Description of the tender in the procurement regulations

The competition is held if the price is not the only criterion for choosing the winner. There must be at least two evaluation criteria. The minimum term for receiving applications is 20 days.

Basic distinctive feature competition is the stage of evaluation and comparison of bids, at which the procurement commission ranks the bids of participants in accordance with the order specified in the documentation.

The procedure for holding a tender, evaluating and comparing applications, concluding an agreement is not regulated by Law No. 223-FZ.

The customer determines the tender procedure in the procurement regulations independently.

When holding a competition under 223-FZ, a competition commission must be created.

The composition of the commission may change, if necessary, from purchase to purchase, may remain constant.

Winner of competition

According to paragraph 4 of Art. 447 of the Civil Code of the Russian Federation, a person who, according to the conclusion of the tender commission appointed in advance by the organizer of the auction, has offered Better conditions.

According to part 2 of Art. 3 of Law No. 223-FZ, the person who offered the best conditions for the execution of the contract in accordance with the criteria and procedure for evaluating and comparing bids, which are established in the tender documentation on the basis of the procurement regulation, is recognized as the winner of the tender at the tender.

Inclusion of tender in the procurement plan

Before the competition is held, it must be included in, which, as you know, can be adjusted during the year.

Government Decree No. 932 of September 17, 2012 “On approval of the Rules for the formation of a procurement plan for goods (works, services) and requirements for the form of such a plan”: “8. The procurement plan may be adjusted, among other things, in the following cases:

a) changes in the need for GWS, including the timing of their acquisition, the method of procurement and the deadline for the execution of the contract;

b) changes by more than 10 percent of the cost of GWS planned for acquisition;

c) in other cases established by the procurement regulations and other documents of the customer.

If the purchase of goods (works, services) is carried out by holding a tender or auction, changes to the procurement plan are made no later than posting on the official website Russian Federation in the information and telecommunications network "Internet" for posting information on placing orders for the supply of goods, performance of work, provision of services, notices of procurement, procurement documentation or changes made to them.

Thus, in the event of a plan adjustment, 2 documents should be posted on the official website:

• Procurement plan in a new edition (clause 6 of PP No. 908)
• A document containing a list of changes to the plan (clause 5 of PP No. 908).

Procurement of goods, works, services not provided for by the plan cannot be carried out.

Development of tender documentation

The customer has the right to establish that a fee is charged for the provision of documentation on paper. In this case, it is necessary to determine in the documentation the amount, terms and procedure for making such a fee.

On the basis of paragraph 10, part 10 of Art. 4 of Law No. 223-FZ, the documentation determines the procedure for providing clarifications to the provisions of the documentation.

Usually the documentation consists of several parts:

• General part (the same for all purchases)
• Information card
• Specifications (TK)
• Draft contracts for each lot
• Participant Forms

The procedure for providing tender documentation is determined in the notice of the tender. It must be indicated that the documentation is provided in Russian.

Requirements for a notice of purchase in accordance with part 9 of article 4 of Law No. 223-FZ.

223-FZ establishes requirements for the content of the notice and documentation.

The notice of purchase must contain the following information:

1. Procurement method (open tender, open auction or other method provided for by the procurement regulations).

2. Name, location, postal address, e-mail address, contact phone number of the customer.

3. The subject of the contract, indicating the quantity of goods supplied, the volume of work performed, services rendered.

4. Place of delivery of goods, performance of work, provision of services.

6. Deadline, place and procedure for providing procurement documentation. The amount, procedure and terms for paying the fee charged by the customer for the provision of documentation, if such a fee is established by the customer, with the exception of cases where documentation is provided in the form of an electronic document.

7. Place and date of consideration of proposals of procurement participants.

According to part 10 of Art. 4 of Law No. 223-FZ, the documentation must contain the following information:

1. Requirements established by the customer for the quality, technical characteristics of goods, works, services, their safety, functional characteristics (consumer properties) of goods, dimensions, packaging, shipment of goods, work results and other requirements related to determining the conformity of the goods supplied , the work performed, the service provided to the needs of the customer.

2. Requirements for the content, form, execution and composition of the application for participation in the procurement.

3. Requirements for the description by the procurement participants of the supplied goods, which are the subject of procurement, its functional characteristics (consumer properties), its quantitative and qualitative characteristics, the requirements for the description by the procurement participants of the work performed, the service provided, which are the subject of procurement, their quantitative and qualitative characteristics .

4. Place, conditions and terms (periods) of delivery of goods, performance of work, provision of services.

5. Information about the initial (maximum) contract price (lot price).

6. Form, terms and procedure for payment for goods, work, services.

7. The procedure for forming the price of the contract (price of the lot) (including or excluding the costs of transportation, insurance, payment customs duties, taxes and other obligatory payments).

8. Procedure, place, start date and end date of the deadline for filing applications for participation in the procurement.

9. Requirements for procurement participants and a list of documents submitted by procurement participants to confirm their compliance with the established requirements.

10. Forms, procedure, start date and end date for providing the procurement participants with clarifications of the provisions of the procurement documentation.

11. Place and date of consideration of the proposals of the procurement participants and summing up the results of the procurement.

12. Criteria for evaluating and comparing applications for participation in the procurement.

13. The procedure for evaluating and comparing applications for participation in the procurement.

In some cases, the customer, according to 223-FZ, has the right to indicate a specific trademark purchased products without the possibility of supplying equivalents.

Example: Resolution of the Fifteenth Arbitration Court dated September 9, 2013 No. 15 AP-11903/2013. The customer indicated in the documentation the subject of the contract: lubricants for cars of the SHELL brand. The supplier indicated the same in his application. However, after he was announced as the winner, he sent the customer a draft contract indicating the subject of the contract: Lotos Oil. The customer recognized the supplier as evading the conclusion of the contract, the supplier filed a lawsuit in court. The court found that the documentation did not provide for the supply of analogues, the customer had a need for a specific product.

