Electricity contract under Federal Law 44. Special procedure for the purchase of electrical energy by unitary enterprises

Each customer is a consumer of electrical energy. Law No. 44-FZ provides special grounds for concluding contracts for energy supply, purchase and sale of electricity, as well as services for its transmission. However, the conclusion and execution of such contracts is regulated not only by the legislation on the contract system, but also by special legislation on the electric power industry. In this article we will tell you how customers can take this into account in their work.

Which paragraph of Part 1 of Art. 93 of Law No. 44-FZ to be used to conclude an agreement?

The obvious answer is clause 29 “concluding an energy supply agreement or an electricity purchase and sale agreement with a guaranteeing supplier of electric energy.” But in order to use this clause correctly, you need to know the difference between an energy supply agreement and an electricity purchase and sale agreement.

Under an energy supply agreement, the supplier of last resort not only sells electrical energy, but also provides it transmission to the customer’s electrical receiving devices (Clause 28 of the Basic Provisions for the Functioning of Retail Electricity Markets, approved by Decree of the Government of the Russian Federation dated May 4, 2012 No. 442). And under the electricity purchase and sale agreement, the customer purchases only electricity, the services of the electric grid organization for transmission In this case, electricity is purchased separately. The basis for such a purchase will no longer be clause 29, but clause 1, part 1, art. 93 of Law No. 44-FZ.

The first paragraph of Part 1 of Art. 93 is used for the purchase of services related to the scope of activities of natural monopolies. Services for the transmission of electrical energy are among these by virtue of Part 1 of Art. 4 of the Federal Law of August 17, 1995 No. 147-FZ “On Natural Monopolies”.

Wrong choice of the basis for the purchase threatens the customer's official with administrative liability under Part 1 of Art. 7.29 Code of Administrative Offenses of the Russian Federation (fine 50 thousand rubles).

Is it necessary to include a condition on a fixed contract price in the contract?

When concluding a contract, it is indicated that the contract price is fixed and is determined for the entire period of its execution (Part 2 of Article 34 of Law No. 44-FZ). The approximate value of the contract price or the price formula and the maximum value of the contract price can be determined by the customer in the procurement documentation only in cases established by the Government of the Russian Federation. The purchase of electricity is a purchase from a single supplier; in this case, procurement documentation is not drawn up. Therefore, the Government of the Russian Federation does not include electricity in the list of cases in which, when concluding a contract, the price formula and the maximum value of the contract price are indicated in the procurement documentation (Resolution of the Government of the Russian Federation dated January 13, 2014 No. 19).

It turns out that customers should force guaranteeing electricity suppliers to include in contracts the terms of a fixed contract price (See letters from the Ministry of Economic Development of Russia dated 02.21.2017 No. D28i-846, dated 04.06.2017 No. OG-D28-4031, dated 07.15.2015 No. D28i -2159). For this purpose, customers draw up protocols of disagreements to contracts received from guaranteeing suppliers.

However, the courts indicate that this is not necessary.

Example
When concluding an energy supply contract, the customer insisted on establishing a specific volume of energy resources and a fixed (firm) contract price for the entire period of its execution. Not agreeing with this, the supplier of last resort proposed a version of the contract indicating the approximate volume of electricity and the preliminary price of the contract.
Legal assessment of the Supreme Court of the Russian Federation: from the provisions of the legislation on the electric power industry, it follows that price is not an essential condition of the energy supply agreement. In this case, the final price per unit of electricity for the month is set after the end of the billing period within the limits of unregulated prices. Thus, it is not possible to determine the fixed cost of electrical energy at the time of concluding the contract. Consequently, it is impossible to establish a fixed contract price.
The provisions of the Law on Electric Power Industry are special in relation to Law No. 44-FZ. In this regard, the terms of the energy supply contract regarding the quantity of goods and its price, as well as the price of the contract, are determined on the basis of the norms of legislation in the field of electric power industry (Determination of the Supreme Court of the Russian Federation dated May 12, 2017 No. 304-ES17-4309 in case No. A70-4027/2016 ).

Is it possible to establish in the contract the possibility of changing the amount of electricity with a proportional change in the contract price?

