Amendments 223 FZ on procurement. On the procurement of goods, works, services by certain types of legal entities. Changed the rules according to which nmcd is indicated

According to the Federal Law of 03.07.2016 N 321-FZ, a unitary enterprise should in its work switch from the Federal Law of 18.07.2011 N 223-FZ "On the procurement of goods, works, services by certain types of legal entities" (hereinafter - Law N 223-FZ ) to the Federal Law of 05.04.2013 N 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law N 44-FZ).
In 2016, the company entered into contracts within the framework of Law N 223-ФЗ indicating the total amount of the contract for a period of more than one year (contracts for the supply, lease, provision of communication services, and others). It is impossible to foresee in advance what specific amount, for what year, will be paid, therefore, during the validity of the contract, it is necessary to clarify the amount of payment for individual stages of the contract.
Taking into account the fact that since 2017 unitary enterprises are switching to procurement in accordance with Law N 44-FZ, are these contracts subject to execution? Is it possible after January 1, 2017 to extend their validity, as well as amend the conditions on the number of goods supplied under such contracts, the volume of services provided and work performed?

On this issue, we adhere to the following position:
Agreements entered into by a unitary enterprise in accordance with Law N 223-FZ before January 1, 2017 are subject to execution in accordance with their terms and after that date. Changing the terms of such contracts is possible if it cannot be qualified as actually leading to the implementation of a new purchase.

Justification of the position:
1.from 03.07.2016 N 321-FZ (hereinafter - Law N 321-FZ) amendments were made to a number of provisions of 05.04.2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs "(hereinafter - Law N 44-FZ). In particular, the action of N 44-FZ from January 1, 2017 (see article 4 of this law) is extended to relations related to the procurement of goods, works and services (hereinafter also - procurement) by state and municipal unitary enterprises (hereinafter also - unitary enterprises). From January 1, 2017, the latter are recognized as customers for the purposes of N 44-FZ (clause 7 of article 3 of this Law). Law No. 44-FZ as amended by No. 321-FZ provides that state, municipal unitary enterprises carry out purchases in accordance with the requirements of No. 44-FZ, with the exception of purchases carried out during the year in accordance with the legal act provided for by the Federal Law of 18.07. 2011 N 223-ФЗ "On the procurement of goods, works, services by certain types of legal entities" (hereinafter - Law N 223-ФЗ), adopted by unitary enterprises and placed before the beginning of the year in a unified information system, in cases determined by Law N 44- FZ. Thus, from 01.01.2017 unitary enterprises in the procurement of goods, works and services (hereinafter also referred to as procurement), as a general rule, will have to be guided by the requirements of N 44-FZ. As part of the procurement procedures provided for by N 44-FZ, such enterprises will acquire the status of customers. Until the specified date, the rules N 223-FZ apply to purchases made by unitary enterprises (clause 1 of part 2 of article 1 of this federal law, see also the Ministry of Economic Development of Russia of 10/14/2016 N D28i-2693, of 10/12/2016 N, of 09/14/2016 N, 09/09/2016 N).
For the purposes of N 44-FZ, procurement is understood as a set of actions carried out in accordance with the procedure established by this federal law by the customer and aimed at ensuring state or municipal needs. The purchase begins with the definition of the supplier (contractor, contractor, hereinafter also the counterparty) and ends with the fulfillment of obligations by the parties to the contract. If, in accordance with N 44-FZ, it is not provided for the placement of a notice of the procurement or sending an invitation to take part in the determination of the counterparty, the procurement begins with the conclusion of the contract and ends with the fulfillment of obligations by the parties to the contract.
Thus, within the framework of relations regulated by N 44-FZ, the purchase involves the conclusion of a contract, the obligation under which on the part of the counterparty is the supply of goods, the performance of work or the provision of services to meet state or municipal needs. Accordingly, any contract providing for the purchase of goods, works or services by the customer must be concluded in accordance with the requirements of N 44-FZ.
According to the Civil Code of the Russian Federation, if, after the conclusion of the contract, a law is adopted that establishes rules binding on the parties other than those that were in force at the conclusion of the contract, the terms of the concluded contract remain in force, unless the law states that its effect applies to relations, arising from previously concluded contracts.
Thus, unitary enterprises will be required to apply the procedures provided for by N 44-FZ when performing actions aimed at concluding contracts for the supply of goods, performance of work or the provision of services after 01/01/2017. Contracts concluded before this date remain in force (, Civil Code of the Russian Federation). If the execution of such contracts (delivery of goods, performance of work, provision of services) is carried out by the customer's counterparty after 01.01.2017, despite the fact that the contract itself was concluded before this date, the customer is not required to carry out procurement procedures in accordance with N 44-FZ in relation to the subject of these contracts. , since the execution of previously concluded contracts does not indicate the implementation of a new purchase. A similar explanation is given, in particular, in the Ministry of Economic Development of Russia dated 06.10.2016 N D28i-2686, dated 10.10.2016 N and dated 24.10.2016 N D28i-2773, where it is noted that contracts concluded by state (municipal) unitary enterprises in accordance with provisions of N 223-FZ, remain in force until the end of their validity.
Thus, the entry into force of N 321-FZ is not a basis for the termination of obligations under contracts concluded by unitary enterprises before January 1, 2017. Accordingly, after that date, such contracts continue to operate and must be executed on the terms agreed by the parties.
2. Citizens and legal entities are free to determine any terms of the agreement that do not contradict the legislation (Civil Code of the Russian Federation). By virtue of the Civil Code of the Russian Federation, the terms of the contract are determined at the discretion of the parties, unless the content of the corresponding condition is prescribed by law or other legal acts (Civil Code of the Russian Federation). Amendment of the contract is possible by agreement of the parties, unless otherwise provided by the Civil Code of the Russian Federation, other laws or the contract itself (Civil Code of the Russian Federation). Thus, in principle, the law allows for the possibility of amending contracts concluded by unitary enterprises before 01.01.2017 and executed after this date (see in this connection the Ministry of Economic Development of the Russian Federation of 08.11.2016 N D28i-2915, as well as the material: Encyclopedia of Decisions . Amendment and termination of the contract according to N 223-FZ).
However, this should take into account the restrictions and prohibitions arising from the provisions of N 44-FZ and N 223-FZ, according to the meaning of which, under certain circumstances, a change in the terms of the contract (in particular, an increase in the quantity of goods under a supply agreement, renewal of a lease agreement for a new period, an increase in the volume of work under a work contract, etc.) may indicate the implementation of a new purchase (for more details, see in this regard, in the material: Encyclopedia of solutions. Possible qualification of an increase in the number of goods, scope of work or services under contract N 223-FZ as a new purchase). As an example, let us pay attention to the Ministry of Economic Development of the Russian Federation dated 10.24.2016 N D28i-2743 and from 08.11.2016 N D28i-2915, from which it indirectly follows the conclusion about the legality of the prolongation after January 1, 2017 of agreements concluded by unitary enterprises before this date. It cannot be ruled out that, under certain circumstances, the regulatory authorities will not be considered as a violation of the prolongation in 2017 of the contract for the provision of paid services concluded by a unitary enterprise in accordance with N 223-FZ (although the opposite is also possible). However, it seems to us that this logic cannot be extended, for example, to lease agreements, the extension of which at the end of the lease term, as explained in the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 02.16.2001 N 59, leads to the conclusion of a new lease agreement (and therefore - to the implementation of a new purchase).
Unambiguously, the question of the legality of making amendments to the agreement concluded by a unitary enterprise before this date from January 1, 2017, should be decided in relation to each specific case, taking into account the circumstances of the case, the essence of the relevant agreement and its conditions. We believe that from January 1, 2017, when deciding on the admissibility of amendments to contracts concluded by a unitary enterprise prior to this date in accordance with N 223-FZ, one should proceed from the fact that such a change is possible if it is not related to the acquisition of additional quantity goods, scope of work or services, that is, it cannot be qualified as actually leading to the implementation of a new purchase (which, recall, from January 1, 2017 must be carried out in accordance with the provisions of N 44-FZ).

Prepared answer:
Expert of the Legal Consulting Service GARANT
Chashina Tatiana

Quality control of the response:
Reviewer of the Legal Consulting Service GARANT
Aleksandrov Alexey

The material was prepared on the basis of an individual written consultation provided within the framework of the Legal Consulting service.