If the customer under 223-FZ purchases a “trademark or equivalent”, but has not established equivalence parameters, it will be necessary to prove, for example, that citrus gingerbread is not equivalent to cranberry gingerbread. Example: Resolution of the Eighteenth Arbitration Court of Appeal dated August 29, 2013 No. 18AP-8046/2013. The customer has determined that he is purchasing “Gingerbread with cranberry filling “Cranberry” or equivalent”. However, he did not indicate what is the equivalent. The supplier offered citrus gingerbread. The customer rejected the application, the supplier complained to the OFAS, which recognized the complaint as justified. The customer did not agree with the decision of the OFAS and appealed against it in court. The Court found that these products are not equivalent from a medical and dietary point of view. Conclusion: if you do not want to prove the obvious in court, indicate this in the documentation.

Publication of the competition on the ETP and OOS

First, the documentation is published on the electronic platform, and from there it is automatically sent to the official website, but this only happens when electronic platform integrated with the official website. You should pay attention to this in order to be sure that the information is posted on the official website.

Competition in electronic form

Decree of the Government of the Russian Federation of June 21, 2012 No. 616 "On approval of the list of goods, works and services, the purchase of which is carried out in electronic form» determines which goods the customer is obliged to purchase only in electronic form. All other goods the customer can purchase in electronic form and in the usual form.

Decree of the Government of the Russian Federation No. 616 does not apply to procurement in the following cases:

• If the purchase is not subject to placement on the CAB (state secret, decision of the Government).
• If the purchase is made from a single supplier (including purchases up to 100/500 thousand rubles).
• If the need for the purchase arose due to an emergency.

Acceptance of applications

When conducting a competition in electronic form with using the ETP the customer does not need to independently accept and register participants' applications - these actions are carried out by the ETP operator.

A notice of a tender or auction is posted in accordance with part 5 of article 4 of Law No. 223-FZ at least twenty days before the deadline for submitting applications for participation in the tender or auction. That is, in fact, the notice is on the site for 22 days. If the procurement regulation does not say anything about whether these are working days or calendar days, then according to the Civil Code of the Russian Federation, the period will be considered as calendar days. The beginning of the term is the next day after the notice is posted. If the last day of the term falls on a non-working day, the expiration date of the term shall be the next working day following it. The term expires at the hour when the corresponding operations are terminated in the organization according to the established rules.

Amendments to the notice and documentation (part 11, article 4 of Law No. 223-FZ).

Changes are posted on the CAB within 3 days from the date of their adoption.

If, during the bidding, changes are made by the customer later than 15 days before the deadline for filing bids, the deadline for submitting bids must be extended so that from the day the changes are posted on the CAB until the deadline for filing bids for participation in the procurement, such a period is at least 15 days .

Opening access to applications

When conducting a competition not in electronic form, this procedure is usually called “Opening of envelopes with participants' applications”. The details of this stage should be spelled out in the Procurement Regulations.

In the electronic competition, the correct name for this stage is "Opening access to applications".

It is recommended that after opening access, draw up and publish on the official website a protocol for opening access, which indicates the number of applications received, the names of participants, the proposed price and other indicators that are evaluation criteria.

Consideration of applications

At the stage of consideration of applications, the customer can send a request for additional documents to participants who have provided unreadable or incomplete information in the application. A request for additional documents can only be made if such a possibility is provided for in the Procurement Regulations.

Winner Selection Steps

Selection criteria

A reasonable requirement is to establish, when purchasing under 223-FZ, such a condition as that the participant in the purchase has a warehouse in his property or other legal possession.

The decision of the Arbitration Court of the Krasnoyarsk Territory dated October 30, 2013 in case No. A33-7770 / 2013 states that additional requirements for procurement participants on the availability of experience, business reputation, equipment and material resources, given the specifics of the supply of petroleum products to the Far North, due to natural and climatic features are reasonable wishes of the customer.

Refusal to conduct electronic trading

According to Art. 448 of the Civil Code of the Russian Federation, unless otherwise provided by law or notice of the auction, the organizer open auction has the right to refuse to hold the tender no later than 30 days before the date of its holding.

Law No. 223-FZ does not provide for such a provision, the customer can provide for this in the notice.

If the organizer of an open auction refused to hold it in violation of the specified time limits, he is obliged to compensate the participants for the real damage they have suffered.

It is recommended to include the following wording: “The customer has the right to refuse to hold the tender at any time before the selection of the winner of the tender. The notice of refusal to hold the tender is posted by the customer on the official website no later than the day following the day the decision to refuse to hold the tender was made.

In case of refusal to conduct other competitive procedures, the following wording can be included in the Procurement Regulations: “The customer has the right to refuse to conduct a request for quotations at any time before the conclusion of the contract. A notice of refusal to conduct a request for quotations is posted by the customer on the official website no later than the day following the day the decision was made to refuse to conduct a request for quotations.

Rebidding

Rebidding can be carried out only if the Procurement Regulations provide for such a possibility and the procedure for its implementation is prescribed. It is also necessary to indicate in the documentation the possibility of rebidding.

Rebidding can be a fight for first or second place. In public procurement, it completes the electronic auction.

Participation in the auction is voluntary.

There can be two forms of rebidding: face-to-face - online auction, correspondence - submission of proposals.

Evaluation and comparison of applications

Approximate evaluation criteria. (At least two evaluation criteria must be established in the procurement documentation.)

1. Contract price. It is a mandatory criterion in all cases.

2. Delivery time of the goods.

3. Terms of payment for goods, works, services. It is used in cases when the customer allows the procurement participants to propose the amount of the advance payment in the application.

4. The term of the provided guarantees of the quality of goods, works, services.

5. Functional characteristics or quality characteristics of the goods.

6. Qualification of the procurement participant:

Provision of material and technical resources;

Availability of human resources;

Degree of implementation of the current quality management system.