Recipients of budget funds (government bodies, government institutions, etc.) reflect the approximate volume of energy consumption in the annex to the agreement with the guaranteeing supplier (“budget financing agreement”), which indicates the “natural” (kWh) and “ monetary" (thousand rubles) limits. Such limits are formed by the main manager of budget funds, taking into account data on electricity consumption in previous years.

Of course, actual electricity consumption never coincides with “natural” and “monetary” limits. In order to somehow solve this problem within the framework of Law No. 44-FZ, customers insist on including in the contract with the guaranteeing supplier a condition going back to subsection. “b” clause 1 part 1 art. 95 of Law No. 44-FZ (“at the customer’s proposal, the quantity of goods provided for in the contract may be increased by no more than 10%, with a proportional change in the contract price”).

But we already figured out earlier that the amount of electricity and its price, in principle, cannot be fixed. And if so, then the condition of increasing the quantity of goods within 10% of the original volume does not make sense.

Example
The customer insisted on including in the energy supply contract a condition on the possibility of using subclause. “b” clause 1 part 1 art. 95 of Law No. 44-FZ. The supplier of last resort refused to do this, citing the inconsistency of the disputed condition with the Basic provisions for the functioning of retail electricity markets (Resolution of the Government of the Russian Federation of May 4, 2012 No. 442), as well as the very nature of relations in the field of energy supply.
Legal assessment of the court: the parties to the contract agreed only on the approximate annual volume of electricity consumption. In the field of energy supply, the subscriber has the right to an arbitrary (unilateral) reduction / increase in the amount of the resource he receives and pays for. For this purpose, the legislation in the field of electricity supply does not require the conclusion of an additional agreement. The subscriber cannot know exactly how much electricity he will need in a certain billing period. Power consumption depends on the subscriber’s activity and may change under the influence of any circumstances. Under an energy supply contract, the subscriber has the right to consume energy in any quantity he needs, subject to payment for actual consumption. The supplier of last resort, in turn, cannot force the subscriber to select from the connected network exactly the amount of resource that is approximately agreed upon in the energy supply contract, and in the absence of legal grounds cannot limit the subscriber in consuming the amount of electricity he needs.
Thus, there are no reasonable and legal grounds for including a disputed clause in the contract (Resolution of the Federal Antimonopoly Service of the North-Western District dated June 15, 2016 in case No. A42-3555/2015).

What is the customer's liability for late payment for electricity?

If the customer is late in fulfilling his obligations under the contract, the supplier has the right to demand payment of a penalty. According to Part 5 of Art. 34 of Law No. 44-FZ, the amount of the penalty is established by the contract in the amount of 1/300 of the Bank of Russia key rate in effect on the date of payment of the penalty of the amount not paid on time.

However, Part 2 of Art. 37 of the Electricity Law states otherwise. Namely, a consumer of electrical energy who has not paid for electrical energy on time and/or in full is obliged to pay a penalty to the guaranteeing supplier in the amount of 1/130 of the Bank of Russia refinancing rate of the amount not paid on time.

As in the case of the “fixed contract price,” the courts give priority to electricity legislation rather than Law No. 44-FZ.

Example
The customer violated the payment deadline for consumed electricity. The supplier of guarantee calculated the penalty based on 1/130 of the Bank of Russia refinancing rate. The customer did not agree with this: in his opinion, the penalty should be calculated based on 1/300 of the refinancing rate, as prescribed by Part 5 of Art. 34 of Law No. 44-FZ.
Legal assessment of the Supreme Court of the Russian Federation: the provisions of the Law on Electric Power Industry are of a special nature in relation to Law No. 44-FZ. The latter establishes only the general features of the participation of customers in civil legal relations and does not take into account the specifics of relations in the field of energy supply, incl. specific features of the execution of contracts in this area. In this regard, when calculating the penalty, one should proceed from 1/130 of the refinancing rate of the Bank of Russia (Decision of the Supreme Court of the Russian Federation dated May 18, 2017 No. 303-ES16-19977 in case No. A37-499/2016).

Thus, contracts with guaranteeing suppliers and energy sales organizations must be concluded and executed taking into account the provisions of the legislation on the electric power industry. The formal requirements of Law No. 44-FZ in this case recede into the background.