What changes to 223-FZ come from July 2018 and entered into from the beginning of the year, whether it is necessary to amend the procurement regulations, how and when to provide an application, what monthly reports will need to be submitted - read about this in our article.

Changes to 223-FZ from July 1, 2018

1. Expanded the list of procurement methods

The procurement regulation should provide for competitive and non-competitive procurement. The list of competitive procedures is open, closed and electronic tenders, auctions, requests for quotations, closed and electronic requests for proposals. In addition to these methods, you can use other competitive ones, which are defined in the procurement regulation. If the regulation does not provide otherwise, then competitive procurement is carried out in electronic form.

Competitions, auctions and inquiries specifically for small and medium-sized businesses must be electronic. Moreover, they should be carried out on electronic sites that the government has selected for procurement under Law No. 44-FZ. Participants will need to secure applications for such a purchase on special accounts in banks, which have been determined by the government.

2. Established how and when to provide the application

Customers are not entitled to demand security for the application when the initial price is not higher than 5 million rubles. If the starting price is higher, you can specify in the documentation the requirement to secure the application. But the amount of the collateral should not be more than 5% of the initial price.

The contract after the competitive procedure is concluded no earlier than 10 days and no later than 20 days after the final protocol has been posted in the EIS.

5 days were given to conclude a contract after the FAS makes a decision on the complaint or the governing body approves the contract.

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5. Changed the list of monthly reports

Until the 10th day of the month following the reporting month, it is necessary to post in the EIS data on the number and value of contracts with single suppliers after a failed competitive purchase. In the report on all contracts, it is necessary to take into account those contracts, information about which is not posted in the EIS.

Any individual or legal entity can be a procurement participant, regardless of the requirements of the procurement regulation

There will be no need to report every month on contracts that have been concluded with small and medium-sized businesses.

Agreements with single suppliers worth more than 100 thousand rubles. (over 500 thousand - for those whose revenue for the last year was more than 5 billion rubles) are placed in the register of contracts.

The most ambitious package of amendments - Law of December 31, 2017 No. 505-FZ - generally comes into force on July 1, 2018. But at the same time, we agreed that customers should bring their procurement regulations in line with its edition, approve and place in the EIS before January 1, 2019. Customers who fail to do so will be deemed not to have posted the position.

In addition, on the basis of Resolution No. 1429, from December 7, 2017 to July 1, 2018, customers under 223-FZ temporarily enter less information into the register of contracts. During the specified period, customers do not need to send information about contractors to the register, as well as about subcontractors and contracts with them.

Effective January 9, 2018, Vnesheconombank's leasing and interbank operations were removed from the scope of Law No. 223-FZ (dated December 29, 2017, No. 470-FZ).

Changes in the volume of purchases from SMEs

Changes from January 1, 2018 provide for new standards for the percentage of the volume of contracts concluded with SMEs. Earlier, according to the Decree of the Government of the Russian Federation of 11.12.2014 No. 1352, the volume of direct purchases from SMEs (only among these entities) was 10%. January 1, entered into force on August 19, 2016 No. 819, and it increases this volume to 15%.

The total volume of purchases made from SMEs remains at the rate of 18% of the annual volume of purchases. According to the provisions of Law No. 223-FZ, these standards are required to comply with the following categories of customers from January 1:

1. legal entities whose annual revenue exceeds RUB 500 million;
2. legal entities and credit institutions whose assets exceed RUB 500 million, and they themselves are not SMEs;
3. autonomous institutions that have concluded contracts for the previous year in the amount of more than 250 million rubles.

Quickly check the volume of purchases from SMEs and separately from small businesses,

Amendments to Law No. 223-FZ, which came into force in the last days of last year, more than doubled the text of the law. It will become more difficult to work: some of the new rules bring this law closer to the contract system. Although there are amendments that simplify the life of the customer under 223-FZ. , and which can be postponed until the end of 2018.

Changes in procurement control from SMEs

Another part of the 223-FZ changes from 2018 concerns the criteria by which the purchases of customers from SMEs will be evaluated and controlled. So, now the criteria for assessing the compliance with the draft plans and the changes made to them have changed.

1. The total cost of the customer's contracts (from the list listed in Resolution No. 1169, clause 3, clauses "a") for the previous year must be more than 1 billion rubles;
2. The total cost of the customer's contracts (from the list listed in Resolution No. 1169, clause 3, clauses "b") for the previous year must exceed 50 million rubles;
3. The total amount of assets or the annual revenue of a credit institution or customer for the previous year (calendar) must exceed 500 million rubles... This item refers to a wider range of customers: including state-owned companies established under Law No. 223, customers specified in Resolution No. 1352 (paragraphs 6 and 8, paragraph 2); But this does not apply to customers-SMEs.

Changes in the form of the annual report

Now customers under 223-FZ must separately enter information about contracts for each category of SMEs. A separate category is made up of contracts concluded for a period of more than 5 years. Separately, the number of contracts paid this year and moving on is now filled in.

It is necessary to post an SME report for 2017 by February 1 of this year, otherwise you will have to switch to the rules of Law No. 44-FZ (part 8.1 of Article 3 of Law No. 223-FZ, Ministry of Economic Development of June 27, 2016 No. OG-D28-7966.).

Changes in monitoring the compliance of plans-schedules

Another group of changes 223-FZ from 2018 concerns the criteria by which they will evaluate and control schedule plans and changes made by customers to them. From June 1, 2018, the following customer groups are eligible for compliance:

Federal autonomous institutions, as well as customers (Resolution No. 1169 p. 3, p. "b"), the total volume of contracts for the previous year ranged from 250 million to 1 billion rubles;

Subsidiaries owned by 50% or more of state-owned companies established in accordance with Law No. 223-FZ; or subsidiaries;

Autonomous institutions, as well as customers (Resolution No. 1169, p. 3, p. "b"). Customers (see Resolution No. 1169, clause 3, clauses "b"), who signed contracts for the previous year in the amount of more than 50 million rubles.

When 223-ФЗ is not applied

Now, purchases are not subject to Law No. 223-FZ:

• from a foreign legal entity, if the counterparty must supply goods, perform work or provide services abroad;
• in interdependent individuals. What persons are interdependent, the customer describes in the Procurement Regulations according to the rules of Article 20 of the Tax Code;
• a customer who is registered abroad in order to work on the territory of a foreign state;
• state corporation "Bank for Development and Foreign Economic Affairs (Vnesheconombank)" leasing operations and interbank operations, including with foreign banks.

In addition, it was clarified that Law 223-FZ is not applied when contracts are concluded and executed in accordance with the legislation of the Russian Federation on the electric power industry, which are mandatory for participants in the market for the circulation of electricity and capacity.

A complete list of cases is given in part 4 of article 1 of Law No. 223-FZ.

Attached files

• SME Annual Report Form.xls

The customers did not have time to figure out the plans for innovative products and the new procurement rules from the SMP, and the legislators are already preparing a new package of important amendments. For example, all purchases about 223-ФЗ will be transferred to electronic form and to special accredited ETPs.

Customers will be limited to the possibility of unauthorized termination of the contract. Permitted procurement methods will be listed in the law and cannot be expanded. And the municipal unitary enterprise and the state unitary enterprise are preparing to completely withdraw from the operation of Law No. 223-FZ. In order to timely introduce innovations in the procurement work, you need to be aware of all the news. Here we have collected interesting materials about all the changes: effective and future ones.

Provisions on procurement under Law No. 223-FZ

The main document of the customer under Law No. 223-FZ is the procurement regulation. A competent approach to its formation will help to avoid complaints from participants and claims from control bodies. And if you carefully prescribe in the procurement regulations the requirements for participants, procurement methods and the procedure for evaluating bids, you can save a lot on each purchase. We will tell you how to do this and not run into FAS fines.

Procurement plan according to Law No. 223-FZ

Law No. 223-FZ obliged customers to place in the procurement plan. The procurement plan is drawn up for a period of less than a year. And besides this, a plan for the procurement of innovative products, a plan for the procurement of high-tech products, a plan for the procurement of medicines must be sent to the EIS. Indeed, from January 1, 2016, customers are required to conclude contracts only in strict accordance with the procurement plan. Plan your purchases correctly with materials from our experts.

Register of contracts under 223-FZ

Customers under Law No. 223-FZ regularly report on contracts. The register of contracts is an additional form of procurement control. We've collected 6 of the best articles to help you avoid common mistakes when posting monthly statements and annual reports.