When purchasing under 223-FZ, the requirement for participants “at least N years of work experience” may be recognized as an unreasonable restriction of competition. In the Resolution of the Sixth Arbitration Court of Appeal No. 06AP-5029/2013 dated 10/17/2013, it is written that the establishment of a work experience period of 3 years is a restriction of competition, since these actions not only restrict, but also prevent newly created enterprises from entering the market, even if if they have an appropriate production base and production facilities, qualified personnel and material resources.

Evaluation criterion "Price"

Score according to the criterion price of the contract = (minimum offer of the participant / offer of the evaluated participant) * 100 .

Example: NMTs = 100 rubles, the weight of the criterion is 30%.

U1 - 10 rubles. 100 points

U2 - 20 rubles. 50 points

U3 - 80 rubles. 12 points

Evaluation criterion "Delivery time".

Score for the criterion delivery time.

Cmax - 0 points

BCi = (Cmax-Ci/Cmax-Cmin) * 100

C min, or earlier - 100 points

The maximum delivery time is 80 days.

The minimum delivery time is 10 days.

The weight of the criterion is 70%.

U1 - 80 days 0 points

U2 - 50 days 43 points (calculated using the formula (80-50/80 -10) * 100)

Cumulative significance of all criteria = 100 points

If we assume that applications were evaluated by only two criteria, then the following calculations can be made.

Conclusion of an agreement under 223-FZ

Based on the results of the procurement procedure in the form of tenders, the customer is obliged to conclude an agreement with the winner specified in the protocol.

If the customer evades signing the contract, the supplier has the right to apply to the court with a demand for compulsion to conclude the contract, as well as for compensation for losses caused by evading its conclusion.

According to Art. 448 of the Civil Code of the Russian Federation, if the subject of the auction was only the right to conclude an agreement, such an agreement must be signed by the parties no later than 20 days or another period specified in the notice after the completion of the auction and the execution of the protocol.

Who signs the contract first? It doesn't matter unless something specific on the subject is stated in the documentation.

Is it possible to conclude an agreement with a person who has taken “second place”? It is possible in the event that the winner evaded the conclusion of the contract, and the procurement provision provides for the possibility of concluding a contract with the participant who took second place.

The final version of the contract = Draft contract in the customer's documentation + Separate conditions in the participant's application

framework agreement

Contracts concluded before 2012 without volume are subject to 223-FZ.

Each delivery under such a contract = a separate purchase.

Each contract must indicate the number of GWS (clause 3, part 9, article 4 of Law No. 223-FZ).

Output: in the contract, indicate the assortment, price per unit and the maximum volume for each item. Delivery is carried out as the need arises from the customer at the request of the customer.

RNP (Register of dishonest suppliers)

In the event that the winner of the tender or another person obliged to conclude an agreement evades the conclusion of an agreement, information about such a participant, the customer must send to the authorized body for inclusion in the register of unscrupulous suppliers in accordance with Decree of the Government of the Russian Federation dated November 22, 2012 No. 1211 "On maintaining the register of unscrupulous suppliers, provided for federal law“On Procurement of Goods, Works, Services certain types legal entities”».

The further course of action of the customer in the event of the winner or another person evading the conclusion of the contract should be determined in the Procurement Regulations. It is recommended to provide for the possibility of concluding an agreement with the participant who took second place in the tender, the possibility of conducting the procurement procedure again or concluding an agreement with a single supplier.

Making changes to the contract

The Procurement Regulations should provide for the possibility of changing the terms of the contract: price, volume, terms, product quality.

Changes in price, volume and term must be entered into the CAB.

What should the final protocol contain? (Part 5, Article 4 of Law No. 223-FZ)

Based on the results of the procurement, a final protocol is drawn up, which must necessarily contain information on the volume, price of the purchased goods, works, services and the terms of the contract.

Invalid and failed bidding

Invalid auction (Article 449 of the Civil Code of the Russian Federation):

Carried out in violation of the law

Involve the contract concluded as a result of the auction

Failed auctions (Article 447 of the Civil Code of the Russian Federation) are legitimate. The auction did not take place if:

There are no members

There is only one member

There are several participants, but only one is allowed

Based on the results of the failed auction, an agreement can be concluded with sole member or with a single supplier.

Important issues that the customer should independently determine in his Procurement Regulations:

• What to do with received applications?
• What should I do if I received 2 or more applications from one participant?
• Should the application for participation be in a separate envelope?
• Can the participant change the application? How should it be formatted?
• Can a participant withdraw an application? How should it be formatted?
• What to do with applications received after the deadline for their submission?
• Should the procedure for opening envelopes be carried out in the presence of procurement participants?
• If the opening procedure is open, what should be included in the documentation?
• Who directly performs the opening of envelopes?

Questions from listeners

Question: Who approves the regulation on the commission?
Answer: This is not regulated by law. Each organization has the right to independently determine who approves the Regulations on the Commission.

Question: Is it necessary to make an audio or video recording of the envelope opening procedure, if the Procurement Regulations say nothing about this?
Answer: No, not necessarily. Laws do not regulate this. But this can be useful to exclude subsequent possible questions from the regulatory authorities.

Question: If the purchase is carried out in the amount of up to 100 thousand rubles, is it necessary to hold a tender?
Answer: This is not regulated by law. This should be spelled out in the Procurement Regulations.

Question: In the purchase plan, indicate the exact amount of the purchase or the approximate amount of the goods?
Answer: Usually the estimated price is indicated.

Question: How to indicate OKVED and OKDP correctly if we have two types of work in one competition: delivery of equipment and its installation?
Answer: You can try to split into lots. If not, then the one that accounts for the largest volume of the contract is indicated.