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Algorithm of actions when concluding an agreement (or contract?) for the purchase of utilities (heat supply, water, sewerage) from a third party according to Federal Law 44? Are such agreements included in the schedule? Is Part 1, Clause 1, Article 93 appropriate in this case?

• Question: No. 451 dated: 2014-02-24.

The algorithm of actions when concluding a contract is as follows:

1) Information on the planned conclusion of a contract is entered into the schedule, taking into account the recommendations of Order of the Ministry of Economic Development of the Russian Federation and the Federal Treasury of September 20, 2013 N 544/18n.

Within the meaning of clause 6 of Order of the Ministry of Economic Development of the Russian Federation and the Federal Treasury dated September 20, 2013 N 544/18n, the phrase “no later than ten calendar days before the date of publication of the notice of procurement on the official website” can be interpreted as less than 10 days , i.e. on the next day, for example, after making changes to the schedule plan, and not earlier than 10 days, i.e. 10 or more days before the date of publication of the notice.

My opinion is that this paragraph contains a logical error in the form of mutually exclusive concepts, therefore it is at the discretion of the customer regarding the timing of publication of the purchase.

2) According to Part 4 of Law 44-FZ, it is necessary to prepare. My opinion is that it is necessary to use the tariff method based on the tariffs of the supplier with whom the contract will be concluded. If the supplier refuses to provide rates, a contract must be entered into directly, but the contract will still include rates. When checking by regulatory authorities, refer to the prices specified in the contract, since, in essence, these will be the tariffs.

3) Select the necessary points for concluding a contract under Art. 93 of Law 44-FZ. For example:

1. procurement of goods, work or services that fall within the scope of activities of natural monopolies in accordance with Federal Law of August 17, 1995 N 147-FZ “On Natural Monopolies”;

8. provision of services for water supply, sewerage, heat supply, gas supply (except for services for the sale of liquefied gas), connection (connection) to engineering networks at prices (tariffs) regulated in accordance with the legislation of the Russian Federation, storage and import (export) of narcotic drugs and psychotropic substances;

29. concluding an energy supply agreement or a purchase and sale agreement for electrical energy with a guaranteeing supplier of electrical energy.

4) By virtue of Part 2 of Art. 93 of Law 44-FZ, place a notice of procurement on the website no later than five days before the date of conclusion of the contract. The notice of procurement from a single supplier (contractor, performer) must contain the information specified in paragraphs 1, 2, 4 of Article 42 of this Federal Law, as well as in paragraph 8 of this article (if the establishment of a requirement to ensure contract performance is provided for in Article 96 of this Federal Law ).

The exception is clause 29, part 1, art. 93 of Law 44-FZ, when concluding a contract, there is no need to post a notice of such a purchase on the website.

Attention! The information provided in the article is current at the time of publication.

On the website zakupki.gov, many organizations post a notice of purchase from a single supplier under clause 29, part 1, article 93 of 44-FZ. Although in Part 2 of Article 93 of 44-FZ there is no direct indication of the placement of a notice under this paragraph. Tell me whether it is still necessary to place a notice for the supply of electricity under clause 29, part 1, article 93 of 44-FZ. Thank you in advance!

Answer

Electricity suppliers are, by their nature, monopolists. At the same time, according to the logic of 44-FZ, the purchase of electricity should be competitive. The obvious contradiction between the essence of the relationship and its legal formalization requires a special approach from the government customer.

Within the meaning of Article 539 of the Civil Code of the Russian Federation, an energy supply agreement is a type of purchase and sale. Under the terms of the deal, the energy supply company undertakes to uninterruptedly supply electricity to the subscriber through the network.

In this case, the consumer must:

• pay in a timely manner (obligatory advance payment is assumed);
• comply with the normatively established and agreed upon consumption regime by the parties;
• maintain in working condition the section of the electrical network under his jurisdiction;
• ensure the availability and serviceability of equipment, including measuring instruments.

44-FZ on the contract system of public procurement provided an exclusive list of products and services, the purchase of which its regulations do not apply (clause 2 of Article 1). The energy supply agreement is not considered an exception. You can find out more about the contract system in the field of public procurement.

