What are utility models under 44 fz. The customer can indicate the trademark in the procurement documentation

Guide to the contract system:

A Guide to Procurement Disputes:

1. When describing the procurement object in the procurement documentation, the customer must be guided by the following rules:

1) the description of the procurement object shall indicate the functional, technical and quality characteristics, operational characteristics of the procurement object (if necessary). The description of the procurement object should not include requirements or instructions regarding trademarks, service marks, trade names, patents, utility models, industrial designs, the name of the country of origin of the goods, requirements for goods, information, works, services, provided that such requirements or the instructions entail a limitation on the number of procurement participants. It is allowed to use an indication of a trademark in the description of the procurement object, provided that such an indication is accompanied by the words “or equivalent”, or subject to the incompatibility of goods on which other trademarks are placed, and the need to ensure the interaction of such goods with goods used by the customer, or subject to the purchase of spare parts parts and consumables for machines and equipment used by the customer, in accordance with the technical documentation for the specified machines and equipment;

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

(see text in the previous edition)

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

(see text in the previous edition)

4) the procurement documentation must contain an image of the supplied goods, allowing it to be identified and the preparation of an application, a final offer, if such documentation contains a requirement that the supplied goods correspond to the image of the goods for the supply of which the contract is concluded;

5) procurement documentation must contain information about the place, start and end dates, procedure and schedule for inspection by procurement participants of a sample or mock-up of the goods for the supply of which a contract is concluded, if such documentation contains a requirement that the supplied goods correspond to the sample or mock-up of the goods for delivery whom the contract is concluded;

6) the procurement documentation must contain an indication of the international nonproprietary names of medicines or, in the absence of such names, chemical, group names, if the object of purchase is medicines. When purchasing medicines included in the list of medicines, the purchase of which is carried out in accordance with their trade names, as well as when purchasing medicines in accordance with clause 7 of part 2 of Article 83, clause 3 of part 2 of Article 83.1 of this Federal Law, the customer has the right indicate the trade names of these medicines. The specified list and the procedure for its formation are approved by the Government of the Russian Federation. If the object of procurement is medicines, the subject of one contract (one lot) cannot be medicines with different international nonproprietary names or, in the absence of such names with chemical, group names, provided that the initial (maximum) contract price (lot price ) exceeds the limit value established by the Government of the Russian Federation, as well as medicines with international nonproprietary names (in the absence of such names with chemical, group names) and trade names. The provisions of this paragraph do not apply when determining the supplier of medicines with whom a government contract is concluded in accordance with Article 111.4 of this Federal Law;

(see text in the previous edition)

7) the delivered product must be a new product (a product that has not been used, has not been repaired, including one that has not been restored, whose components have not been replaced, or whose consumer properties have not been restored) unless otherwise provided description of the procurement object.

2. The procurement documentation, in accordance with the requirements specified in Part 1 of this article, must contain indicators that make it possible to determine the compliance of the purchased goods, works, services with the requirements established by the customer. In this case, the maximum and (or) minimum values ​​of such indicators are indicated, as well as the values ​​of indicators that cannot be changed.

(see text in the previous edition)

3. It is not allowed to include in the procurement documentation (including in the form of requirements for quality, technical characteristics of a product, work or service, requirements for the functional characteristics (consumer properties) of a product) requirements for the manufacturer of the product, for the procurement participant (including requirements to the qualifications of the procurement participant, including work experience), as well as requirements for the business reputation of the procurement participant, requirements for the availability of production facilities, technological equipment, labor, financial and other resources necessary for the production of goods, the supply of which is the subject of the contract, for performance of work or provision of services that are the subject of the contract, except for cases where the possibility of establishing such requirements for the procurement participant is provided for by this Federal Law.