Question: When purchasing for what amount can a tender be held?
Answer: The customer himself determines this issue for himself when he draws up the Regulations on Procurement and prescribes all these points in detail there. This is not limited by law.

Question: When conducting a competition for conclusions agency agreement a percentage of the agent's remuneration can be won back. Is it necessary in this case to indicate the entire amount of the contracts (including the costs of the agent)?
Answer: It is necessary to indicate the amount that will be paid to the agent as a result.

Question: In electronic form, the purchase is not necessary on the ETP, can it be done via e-mail, requesting an electronic signature?
Answer: Yes that's right. But the electronic platform removes some of the risks from the customer and makes it easier to make purchases.

Question: Is it possible to accept scanned originals of applications with a signature and seal by e-mail when conducting a request for quotations? mail?
Answer: The scanned copy itself is not electronic document, and, accordingly, is not an officially filed application. It will be a document only if it is signed by ES.

Question: Is it possible to have one application log for all purchases (request for quotations, tender, auction)?
Answer: Yes.

Question: Is it necessary to set an initial maximum price during the competition?
Answer: It is advisable to set an initial maximum price, since otherwise it may be necessary to prove later in court that the initial price could not be set for objective reasons, which is not always possible.

Question: We order medical services, is it possible to indicate as a criterion the territorial proximity to the enterprise?
Answer: It is possible, if subsequently it will be realistic to justify such a need in case of questions from the monopoly service or in court.

Question: And if there is no order of evaluation in the position yet? Can we write in the documentation?
Answer: Documentation should not expand the position in terms of such essential things. However, initially in the provision it is possible to prescribe the procedure and evaluation criteria with the addition of such a phrase “and other criteria specified in the documentation”. Then it will be possible to use criteria that were not originally specified in the Procurement Regulations.

Question: Can the chairman of the commission and the secretary of the commission be the same person?
Answer: Yes, if it does not contradict any internal documents of the organization.

Question: Separately, should there be a provision on the commission or is it enough prescribed in the regulation?
Answer: Enough prescribed in the Procurement Regulations.

Question: Is the contract concluded in paper or electronic form?
Answer: The contract is concluded in the form provided for in the Procurement Regulations.

Question: Tell me, if we want to conclude a contract for the supply of food, and there are a lot of items, how to do it? Split into lots? Then you get 54 lots in one competition. What if different participants win them?
Answer: In this case, you should not split into 54 lots, it is better to group products according to the principle “ bakery products”, “dairy products”, etc. In this case, there will be not 54 different persons on one side of the suppliers, but only a few. On the other hand, there will be no restriction of competition.

Question: Is there a universal formula ( good example of some enterprise) to establish the significance of the criteria, which allows to protect the enterprise from unscrupulous suppliers as much as possible?
Answer: There is no universal formula. Each customer determines for himself the significance of the criteria independently.

It causes much more difficulties compared to the competition under 44-FZ.

Open tenders under 223-FZ are held in paper form and in electronic form, there are combinations of them in one purchase.

There are several hundred types of tenders under 223-FZ related to other types of purchases. They have names: request for proposals, request for quotations. Such purchases can take place in two or three stages, they can last for weeks, including rebidding.

According to 223-FZ, customers have the right to determine the timing of the tender, the requirements for documents, which are often redundant. In this case, the calendar terms for the preparation of documentation can be only a few days.

The holding of an open tender under 223-FZ is regulated in most detail in the Procurement Regulations of the customer.

Competitions under 223-FZ are held on dozens of electronic trading platforms that have features of registration, provision and participation.

Holding an open tender under 223-FZ

• The customer under 223-FZ publishes a notice of the tender on the official procurement website 20 days before the deadline for accepting applications
• To participate in the competition, you will need to register on the electronic trading platform.
• Examine the tender documentation, the customer's procurement regulations, the criteria for evaluating applications
• Assess the requirements for the contestant and the capabilities of your organization
• Divide documents for participation in the competition into 2 groups: internal and external
• Request external documents from government agencies(extracts from the Unified State Register of Legal Entities, certificates of no debts)
• Prepare internal documents and arrange and certify in accordance with the requirements of the documentation
• Fill out the application forms, attach documents, make an inventory
• Scan the documents in the required format, upload to the site, sign the application with an EDS

The company must place information on purchases on official website .

Attention! The customer needs to take into account that administrative liability is provided for violation of the requirements of the law. In particular, the RF Code of Administrative Offenses provides for liability if the customer:

• carries out procurement in case it needs to be carried out in electronic form, in a different form (clause 1 of article 7.32.3 of the Code of Administrative Offenses of the Russian Federation);

• carries out procurement in case it needs to be carried out within the framework of contract system , in a different order (clause 3 of article 7.32.3 of the Code of Administrative Offenses of the Russian Federation);

• violates the terms of placement or does not place information about the purchase (clauses 4, 5 of article 7.32.3 of the Code of Administrative Offenses of the Russian Federation);

• does not comply with the requirements for the content of notices or procurement documentation (clause 7, article 7.32.3 of the Code of Administrative Offenses of the Russian Federation);

• makes requirements to participants, goods or terms of the contract that are not specified in the procurement documentation. It also evaluates or compares applications according to criteria not specified in the documentation (clause 8, article 7.32.3 of the Code of Administrative Offenses of the Russian Federation);

• does not comply with the instructions, requirements of the body authorized to exercise control in the field of procurement (clauses 7, 7.2, article 19.5 of the Code of Administrative Offenses of the Russian Federation);

• does not provide, untimely provides information about unscrupulous procurement participants and suppliers (contractors, performers). It also provides deliberately false information (Article 19.7.2-1 of the Code of Administrative Offenses of the Russian Federation).

Documents required for procurement

First of all, you need to place on the official website:

These documents must be permanently posted on official website . Moreover, if the enterprise does not conduct purchases at all, then there may not be a procurement plan.