Evaluation of applications under Law No. 223-FZ

Law No. 223-FZ does not determine the procedure for evaluating and comparing applications. The customer must prescribe in the procurement regulations his criteria for evaluating the bids of participants. In the regulation, it is necessary to establish the points of the procurement participants, which will be awarded by the tender committee. We have selected articles with examples and recommendations for evaluating bids in procurement under 223-FZ.

Violations under Law No. 223-FZ

The corporate procurement law is of a framework nature. The customer must establish the basic procurement rules in the procurement regulations. And then - to follow these rules, transferring them to the tender (auction) documentation and draft contracts. A lot of freedom for customers leads to a lot of mistakes. In order to correctly make purchases under 223-FZ, it is necessary to study the decisions of the FAS and court decisions on complaints against customers. Here we have collected the most interesting materials on violations of Law No. 223-FZ. Learn other people's mistakes so as not to make your own!

Kirill Kuznetsov ( [email protected])

Expert practitioner in the field of procurement, head of the Tendery.ru Efficient Procurement Center, author of a large number of procurement regulations, as well as procurement trainings and seminars for customers, suppliers and controllers

In 2018, the procurement rules change significantly and are largely determined by the amendments made to Law No. 223-FZ by the federal law of December 31, 17 No. 505-FZ. And although the package of these amendments, introduced in the summer of 2015, was ultimately significantly revised, a number of decisions envisaged by it still raise questions.

So, the amendments come into force on July 1, 2018, with the exception of some that come into effect from the moment of the official publication of the law.

Among such standards of immediate action, the following stand out:

1. Procurement from related parties is removed from the scope of the law... In general, this does not fundamentally change the current state of affairs, since for most customers with subsidiaries and dependent legal entities, procurement regulations usually provide for the possibility of purchasing from a single supplier if it is an interdependent entity.

Now such purchases simply “go into the shadows” and do not appear in the procurement reports under Law No. 223-FZ. Respectively, opportunities open up to withdraw the customer's purchases from the scope of regulation of Law No. 223-FZ(for example, when organizing its supply through a subsidiary that is not such an entity).

Also excluded are purchases of customers registered abroad (in order to carry out their activities in foreign territory), which is just quite justified. In fact, these norms are written rather vaguely, which allows not only ambiguous and prescribing in the Procurement Regulations, but also to be applied, abusingly, taking a significant share of procurements out of the scope of Law No. 223-FZ.

2. Founder a budgetary or autonomous institution, the owner of the property of a unitary enterprise or a body authorized by the executive power has the right to approve a standard procurement regulation and the circle of “subordinate” customers obliged to apply it. This position also determines the date before which the customers' provisions must be brought in accordance with the standard. At the same time, the question of the applicability of the standard provisions of the "subordinate" other form of ownership (for example, joint stock companies) is not regulated... It should be noted that such a standard procurement provision is not a procurement provision in the classical sense of the term, but a list of rules and requirements that must be included in the customer's procurement provision.

3. "Subsidiaries" and "daughters of subsidiaries" can join the procurement regulation of the "parent" company... Such a decision is placed in the EIS as a procurement regulation. When you change the procurement regulation, you can make a decision to join the changes. Unfortunately, the norm is very problematic: for example, for joint-stock companies, it is unrealistic to collect a board of directors from each daughter to approve a decision to join the amendments to the procurement regulation, and even within fifteen days.

4. If the customer has not posted the approved procurement regulation (or the decision to join the procurement regulation) within the established time frame, the main provisions apply to it (with exceptions - it was previously assumed that all the requirements of the specified law would apply, now only those listed.) Law No. 44-FZ prior to the implementation of these actions.

5. Introduced the concept departmental control procurement activities (however, unlike Law No. 44-FZ, it is not regulated in any way).

6. The procedure for the use of regional, municipal and corporate information systems in the field of procurement is determined.

7. The Treasury maintains a register of customers in the EIS.

8. New restrictions on the placement of information in the EIS... The government can establish lists / groups of TRU (goods, works, services), purchases of which are carried out by specific customers, information about which is not posted in the EIS. The customer also has the right do not post in the EIS information on the purchase of a number of financial services, lease and other agreements providing for the transfer of ownership / use of real estate.

9. Changes in the appeal procedure: you can complain for any violations procurement law and regulations. At the same time, an appeal against violations committed after the end of the deadline for submitting applications is possible only by those procurement participants who have submitted applications. but consideration of the complaint should be limited only to the arguments that constitute the subject of the appeal.

But all these are “flowers”. From 1 July 2018 other, one might say, revolutionary amendments also come into force. Let's consider them in more detail.

1. The procurement regulation shall provide for competitive and non-competitive purchases, as well as establish the procedure for such purchases. Competitive procurement by default - in electronic form, but it is permissible to provide for their conduct in the position and in the "paper"... but competitive procurement with the participation of SMEs ( small and medium-sized businesses ) - only in electronic form(and only at sites that meet the requirements of Law No. 44-FZ and are selected by the Government of the Russian Federation).

2. Any natural or legal person is a participant in the procurement.(and combining the former or the latter). At the same time, the restriction that such persons must also comply with the requirements set by the customer in the procurement regulation no longer applies. What opens new opportunities for appeal by "procurement raiders"(Previously, there were repeated cases of refusals by the regulatory authorities to accept a complaint from a “non-participant” in the procurement - the submitter who did not meet the requirements of the procurement regulation, for example, who had not previously expressed interest in participating by filing an application or requesting clarifications). However, as before, the customer defines the requirements for procurement participants in the competitive procurement documentation in accordance with the procurement regulation.

3. NMCD ( initial (maximum) contract price ) is indicated in one of the following ways:

• information about the initial (maximum) contract price (lot price),

• price formula and maximum value of the contract price,

• unit price of goods, work, services and the maximum value of the contract price.

4. Restrictions on the use of trademarks are introduced(service marks, etc.), close to those established in the rules of the contract system. When referring to a trademark, the use of the words "or equivalent" is required (with some exceptions). One problem should be highlighted that has repeatedly arisen before customers who previously used similar wording: if you indicate "or equivalent", - don't forget to define parameters of equivalence, and it is desirable - not fixed (exact value), but range (from ... to ...).

5. Requirements for procurement documents are made easier and more reasonable: for requests for quotations, no procurement documentation is required, and for procurement from a single supplier - notification and documentation (in other cases of competitive procurement, as before, notification + documentation + draft contract is required).

6. The procedure for conducting competitive procurement is established, including a number of mandatory requirements for its timing and workflow, as well as features for such an electronic procurement.

• Are given determination of all methods of procurement provided by law;

• Minimum terms for placement of notice and documentation in the EIS: tender, auction - 15 days, request for quotations (only notice) - 5 working days, request for proposals - 7 working days. (for purchases from SMEs - the terms are shorter).

• The procurement documentation is always developed, except for the request for quotations. The requirements for the content of the notification and documentation have also been clarified.

• Commission is required for competitive procurement(accordingly, it may not exist for a non-competitive purchase).

• Only one application from a participant, which can be changed or withdrawn before the deadline for submission. This means that customers who are accustomed to working with the submission of alternative proposals should regulate this opportunity more accurately (the main and alternative proposals - as part of one application).

• Cancellation of the procurement by the customer is permissible only before the deadline for submission of bids(decision - in the EIS on the day of its adoption). Later - only in case of force majeure circumstances in accordance with the Civil Code of the Russian Federation. Or, of course, the instructions of the FAS Russia or a court decision.

• Response to a request for clarification(indicating the subject of the request, but not its author) - within 3 working days with placement in the EIS, the customer's right not to explain if the request is later than three working days before the deadline for submission. At the same time, the explanations should not change the subject of the procurement and the essential conditions of the draft contract.

• When making changes- information in the EIS within 3 days from the date of the decision, and remaining term filing should be at least half of the initial one (if necessary - extension).

• Competitive procurement can be multi-stage.

• The mechanism underlying the "price list" and "umbrella" purchases based on the results of a competitive purchase has been legalized the customer has the right to conclude contracts with several participants in such a purchase.

• Installed requirements for the content of protocols(compiled during the procurement (based on the results of the stage) and the final).

• Storage period protocols, applications, documentation, notifications, changes, clarifications - at least 3 years.

