in without fail. It is necessary to indicate a fixed amount of the fine, determined based on the value of the contract, as well as the entire penalty line. For small businesses, the sizes are:
   • with a contract price of up to 3 million rubles, the amount of the fine is 3%;
   • with a contract price of 3 to 10 million rubles - 2%;
   • with a contract price of 10 to 20 million rubles - 1%.

An example of the wording of a provision regarding a fine is shown in the following image.

An example of the wording of penalties

What else does the customer need to know?

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

Getting the right amount of purchases from small companies is not always easy. To simplify the task, it is advisable involve SMP and SONO as subcontractors. The procurement documentation should establish requirements for a supplier who is not itself a small business to hire SMP and SONO as co-contractors. At the same time, it is necessary to establish the exact amount of attraction in terms of value and register it in the draft contract.

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 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 technical specifications procurement objects;
• 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 functional, technical and qualitative characteristics, performance characteristics 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 quality 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, 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 conformity 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. Thus, in accordance with paragraph 17 of the terms of reference of the auction documentation, the customer established, among other things, the following requirement for concrete used in the performance of 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 requirements of the customer, 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 object of procurement, it is allowed to use, if possible, standard indicators, requirements, symbols and terminology relating to the technical and qualitative characteristics of the object of procurement, 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, conventions and terminology, the procurement documentation should 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, 185199–2009 -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.

Taking into account 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 an indication in terms of reference requirements for indicators of purchased goods that 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 paragraph 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 thick plates made of carbon steel 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 03.12.2014 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 05/07/2014, 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 on the program of each seminar-meeting within five working days. Also, according to clause 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 constituent parts cockpit of an Airbus 320 aircraft.

In accordance with the terms of reference of the competitive 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" Tables 2 "Parameters technical support» in the 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 object of procurement, 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 machines and equipment used by the customer, in accordance with technical documentation for said 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 of 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, the authorized bodies should pay special attention to the description of the procurement object, taking into account the rules outlined by the Law on the Constitutional Court. At the same time, objectively describing the object of procurement, one should not establish conflicting requirements, 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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Can the state customer formulate the parameters of the goods intended for delivery in such a way that, as a result, only one manufacturer can supply such goods? It would seem that the negative answer is obvious, because 44-FZ, which has been in force for almost a year, is based on the principle of ensuring competition. However, several arbitration courts decided otherwise.

1. Manufacturer one? No problem. Suppliers are different.

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

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

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

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

By the way, the fact that the plaintiff (the losing bidder) was not the manufacturer of the goods purchased by the defendant was another argument for the courts. “The plaintiff is not limited in the choice of counterparties from whom he can purchase goods, including according to the characteristics proposed by the defendant,” the courts noted (decision of the Arbitration Court of the Kirov Region of 05/13/14, resolution 2 of the AAC of 07/21/14, resolution of the Arbitration Court of the Vyatka District dated November 20, 2014 in case No. A28-2624 / 2014).

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

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

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

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

A similar case was considered by the Arbitration Court of the Republic of Bashkortostan (decision dated 10.10.14 in case No. А07-9320/2014, currently appealed to 18 ААС). As in Yakutia, the regional OFAS recognized the complaint of the participant of the electronic auction as justified. According to the agency, the customer did not substantiate the establishment of specific parameters for the content of substances in the protein mixture (protein content in the amount of 40 g, fat 20 g and 30 g carbohydrates), although the corresponding GOST R 53861-2010 establishes a range of values ​​for each component (protein - from 40 to 75 g, fats - from 5 to 20 g, carbohydrates - from 10 to 30 g). Moreover, the protein mixture of only one manufacturer was suitable for the specific parameters of the content of substances established by the state customer.

The arbitration court, in turn, invalidated the decision of the OFAS, not seeing violations of the law on the contract system. “Arguments that ... that product-specific indicators limit competition because they refer to only one type of product produced in the territory Russian Federation products ... cannot be imputed as a violation of antimonopoly law, since Federal Law No. 44-FZ does not provide for the customer's obligation to be guided by the number of market participants, manufacturers (suppliers, performers) when determining the requirements for the procurement object, ”the court said.

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

Government procurement is a large market for suppliers. In 2018 in the United information system procurement, public procurements with a total volume of more than 8 trillion rubles were published, 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 authorities and institutions budget organizations. A public procurement participant can be any legal or individual including individual entrepreneurs.

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 the facility. cultural heritage, construction of a capital construction facility, 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 the performance of certain activities - have the 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 conduct 15% of the total volume of purchases among small businesses (SMEs) and socially oriented non-profit organizations(SONKO).

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 contract execution, proposed in bids or final proposals - in tenders and requests for proposals.

Also, customers under 44-FZ can hold closed tenders and auctions to purchase goods related to state secrets and ensuring the 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 on eight federal electronic trading floors(ETP): EETP, RTS tender, Sberbank-AST, ZakazRF, NEP, Russian auction house, 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.