Analytics analytical reviews. National treatment and preferences in government procurement Priority for goods of foreign origin under Federal Law 223

Two applications were received for the request for proposals. In the first, 95% of goods are Russian-made and 5% foreign. In the second - all goods produced in the Russian Federation. Is it necessary to give priority to the second company if the terms of reference do not specify a list of only Russian manufacturers?

Answer

Oksana Balandina, chief editor of the State Order System

From July 1, 2018 to January 1, 2019, customers have a transition period - they are allowed to carry out both electronic and paper procedures. Starting from 2019, tenders, auctions, quotations and requests for proposals on paper will be prohibited, with eight exceptions.
Read what kind of purchases to carry out on the ETP, how to choose a site and obtain an electronic signature, what rules are used to conclude contracts during the transition period and after.

Subject to the conditions defined by Resolution No. 925, namely: for the purpose of establishing the ratio of the price of goods of Russian and foreign origin offered for supply, the unit price of each product is determined as the product of the initial (maximum) price of a unit of goods specified in the procurement documentation by the coefficient of change in the initial ( maximum) contract price based on the results of the procurement, determined as the result of dividing the contract price at which the contract is concluded by the initial (maximum) contract price, priority in this case is not granted, applications do not contain proposals for the supply of foreign products.

From January 1, 2017, when purchasing under Law No. 223-FZ, goods of Russian origin, works and services performed and provided by Russian persons shall be given priority. This rule was established by the Government of the Russian Federation in Resolution No. 925 dated September 16, 2016.

Set priority taking into account the following provisions:

• General Agreement on Tariffs and Trade 1994 - GATT 1994 (WTO protocol of December 16, 2011);
• Treaty on the Eurasian Economic Union of May 29, 2014

When to give priority to Russian procurement objects under 223-FZ

Priority is given to domestic goods, works and services if the procurement documentation contains:

• requirement for the procurement participant to indicate in the application or part thereof the name of the country of origin of the goods;
• provision on the liability of procurement participants who provide false information about the country of origin of the goods;
• information about the initial (maximum) unit price of each product, work, or service purchased;
• the condition that an application that does not indicate the country of origin of the goods is not rejected, but is considered as an offer to supply foreign goods;
• a condition on how to determine the ratio of the price of procurement objects of Russian and foreign origin;
• condition for classifying a procurement participant as a Russian or foreign person. Based on documents about the place of registration of the participant-organization and individual entrepreneur or identification documents for individuals;
• indication of the country of origin of the supplied goods based on information from the application for participation in the procurement from the participant with whom the contract is concluded;
• provision for concluding a contract in case of evasion by the winner. If in the end you conclude an agreement with a participant who offered the same conditions or second ones after the winner;
• a condition on replacing the country of origin of the goods during the execution of the contract. The main condition for replacing a product is that the quality, technical and functional characteristics or consumer properties are not inferior to those specified in the contract.

The Government of the Russian Federation approved this list in paragraph 5 of Resolution No. 925 dated September 16, 2016.

To determine the ratio, calculate the unit price of each good, work and service that the participant offered using the formula:

To calculate the coefficient of change in the NMC of the contract, use the formula:

When to give priority to Russian procurement objects under 223-FZ

Set priority to domestic goods, works and services in two cases.

First case. Conduct a tender or procurement in a manner in which:

• the winner is determined based on the evaluation criteria and comparison of applications from the procurement documentation;
• the winner offered the lowest contract price.

Evaluate and compare applications based on cost criteria, reducing the contract price by 15 percent in applications that contain proposals for the supply of goods of Russian origin, performance of work, and provision of services by Russian persons.

In this situation, the contract is concluded at the price proposed by the participant in the application.

Second case. Conduct an auction or purchase in a way in which you determine the winner by reducing the initial (maximum) price of the contract by the “step” that is established in the documentation.

Conclude an agreement at the price offered by the winner, reduced by 15 percent, if:

• carry out procurement to determine the supplier (contractor, performer);

Conclude an agreement at the price offered by the winner, increased by 15 percent, if:

• conduct a purchase for the right to conclude an agreement (the price is reduced to zero);
• The winner's application contains a proposal for the supply of foreign goods or for the performance of work or provision of services by foreign persons.