• Application security is not established if the NICD does not exceed 5 million rubles, in other cases it can't be more 5% of NICD... Such security is withheld in case of evasion from the conclusion of the contract or failure to provide security for the performance of the contract.

• Based on the results of a competitive purchase, it is possible to conclude several contracts.

• Agreement - no earlier than 10 and no later than 20 days from the date of posting the final protocol in the EIS (if it is necessary for approval by the customer's management body or appeal - 5 days from the date of such decisions).

7. Determined features of the implementation of competitive procurement in electronic form.

• Purchase workflow, from filing an application to the formation of draft protocols is provided by an electronic platform.

• The definition of an operator of an electronic site is introduced

• To participate in the procurement to the participant accreditation required, the order is determined by the operator of the electronic site.

• The document flow uses enhanced qualified electronic signature.

• The operator posts information and sends notifications within an hour (changes, clarifications, etc.)

8. Determined closed competitive procurement requirements.

• Closed competitive procurement in case of state secrets or a corresponding decision of the Government of the Russian Federation.

• Information about such a purchase is not posted in the EIS. The rest of the rules - as for competitive procurement, at least 2 participants who are able to fulfill the contract are specifically invited to participate.

• The Government of the Russian Federation determines the features of document flow, accreditation and operators in the implementation of closed competitive purchases in electronic form.

9. The features of competitive procurement in electronic form only for SMEs are regulated in detail.

10. Requirements for purchasing from a single supplier(contractor, performer) and an exhaustive list of cases of its implementation established by the procurement regulation.

Of course, many of the above innovations require more detailed disclosure. Below we will consider some of the nuances that relate to the novels already considered, namely:

1) the application of the standard procurement provision;

2) the use of regional, municipal and corporate information systems in the field of procurement;

3) changes in the appeal procedure;

4) new powers of the Government of the Russian Federation;

5) the peculiarities of the methods of procurement used;

6) descriptions of the subject of procurement, including indications of trademarks;

7) features of competitive procurement among SMEs.

So…

1. Model Provisions on Procurement

The standard procurement regulation should contain not subject to change during the development and approval of its provisions by customers:

1) the procedure for preparation / implementation of the procurement;

2) methods of procurement and conditions for their use;

3) the term for concluding a contract based on the results of competitive procurement.

It should also provide for the specifics of the participation of SMEs in procurement.

The standard provision and changes to it are posted in the EIS within 15 days from the date of approval.

A change to the standard provision is mandatory for all customers whose procurement provisions are approved in accordance with the standard. When changing the standard, the period for such changes must be indicated, at least 15 days from the date the changes are posted in the EIS.

Important: a standard provision is not a procurement provision in the classical sense, but only a set of requirements included in its provision by customers.

2. Regional, municipal and corporate information systems in the field of procurement

In accordance with the amendments, it became possible for customers to post information through interacting with the EIS:

• corporate information systems;

• regional and municipal procurement information systems created in accordance with Law No. 44-FZ.

However, in the event of inconsistencies in the information, priority remains with the information posted in the EIS. The calculation of the terms is also carried out from the moment the information is posted in the EIS.

3. Changes in the appeal procedure

From the date of entry into force of the amendments, the list of cases for appeal changes. It now includes:

• purchase by the customer in violation of the requirements of Law No. 223-FZ and (or) the procedure for preparation / implementation of the procurement in the procurement regulations of the customer;

• non-placement in the EIS of the procurement provision and amendments to it, information and documents on contracts concluded by customers as a result of the procurement, other information subject to placement by law or violation of the terms of such placement;

• presentation of requirements to the procurement participants that are not provided for in the competitive procurement documentation;

• implementation of procurement by customers in the absence of a procurement regulation approved and posted in the EIS without applying certain provisions of Law No. 44-FZ;

• non-placement or placement in the EIS of inaccurate information about the annual volume of purchases from SMEs.

WITH On 07/01/2018, it will also be possible to appeal the violation by the operator of the electronic site when purchasing GWS the requirements established by Law No. 223-FZ.

In addition, an appeal (as well as an appeal to the court) can be initiated against customers in respect of whom compliance monitoring or compliance assessment is carried out by the SME Development Corporation and executive authorities.

The only bright spot for the client in such an increase in the possibilities for appeal is that the consideration of the complaint by the antimonopoly authority should be limited only to the arguments that are the subject of the appeal. However, in any case, it will be much more difficult to appeal against the decisions of the FAS Russia on the grounds that consideration of the subject of the complaint is not within its competence.

4. Additional powers of the Government of the Russian Federation

The rights of the Government of the Russian Federation to establish additional rules for procurement under Law No. 223-FZ have significantly expanded and will additionally include the following:

• among the features of the participation of SMEs in the procurement of individual customers, it may provide for the obligation of individual customers to carry out purchases, in which only SMEs can be participants;

• for purchases that are not placed in the EIS by decision of the Government of the Russian Federation (lists and product groups), features can be established, including:

• features of their implementation in electronic form;

• features of electronic document management;

• the procedure for working with the application security;

• a list of operators of electronic sites, uniform requirements for electronic sites, their functioning and their operators.

• Of course, today the main intrigue is the list of operators of the electronic platform.

5. Methods of purchasing

From 01.08.2018, all purchases under Law No. 223-FZ will officially be divided into competitive and non-competitive.

Competitive procurement is a procurement carried out in compliance with the following conditions at the same time:

1) information on competitive procurement is communicated by the customer by placing a notice and procurement documentation in the EIS or by sending invitations to participate in a closed competitive procurement (in cases provided for by law);

2) competition is ensured between the participants in the competitive procurement for the right to conclude an agreement with the customer on the conditions proposed in the applications for participation in such procurement, the final proposals of the participants in such procurement;

3) the description of the subject of competitive procurement is carried out in compliance with the special requirements established in Law No. 223-FZ for competitive procurement.

If these conditions are not met, the purchase is non-competitive.

Among the ways to carry out competitive procurement:

1) bidding (except for the classic competition (open, closed and in electronic form) and auction (open, closed and in electronic form), they now also include a request for quotations (closed and in electronic form) and a request for proposals (closed and in Recall that the favorite methods of competitive selection of a supplier for customers were previously a request for proposals and a request for quotations, since, considering them not bargaining, it was possible to reasonably, for example, provide for the non-binding nature of concluding an agreement with the winner and other conditions convenient for the customer. Now this "loophole" is being closed.

2) other methods established by the procurement regulation (which means that there again you can open the "loophole" by entering instead of the request for proposals, for example, "reduction" and "tender").

The methods of non-competitive procurement, including procurement from a single supplier (performer, contractor), are established by the procurement regulation.

6. Description of the subject of the procurement (terms of reference). Trademarks

In case of competitive procurement, the customer, in the description of the subject of procurement, indicates, if necessary:

• functional characteristics (consumer properties);

• technical and quality characteristics;

• operational characteristics.

In this case, the description of the subject of procurement should not include requirements or instructions in relation to

• trade marks;

• service marks;

• brand names;

• patents, utility models, industrial designs;

• name of the country of origin of the goods,

as well as requirements for goods, information, works, services, provided that such requirements entail an unreasonable limitation of the number of participants in the procurement.

An exception is made in cases where “ there is no other way providing a more accurate and clear description of the specified characteristics of the subject of procurement ”. These formulations were clearly borrowed from the current rules of the contract system (although an interesting nuance was that the latest amendments to Law No. 44-FZ exclude this wording). For example, such a case may be the manufacture of unique equipment.

In case of justified use of a trademark, the words "(or equivalent)" must be indicated. The exceptions are:

• incompatibility goods with other trademarks and the need to ensure interaction of goods with goods used by the customer;

• procurement of spare parts and consumables for machinery and equipment used by the customer, in accordance with technical documentation for the specified machines and equipment ( we note that it is technical documentation, and not the terms of the guarantee);

• procurement of goods required for the execution of a state or municipal contract;

• purchases with indication of specific trademarks, etc., if provided terms of international treaties RF or the terms of customer agreements, in order to fulfill their obligations under concluded agreements with legal entities (but not with individuals, including individual entrepreneurs).

7. Features of the implementation of competitive procurement in electronic form among SMEs

This category of innovations can rightfully be called the main one, radically changing the rules of work for customers who are obliged to carry out purchases among SMEs (recall that this obligation does not exist for all customers).