In order to directly conduct the purchase, it is necessary to place information on the purchase on the official website:

• draft agreement;

• clarification of the procurement documentation (if necessary). Such clarifications may be needed by the procurement participant, so the enterprise should fix the procedure and terms for their provision in the procurement regulation;

• other information, if it is provided for by the procurement regulation (part 6, article 4 of the Procurement Law).

Procurement Regulation

Basic internal document, which the enterprise needs to accept, is the provision on the purchase. It governs the entire procurement process.

The Procurement Order must contain:

• conditions for applying procurement procedures;

• the procedure for concluding and executing contracts;

• provisions related to procurement.

Such a rule is established in part 2 of article 2 of the Procurement Law.

The Procurement Regulation and the changes that have been made to it (the new version of the Regulation) are posted on the official website within 15 days from the date of approval (Part 1, Article 4 of the Procurement Law).

The head of the enterprise approves the position by order. In it, you can determine the composition of the commission that will conduct purchases.

Procurement plan

The customer places on the official website a plan for the purchase of goods (works, services) for a period of at least a year.

The procedure for drawing up the plan is regulated by Decree of the Government of the Russian Federation of September 17, 2012 No. 932 “On approval of the Rules for the formation of a plan for the procurement of goods (works, services) and requirements for the form of such a plan”.

You also need to place a plan for the purchase of innovative, high-tech products and medicines for a period of five to seven years (Part 3, Article 4 of the Procurement Law).

Is it necessary to post a procurement plan for innovative, high-tech products and medicines if the company does not plan to purchase such products?

Yes need.

The law does not directly establish such an obligation, but this follows from its general provisions.

The procurement procedure must be open and transparent (Part 1, Article 1 of Law No. 223-FZ). In addition, the law establishes the principle of information openness of procurement (clause 1, part 1, article 3 of Law No. 223-FZ). As shows arbitrage practice, this principle should be interpreted in a systematic relationship with Article 4 of Law No. 223-FZ (Decree of the Arbitration Court of the Volga-Vyatka District dated March 26, 2015 No. F01-597 / 2015 in case No. A43-8810 / 2014).

This article establishes the requirements for the publication of the procurement regulation and all amendments to it, the general plan for the procurement of goods (works, services), as well as the procurement plan for innovative, high-tech products, medicines (parts 1–3 of article 4 of Law No. 223-FZ ). In this case, the latter should be drawn up separately, and not as part of the general procurement plan. If there is no need to purchase such products, the plan will actually be empty.

If you do not post it, perhaps this will become the basis for prosecution (part 5 of article 7.32.3 of the Code of Administrative Offenses of the Russian Federation).

Purchasing documentation

The procurement documentation must contain the information specified in the procurement regulations. Including the requirements established by the enterprise:

• to the quality of goods (works, services);

• to the technical characteristics of the goods (works, services);

• to the safety of goods (works, services);

• to the functional characteristics (consumer properties) of the product;

• to the dimensions, packaging, shipment of goods;

• to the results of work;

• other requirements related to the determination of the conformity of the supplied goods (work performed, services rendered) to the needs of the customer;

• to the content, form, execution and composition of the application for participation in the procurement;

• to the description by the procurement participants of the supplied goods, which are the subject of procurement, its functional characteristics (consumer properties), its quantitative and qualitative characteristics, the requirements for the description by the procurement participants of the work performed, the service provided, which are the subject of procurement, their quantitative and qualitative characteristics;

• place, conditions and terms (periods) of delivery of goods, performance of work, provision of services;

• the form, terms and procedure for payment for goods, work, services;

• the procedure for forming the price of the contract (price of the lot) (with or without taking into account the costs of transportation, insurance, payment of customs duties, taxes and other obligatory payments);

• the procedure, place, start date and end date of the deadline for filing applications for participation in the procurement;

• requirements for procurement participants and a list of documents submitted by procurement participants to confirm their compliance with the established requirements;

• forms, procedure, start date and end date of the period for providing the procurement participants with clarifications of the provisions of the procurement documentation;

• the place and date of consideration of the proposals of the procurement participants and summarizing the results of the procurement;

• criteria for evaluating and comparing applications for participation in the procurement;

• the procedure for evaluating and comparing applications for participation in the procurement.

The company needs to keep two rules in mind:

• it is not allowed to make requirements to the procurement participants, to the purchased goods, works, services, as well as to the conditions for the execution of the contract that are not specified in the procurement documentation, as well as to evaluate and compare applications for participation in the procurement according to the criteria and in the manner that are not specified in the procurement documentation;

• the requirements established by the customer apply equally to all procurement participants, to the goods, works, services offered by them, to the conditions for the execution of the contract.

Such rules are established in part 6 of article 3 of the Procurement Law.

Purchase Notice

A procurement notice, including a notice of an open tender or an open auction, is an integral part of the procurement documentation. The information contained in the procurement notice must correspond to the information contained in the procurement documentation (Part 8, Article 4 of the Procurement Law).

The Procurement Law establishes the mandatory details of a procurement notice. It must contain the following information:

• method of procurement (open tender, open auction or other method provided for by the procurement regulations);

• name, location, postal address, e-mail address, contact telephone number of the customer;

• the subject of the contract indicating the quantity of goods supplied, the volume of work performed, services rendered;

• place of delivery of goods, performance of work, provision of services;

• information on the initial (maximum) contract price (lot price);

• the term, place and procedure for submission of procurement documentation, the amount, procedure and terms for paying the fee charged by the customer for the submission of documentation, if such a fee is established by the customer, except for cases of submission of documentation in the form of an electronic document;

• place and date of consideration of the proposals of the procurement participants and summarizing the results of the procurement.

If the purchase is carried out through a tender or auction, then the company uses the notice of the tender or auction accordingly. Directly to such a notification, the law establishes a mandatory rule - such a notification must be posted on the official website at least 20 days before the deadline for submitting applications for participation in a tender or auction (Part 2, Article 3 of the Law on Procurement).