When not to give priority to Russian procurement objects under 223-FZ

Do not give priority if:

• the purchase was declared invalid and the contract is concluded with a single participant;
• in the application for participation in the procurement there are no proposals for the supply of Russian goods and the performance of work or provision of services by Russian persons;
• in the application for participation in the procurement there are no proposals for the supply of foreign goods and performance of work, provision of services by foreign persons;
• the cost of Russian procurement objects from the application is less than 50 percent and the winner is determined on the basis of evaluation criteria;
• the cost of Russian procurement objects from the application is more than 50 percent and the winner is determined by reducing the initial (maximum) contract price by a “step” from the documentation;
• posted procurement notices in the Unified Information System or sent invitations to participate before the entry into force of the resolution that establishes priority;
• goods, works, services are purchased from a single supplier.

For quite a long time, the legislation on procurement by certain types of legal entities did not undergo significant changes that would significantly affect the procedure for organizing and conducting procurement of all customers applying the provisions of Law N 223-FZ.
On September 16, 2016, the Government of the Russian Federation adopted Resolution N 925 “On the priority of goods of Russian origin, work, services performed and provided by Russian persons in relation to goods originating from a foreign state, work, services performed and provided by foreign persons” (hereinafter - Resolution).
The adoption of this Resolution became the implementation of the provisions provided for in Part 8 of Art. 3 of Law N 223-FZ of the right of the Government of the Russian Federation to establish the priority of goods of Russian origin, work, services performed and provided by Russian persons in relation to goods originating from a foreign state, work, services performed and provided by foreign persons.
The said Resolution comes into force on January 1, 2017 and does not apply to procurements, notices of which are posted in the Unified Information System or invitations to participate in which are sent before the date of its entry into force. In addition, establishing advantages for Russian goods and/or manufacturers before the entry into force of the specified regulatory act will be illegal (letter of the Ministry of Economic Development of Russia dated April 26, 2016 N D28i-1038).
In general, the algorithm and mechanism for granting national priority in accordance with the Resolution is in many ways similar to the similar mechanism for establishing preferential treatment for national goods provided for by Order of the Ministry of Economic Development of Russia dated March 25, 2014 N 155 “On the conditions for the admission of goods originating from foreign countries for the purpose of purchasing goods , works, services to meet state and municipal needs" (hereinafter referred to as the Order), the application of the provisions of which is carried out by customers within the framework of the legislation on the contract system. But there are fundamental differences in these documents, in particular:
1) the resolution, unlike the Order, does not contain a specific list of goods in respect of which priority is established. This means that customers are required to set a priority when purchasing any goods purchased under Law N 223-FZ (draft Resolution N 925 initially provided for a specific list, but it was not included in the final version of the document);
2) the resolution, unlike the Order, provides for the establishment of priority not only in relation to goods, but also in relation to work and services that are performed/provided by Russian persons.
It should be noted that today the main question in the application of this Resolution is the following: for which goods should national treatment be established within the framework of the Resolution?
Despite the seemingly unambiguous answer to this question, based on the title of the Resolution itself “On the priority of goods of Russian origin...”, the final answer to the above question does not seem so simple and obvious, since paragraph 8 of the Resolution contains the rule according to which “priority is established taking into account the provisions of the General Agreement on Tariffs and Trade of 1994 and the Treaty on the Eurasian Economic Union of May 29, 2014."
The Resolution itself, unfortunately, does not contain either direct or indirect instructions in what part and under what conditions the General Agreement on Tariffs and Trade and the Treaty on the Eurasian Economic Union specified in paragraph 8 of the Resolution should be applied. In this regard, it is not possible to make an unambiguous conclusion that the national treatment in procurement under Law N 223-FZ still applies to goods originating from the territory of the member states of the Eurasian Economic Union (EAEU) - the Russian Federation, the Republic of Belarus, Republic of Kazakhstan, Kyrgyz Republic, Republic of Armenia.
If we turn to the Treaty on the EAEU itself, Appendix No. 25 to the treaty provides a definition of national treatment. It is understood as a regime providing that each EAEU member state, for procurement purposes, provides goods, works and services originating from the territories of the Member States to potential suppliers of the Member States and suppliers of the Member States offering such goods, performing work and providing services , the treatment is no less favorable than that provided to goods, works and services originating from the territory of their state, as well as to potential suppliers and suppliers of their state offering such goods, performing work and providing services.
Thus, from the point of view of the Treaty on the EAEU itself, the Russian Federation, as its party, is obliged to establish a national regime in procurement for goods originating from the territory of the EAEU member states.
Obviously, clarifications from the developer of the regulatory legal act in question, represented by the Russian Ministry of Economic Development, could shed light on this issue. And such explanations have already been given, but, unfortunately, they do not put a final point in resolving this issue.
In one of the letters from the Ministry of Economic Development of Russia (dated October 21, 2016 N D28i-2806), it was explained that Resolution No. 925 will be applied taking into account the legislation of the EAEU, while the application of the Resolution should not contradict the norms of international law (it must be assumed that under the norms of international law This refers primarily to documents and agreements with the World Trade Organization, which does not provide for the possibility of establishing such restrictions outside the framework and areas of public procurement, defense and state security, protection of human life and health, etc.)
Subsequently, the department gave a more expanded interpretation of the controversial provision of the Resolution (letters from the Ministry of Economic Development of Russia dated October 21, 2016 N D28i-2858, N D28i-2839) indicating that Belarusian goods, as well as work and services performed by persons of this country, will be on an equal basis with domestic ones have priority over foreign goods, works and services provided by foreigners.
This clarification brought even greater confusion to the understanding of this problem, since, by indicating in the response only one of the EAEU countries, the department forced most experts to ask a reasonable question: is this a direct indication of the need to provide national priority in procurement under Law N 223-FZ exclusively goods of Belarusian origin (then the motives and legal grounds for this advantage are unclear, especially the norms of paragraph 8 of the Resolution and the direct reference to the Treaty on the EAEU), or is this an “opaque hint” from the department to a wider application and interpretation of the norms of the Resolution.
Nevertheless, it is too early to put an end to this issue, and before this Resolution comes into force, it is possible to predict the appearance of one more, or even several clarifications, including from other departments of the Russian Ministry of Economic Development responsible for regulating foreign economic activity.
In anticipation of clarity on this issue, customers should, in the time remaining before this Resolution enters into force, after familiarizing themselves with the Resolution itself, begin preparing changes to their procurement regulations and documentation on competitive procurement (the provisions of the Resolution do not apply to purchases from a single supplier). This is due to the fact that the mechanism for applying the Resolution and granting priority significantly modifies key sections and norms of procurement regulations and customer procurement documentation.
Let us consider which sections of the regulation and in connection with which requirements of the Resolution are subject to change.