4. Requirements for the warranty period of goods, work, services and (or) the scope of providing guarantees of their quality, for warranty service of the goods, for the costs of operating the goods, for the mandatory installation and adjustment of the goods, for the training of persons involved in the use and maintenance of the goods, installed by the customer if necessary. If a supplier of machinery and equipment is determined, the customer establishes in the procurement documentation requirements for the warranty period of the goods and (or) the scope of guarantees for their quality, for warranty service of the goods, for the costs of servicing the goods during the warranty period, as well as for installation and commissioning goods, if this is provided for in the technical documentation for the goods. In the case of determining a supplier of new machinery and equipment, the customer establishes in the procurement documentation the requirements for the provision of a guarantee from the manufacturer and (or) supplier of this product and for the period of validity of such a guarantee. This warranty is provided with this product.

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

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

On July 16, 2014, the Commission of the Leningrad OFAS Russia considered the complaint of PC Technical Security Equipment LLC against the actions of the Customer Administration of the Sosnovoborsky City District of the Leningrad Region during an electronic auction (notice dated 07/03/2014, initial (maximum) price of the municipal contract 1,295,207.92 ruble).

According to the Applicant, the auction documentation provides for the use by the procurement participant of goods from a specific manufacturer when performing work(3M reflective film), which does not allow us to offer a product with similar characteristics and, ultimately, to take part in the auction.
As a result of the unscheduled inspection, the Commission came to the following conclusions:
According to paragraph 1 of part 1 of Article 33 of the Law on the Contract System, when describing the procurement object in the procurement documentation, it is necessary to take into account that the description of the procurement object must be objective. The description of the procurement object shall indicate the functional, technical and quality characteristics, operational characteristics of the procurement object (if necessary). The description of the procurement object should not include requirements or instructions regarding trademarks, service marks, trade names, patents, utility models, industrial designs, the name of the place of origin of the goods or the name of the manufacturer, as well as requirements for goods, information, works, services, provided that such requirements entail a limitation on the number of procurement participants, unless there is no other way that provides a more accurate and clear description of the characteristics of the procurement object. The procurement documentation may contain an indication of trademarks if, when performing work or providing services, it is intended to use goods the supply of which is not the subject of the contract. In this case, a mandatory condition is to include the words “or equivalent” in the description of the procurement object, except in cases of incompatibility of goods on which other trademarks are placed, and the need ensuring the interaction of such goods with goods used by the customer, as well as cases of procurement of spare parts and consumables for machines and equipment used by the customer, in accordance with the technical documentation for the specified machines and equipment.
In this case, contract work is purchased with the requirements for their quality, technical characteristics and results determined by the Customer. According to paragraph 4.3 of the “Technical Specifications” section, the signs proposed by the contractor for use when performing work must be made of reflective diamond film with the name 3M series 3930, type “B”, the front side and the perimeter edging must be made of yellow-green fluorescent reflective fluorescent film with the name 3M series 4083, type “B”.
The case materials confirm that the mere fact that the Customer indicated the name of the ZM film in the “Technical Specifications” did not lead to a limitation on the number of procurement participants - four procurement participants submitted their applications to participate in the auction.
In other words, evidence of the violation charged to the Customer was not presented in the case materials and was not established by the Commission.
At the same time, following the results of an unscheduled inspection, the Commission identified the following violation of the Law on the Contract System in the Customer’s actions.
According to the information posted on the official website of Rospatent www.rupto.ru in the “Open Registers” section, the name “ZM” is a registered trademark (registry entry 423932).
As stated above, documentation about an electronic auction may contain an indication of trademarks if, when performing work or providing services, it is intended to use goods the supply of which is not the subject of the contract. In this case, a mandatory condition is to include the words “or equivalent” in the description of the procurement object, except in cases of incompatibility of goods on which other trademarks are placed, and the need to ensure the interaction of such goods with goods used by the customer, as well as in cases of procurement of spare parts and consumables to machines and equipment used by the customer, in accordance with the technical documentation for said machines and equipment (clause 1 of part 1 of Article 33, clause 1 of part 1 of Article 64 of the Law on the Contract System).
In accordance with Part 2 of Article 33 of the Law on the Contract System, procurement documentation in accordance with the requirements specified in Part 1 of this article must contain indicators that make it possible to determine the compliance of the purchased goods, works, services with the requirements established by the customer. In this case, the maximum and (or) minimum values ​​of such indicators are indicated, as well as the values ​​of indicators that cannot be changed.
Under such circumstances, the Commission came to the conclusion that paragraph 4.3 of the “Technical Specifications” section of the auction documentation contains an indication of the reflective diamond film and the reflective fluorescent film of a specific manufacturer.
The customer, taking advantage of the right to declare a certain brand of goods (3M), in violation of the above provisions of Article 33 of the Law on the Contract System, did not accompany it with the words “or equivalent” and did not indicate the technical characteristics, quality requirements, other characteristics of the product that determine its compliance with the requirements established by the Customer.