If the company uses , such a document may be referred to simply as a procurement notice, or, for example, as a “request for proposals notice” or “competitive negotiation notice”, respectively. The notice is posted on the official website in the manner that the company has established for it in the procurement regulation. At the same time, it is absolutely not necessary to adhere to the specified rule of 20 days, the company has the right to independently determine the period for its placement.

Changes in the terms of the purchase

If the company has made changes to:

• purchase notice;

• purchase documentation;

• clarification of the provisions of such documentation,

then such changes are posted by the enterprise on the official website no later than within three days from the date of the decision to make these changes, the provision of these clarifications.

If an enterprise conducts procurement in the form of tenders (i.e. tender or auction), and it made changes to the notice and procurement documentation later than 15 days before the deadline for submission of applications for participation in the procurement, it must extend the deadline for submission of applications for participation in such a procurement so that from the date of posting on the official website of the changes made to the notice and procurement documentation until the deadline for filing applications for participation in the procurement, such a period is at least 15 days.

Such rules are established in part 11 of article 4 of the Procurement Law.

Protocols

When conducting procurement procedures in accordance with the Law on Procurement, various actions of the enterprise can be documented in protocols. Procurement regulations may provide the following types protocols:

• Protocol for opening envelopes with applications for participation in the procurement;

• protocol for consideration of applications for participation in the procurement;

• other protocols (for example, on the course of the auction);

• protocol on the results of the purchase and determination of the winner.

Who can be a procurement participant

The procurement participant can be:

• any legal entity or several legal entities acting on the side of one procurement participant, regardless of the legal form, form of ownership, location and place of origin of capital, or

• any individual or several individuals acting on the side of one procurement participant, including an individual entrepreneur or several individual entrepreneurs acting on the side of one procurement participant that meet the requirements established by the customer in accordance with the procurement regulations.

Such a rule is established in part 5 of article 3 of the Procurement Law.

Procurement methods

Competition. The Procurement Law, in contrast to the Federal Law of April 5, 2013 No. 44-FZ “On contract system in the field of procurement of goods, works, services to meet state and municipal needs” (hereinafter referred to as Law No. 44-FZ), does not establish detailed rules for holding a tender, allowing the enterprise to independently establish them in the procurement regulation.

The person who offered the best conditions for the execution of the contract in accordance with the criteria and procedure for evaluating and comparing bids, which are established in the tender documentation on the basis of the procurement regulation (Part 2, Article 3 of the Law on Procurement), is recognized as the winner of the tender at the tender.

Auction. The winner of the auction is the person who offers the most low price contract or, if during the auction the price of the contract is reduced to zero and the auction is held for the right to conclude a contract, the highest price of the contract (Part 2, Article 3 of the Procurement Law). As with the competition, the Procurement Law also does not lay down detailed rules for the auction.

Other ways of purchasing. The Procurement Law establishes an important rule for an enterprise on the freedom to choose other methods of procurement, thereby allowing it to choose the most optimal, convenient option for itself. The enterprise is obliged to establish in the procurement regulation the procedure for procurement by such methods (if it intends to use them) (part 3 of article 3 of the Law on Procurement). Other methods of procurement include: request for quotations, competitive negotiations, request for proposals and purchase from a single supplier. For more details, see How to conduct purchases in accordance with Law No. 223-FZ: request for quotations or proposals, competitive negotiations, purchases from a single supplier) .

Posting on the official website

The protocols drawn up during the procurement are posted by the customer on the official website no later than three days from the date of signing such protocols (part 12, article 4 of the Procurement Law).

If access to the site is blocked for more than one working day for technical reasons, the customer places information on his site. When it becomes possible to post information on the official website, the customer is obliged to do this within one working day (Part 13, Article 4 of the Procurement Law).

The enterprise additionally has the right to post information about procurement on its own website (part 7 of article 4 of the Procurement Law). At the same time, information on procurement posted on the official website and on the website of the enterprise, procurement regulations, procurement plans should be available for review without charging a fee (Part 14, Article 4 of the Procurement Law).

When posting information about procurement on the official website, it is necessary to take into account the requirements of the following documents:

• Decree of the Government of the Russian Federation of September 10, 2012 No. 908 “On Approval of the Regulations on Posting Procurement Information on the Official Website”;

• order dated August 10, 2012 of the Ministry of Economic Development of Russia No. 506, the Treasury of Russia No. 13n "On the establishment of the Procedure for registering legal entities specified in part 2 of Article 1 of the Federal Law of July 18, 2011 No. 223-FZ" On the procurement of goods, works, services certain types of legal entities" on the official website for placing information on placing orders for the supply of goods, performance of work, provision of services ( www.zakupki.gov.ru)».

Disputes with procurement participants

The Procurement Law provides for the right of a procurement participant to appeal in court against the actions (or inaction) of an enterprise during the procurement.

He has the right to do this by filing a complaint with the antimonopoly authority in the following cases:

• the enterprise did not post the procurement regulation, the changes made to it, the procurement information (notice, procurement documentation) on the official website or violated the terms of such placement;

• the enterprise presented to the procurement participants requirements to submit documents that were not provided for in the procurement documentation;

• the enterprise made a purchase in the absence of a procurement provision approved and posted on the official website and without applying the provisions of Law No. 44-FZ (which the enterprise is obliged to apply if it does not have a procurement provision).

In addition, a procurement participant may appeal against it in connection with a violation of the antimonopoly requirements for bidding established in Article 17 of Federal Law No. 135-FZ “On Protection of Competition”. For example, if there is a restriction on access to participation in the auction (purchase). Such a restriction can be expressed in the fact that the enterprise did not allow certain persons who submitted applications to participate in the competitive procedures, due to their lack of experience, specialists, rating financial stability etc. However, if such requirements did not prevent admission to participation in the procurement (for example, in the form of a tender), but were the criteria for evaluating participants, then such a procurement is recognized as legal.