1. Purchases are carried out at sites selected in accordance with the uniform requirements provided for by Law No. 44-FZ and supplemented by the Government of the Russian Federation (currently, 6 sites have been identified under Law No. 44-FZ). The list of relevant sites itself is approved by the Government of the Russian Federation. Thus, erroneous is the prevailing opinion that purchases among SMEs will take place only at the sites of the “state procurement six”. It is likely that the final list will expand significantly.

2. In such purchases, the customer can use closed list of procurement methods, are established and terms of placement notices before the deadline for submission of applications:

• competition in electronic form (at least 7 days if the NICD does not exceed RUB 30 million, 15 days - if it does);

• electronic auction (7 and 15 days, respectively);

• request for proposals in electronic form (5 working days, NICD cannot exceed 15 million rubles);

• request for quotations in electronic form (4 working days, NICD cannot exceed 7 million rubles).

3. Determined possible stages of the competition in electronic form:

1) the customer negotiating with the procurement participants the terms of the contract execution in order to clarify the required characteristics (consumer properties) of the purchased GWS or discussion by the customer of the proposals contained in the participants' applications in order to clarify the required characteristics (consumer properties) of the procured GWS (in the law, this clause is technically presented two stages, but they are not carried out together);

2) consideration and evaluation of applications for participation in the competition, containing the final proposals;

3) conducting a qualifying selection;

4) comparison of additional price offers on the reduction of the contract price, the cost of operation and repair of goods, the use of the results of work, services (in this case, the participants are informed about the lowest price offer).

At the same time, the sequence of stages specified in the law is observed, the timing of each stage is determined in the documentation, according to the results of each stage- a separate protocol is drawn up, the results are drawn up by the final protocol. When clarifying the documentation, submitting the final proposals.

4. An auction in electronic form may include the stage of the qualification selection (with the establishment of the date in the notice). "Step" of the auction - from 0.5% to 5% NICD, the decrease is only within the "step", you cannot submit a price offer equal to or greater than that already made by the participant.

5. When requesting quotations in electronic form, the application must include, among other things, a proposal for the price of the contract and consent to its implementation.

6. When requesting proposals in electronic form, it is allowed to conduct a qualification selection.

7. Securing applications for participation- by depositing funds to a special bank account from the list, determined by the Government of the Russian Federation, or providing a bank guarantee, at the choice of the procurement participant.

8. Accreditation of the procurement participant on the electronic site - in accordance with the procedure established by Law No. 44-FZ.

9. An application for participation in a request for quotations in electronic form consists of one part and a price offer. An application for participation in an electronic tender, auction, request for proposals consists of 2 parts:

• description of products (without disclosing information about the procurement participant, for disclosure - rejection of the application(before the latest amendments to Law No. 44-FZ, the wording was softer - there were no sanctions for disclosing such information in the first part of the application. Although it is obvious that nothing prevents the interested participant in the procurement from informally informing the customer about his participation (from a direct message to typical information marks in the application (formatting nuances, etc.));

• information about the participant (including compliance with the uniform qualification requirements), the final offer and other conditions for the performance of the contract.

10. The contract based on the results of competitive procurement with the participation of SMEs is concluded using the software and hardware of the electronic platform and must be signed with an electronic signature. Provided the possibility of drawing up a protocol of disagreements and obligation of the customer to indicate the reasons for the refusal take into account the comments.

Of course, the format of this review allows you to indicate and comment on only key changes, omitting technical details and particular points of innovations. It is quite possible that some of the noted problems will still be eliminated before the relevant regulations come into force, in which we will also try to take part.

In the same way, by a different lawspecifies the specifics of the procurement of certain types of goods, works, services, lease (including chartering, financial lease) by a number of customers-subjects of 223-FZ.

In conclusion, we note that in accordance with the considered law all customers need to amend the procurement regulations no later than January 1, 2019.

On the night of January 1, 2019, "the carriage will turn into a pumpkin": procurement provisions that do not comply with the amendments to the law are considered unplaced. This means that the customer, prior to the placement of the new regulation, will have to work according to the main provisions of Law No. 44-FZ.

However, it is recommended to take into account that a number of changes to the law have already entered into force (which means that it would be correct for the customer to already reflect them in his procurement regulation), while others will come into force from 01.07.2018 - which means that by this time it should also be corrected procurement regulations. It is clear that in practice, not all customers have the opportunity to make such amendments (for example, in large joint-stock companies, board meetings are held quite rarely and with a very busy agenda).

10.01.2018

As part of the last webinar, we were able to consider only a part of the changes in 223-FZ, which need to be applied from the beginning of this year.

And we will talk about these innovations in detail during the distance learning course in procurement in accordance with 223-FZ: "Organization of procurement of goods, works, services by certain types of legal entities in accordance with Federal Law No. 223-FZ of 18.07.2011" (taking into account the new edition No. 223-FZ). Prepare ahead of time to adjust your purchasing process.

Part 1. Changes to 223-FZ in 2018

At the end of 2017, four federal laws were adopted at once on amending Law No. 223-FZ:

• Federal Law of December 29, 2017 No. 470-FZ "On Amendments to Certain Legislative Acts of the Russian Federation";
• Federal Law of December 31, 2017 No. 481-FZ "On Amendments to Certain Legislative Acts of the Russian Federation";
• Federal Law of December 31, 2017 No. 496-FZ "On Amendments to the Federal Law" On the Procurement of Goods, Works, Services by Certain Types of Legal Entities ";
• Federal Law of December 31, 2017 No. 505-FZ "On Amendments to Certain Legislative Acts of the Russian Federation".

In addition, from the new year, two decrees of the Government of the Russian Federation on the support of SMEs come into force:

­

• Resolution of the Government of the Russian Federation of November 15, 2017 No. 1383;
• Resolution of the Government of the Russian Federation of August 19, 2016 No. 819.

The main law that amends Law No. 223-FZ is Federal Law No. 505-FZ of December 31, 2017. This law is a new stage in the reform of 223-FZ. The main part of the rules will come into force on July 1, 2018.

Particular attention should be paid to part 3 of Article 4 of Law No. 505-FZ, according to which the provisions on procurement must be brought in line with the requirements of the new edition of the law on procurement by certain types of legal entities no later than January 1, 2019. This means that until January 2, 2019, customers can apply the current version of Law No. 223-FZ and their procurement regulations in procurement. Notification of the procurement during this period can also be carried out according to the old rules, until the new edition of the procurement regulation is approved.

Since these innovations are not yet relevant, let's take a closer look at the changes that have already come into force.

I. Exclusions from the scope of 223-FZ

First, the list of exceptions from 223-FZ has been expanded: in part 4 of article 1 of the Procurement Law, new clauses 8, 12, 13, 14 appeared, which entered into force on December 31, 2017. Secondly, amendments have been made to clause 9 of part 4 of article 1; the new edition came into force on January 9, 2018. Clauses 8, 12, 13, 14 of Part 4 of Article 1 of Law No. 223-FZ are applicable to large state-owned companies and state corporations.

Article 1 of Law No. 223-FZ on procurement:

4. This Federal Law does not regulate relations related to:

8) the conclusion and execution of contracts in accordance with the legislation of the Russian Federation on the electric power industry, which are mandatory for participants in the circulation market

electrical energy and (or) power;

9) leasing operations and interbank operations carried out by the credit institution and the state corporation Bank for Development and Foreign Economic Affairs (Vnesheconombank), including with foreign banks;

12) the execution by the customer of the contract concluded with a foreign legal entity, the subject of which is the supply of goods, the performance of work, the provision of services outside the Russian Federation;

13) the customer's purchases of goods, works, services from legal entities that are recognized as interdependent entities in accordance with the Tax Code of the Russian Federation and the list of which is determined by legal acts provided for in Part 1 of Article 2 of this Federal Law and governing the procurement rules. Such legal acts indicate the justification for the inclusion in the specified list of each legal entity in accordance with the provisions of the Tax Code of the Russian Federation;

14) the purchase of goods, works, services by a legal entity registered in the territory of a foreign state in order to carry out its activities in the territory of a foreign state.

However, there is one change that affects almost all customers under 223-FZ.

Important!

Clause 8 of Part 4 of Article 1 excludes from the scope of the law relations related to the conclusion and execution of contracts in accordance with the legislation of the Russian Federation on the electric power industry, which are mandatory for participants in the market for the circulation of electrical energy and (or) capacity.