Based on the above and guided by paragraph 2 of part 22 of article 99, part 8 of article 106 of the Law on the contract system, the Commission decided:

1. Recognize the complaint of PC “Technical Security Means” LLC as unfounded.
2. Recognize the administration of the Sosnovoborsky urban district of the Leningrad region as violating paragraph 1 of part 1, part 2 of article 33 of the Law on the contract system.
3. Issue an order to the administration of the Sosnovoborsky urban district of the Leningrad region to eliminate the violations committed.
4. Transfer the materials of case No. 553-03-3796-RZ/14 to the responsible official of the Leningrad OFAS Russia to resolve the issue of initiating a case of an administrative offense.

INSTRUCTION
in case No. 553-03-3796-RZ/14

The Commission of the Leningrad OFAS Russia for control in the field of placing orders (hereinafter referred to as the Commission) prescribes:
The auction commission shall cancel all protocols drawn up during the procurement.
The customer makes changes to the auction documentation as determined by the contractor;
extend the deadline for submitting applications for participation in the auction

To describe a procurement object, according to 44-FZ, means to record its qualitative and quantitative characteristics (standard), which allow the object to be identified.

The description indicates the maximum and/or minimum values, as well as values ​​that cannot be changed. For example: “Paper for office equipment. A4 format. Density not less than 80 g/m². Whiteness: no less than 146%. Sheets in a pack: 500."

It is not allowed to install:

• to the manufacturer;
• to the participant;
• to his business reputation;
• to the availability of production facilities, labor, financial and other resources, except for cases where the possibility of their establishment is provided for by 44-FZ, for example, during a competition or auction that falls under the norms.

3. You cannot indicate trademarks and other unique features in the description (clause 1.1 of Article 33), as well as requirements that entail a limitation on the number of participants.

Since January 11, 2018, there have been changes in the rules for describing the subject of a government order:

1. Legislators excluded the provision that it should be objective.
2. As before, you will need to accompany the trademark with the words .

It will not be necessary to do this:

• if goods produced under other trademarks are incompatible with the goods used by the government customer;
• if purchased for machines and equipment used by the customer, according to technical documentation.

4. It is necessary to use indicators and terms that are provided for by technical regulations and documents of the national system of the Russian Federation.

Other indicators, requirements, designations and terms can be used, justifying the need for their use in the documentation (Clause 2, Part 1, Article 33 of Law No. 44-FZ).

For example: “Bread products made from wheat flour must be produced in accordance with 31805-2012 according to the recipe and technological instructions, which are agreed upon and approved in the prescribed manner, in compliance with sanitary standards and rules.”

5. May include, as necessary, specifications, plans, drawings, sketches, warranty period and service, the need for installation and adjustment, as well as training of persons who use and maintain the equipment.

For example: “Warranty period for asphalt: for subgrade – 8 years; on the base of the road surface - 6 years; for the top layer of coating - 4 years.”

6. When purchasing medicines, you must indicate their international nonproprietary name in the description. And if it is missing - chemical, group names, a list of which is available on the state register website.

For example: “Medicine, group name: Cefoperazone + [Sulbactam], dosage form - powder for preparing a solution for intravenous administration.”

7. It is acceptable to require that the product be new, not used or under repair.

Description of the procurement object under 44-FZ, example

When describing the procurement object, the customer must use the following characteristics:

1. High quality. A set of properties, characteristics, characteristics that describe the procurement object and meet the customer’s needs.
2. Technical. Determine the technical properties of the auction item. Specific parameters, initial and final values, regulations and procedures for delivery, performance of work, provision of services.
3. Operational. These include characteristics of the reliability and operability of the object, conditions that ensure effective operation: strength, durability, space-planning, sanitary and hygienic, economic and aesthetic characteristics.
4. Functional. This is the ability of an object to perform its primary function. Main purpose and conditions for its intended use.

