Equivalent with similar technical characteristics. Is it permissible to indicate the car make with the indication “or equivalent” in the procurement?

In the documentation for the electronic auction, concluded in accordance with Federal Law No. 44-FZ dated April 5, 2013 “On the contract system in the field of procurement of goods, works, and services to meet state and municipal needs,” it is planned to indicate, in addition to the characteristics of the product, the make of the car (“Toyota Camry").

Is it possible in the electronic auction documentation, when describing the procurement object, to indicate a trademark or brand of a car, accompanied by the words “or equivalent” (for example, “Toyota Camry car or equivalent”)?

In accordance with clause 1, part 1, art. 33 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,” 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). These requirements must be applied in close connection with the requirements of Part 2 of Art. 33 of Law No. 44-FZ, according to which procurement documentation 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.

In addition, according to clause 1, part 1, art. 33 of Law No. 44-FZ, the description of the procurement object should not include requirements or instructions regarding trademarks, service marks, brand 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 another 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 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. Please note that, in the context of the norm, the requirement to include the words “or equivalent” applies to all cases of indicating a trademark - whether we are talking about the supply of goods or the use of goods in the performance of work or provision of services.

These requirements also apply when preparing documentation about an electronic auction (clause 1, part 1, article 64 of Law No. 44-FZ).

When interpreting the provisions of clause 1, part 1, art. 33 of Law No. 44-FZ on the inclusion in documentation of indications of trademarks and other results of intellectual activity identifying a product and means of individualization of objects of intellectual property (Clause 1 of Article 1225 of the Civil Code of the Russian Federation), the question arises of what exactly the clause “if not” refers to There is another way that provides a more accurate and clear description of the characteristics of the procurement object”: to the very indication of the intellectual property objects identifying the product or to the possibility of limiting the number of participants with such an indication. Apparently, regulatory and supervisory authorities also have some difficulties in interpreting the norm. Thus, in the answer to question 15 of the appendix to the letter of the Ministry of Economic Development of Russia dated September 30, 2014 No. D28I-1889, it is stated that “when delivering goods, the customer has the right to indicate in the description of the procurement object a trademark with the mandatory inclusion of the words “or equivalent” only if There is no other method that provides a more accurate and clear description of the procurement object. In this case, the justification for the absence of another method must be contained in the documentation.” And in paragraph 3 of the letter of the Federal Antimonopoly Service of Russia dated December 29, 2014 No. AK/54357/14, it is indicated that these provisions establish a ban on the inclusion of intellectual property items listed therein only if such requirements entail a limitation on the number of procurement participants.

In our opinion, from a systematic analysis of legislation it follows that the second point of view is more correct.

In this regard, we note that, as a general rule, the parties to the contract can agree on the purchase, for example, of a car of either a certain class (category), or a certain brand and a certain model (the first and (or) the second may be a trademark that individualizes the product ( clause 1 of Article 1477 of the Civil Code of the Russian Federation), a certain color and a certain year of manufacture and, finally, a specific car, individually identified by the chassis number and (or) engine number or state registration number, including individualizing the product by indicating the “TOYOTA” trademarks. and “CAMRY” or car brand – “Toyota Camry”.

In relation to the contract concluded as a result of a procurement under Law No. 44-FZ, special rules are established, including those given above, from which it is clear that the customer in the procurement documentation does not have the right to indicate a specific product and does not have the right to unambiguously determine the characteristics and intellectual property identifying the product property. At the same time, for example, an application for participation in an electronic auction, in accordance with clause 1, 3, part 3, art. 66 of Law No. 44-FZ, may - and first of all - contain the consent of the procurement participant for the supply or use in the performance of work, provision of services of goods, which are described in the auction documentation with indications of the intellectual property objects identifying it, the name of the country of origin of the goods. Otherwise, the application must contain intellectual property objects identifying the product, the name of its country of origin and its characteristics. If the characteristics of the offered product do not correspond to the values ​​specified in the documentation, the application is rejected (clause 2, part 4, article 67 of Law No. 44-FZ). Similar norms can be seen in the sections concerning other procurement methods (clause 2, part 2, article 51 and part 3, article 53, clause 1, part 3, article 73 and part 7, article 78, part 10 Article 83, paragraph 2, part 2, article 88 and part 4, article 89 of Law No. 44-FZ).