Case Study: Court Rejects Recognition Claim illegal actions enterprises during an open tender, indicating that the inclusion of requirements for the bidder on the availability of experience, specialists and other similar parameters in the form of evaluation criteria is legal and reasonable

The Municipal Unitary Enterprise (hereinafter referred to as the Enterprise) published a notice on an open tender on its official website.

The enterprise recognized the winner of the tender LLC "R.", which scored the largest number points.

The losing participant of the competition LLC "S." (hereinafter - the Company) considered that the competitive documentation of the Enterprise contained unreasonable discriminatory conditions for the participants of the tender. The Company included the following requirements for participants: “participant’s experience in this type of insurance”, “participant’s presence in branches and representative offices in Vologda of specialists who have been trained under the program of compulsory insurance of civil liability of owners of hazardous production facilities», « business reputation participant”, “term of work in the insurance market in the territory of the Vologda region”, “representing the interests of the customer in court and other bodies, if necessary, to protect the interests of the customer in connection with the claims of the victims”.

In this regard, the Society applied to court of Arbitration with a claim against the Enterprise to declare illegal its actions during an open tender and its results.

The court took into account that the Enterprise is a municipal enterprise, and the Procurement Law applies to municipal unitary enterprises on general rule from January 1, 2014, if more early term not provided by the representative body municipality. The court found that the representative body of the municipality, which was the founder of the Enterprise, did not take a decision that would oblige the Enterprise to apply the provisions of the Procurement Law earlier than January 1, 2014.

However, despite these circumstances, the court applied the Procurement Law, referring to the fact that the Enterprise did not deny that it had organized such a competition for the first time and used the provisions of the Procurement Law.

The court rejected the claim, indicating that at the stage of preliminary selection of participants (admission to participation in the auction), the application of the conditions listed by the Company, which it considered discriminatory, is not allowed. And the inclusion of such conditions in the form of criteria for evaluating bidders (which was done by the Enterprise) is legal and justified.

The court also pointed out that the choice of the counterparty from the total number of bidders, which has more experienced and competent specialists in the type of activity of the contract being concluded, with a higher financial stability rating, does not contradict the Procurement Law. The presence of a license cannot be the only criterion for selecting the winner of the auction, since, according to the specifics of their activities, all bidders must have such a license (decision of the Fourteenth Arbitration Court of Appeal dated October 16, 2012 in case No. A13-3870 / 2012).

In order to file a complaint with the FAS Russia, it is necessary to take into account the provisions of the Administrative Regulations of the Federal Antimonopoly Service for the enforcement state function on initiation and consideration of cases on violations of the antimonopoly legislation of the Russian Federation, approved by order of the Federal Antimonopoly Service of Russia dated May 25, 2012 No. 339.

In addition, the procurement participant has the right to appeal against the actions (inaction) of the enterprise during the procurement in court (part 9 of article 3 of the Procurement Law).

If a person has not submitted an application for participation in the procurement, as a general rule, he cannot appeal it. However, if during the procurement there was a violation of the procedure established by regulatory legal acts for posting information on the conduct of tenders, the procedure for submitting applications for participation in tenders, then such a person has the right to appeal against the procurement if his rights or legitimate interests could be infringed or violated as a result of a violation of the procedure organization and conduct of tenders (part 2, article 18.1 of the Federal Law of July 26, 2006 No. 135-FZ "On Protection of Competition").

Case study: the court refused to satisfy the application, because the absence of the application form and the draft sale and purchase agreement in the notice of the auction violated the rights of potential participants in the auction, creating obstacles to participation in the auction

Management Committee state property decided to hold an auction for the sale of a land plot for the design and construction of a three-story building. The organizer of the auction was state enterprise"BUT.". All eight bidders were allowed to participate in the auction. R. LLC was declared the winner.

CJSC "V." did not submit an application for participation in the auction, but applied to the OFAS for the Kemerovo region with a complaint about the violation of their rights and legitimate interests. The antimonopoly body satisfied the complaint and issued an order to cancel the auction.

Disagreeing with the decision and order of the antimonopoly body, the organizer of the auction went to court.

The court dismissed the claim, stating the following. The notice of the auction did not contain an application form and a draft contract for the purchase and sale of a land plot. This means that potential participants in the auction, including CJSC V., could not obtain complete information about it. This violated their rights and legitimate interests, as it prevented them from participating in the auction.

Contrary to the arguments of the organizer of the auction, CJSC "V." had the right to appeal the auction, although it did not apply for participation. Indeed, within the meaning of Part 2 of Article 18.1 of the Federal Law No. 135-FZ “On Protection of Competition”, such a right is vested not only in persons who have applied for participation in the auction, but also in other persons whose rights and legitimate interests may be infringed as a result of a violation of the procedure for organizing and bidding (FAS of the West Siberian District of July 18, 2014 in case No. A27-13853 / 2013).

Reporting of the enterprise on the purchases made

The customer, no later than the 10th day of the month following the reporting month, places on the official website information on the number and total cost of contracts concluded by the customer based on the results of:

• procurement of goods, works, services in general;

• purchases from a single supplier (executor, contractor);

• procurement, information about which constitutes a state secret or in respect of which decisions of the Government of the Russian Federation have been made.

Such a rule is established in part 19 of article 4 of the Procurement Law.

Register of dishonest suppliers

The official website maintains a register of unscrupulous suppliers (hereinafter referred to as the register). It includes information:

• about procurement participants who evaded the conclusion of contracts;

• about suppliers (performers, contractors) with whom contracts were terminated due to a material breach of contracts by them.

The inclusion or content of such information in the register may be appealed by an interested person in a judicial proceeding. Such a rule is established in part 6 of article 5 of the Procurement Law.