Catalog of goods, works, services

To increase the transparency of government procurement and reduce corruption risks by introducing uniform names, the government is standardizing approaches to describing purchased products. For this purpose, Resolution No. 145 dated 02/08/2017 approved the procedure for creating and maintaining a catalog in the Unified Information System (UIS), as well as the rules for its use. In 2019, the catalog is being actively updated, and currently it contains more than 25,000 product names and descriptions of technical characteristics.

Customers are obliged to apply the information contained in the catalog from the date of mandatory application indicated therein. As a general rule - after 30 calendar days from the date of its addition.

You can find out more about the work of the catalog in our article .

In the first part of the application for an auction for the supply of surgical gloves, an application was submitted where the name of the product is indicated without a trademark with confirmation of registration. ID. In reg. On the certificate, the trade name is indicated with a protection mark; the participant in the application indicates that there is no trademark for this product. The Rospatent Register indicates that the trade name is registered. The situation is confusing. Are we obligated to not admit an application for unreliable information or to refuse admission for failure to provide a trademark (if any, as indicated in the registration certificate).

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.

According to clause 1, part 3, art. 66 of the Federal Law of April 5, 2013 No. 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter referred to as Law No. 44-FZ) the first part of the application for participation in the electronic auction for concluding a contract for the supply of goods must contain the information specified in one of the following subparagraphs:

• consent of a participant in such an auction to supply goods if this participant offers for delivery a product in respect of which the documentation for such an auction contains an indication of a trademark (its verbal designation) (if any), a service mark (if any), a company name (if available), patents (if available), utility models (if available), industrial designs (if available), name of the country of origin of the goods, and (or) such participant offers for delivery a product that is equivalent to the product specified in this documentation , specific indicators of the product corresponding to the equivalence values ​​established by this documentation;
• specific indicators corresponding to the values ​​​​established by the documentation about such an auction, and an indication of the trademark (its verbal designation) (if available), service mark (if available), brand name (if available), patents (if available), utility models ( if available), industrial designs (if available), name of the country of origin of the goods.

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1. According to Part 4 of Art. 67 of Law No. 44-FZ, a participant in an electronic auction is not allowed to participate in it in the following cases:
2. failure to provide information provided for in Part 3 of Art. 66 of Law No. 44-FZ, or providing false information;

inconsistency of the information provided for in Part 3 of Art. 66 of Law No. 44-FZ, documentation requirements for such an auction.

Thus, if the terms of reference for the purchase do not indicate the trademark of the goods to be supplied, the procurement participant submits information in the application in accordance with paragraphs. "b" clause 1 part 3 art. 66 of Law No. 44-FZ. At the same time, as we see, according to paragraphs. "b" clause 1 part 3 art. 66 of Law No. 44-FZ does not indicate the need to indicate the trademark or model of the supplied product; from the literal interpretation of the norm it follows that this information can be provided if available.

This position is reflected in the Decision of the Federal Antimonopoly Service for the city of Moscow in case No. 2-57-5927/77-14 dated 08.22.14, adopted on the complaint of one of the procurement participants in connection with what he considered to be an unlawful refusal to admission to participate in the auction, since in the application he did not indicate the model of the air conditioner proposed for delivery. In the application, the participant indicated the manufacturer of the product. In addition, as the applicant noted in the complaint, the procurement documentation did not contain a requirement to indicate the model designation of air conditioners in the application. At the same time, according to the participant’s complaint, in support of the refusal it was stated that “the models of air conditioners are not indicated, which makes it difficult to determine the compliance of the product with the technical characteristics specified in the Technical Specifications.”