There is a general principle here, according to which the customer is obliged to describe the goods to be supplied using “broad” generic indicators, and the clarification of these indicators, the determination of the specific product to be supplied, is carried out by the procurement participant in the application for participation in the procurement.Accordingly, indications of intellectual property objects identifying the product can in any case be given in the procurement documentation as a description of an example of a product that meets the customer’s requirements. If the possibility of supplying an equivalent is simultaneously indicated and a range of values ​​is given that determines the possibility of replacing the goods (“equivalence values”, as specified in subparagraph “a” of paragraph 1, subparagraph “a” of paragraph 3 of part 3 of Article 66 Law No. 44-FZ), this is not a violation of the law.

Accordingly, we can conclude that the legislator does not intend to limit the number of participants due to the very fact of indicating a trademark. It seems that the same should be true for other intellectual property items identifying the product.

Of course, the indication of intellectual property objects identifying a product may limit the number of procurement participants if the procurement documentation does not allow for the possibility of supplying an equivalent or if no other product can correspond to values ​​within the formally established range of equivalence values. However, the issue of such an actual limitation on the number of procurement participants, obviously, can only be resolved depending on the specific circumstances of the case (the same opinion is expressed in the letter of the Federal Antimonopoly Service of Russia dated October 31, 2014 No. ATs/44495/14).

Thus, courts and antimonopoly authorities come to the conclusion that there is a limit on the number of participants in a procurement, the subject of which is the purchase of a car, if the technical characteristics specified in the documentation, including in combination with a trademark (car brand), lead to the inability of the supplier to offer a product with similar characteristics, but with a trademark (brand) other than indicated in the documentation (see, for example, FAS decision No. P-28/15 dated January 21, 2015, decision of the Federal Antimonopoly Service for the Republic of Tatarstan dated June 5, 2014 No. 123-kz/2014, resolution Arbitration Court of the North Caucasus District dated September 24, 2015 No. F08-6639/15 in case No. A01-2121/2014).

Nadezhda Verkhova, expert of the legal consulting service GARANT and Artem Barseghyan, reviewer of the legal consulting service GARANT

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 to prepare 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 State Defense Order”.

The tender 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. Whether the customer can include the phrase “or equivalent” in the documentation will be discussed in the article.

From this article you will learn:

• preparation of tender documentation;
• contents of the first part of the application for participation in the electronic auction;
• is it always necessary to include the words “or equivalent” in the description of the procurement object;
• trademark without equivalent.

Wherein a mandatory condition is to include the words “or equivalent” in the description of the procurement object, except for 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 cases of purchase of spare parts and consumables for machines and equipment used by the customer, in accordance with the technical documentation for these machines and equipment.

So, for example, according to Part 3 of Art. 66 of Law No. 44-FZ, the first part of the application for participation in the electronic auction must contain the information specified in one of the following subparagraphs:

1) when concluding a contract for the supply of goods:

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

b) specific indicators corresponding to the values ​​​​established by the documentation of such an auction, and an indication of the trademark (its verbal designation), service mark, company name, patents, utility models, industrial designs, 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 contain any indication of a trademark, service mark, company name, patents, utility models, industrial designs, appellation of origin or name of the manufacturer;

2) consent of a participant in such an auction to perform work or provide a service on the terms provided for in the documentation of such an auction, when such an auction is held to perform work or provide a service;