1. Criteria and procedure for evaluating and comparing applications

The rules of the Resolution provide that when holding a tender or other procurement method in which:
- the winner of the procurement is determined based on the criteria for evaluating and comparing applications for participation in the procurement specified in the procurement documentation, or
- the winner in which is the person who offered the lowest contract price, -
Evaluation and comparison of applications according to cost criteria are carried out at the contract price proposed in the applications, reduced by 15%, while the contract is concluded at the contract price proposed by the procurement participant.

2. Procedure for concluding an agreement

Thus, when purchasing goods, works, services through an auction or another method in which the winner is determined by reducing the initial (maximum) contract price specified in the procurement notice by the “step” established in the procurement documentation, the winner is determined in general terms as the participant who offered the lowest contract price.
However, if the winner of the purchase is a supplier offering foreign goods (a foreign legal entity), the customer applies a 15 percent reduction factor to the contract price proposed in the winner’s application.
For example, if the winner of the auction was a participant offering foreign goods for delivery and the price of his offer was 100 rubles, then, by virtue of this condition, the customer is obliged to apply a 15 percent reduction factor, and the contract price will not be 100, but 85 rubles.
If during the auction the price was reduced to zero and participants are bidding for the right to conclude an agreement with the customer, then the winner offering foreign goods for delivery (foreign legal entity) will have to pay an additional 15% to the price he offered.