This clause applies to each customer who has a relationship with the guaranteeing supplier of electrical energy under an energy supply agreement or an electrical energy purchase and sale agreement.

Why did this rule appear?

Apparently, when developing the law, the goal was to relieve certain large customers from the need to register contracts of participants in the wholesale electricity market in the Unified Information System. But in the text of the law, a very unfortunate wording was applied, and as a result, it turned out that the new rule applies not only to participants in the wholesale electricity market, but also to participants in retail markets. And the participants in the retail electricity markets are all customers who have contracts with guaranteed electricity suppliers.

The fact is that in accordance with the Basic Provisions for the Functioning of Retail Electricity Markets (approved by Decree of the Government of the Russian Federation No. 442 dated May 4, 2012), the supplier of last resort is obliged to conclude an energy supply (purchase and sale of electricity) contract with any consumer who contacts him.

What does this mean?

As a result of this inaccuracy in the text of the law, it turns out that practically all contracts for the supply of electrical energy and contracts for energy supply with suppliers of last resort have been removed from the scope of 223-FZ. Accordingly, since December 31, 2017, Law No. 223-FZ does not apply to these relations, and such contracts are not subject to inclusion in procurement plans, are not registered in the EIS, and so on. For customers under 223-FZ, this greatly simplifies the conclusion and execution of contracts with guaranteed electricity suppliers.

II. Purchasing for commercial use

Part 1 of Article 3 of Law No. 223-FZ was amended to clarify that now the law applies to purchases related to the commercial use of goods, works, services. This regulation came into force on December 31, 2017 and is purely technical in nature.

The fact is that some customers tried to exclude these purchases from the scope of 223-FZ, arguing their position by the fact that the procurement of goods, works and services for commercial use falls within the scope of the law. Now, if a customer, purchasing goods, works, services for commercial use, wants to withdraw such purchases from under 223-FZ, he has two options:

1. procurement through so-called interdependent legal entities;
2. inclusion of such purchases in the list of cases of purchases from a single supplier.

What is procurement through interdependent legal entities?

Clause 13 of Part 4 of Article 1 of Law No. 223-FZ removes from the law the relations associated with the implementation of purchases through legal entities interdependent with the customer, the list of which is specified in the procurement regulation.

For tax purposes, interdependent persons are organizations, the relationship between which may affect the conditions or economic results of their activities or the activities of the persons they represent, namely:

1) one organization directly and (or) indirectly participates in another organization, and the total share of such participation is more than 20 percent. The share of indirect participation of one organization in another through a sequence of other organizations is determined in the form of the product of the shares of direct participation of organizations of this sequence one in another (clause 1 of clause 1 of article 20 of the Tax Code of the Russian Federation).

That is, we are talking about affiliated legal entities.

Also, the concept of interdependent persons is contained in clause 2 of Article 105.1 of the Tax Code of the Russian Federation.

It is believed that customers will actively use this provision to move away from the provisions of 223-FZ. However, the speaker cannot agree with this statement, since from the point of view of tax legislation, for most customers there is no point in such actions, since transactions between related parties in many cases entail tax control provided for in Chapter 14.5 of the Tax Code of the Russian Federation (Articles 105.17, 105.18 ).

The main change that should be paid attention to all customers under 223-FZ is the exemption from the law of contracts for energy supply and sale and purchase of electricity with suppliers of last resort. Such purchases now do not apply to either 223-FZ or 44-FZ, but are carried out within the framework of a regular contract and are not taken into account anywhere.

Part 2. Changes in work in the ENI in 2018

The next big block of changes concerns the procedure for placing information in a unified information system in the field of procurement.

I. Information that customers have the right not to post in the EIS

Firstly, in the new version of the law, part 15 of article 4 establishes a list of information that customers have the right not to post in the EIS. The norm came into force on December 31, 2017. There are a number of cases when customers have the right not to post information about procurement in the EIS. Now, along with information about purchases, the cost of which does not exceed 100/500 thousand rubles, customers may also not post information in the unified information system:

1. on the procurement of a number of financial services that are listed in the law (clause 2 of part 15 of article 4 of FZ-223):
   • services for attracting in deposits (including placement of deposits) funds of organizations;
   • provision of loans and borrowings;
   • services for the issuance of bank guarantees and sureties;
   • services for opening and maintaining accounts, including letters of credit;
   • brokerage services;
   • depository services.
2. on the procurement of services for the trust management of property (clause 2 of part 15 of article 4 of FZ-223);
3. on purchases related to the conclusion and execution of a sale and purchase agreement, lease (sublease), a trust management agreement for state or municipal property (clause 3 of part 15 of article 4 of FZ-223);
4. on purchases related to the conclusion and execution of any contracts providing for the transfer of ownership and (or) use of real estate (contracts of sale, lease, sublease of real estate, etc.) (clause 3 of part 15 of article 4 of the Federal Law -223).

The contracts that any organization has are contracts for settlement and cash services. Now, customers may not post information about such contracts in the EIS (that is, do not show such purchases either in procurement plans or in the register of contracts). Most customers also have real estate lease agreements. In the reporting on the total number and value of contracts concluded, such purchases should be indicated, but information about the purchase itself (notification, documentation, protocol) does not need to be placed in the EIS. This innovation greatly facilitates the procurement activities of ordinary customers. The norm does not apply to contracts concluded before December 31, 2017.

II. Information not subject to placement in the EIS

Part 16 of Article 4 of Law No. 223-FZ was supplemented with clauses 3 and 4, which entered into force on December 31, 2017 and expand the powers of the Government of the Russian Federation in terms of determining information that is not subject to placement in the EIS.

Article 4 of Law No. 223-FZ on procurement:

16. The Government of the Russian Federation has the right to determine:

3) a list of grounds for non-placement in the unified information system of information about the supplier (contractor, performer) with whom the contract has been concluded;

4) lists and (or) groups of goods, works, services, purchases of which are carried out by specific customers, information on the purchase of which does not constitute a state secret, but is not subject to placement in a unified information system.

In February 2018, Russia will face new sanctions from the United States and a number of other Western states, which will also include some of the largest Russian customers under 223-FZ. The government of the Russian Federation is obviously introducing additional measures to prevent such customers from posting information about purchases and counterparties, which may otherwise also fall under sanctions. Most customers will not be affected by this rule.

III. List of documents placed in the EIS

The list of documents placed in the UIS was supplemented by decisions on accession to the procurement regulation, on accession to the amendments to the procurement regulation of the management bodies of subsidiaries. The norms are enshrined in parts 4 and 5 of Article 2 of Law No. 223-FZ and entered into force on December 31, 2017.

These amendments legalized the practice, which exists in a number of large state-owned companies and corporations, when subsidiaries join the procurement regulation of the parent organization or parent company.

Note. Now, the UIS does not place the procurement regulation itself, approved by the governing body of the subsidiary, but the decision to join the procurement regulation or the decision to join the amendments to the procurement regulation. The term for placing a decision of the management body of a subsidiary in the UIS is 15 calendar days from the date of its adoption.

Part 3. New procedure for appealing purchases under 223-FZ in 2018

I. List of grounds for administrative appeal

Since December 31, 2017, the list of grounds for administrative appeal of actions (inaction) of the customer, the procurement commission in the FAS Russia, as well as the circle of persons who may submit such complaints has been expanded.

It was

Last year, the Presidium of the Supreme Court of the Russian Federation formulated a legal position according to which it is possible to complain about the customer's actions only on the grounds specified in part 10 of Article 3 of Law No. 223-FZ. Accordingly, until December 31, 2017, there was a limited list of cases of appeal against the actions (inaction) of customers, which made it possible to cancel most of the decisions of the antimonopoly authorities on the recognition of such actions as illegal.

Has become

The new version of part 10 of Article 3 of Law No. 223-FZ establishes the following grounds for appeal:

1. the customer's procurement in violation of the requirements of Law No. 223-FZ on procurement and (or) the procedure for preparing and (or) carrying out the procurement contained in the procurement regulation posted in the EIS;
2. non-placement in the EIS of the procurement regulation, changes made to the specified provision, information on procurement, information and documents on contracts concluded by customers based on the results of the procurement, other information to be placed in the EIS, or violation of the terms of such placement;
3. presentation of requirements to the procurement participants that are not provided for in the competitive procurement documentation;
4. the implementation by customers of the purchase of goods, works, services in the absence of an approved procurement regulation and posted in the unified information system and without applying certain provisions of the Federal Law dated April 5, 2013 No. 44-FZ "On the contract system in the field of procurement of goods, works, services to ensure state and municipal needs ", including violation of the procedure for the application of these provisions;
5. non-placement in the EIS or placement of inaccurate information about the annual volume of purchases, which customers are required to carry out from SMEs.