The OFAS for Moscow indicated the following in the Decision: “In accordance with Part 3 of Article 66 of Law No. 44-FZ (note: as amended by the Federal Law of December 28, 2013 No. 396-FZ), the first part of the application for participation in electronic auction must contain specific indicators corresponding to the values ​​​​established by the documentation about such an auction, and an indication of the trademark (its verbal designation) (if available), service mark (if available), brand name (if available), patents (if available) , utility models (if available), industrial designs (if available), name of the place of origin of the goods or the name of the manufacturer of the goods offered for delivery, provided that this documentation does not indicate a trademark, service mark (if any), brand name (if available) , patents (if available), utility models (if available), industrial designs (if available), appellation of origin of the product or name of the manufacturer.

According to Part 1 of Art. 67 of Law No. 44-FZ, the auction commission checks the first parts of applications for participation in the electronic auction, containing the information provided for in Part 3 of Art. 66 of Law No. 44-FZ, for compliance with the requirements established by the documentation of such an auction in relation to the purchased goods, works, and services.

It was established that the first part of the Applicant’s application contains the characteristics of the goods proposed for delivery, in particular, the item “Air Conditioner” indicating the name of the manufacturer of the goods Kitano, which is sufficient by virtue of Art. 66 of Law No. 44-FZ. In addition, according to Part 3 of Art. 66 of Law No. 44-FZ, the product model is indicated if available.

Part 3 Art. 66 of Law No. 44-FZ contains an exhaustive list of requirements for the content of the first part of the application for participation in the auction.

In accordance with Part 6 of Art. 66 of Law No. 44-FZ to require the electronic auction participant to provide other documents and information, with the exception of those provided for in Part 3 and Part 5 of Art. 66 of Law No. 44-FZ of documents and information are not allowed.

Part 4 art. 67 of Law No. 44-FZ establishes an exhaustive list of grounds for refusal of admission to participate in the auction. According to Part 5 of Art. 66 of Law No. 44-FZ, refusal of admission to participate in an electronic auction on grounds not provided for in Part 4 of Article 67 of Law No. 44-FZ is not permitted.

Thus, the decision of the Customer’s auction commission regarding the refusal to allow the Applicant to participate in the electronic auction on the grounds specified in the protocol for participation in the auction violates the provisions of Part 5 of Art. 67 of Law No. 44-FZ."

Thus, if the documentation for the supply of an air conditioner does not indicate a trademark, service mark (if available), brand name (if available), patents (if available), utility models (if available), industrial designs (if available), name place of origin of the goods or the name of the air conditioner manufacturer, indicated by the customer in accordance with clause 2, part 1, art. 64 of Law No. 44-FZ, then failure to indicate the air conditioner model in the application by the participant in the electronic auction is not grounds for rejection of the application. In this case, the participant may be denied access to participate in the electronic auction on other grounds.

Decision of the Irkutsk OFAS Russia dated August 19, 2015 in case No. 421

“...The commission of the Irkutsk OFAS Russia, having examined the presented materials, the applicant’s arguments, and the customer’s objection, established the following.

07/31/2015 The customer posted on the official website of the Russian Federation - zakupki.gov.ru the documentation about the auction in electronic form (Notification No. 0134300007915000008) for the implementation of work on the repair of highways (hereinafter referred to as the auction documentation), as well as a notice of the said open auction.

By virtue of Part 4 of Article 67 of the Law on the Contract System, a participant in an electronic auction is not allowed to participate in it in the event of: failure to provide information provided for in Part 3 of Article 66 of this Federal Law, or provision of false information; inconsistency of the information provided for in Part 3 of Article 66 of this Federal Law with the requirements of the documentation about such an auction.

The first part of the application for participation in an electronic auction when concluding a contract to perform work or provide a service for which the product is used must contain: the consent provided for in paragraph 2 of this part, as well as specific indicators of the product used, corresponding to the values ​​​​established in the documentation for such auction, and an indication of the trademark (its verbal designation) (if available), service mark (if available), brand name (if available), patents (if available), utility models (if available), industrial designs (if available) , name of the country of origin of the goods (clause “b”, clause 3, part 3, article 66 of the Law on the Contract System).