3. Requirements for procurement participants (in terms of establishingconditions for classifying a procurement participant as Russian/foreign
persons)

In accordance with sub. “e” clause 5 of the Resolution “... the condition for granting priority is to include in the procurement documentation the condition for classifying the procurement participant as a Russian or foreign entity on the basis of the procurement participant’s documents containing information about the place of its registration (for legal entities and individual entrepreneurs), based on identification documents (for individuals)"
The location of a legal entity means the place of its state registration on the territory of the Russian Federation. Thus, the customer’s decision to classify a particular procurement participant as a Russian legal entity is based on the registration data of the specified entity, which is contained in its constituent documents (as well as in an extract from the Unified State Register of Legal Entities).

4. Conditions when priority is not granted

In accordance with the Resolution, such conditions include cases when:
- the procurement is declared invalid and the contract is concluded with the only procurement participant;
- the application for participation in the procurement does not contain proposals for the supply of goods of Russian origin, performance of work, provision of services by Russian persons;
- the application for participation in the procurement does not contain proposals for the supply of goods of foreign origin, performance of work, provision of services by foreign persons;
- when holding a competition (request for proposals), if the application contains a proposal to supply goods of Russian and foreign origin, perform work, provide services by Russian and foreign persons, while the cost of goods of Russian origin, the cost of work, services performed, provided by Russian persons, amounts to less than 50% of the cost of all goods, works, and services offered by such participant;
- during an auction (request for prices) if the application contains a proposal to supply goods of Russian and foreign origin, perform work, provide services by Russian and foreign persons, while the cost of goods of Russian origin, the cost of work, services performed, provided by Russian persons constitutes more than 50% of the cost of all goods, works, and services offered by such participant.

5. Requirements for the composition of the application for participation in the procurement.Review of applications

The resolution established that the condition for classifying goods as Russian is the indication (declaration) by the participants in the application (in the relevant part of the application containing the proposal for the supply of goods) of the name of the country of origin of the goods supplied. In addition, the documentation (regulations) must include a condition on the responsibility of procurement participants for providing false information about the country of origin of the goods specified in the application for participation in the procurement.
However, customers must take into account that, according to the Resolution, the absence of an indication (declaration) of the country of origin of the supplied goods in the application for participation in the procurement is not grounds for rejecting the application for participation in the procurement and such an application is considered as containing an offer for the supply of foreign goods.

6. Procedure for concluding and executing contracts

The mandatory terms of the contract concluded with the winner when applying the terms of the Resolution are:
- an indication of the country of origin of the supplied goods based on the information contained in the application for participation in the procurement submitted by the procurement participant with whom the contract is concluded;
- the condition that when executing the contract, it is not allowed to replace the country of origin of goods, except for the case when, as a result of such replacement, Russian goods are supplied instead of foreign goods, and the quality, technical and functional characteristics (consumer properties) of such goods should not be inferior to the quality and corresponding technical and functional characteristics of the goods specified in the contract.

Since January 1, 2017, Russian suppliers, performers and contractors who participate in procurement under Law No. 223-FZ are in more favorable conditions compared to their foreign competitors. Their goods, works and services are given priority in the amount of 15% of the contract price.

How does priority work?

If carried out competition, request for quotations, request for proposals, and there must also be applications indicating the Russian Federation and non-Russian Federation as the country of origin:

• the price of the Russian bid is estimated at the price “offer - 15%”;
• if the winning participant is the Russian Federation, then the contract is concluded at the proposed price (without “-15%”).

If carried out auction and at the same time there are applications with the country of origin of the Russian Federation and not the Russian Federation:

• if the winning participant is not the Russian Federation, then the contract is concluded at the price “offer - 15%”.

Resolution No. 925 does not contain any restrictions regarding the list of goods, works, and services for the procurement of which priority is established.

Priority is given for purchases within the framework of Law No. 223-FZ, carried out by any method, with the exception of purchases from a single supplier.

The resolution stipulates that to confirm the Russian origin of the goods offered, the procurement participant will not need to submit any documents; it will be enough to indicate this fact in the application for participation in the procurement.

Example 1.

In one application, imported goods are offered for 1,000 rubles.

In another application, Russian goods are offered for the same amount, 1000 rubles.

When considering applications, the customer is guided by the fact that he must give a preference to Russian goods of 15%, and consider as if the price of a Russian product is 1000 rubles - 15%, i.e. 850 rubles. Thus, the application with a Russian product will be recognized as the winner, because its price, taking into account the preference, will be cheaper by 150 rubles (850 versus 1000). However, the contract will be concluded at the price proposed in the application, i.e. 1000 rubles.