The fundamental change is the first point of appeal. any violation of 223-ФЗ or procurement regulations.

Also, from December 31, 2017, the Joint Stock Company Federal Corporation for the Development of Small and Medium-Sized Businesses, as well as the executive authorities of the constituent entities of the Russian Federation and the organizations created by them, received the right to appeal the purchases of customers in respect of which they conduct compliance monitoring or conformity assessment (in accordance with Art. 51 of Law No. 223-FZ), if the rights of participants - SMEs are violated during such purchases.

What does this mean? There are orders of the Government of the Russian Federation, according to which the SME Corporation and the executive authorities of the constituent entities of the Russian Federation exercise control over certain customers specified in these orders. The Corporation and such authorities are now free to file complaints against these customers.

Practical implications of change

The list of cases of appeal under 223-FZ is now is closed... This list does not include a number of requirements established by Law No. 135-FZ "On Protection of Competition", including violation of antimonopoly requirements for trading in accordance with Part 1 of Article 17 of this Federal Law. Accordingly, a violation of Article 17 of Law No. 135-FZ can no longer be considered within the framework of Part 10 of Article 3 of Law No. 223-FZ. Consideration of applications from procurement participants on violation of Article 17 of the Law "On Protection of Competition" should be carried out only within the framework of consideration of a case on violations of antimonopoly legislation.

II. General procedure for filing a complaint

The general procedure for filing a complaint against the actions (inaction) of the customer, the procurement commission has been determined, and the features of its application have been established.

The new version of Part 10 of Article 3 of Law No. 223-FZ states: any procurement participant has the right to appeal to the antimonopoly body in accordance with the procedure established by Article 18.1 of the Federal Law No. 135-FZ of July 26, 2006 "On Protection of Competition", taking into account the specifics established this article, the actions (inaction) of the customer, the procurement commission, the operator of the electronic site when purchasing goods, works, services, if such actions (inaction) violate the rights and legitimate interests of the procurement participant.

That is, the general procedure for considering complaints is set out in Article 18.1 of Law No. 135-FZ, especially in Article 3 of Law No. 223-FZ.

Features of the application of Article 18.1 of the Law "On Protection of Competition"

1. If the appealed actions (inaction) are committed after the end of the deadline for filing applications for participation in the procurement established in the competitive procurement documentation, then the appeal of such actions (inaction) can be carried out only by the procurement participant who has submitted an application for participation in the procurement (part 11 of Article 3 of Law No. 223 -FZ on procurement). That is, if a person complains about the provisions of the procurement documentation after the end of the submission of applications, but he did not submit an application, then his complaint is not subject to consideration.
2. The consideration of the complaint by the antimonopoly body should be limited to the arguments that constitute the subject of the appeal (part 13 of article 3 of Law No. 223-FZ on procurement). This means that the competition authority should only consider the reasons given in the initial complaint of the participant. If the antimonopoly authority makes a decision on the arguments that were not indicated in the complaint (including independently identifies any violations and indicates them in its decision), then such a decision is illegal.
   The fact is that in Article 18.1 of Law No. 135-FZ there is a rule that the antimonopoly authority is not limited by the arguments of the complaint and can reveal other violations, including those not specified in the complaint. Since December 31, 2017, this provision on the consideration of a complaint against the customer's actions under 223-FZ is not valid. The antimonopoly authority is deprived of the authority to consider arguments not specified in the initial complaint.

Attention!

The most pressing problem of appeal under Part 10 of Art. 223-FZ from December 31, 2017, the question becomes how to interpret in it the phrase "any procurement participant has the right to appeal" - individually or in connection with its continuation: "any procurement participant has the right to appeal to the antimonopoly body in the manner prescribed by article 18.1 of the Federal Law of July 26, 2006 N 135-FZ "?

It should be noted that at the moment, in accordance with Part 2 of Article 18.1 of the Law "On Protection of Competition", a complaint about the actions (inaction) of the customer can be filed only by two categories of applicants:

2nd category of applicants:“Other persons” (for example, procurement participants who did not submit bids, the SME development corporation, executive authorities of the constituent entities of the Russian Federation or organizations created by them) have the right to appeal against the violation of the procedure for posting information on procurement, the procedure for submitting applications for participation in the procurement, established by regulatory legal acts, if as a result of violation of the procedure for organizing and conducting procurement, their rights and legitimate interests may be violated.

Thus, if we consider the phrase in its entirety: "Any procurement participant has the right to appeal to the antimonopoly body in accordance with the procedure established by Article 18.1 of the Federal Law of July 26, 2006 N 135-FZ", then only procurement participants who submitted bids can appeal against the actions of the customer.

If the rule is interpreted in the same way as the FAS Russia will do, then any participant can appeal against the customer's actions.

Thus, a problem will soon be created in legal practice when the antimonopoly authorities will accept complaints from all applicants, and customers will try to prove that complaints can only be accepted from participants who have applied for participation in the procurement.

Part 4. Tightening control over purchases under 223-FZ in 2018

The next block of changes is aimed at strengthening the control of state bodies and local self-government bodies over purchases of subordinate budgetary and autonomous institutions, unitary enterprises.

I. Model Procurement Provisions

From December 31, 2017, parts 2.1 - 2.7 of Article 2 of Law No. 223-FZ entered into force, and now for budgetary and autonomous institutions, unitary enterprises, mandatory standard provisions on their procurement by the founder or owner, that is, by a public authority, can be adopted, who acts as a founder or owner. At the level of constituent entities of the Russian Federation and municipalities, model provisions can be approved by the authorized executive body of the constituent entity, the authorized body of local self-government.

What is a model procurement clause?

A standard procurement regulation is not a procurement regulation per se, but the requirements of the founder, owner, authorized body, which are binding on the customer when developing a procurement regulation, approving it or amending it.

A standard procurement clause should contain:

1. The list of specific subordinate customers - budgetary and autonomous institutions, unitary enterprises, for which the application of such a standard procurement provision is mandatory (part 2.1 of Article 2 223-FZ).
2. An indication of the date before which the relevant budgetary institutions, autonomous institutions, unitary enterprises are required to amend the procurement regulation or approve a new procurement regulation in accordance with this model provision (part 2.2 of Article 2 of Law No. 223-FZ). The following information not subject to change during the development and approval of procurement regulations by subordinate customers:
   • the procedure for the preparation and (or) implementation of the procurement;
   • methods of procurement and conditions for their use;
   • the term for concluding a contract based on the results of a competitive purchase (part 2.3 of Article 2 of Law No. 223-FZ).
3. Specifics of participation of small and medium-sized businesses in procurement, provided for by the RF Government Decree No. 1352 dated December 11, 2014 (part 2.4 of Article 2 of Law No. 223-FZ).

The standard procurement regulation establishes only a strictly defined list of items that should be contained in the customer's procurement regulation: the procedure for preparing and carrying out the procurement, procurement methods and conditions for their application, the term for concluding a contract based on the results of competitive procurement.

Please note that the procedure for the execution of contracts and some other issues regarding which the founder is not entitled to establish requirements in the standard regulation are not regulated here.

Now, in order for the standard provision to be mandatory for subordinate customers, including for customers in Moscow and the Moscow region, this standard provision must be posted in the EIS by the body that approved it within 15 calendar days from the date of its approval. When making changes to the standard procurement regulation, they must also be placed in the EIS within 15 calendar days from the date of their approval by the authorized body.

Since December 31, 2017, all the current model procurement provisions are not formally required for application, since they are not placed in the EIS, since at the moment there is no possibility of placing model provisions in the EIS. In order for such an opportunity to appear, it is necessary to amend the Regulation on the placement of information on procurement in a unified information system, approved by Decree of the Government of the Russian Federation of September 10, 2012 No. 908, as well as to refine the functionality of the EIS. Therefore, the speaker advises the authorized bodies not to rush to publish standard regulations, since there is no possibility of their placement in the EIS yet, and also for the reason that the main changes to 223-FZ will come into force only from July 1, 2018.