Thus, based on the content of pp. “b” clause 3, part 3, article 66 of the Law on the contract system, the presence in this norm of the words “if available”, procurement participant if the goods used to perform the work do not have trademarks(their verbal designations), service marks, trade names, patents, utility models, industrial designs, is not obliged to indicate in his application information about their absence, or to make any notes on this circumstance.

The commission of the Irkutsk OFAS Russia, having examined the applicant’s application, found that for positions 1-4, the applicant, in accordance with paragraphs. “b” clause 3, part 3, article 66 of the Law on the Contract System did not indicate information about the absence of service marks, brand names, patents, utility models, or industrial designs on the goods used to perform the work. With regard to trademarks, the applicant indicated their absence.

However, in accordance with the protocol dated August 12, 2015. consideration of the first parts of applications by the customer's auction commission, it was decided to refuse the applicant (application No. 5) admission to participate in the auction, due to the fact that the indicators of the goods offered by the applicant for the customer in positions 1-4 of the auction documentation sheet do not meet the requirements established in the documentation about the auction, namely, the information that “no trademark”, “no service mark”, “no brand name”, “no patents”, “no utility models”, “no industrial designs” is provided.

By virtue of Part 5 of Article 67 of the Law on the Contract System, refusal of admission to participate in an electronic auction on grounds not provided for in Part 4 of this article is not permitted.

Thus, the auction commission of the customer, in connection with the refusal of the applicant’s admission to participate in an open auction on the basis of not indicating in the application the information “no trademark”, “no service mark”, “no brand name”, “no patents”, “useful there are no models”, “there are no industrial designs”, a violation of Part 5 of Article 67 of the Law on the Contract System was committed. ..."

Decision of the Federal Antimonopoly Service of Russia dated January 26, 2016 in case No. K-101/16

“...In accordance with Part 1 of Article 67 of the Law on the Contract System, the auction commission checks the first parts of applications for participation in the electronic auction, containing the information provided for in Part 3 of Article 66 of the Law on the Contract System, for compliance with the requirements established by the documentation of such an auction in relation to the purchased goods. goods, works, services.

According to Part 4 of Article 67 of the Law on the Contract System, a participant in an electronic auction is not allowed to participate in it in the event of:

1) failure to provide information provided for in Part 3 of Article 66 of the Law on the Contract System, or provision of false information;

2) discrepancy between the information provided for in Part 3 of Article 66 of the Law on the Contract System and the requirements of the documentation about such an auction.

In accordance with subparagraph “b” of paragraph 1 of part 3 of Article 66 of the Law on the Contract System, the first part of the application for participation in an electronic auction when concluding a contract for the supply of goods must contain specific indicators corresponding to the values ​​​​established in the documentation for such an auction and an indication of the trademark (its verbal designation) (if available), service mark (if available), brand name (if available), patents (if available), utility models (if available), industrial designs (if available), name of the country of origin of the product.

In accordance with the protocol for the consideration of the first parts of applications for participation in the Auction dated December 31, 2015 No. 0173100004515002126-1 (hereinafter referred to as the Protocol for the consideration of applications), the procurement participant with the serial number of the application “6” (Applicant) was denied admission to participate in the Auction on the following grounds: “ In his application, the participant in the electronic auction indicated for positions No. 1-7 the manufacturer OJSC Chuvashtorgtekhnika, country of origin Russia. In accordance with the response of Chuvashtorgtekhnika OJSC to the request for confirmation of functional characteristics and description of the product dated December 30, 2015 No. 403, Chuvashtorgtekhnika OJSC produces equipment exclusively under the Abat trademark. Thus, the participant in the electronic auction did not indicate the trademark (its verbal designation) of the goods offered for delivery.”