That is, an agreement on the supply of electricity for the needs of a municipal or state customer can be concluded exclusively in accordance with the procedure and on the terms of 44-FZ.

Purchasing from a single supplier

The absence of applications during an open tender or the presence of a single application implies recognition of the procurement procedure as failed (Clause 13 of Article 51 of 44-FZ).

The catch is that the subscriber is already connected to the power grid of a certain supplier and, most likely, has been working with him for years. In such a situation, it is difficult to expect interest in concluding a contract from other participants in the energy market.

The optimal way is to justify the purchase of electricity from a single supplier. This possibility within the framework of 44-FZ is stipulated by Article 39. Two exceptions are relevant.

1. Electricity supply contract with a guaranteeing supplier (clause 4, article 39).
2. A situation where the contract amount does not exceed 100 thousand rubles. provided that the annual volume of purchases carried out in this mode does not exceed 2 million rubles. and 5% of the total purchase volume for the calendar year. Restrictions do not apply to municipal customers located in rural areas (clause 29, article 39).

Using the second option is often impossible. For most municipal and government customers, energy supply is not the most problematic part of procurement. They usually use the non-competitive procurement reserve for other purposes.

How to submit a justification

The justification for purchasing electricity from a single supplier must contain the following points:

• the purpose and necessity of purchasing goods/work/services;
• description of the product/work/service, as well as the essential terms of the contract and the advantages of the counterparty;
• an explanation of the reasons why it is impossible to use competitive methods to determine a supplier;
• conclusion about the need to purchase from a specific single supplier;
• references to norms established by laws and regulations.

Conclusion of a contract with a supplier of last resort

This is an enterprise that is obliged to conclude a subscription agreement with any consumer who contacts it, whose electrical receiving devices are in its area of ​​​​responsibility. The connection conditions are technical: the state of the electrical network, the presence of measuring instruments, etc.

An organization can be granted the status of a guaranteeing supplier (GS) forcibly by virtue of 35-FZ “On the Electric Power Industry” or voluntarily. The list of state enterprises by region is approved and published by the Federal Tariff Service represented by its regional structures. The FTS of the Russian Federation is also a supervisory authority in relation to state enterprises:

• approves tariffs and sales markups;
• checks the conditions for carrying out activities, including regarding the conclusion of supply contracts.

The government customer must publish a notice of the upcoming purchase of electricity from the supplier of last resort. The procedure for concluding a contract still implies some assumptions: there is no need to justify the feasibility of purchasing outside of competition and the contract price.

Public procurement, how to win tenders: Video

Absolutely all customers are faced with purchasing electricity. Within the contract system there is a special basis for such procurement. However, when concluding contracts, it is necessary to take into account not only the norms of the 44-FZ law, but also the legislation on the electric power industry.

About the difference between types of agreements

Electricity is purchased by concluding a contract with a single supplier. Clause 29 of Part 1 of Article 93 of Law 44-FZ provides the following basis for non-competitive procurement: “ concluding an energy supply agreement or an electricity purchase and sale agreement with a guaranteeing electricity supplier».

It is necessary to distinguish an energy supply agreement from an electricity purchase and sale agreement with delivery. Why is it important? Depending on which contract is entered into, the basis for purchasing from a single supplier will vary. And for an incorrectly chosen reason, a penalty may be imposed under Part 1 of Article 7.29 of the Code of Administrative Offenses. In this case, the customer’s official faces a fine of 50,000 rubles.

Energy supply agreement implies not only the purchase of electricity by the customer, but also imposes an obligation on the seller to transfer it. Transmission is guaranteed to the customer's electrical receiving devices. This follows from paragraph 28 of the Basic Provisions for the functioning of various electric energy markets, approved by Decree of the Government of the Russian Federation dated May 4, 2012 No. 442 (hereinafter referred to as the Basic Provisions).

Registration in ERUZ EIS

From January 1 2020 year to participate in tenders under 44-FZ, 223-FZ and 615-PP registration is required in the ERUZ register (Unified Register of Procurement Participants) on the EIS (Unified Information System) portal in the field of procurement zakupki.gov.ru.