II. Departmental control

Article 6.1 of Law No. 223-FZ entered into force, which imposes on state bodies and local self-government bodies the obligation to exercise departmental control over purchases of subordinate autonomous and budgetary institutions, unitary enterprises.

The procedure for the implementation of departmental control over procurement activities should be established at the level of each public-law entity:

1) for federal state institutions and federal state unitary enterprises - by the Government of the Russian Federation;

2) for state institutions and state unitary enterprises of a constituent entity of the Russian Federation - the highest executive body of a constituent entity of the Russian Federation;

3) for municipal institutions and municipal unitary enterprises - by the local administration.

Part 5. Changes in procurement under 223-FZ from SMEs in 2018

I. The circle of customers obliged to purchase from SMEs

According to the Decree of the Government of the Russian Federation of November 15, 2017 No. 1383 "On Amendments to Certain Acts of the Government of the Russian Federation" from January 1, 2018, the range of customers who are required to make purchases from SMEs has been significantly expanded, as well as a change in the form of the annual procurement report from SMEs.

Now the responsibility to support small and medium-sized businesses is assigned to all customers (except for autonomous institutions and customers that are SMEs), whose annual revenue from the sale of products (sale of goods, performance of work, provision of services) according to the annual accounting (financial) statements for the previous calendar year exceeds 500 million rubles.

It should be noted that this amendment applies to all customers with this amount of revenue, including unitary enterprises and budgetary institutions when making purchases under 223-FZ.

Also, the requirement to support the SMP applies to customers who are credit institutions, the amount of assets of which, according to the data of the annual accounting (financial) statements for the previous calendar year, exceeds 500 million rubles, and for customers who are autonomous institutions, the total value of contracts concluded as a result of the purchase of goods, works, services for the previous calendar year exceeds 250 million rubles.

II. Annual volume of direct purchases from SMEs

According to the Decree of the Government of the Russian Federation of August 19, 2016 No. 819, which is in effect from January 1, 2018, the annual volume of direct purchases from SMEs has been increased from 10 to 15% (both planned and the total value of concluded contracts).

Part 6. Other changes 223-FZ in 2018

Changes in this block are of a technical nature.

• I. The Federal Treasury maintains the Register of customers under 223-FZ registered in the unified information system in the field of procurement (part 18.1 of Article 4 of Law No. 223-FZ has been in effect since December 31, 2017). Registration of customers is carried out at the present time in the register of customers in the EIS. Now a separate decree of the Government of the Russian Federation will appear, which will establish the procedure for maintaining the register of customers in the EIS in accordance with 223-FZ.
• II. Since December 31, 2017, it is allowed to use corporate, regional and municipal information systems to post information that is subject to placement in the EIS under 223-FZ (parts 22-25 of article 4 of Law No. 223-FZ). Thus, the practice of posting information on procurement through their regional information systems existing in a number of subjects of the Russian Federation is legalized. It is also allowed to post information through corporate information systems. At the same time, the information posted in the EIS has priority over the information posted in such systems.
• III. The legal consequences of the customer's failure to post the procurement regulation or the decision to join the procurement regulation by the parent organization (part 5.1 of Article 8 of Law No. 223-FZ) have been concretized. Previously, for non-placement of the procurement provision in the EIS within the specified time period, the customer had to carry out purchases in accordance with 44-FZ. Now the customer in such a situation should not apply all the provisions of 44-FZ, but only those listed in part 5.1 of Article 8 of Law No. 223-FZ:
  1. substantiation of the initial (maximum) contract price, the price of a contract concluded with a single supplier (performer, contractor);
  2. selection of a method for determining a supplier (performer, contractor);
  3. procurement from small businesses, socially oriented non-profit organizations in accordance with parts 1 - 3, 5 - 8 of Article 30 of Law No. 44-FZ. In this case, for the purposes of this part, the aggregate annual volume of purchases of the customer means the aggregate volume of prices of contracts concluded by the customer from February 1 to the end of the calendar year;
  4. application of requirements to procurement participants;
  5. evaluation of bids, final proposals of procurement participants;
  6. creation and functioning of the procurement commission;
  7. determination of the supplier (performer, contractor) in accordance with paragraphs 2 - 5 of Chapter 3 of Law No. 44-FZ. At the same time, customers:
     • a) send to the federal executive body authorized to exercise control in the field of procurement and maintaining the register of unscrupulous suppliers (executors, contractors) information about procurement participants who avoided concluding contracts, as well as suppliers (executors, contractors) with whom contracts terminated by a court decision in connection with a significant violation of the terms of contracts by them in accordance with this Federal Law;
     • b) do not coordinate the application of a closed tender, a closed tender with limited participation, a closed two-stage tender, a closed auction with the federal executive body authorized by the Government of the Russian Federation to carry out such an approval;
  8. procurement from a single supplier (performer, contractor) in the cases provided for in part 1 of Article 93 of Law No. 44-FZ. At the same time, customers:
     • a) do not agree with the procurement control body to conclude a contract with a single supplier (performer, contractor) if an open tender, tender with limited participation, two-stage tender, re-tender or request for proposals is declared invalid;
     • b) do not send a notice of procurement from a single supplier (performer, contractor) to the procurement control body.
     • Complaints about the non-application by customers of certain provisions of 44-FZ, as well as violations of the procedure for applying these provisions of 44-FZ, are considered not within the framework of 44-FZ, but under Part 10 of Art. 3 of Law No. 223-FZ and Art. 18.1 of Law No. 135-FZ.

Answers on questions

Why is it necessary to show contracts for settlement and cash services in the monthly reporting? Unlike contracts for the supply of electricity with suppliers of last resort, contracts for settlement and cash services are not excluded from the action of 223-FZ. Part 15 of Article 4 makes it possible not to post information about such purchases, with the exception of monthly reporting on the number and total cost of contracts and reporting on the number and total cost of contracts from a single supplier. We rent power grid equipment - this is movable and immovable property. Are these contracts not being placed now either? Such purchases are not excluded from the action of 223-FZ, therefore the customer has no right not to post information about the lease of property in the EIS. Do I need to report on the execution of the energy supply contract at the end of 2018? If the agreement was posted before December 31, 2017, then it is advisable to post information about the execution of such an agreement. If we rent out municipal property transferred to us by the founder for operational management, do we also have the right not to post information? This is not a purchase. When renting out such property, one should be guided by the rules for leasing state and municipal property established by Article 17.1 of Law No. 135-FZ and Order No. 67 of the FAS Russia dated 10.02.2010. , then how to show such an agreement in the report if the customer fell under the RF PP 1352 from January 1, 2018? According to the speaker, since the procurement ends with the conclusion of an agreement, it is advisable to refer this procurement to procurement in 2018 and to include it in the procurement volume under the RF Resolution No. 1352 for 2018. If now we do not need to indicate the supplier in the contract, then what about the protocol? Except for the treasury, no one sees the agreement, but everyone sees the protocol. What's the point of not posting a contract? Indeed, the maintenance of the register of contracts was suspended, which is maintained by customers within the framework of 223-FZ in terms of posting information about the supplier (counterparty) until July 1, 2018. The state is taking these measures to hedge against the expansion of sanctions in February 2018 against the largest state-owned companies and state corporations, since their counterparties may also fall under these sanctions. Requirements for the content of the procurement protocol are established by the customer's procurement regulations and the Regulations on placing information in the EIS, approved by the RF Government Regulation 908. It does not indicate that information about the winner should be included in the protocol. Therefore, if the regulation does not provide otherwise, then it is possible to indicate in the protocol not the name of the winner, but the serial number assigned to him. Are purchases from a single supplier up to 100 thousand rubles included in the NSR report? Yes, they do. If the founder does not develop and approve the model procurement regulation, can the autonomous institution approve its regulation and operate on it from July 1, 2018? An autonomous institution cannot, but must do it. In accordance with the PP of the Russian Federation 608, in the new form of the annual report, it is necessary to indicate the value of the payment in the reporting year, taking into account the volume of payments in the reporting year for contracts whose term of execution exceeds one calendar year. What do you mean - the actual payment or the amount of contracts? According to the speaker, we are not talking about the amounts of actual payment, but about the amounts that are indicated in the concluded contracts.