Having examined the first part of the Applicant’s application for participation in the Auction, submitted by representatives of the Customer, the Commission established that the application contains, inter alia, the following: “1. Electric cooking boiler type KPEM-100/9T with a seamless vessel Chuvashtorgtekhnika OJSC, Russia. 2. Electric digester boiler KPEM-100-O R Chuvashtorgtekhnika OJSC, Russia. 3. Electric digester boiler type KPEM-160/9T with a seamless vessel Chuvashtorgtekhnika OJSC, Russia. 4. Electric digester boiler. KPEM-160-OR with a seamless vessel Chuvashtorgtekhnika OJSC, Russia. 5. Electric digester boiler. KPEM-250/9T Chuvashtorgtekhnika OJSC, Russia. 6. Electric digester boiler KPEM-250-O Chuvashtorgtekhnika OJSC, Russia. 7. Electric digester boiler type KPEM-350-O Chuvashtorgtekhnika OJSC, Russia.”

The Customer’s representative at the Commission meeting provided information according to which The customer sent a request to OJSC "Chuvashtorgtekhnika" » about the reliability of information provided by Auction participants in the first parts of applications. The customer received a response from JSC "Chuvashtorgtekhnika" according to which the following is specified “equipment manufactured OJSC "Chuvashtorgtekhnika" ", is produced exclusively under the brand name "Abat".

At the same time, the procurement participant did not indicate a trademark as part of the application.

Taking into account the above, the Auction Commission decided to deny the Applicant access to participate in the Auction in accordance with the requirements of the Law on the Contract System.

Thus, the Applicant’s argument that the Auction Commission made an unreasonable decision to deny the Applicant access to participate in the Auction was not confirmed. ..."

LETTER OF THE RUSSIA MINISTRY OF ECONOMIC DEVELOPMENT dated November 25, 2015 No. D28i-3380

< В соответствии с пунктом 1 части 3 статьи 66 Закона № 44-ФЗ первая часть заявки на участие в электронном аукционе должна содержать в том числе указание на товарный знак (его словесное обозначение) (при наличии), знак обслуживания (при наличии), фирменное наименование (при наличии), наименование страны происхождения товара.

When considering the first parts of applications for the supply of goods when making purchases in the form of an electronic auction, or when reviewing and evaluating applications during a request for quotations, customers sometimes have a question. If the application submitted by the participant fully complies with the requirements, but there is no trademark or product name that allows it to be identified. Should the application be rejected or allowed?

There is no trademark in the first part of the electronic auction participant’s application

In order for a participant to be able to take part in the procurement process, which is carried out through an electronic auction, his application must be accepted. To do this, it is necessary to submit for consideration to the customer the first parts of applications, which are drawn up in accordance with the current standards of 44-FZ.

Thus, the condition that in the first part of the application submitted by the participant there will be an indication of the trademark, namely, its verbal designation must be fulfilled only if the product is protected by a trademark, mark, therefore, if the product that the winner intends to supply , there is no trademark, then the absence of its name in the first parts of the applications does not violate the current legal norms, and accordingly, there are no reasons for rejection on these grounds.

In particular, the provisions of the Civil Code of the Russian Federation for legal entities and individual entrepreneurs do not establish the obligation to register trademarks; therefore, the goods offered for delivery may not have a trademark, and the auction commission does not have the obligation to establish whether the goods have a similar mark or not; it checks the application for compliance 44-FZ.

A similar position is held, for example, by the decision of May 5, 2015 in case No. KGOZ - 176/15, decision of July 6, 2015 No. 44-2164/15 and the established judicial practice decision of the Arbitration Court of the Altai Territory of June 4, 2015 on case No. A03-5996/2015.

There is no trademark in the quotation application

Let's consider a situation where the customer chose a method such as requesting quotes to determine a supplier. First, let's analyze the norms of Article 73 of Law 44-FZ. Thus, the above article contains an exhaustive list of information and necessary documents that the notice includes. The law does not require that the notice must contain trademarks, as well as trade names and service marks.

Consequently, an application for participation in a request for quotations submitted by a participant, and not containing the corresponding verbal designations of trademarks, marks, complies with current legal norms and is not subject to rejection.

Conclusion

Based on the interpretation of the norms of 44-FZ, analysis of the established practice of decisions of the FAS and courts, as well as on the basis of the letter of the Ministry of Economic Development of the Russian Federation dated January 16, 2017 No. D 28i-252, we can conclude that the rejection of applications for participation in procurement is only on grounds that the missing name of the product is illegal.