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

Electricity sales agreement involves only the acquisition of energy itself, without transmission services. Such services are purchased separately in accordance with paragraph 1 of part 1 of Article 93, that is, on a different basis, and not under paragraph 29. In accordance with paragraph 1, services are purchased from natural monopolies. This is precisely what electricity transmission refers to in accordance with Part 1 of Article 4 of Law 147-FZ “On Natural Monopolies”.

About the contract price

Law 44-FZ requires that the contract stipulate fixed price procurement object, which cannot be changed during the execution period. In certain cases determined by the Government, it is possible to indicate in the procurement documentation an approximate price value or provide a formula for calculating the price maximum.

However, electricity is purchased through non-competitive procurement, for which documentation is not prepared. That's why energy purchases are not included in the list cases when it is possible to indicate the formula and price maximum (Resolution of the Government of the Russian Federation of January 13, 2014 No. 19).

The Ministry of Economic Development in letters dated 02.21.2017 No. D28i-846, dated 04.06.2017 No. OG-D28-4031, dated 07.15.2015 No. D28i-2159 confirms that the price of the electricity contract must be fixed and determined for the entire period of their execution. Accordingly, this falls on the shoulders of customers - they require suppliers to include such conditions in the contract.

What does judicial practice say?

The Supreme Court of Russia believes that, in accordance with the legislation on the electric power industry, price is not an essential condition of the energy supply agreement. The specificity of the sphere is such that the price per unit is calculated after the billing period. Hence, It is impossible to determine the firm value of the contract at the time of its conclusion.

The judges point out that the law on electricity is special in relation to the law on public procurement. This means that the terms of the electricity supply contract, including price, must be determined in accordance with the legislation on electricity e. And it does not involve indicating a fixed price. The Supreme Court came to these conclusions in its ruling dated May 12, 2017 No. 304-ES17-4309 in case No. A70-4027/2016.

About the possibility of changing the amount of electricity and the contract price

But even if you specify the exact amount of energy and price in the contract, you will not be able to achieve these indicators. Understanding this, customers often insist on including in the contract the provision provided for in subparagraph “b” of paragraph 1 of part 1 of Article 95 of Law No. 44-FZ. We are talking about the possibility at the initiative of the customer in proportion change the volume and price of the contract within 10% from its cost.

But since it is impossible to initially determine the exact volume of energy consumption and the contract price, does it make sense to introduce a rule of 10% deviation? Let's see what the judges think about this.

The electricity supplier did not agree with the customer’s proposal to include the mentioned rule of law in the contract. In his opinion, this condition does not correspond to the Basic Provisions, as well as the very nature of legal relations. The judges also did not find reasonable reasons for including a condition for changing the volume/price in the contract (resolution of the Federal Antimonopoly Service of the North-Western District dated June 15, 2016 in case No. A42-3555/2015).

In this case, the court refers to the fact that the consumer has the right to independently and unilaterally reduce or increase the amount of electricity consumed. Changing this volume does not need to be confirmed by additional agreements. Moreover, the buyer cannot determine in advance the scope of his needs, because it depends on various circumstances. The electricity supplier, for its part, also cannot force the consumer to choose the volume stated in the contract or limit it.

Thus, given the nature of the agreement, there is no reason to include in it a clause on changing the initial price and volume within 10%.

About the need for timely payment

In general, for late payment, the supplier has the right to demand from the customer a penalty in the amount 1/300 key rate Bank of Russia for each day of delay. But Part 2 of Article 37 of the Law “On Electric Power Industry” states that penalties are calculated based on 1/130 refinancing rate I. As mentioned above, the norms of the relevant law are recognized by the courts as “stronger” than 44-FZ, therefore they should be applied.

This approach finds support in judicial practice. An example is the Ruling of the Supreme Court of the Russian Federation dated May 18, 2017 No. 303-ES16-19977 in case No. A37-499/2016. The customer did not pay on time, and the electricity supplier calculated penalties based on 1/130 of the refinancing rate. However, in the customer’s opinion, penalties should have been calculated according to the rules of Law 44-FZ. The judges referred to the special nature of the law on electricity in relation to the law on public procurement and came to the conclusion that the supplier was right.