Example from practice: the court canceled the decision of the OFAS to include the company in the register of unscrupulous suppliers, since it did not consider the company to have evaded signing the contract

MUP "V." posted a notice on a request for quotations for the right to conclude a supply contract on a specialized website.

LLC "Ts." submitted an application for participation and was declared the winner of the request for quotations.

MUP "V." provided the winner with a draft contract for signing. However, LLC "C." did not sign the contract, did not provide a protocol of disagreements to the contract. After that, MUP "V." considered LLC "Ts." evaded signing the contract and applied to the OFAS.

The antimonopoly authority, having considered the materials provided, made a decision to include OOO Ts. to the register of unscrupulous suppliers.

Disagreeing with the decision, LLC "Ts." went to court.

Satisfying the application, the court proceeded from the following. December 2, 2014 MUP "V." on e-mail sent by LLC "Ts." scanned copy of the supply agreement. However, the protocol on summing up the results of the request for quotations was drawn up on December 3, 2014. According to the requirements of the quotation documentation, on December 13, 2014, MUE "V." sent a draft contract for the supply by post. LLC "Ts." the draft agreement was received on December 24, 2014 and had to be signed within 5 days. However, MUP "V." already on December 18, 2014, sent information about OOO Ts. to the antimonopoly body, that is, before the expiration of the term for signing the contract.

The inclusion of information about a person in the register of dishonest suppliers is a sanction for the dishonest behavior of the supplier. In this case, there was no dishonest behavior of the supplier. This means that the antimonopoly authority had no grounds for including OOO Ts. to the register (decision of the Second Arbitration Court of Appeal dated October 20, 2015 No. 02AP-8326/2015 in case No. A17-1908/2015).

The list of information that is included in the register, the procedure for sending them, the procedure for maintaining the register is established in Decree of the Government of the Russian Federation dated November 22, 2012 No. 1211 "On maintaining the register of unscrupulous suppliers, provided for by the Federal Law" On the procurement of goods, works, services by certain types of legal entities "".

The information contained in the register, after two years from the date of their entry into it, is excluded (part 5 of article 5 of the Law on Procurement).

When does the Procurement Law not apply?

Not carried out in the manner prescribed by the Law on Procurement, including not subject to placement on the official website, procurement:

• which contains state secrets, provided that such information is contained in the procurement notice, procurement documentation or in the draft contract;

• according to which the Government of the Russian Federation has decided not to post it on the official website;

• which is the purchase of goods, works or services that are included in the lists and (or) groups of goods, works or services, information on the purchase of which, in accordance with the decision of the Government of the Russian Federation, is not subject to placement on the official website.

In addition, the enterprise has the right not to post on the official website information about the purchase, the cost of which does not exceed:

• 100,000 rubles;

• RUB 500,000 (if the annual revenue of the enterprise for the reporting financial year is more than 5 billion rubles).

Such exceptions are established in parts 15 and 16 of Article 4 of the Procurement Law.

The Procurement Law is also not applicable if the enterprise has not posted the approved procurement regulation on the official website. In this case, when purchasing, the enterprise must be guided by the provisions of Law No. 44-FZ. Such a rule is established in paragraph 4 of Article 8 of the Procurement Law.

It must be borne in mind that the Procurement Law does not apply to relations related to:

• purchase and sale valuable papers, currency values, precious metals;

• conclusion of contracts that are derivative financial instruments(with the exception of contracts that are concluded outside the scope of exchange trading and the fulfillment of obligations under which provides for the supply of goods);

• the acquisition of exchange goods on the commodity exchange;

• the implementation by the customer of placing orders for the supply of goods, performance of work, provision of services in accordance with Law No. 44-FZ;

• procurement in the field of military-technical cooperation;

• procurement of goods, works, services in accordance with an international treaty of the Russian Federation, if such an agreement provides for a different procedure for determining suppliers (contractors, performers) of such goods, works, services;

• selection of an audit organization for conducting statutory audit accounting (financial) reporting;

• conclusion and execution of contracts in accordance with the legislation of the Russian Federation on the electric power industry, which are mandatory for subjects wholesale market– participants in the circulation of electric energy and (or) capacity;

• implementation credit institution leasing operations and interbank operations.

Such a rule is established in part 4 of article 1 of the Procurement Law.

What is an open competition in electronic form according to 223-FZ and how to conduct it from July 1, 2018, read in step by step instructions. In addition, learn about other changes in procurement under 223-FZ.

Since 2018, there have been huge changes in procurement. On December 31, 2017, Law No. 505-FZ came into force, which changed Law No. 223-FZ, supplementing it by about a third. Some of the changes took effect immediately, some more will come into effect on July 1, 2018, and some more on January 1 next year.

One of the most important changes- electronicization of purchases. Now the tender - open, closed and two-stage - as well as the request for proposals and quotations will become fully electronic procedures. For procurement from SMEs, these four e-procedures will be the only possible procedures. All this, including an open competition in electronic form, however, becomes possible only from July 1, 2018, and mandatory - from January 1 of the next year. By July 1, customers under 223-FZ should prepare - and bring their Procurement Regulations into line.

The open format of the competition is not the only one that will become electronic. AT in electronic format now they will also hold a two-stage competition, a competition with limited participation, and closed procedures (unless a separate NLA is issued for them). It is assumed that closed competitions will be held at separate venues.

Changes in procurement tenders

Another significant change - neither open nor closed electronic contests it will be impossible to allocate lots from July 1, 2018. From this date, the rules for describing the object of the purchase will also change, for example, now you can never indicate the trademark and manufacturer without adding "or equivalent", except for the purchase of consumables and spare parts. In the description of the subject of the purchase, the customer is now obliged to indicate specifications, consumer properties, performance characteristics goods.

Attached files

• 10 major changes in 223-FZ.doc