Example 2.

In one application, imported goods - 1000 rubles.

In another application, Russian goods cost 1,150 rubles.

And again, there is a scheme of providing 15% preference to Russian goods. The price of Russian goods will be 1150 rubles - 15%, i.e. 977.5 rubles. The application with Russian goods will be recognized as the winner, because its price, taking into account the preference, will be cheaper by 22.5 rubles (977.5 versus 1000). But the contract will be concluded at the price proposed in the application, i.e. 1150 rubles each.

As a result, the customer will be obliged to purchase a product that is 150 rubles more expensive only for the reason that it is Russian. Yes, this is support for a Russian manufacturer, but support forced and imposed by the state, because Customers under 223-FZ often make purchases at the expense of their own budget, and not with state money.

When priority is not given to Russian GWS

Cases in which priority is not granted:

• the competitive procedure did not take place, so the purchase is carried out from a single supplier;
• all applications for participation in procurement - with proposals for the supply of Russian goods, works and services;
• all applications for participation in procurement - with proposals for the supply of foreign goods, works and services;
• The bidder's application contains a proposal with both Russian and foreign goods, works and services. At the same time, the cost of Russian ones is less than 50% of the cost of everything he offers;
• The auction participant's application contains an offer with both Russian and foreign goods, works and services. At the same time, the cost of Russian ones is more than 50% of the cost of everything he proposed.

What changes do customers need to make to the documentation?

In the Requirements for the content, form, design, composition of the application:

• the requirement for the procurement participant to indicate (declare) in the application for participation in the procurement (in the relevant part of the application for participation in the procurement containing the proposal for the supply of goods) the name of the country of origin of the goods supplied;
• provision on the responsibility of procurement participants for providing false information about the country of origin of the goods specified in the application for participation in the procurement;

In Notice:

• information on the initial (maximum) unit price of each product, work, service that is the subject of procurement;

In the Regulations and documentation:

• the condition that the absence in the application for participation in the procurement of an indication (declaration) of the country of origin of the supplied goods is not grounds for rejection of the application for participation in the procurement and such an application is considered as containing an offer for the supply of foreign goods;
• the condition for classifying a procurement participant as a Russian or foreign person on the basis of the procurement participant’s documents containing information about the place of registration (for legal entities and individual entrepreneurs), on the basis of identification documents (for individuals);
• indication of the country of origin of the supplied goods based on the information contained in the application for participation in the procurement submitted by the procurement participant with whom the contract is concluded;
• an indication that the assessment and comparison of applications for participation in procurement, which contain proposals for the supply of goods of Russian origin, performance of work, provision of services by Russian persons, according to cost evaluation criteria are carried out at the contract price proposed in these applications, reduced by 15 percent, with In this case, the contract is concluded at the contract price proposed by the participant in the application for participation in the procurement.

In the documentation section about concluding a contract:

• provision on concluding a contract with a procurement participant who proposed the same conditions as the procurement winner, the conditions for the execution of the contract or whose proposal contains the best conditions for the execution of the contract, following the conditions proposed by the procurement winner, who is recognized as having evaded concluding the contract.

In the documentation section about concluding an agreement and in the draft agreement:

• the condition that when executing a contract concluded with a procurement participant who has been given priority in accordance with Government Decree No. 925 dated September 16, 2016, it is not permitted to replace the country of origin of goods, except in cases where, as a result of such replacement, Russian goods are supplied instead of foreign ones goods, while the quality, technical and functional characteristics (consumer properties) of such goods should not be inferior to the quality and corresponding technical and functional characteristics of the goods specified in the contract.

Customers had to make all changes to the Procurement Regulations before January 1, 2017. And starting from this date, national treatment must be applied when considering, evaluating and comparing applications, when concluding and executing contracts.

It has been determined that in the field of procurement carried out by state-owned companies (with the exception of procurement from a single supplier, performer or contractor), priority should apply to goods of Russian origin, as well as works and services provided by Russian persons. This means priority in relation to goods, works and services of foreign origin (Resolution of the Government of the Russian Federation of September 16, 2016 No. 925 "").

The new rules will come into force on January 1, 2017. However, their effect will not apply to procurements in which invitations to participate in which were sent before this date, as well as if notices of their implementation are posted in the unified information system in the field of procurement (zakupki.gov.ru).

The Cabinet of Ministers established that if procurement is carried out in a manner in which the winner is determined on the basis of criteria for evaluating and comparing applications (for example, in a competition), as well as if the person who offered the lowest price is recognized as the winner, then evaluations of applications containing proposals for the supply of goods of Russian origin or the implementation of works and services by Russian persons are carried out at the price proposed in them, but reduced by 15%. The contract is concluded at the price specified in such an application.

Does Law No. 223-FZ allow the customer to establish requirements for procurement participants that limit admission to participation in a specific procurement? The answer is in "Encyclopedia of solutions. Government and corporate procurement " Internet version of the GARANT system. Get full access for 3 days for free!

If the purchase is made by reducing the initial price (in the field of procurement this is how an auction is held), and the winner is a foreign person, then the contract with him is concluded at a price reduced by 15% from the one offered by him. But in a situation where, in the same type of procurement, the contract price is reduced to zero and a foreign entity is recognized as the winner, the contract with him is, on the contrary, concluded at a price increased by 15% of the proposed one.

The new resolution also stipulates that the condition for granting priority to Russian goods, works and services is the inclusion of certain information in the procurement documentation. In particular, this is a provision on the responsibility of procurement participants for providing false information about the country of origin of the goods, indicating the country of origin of the supplied goods, work or service, information about the initial (maximum) unit price of each product, work, service, etc.

At the same time, cases have been established when priority is not granted. For example, if the procurement is declared unsuccessful and the contract is concluded with its only participant, or if the application for participation does not contain proposals for the supply of goods of Russian origin, performance of work, provision of services by Russian persons and in some other cases.

Let us recall that the power to establish the priority of Russian goods, works and services over foreign ones is enshrined in the law (clause 1, part 8, article 3 of the Federal Law of July 18, 2011 No. 223-FZ ""). According to the government, the measure taken will stimulate the development of all sectors of the Russian economy.

Preference - what does it mean according to 44 Federal Laws and in what cases is it applied? Let's take a closer look at who can get advantages when bidding.

Preferences and advantages in the contract system: what is the difference

In a broad sense, preferences of the contract system are advantages in relation to the contract price that are provided to the following groups of participants:

• institutions and enterprises of the penal system (hereinafter referred to as penal system);
• organizations of disabled people;

More detailed information is presented in the table.

Advantages for a domestic manufacturer

In addition to the above, priority is given to participants who offer goods manufactured in Russia or in member countries of the Eurasian Economic Union (hereinafter referred to as the EAEU). The mechanism for providing benefits in this case is implemented through the order of the Ministry of Economic Development dated March 25, 2014 No. 155. The document also contains a list of products that are subject to this rule.

The procedure for granting preferences (Order 155) is as follows:

• when holding a competition, and participants who offered Russian goods or goods produced in the EAEU receive priority according to the “contract price” criterion. This offer is assessed at a 15% discount. In this case, the contract is concluded at the initial price proposed by such participant;
• When carried out in the standard way for this procedure, the winner is determined. Then, if the product is of foreign origin, the bid price will be reduced by 15% and a contract will be awarded. If this is a Russian product or a product produced in the EAEU, the price offered by the winner of the government procurement will remain unchanged.

Please note that the assessment of applications under PP 925 dated September 16, 2016 within the framework of 223-FZ is carried out taking into account the provisions of the General Agreement on Tariffs and Trade of 1994 and the Treaty on the Eurasian Economic Union of May 29, 2014. At the same time, in contrast to Order of the Ministry of Economic Development No. 155, the customer independently determines the list of goods that will receive benefits.

Tax preferences

Tax preferences are benefits that are provided to the taxpayer if he fulfills the necessary conditions (Article 395 of the Tax Code of the Russian Federation). For example, participates in charity. They are:

• territorial;
• industry;
• urgent;
• targeted;
• intravector and functional.

For example, territorial ones are aimed at supporting and developing certain territories, and sectoral ones are aimed at industries. They are expressed in tax benefits, reduced rates, deferred payments or complete exemption from taxes.

Unfortunately, there are no tax benefits for public procurement.