3) when performing work or providing services for which the goods are used:

a) consent provided for in clause 2, part 3, art. 66 of Law No. 44-FZ, including consent to the use of goods in respect of which the documentation for such an auction contains an indication of a trademark (its verbal designation), service mark, trade name, patents, utility models, industrial designs, place name origin of the goods or the name of the manufacturer of the goods, or the consent provided for in clause 2, part 3 of Art. 66 of Law No. 44-FZ, an indication of the trademark (its verbal designation), service mark, company name, patents, utility models, industrial designs, the name of the place of origin of the goods or the name of the manufacturer of the goods and, if a participant in such an auction offers the goods for use, which is equivalent to the product specified in this documentation, specific indicators of the product corresponding to the equivalence values ​​​​established by this documentation, provided that it contains an indication of a trademark (its verbal designation), service mark, brand name, patents, utility models, industrial designs , the name of the place of origin of the goods or the name of the manufacturer of the goods, as well as the requirement to indicate in the application for participation in such an auction a trademark (its verbal designation), service mark, trade name, patents, utility models, industrial designs, name of the place of origin of the goods or the name of the product manufacturer;

b) consent provided for in clause 2, part 3, art. 66 of Law No. 44-FZ, as well as specific indicators of the goods used, corresponding to the values ​​​​established by the documentation for such an auction, and an indication of the trademark (its verbal designation), service mark, brand name, patents, utility models, industrial designs, place name origin of the goods or the name of the manufacturer of the goods, provided that in this documentation there is no indication of a trademark, service mark, company name, patents, utility models, industrial designs, name of the place of origin of the goods or the name of the manufacturer of the goods.

To identify a supplier, contractor or contractor, you first need to plan electronic procedures. Get an electronic signature. Select the platform that best suits your organization and register. Next, generate documentation and notices, carry out procedures and identify a supplier and conclude a contract, taking into account the characteristics of each procurement method.
See solutions for each electronic method: auction, competition, request for quotations, request for proposals.

Thus, from the brief analysis of Part 1 of Art. 33 and part 3 of Art. 66 of Law No. 44-FZ, in our opinion, it follows that the mandatory condition for inclusion in the description of the procurement object words "or equivalent"contained in Part 1 of Article 33 of Law No. 44-FZ, must apply when describing the procurement object if the procurement documentation contains an indication of a trademark, service marks, brand names, patents, utility models, industrial designs, appellation of origin of the goods or name of the manufacturer.

Consequently, the customer in the documentation when describing the procurement object can indicate a trademark, service marks, company name, patents, utility models, industrial designs, the name of the place of origin of the goods or the name of the manufacturer of the goods for the supply of which the procurement procedure is being carried out, or which is used in performance of work, provision of services, accompanying such an indication with the words “or equivalent” and defining specific parameters of equivalence.

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In order to prevent restrictions on competition in procurement, Law No. 44-FZ obliges the customer to indicate the equivalent to the trademark of the purchased product. However, there are exceptions to the general rule based on the principle of incompatibility and non-interchangeability of purchased goods. The author of the article examines examples of procurement of specific items of goods without indicating the words “or equivalent”, taking into account the control practice of the FAS of Russia.

Let us recall that by virtue of clause 1 of part 1 of Article 33 of Law No. 44-FZ, the description of the procurement object indicates 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.

At the same time, a mandatory condition is to include the words “or equivalent” in the description of the procurement object, except for 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 cases of purchase of spare parts and consumables materials for machines and equipment used by the customer, in accordance with the technical documentation for the specified machines and equipment.

At the same time, the inclusion in the description of the procurement object of requirements and instructions regarding trademarks, service marks, brand names, patents, utility models, industrial designs, appellations of origin of goods or names of manufacturers, requirements for goods, information, works, services, provided that if such requirements entail a limitation on the number of procurement participants, with the exception of cases provided for by the legislation on the Constitutional Court, this entails imposing an administrative penalty on the official in the form of a fine in the amount of 1 percent of the NMCC, but not less than 10,000 rubles and not more than 50,000 rubles.

For example, on the basis of the Resolution on the initiation of an administrative case, drawn up during a prosecutorial audit, upon the inclusion of indications regarding the Samsung trademark in the description of the procurement object, the Komi OFAS Russia applied the above fine to the contract manager responsible for the preparation of documentation. Thus, the documentation for the auction for the purchase of a TV contained an indication of the trademark - Samsung, which contradicts paragraph 1 of part 1 of Article 33 of Law No. 44-FZ, thereby committing an administrative offense, liability for which is provided for in Part 4.1 of Article 7.30 of the Code of Administrative Offenses of the Russian Federation. According to the Resolution on the imposition of administrative punishment of the Komi OFAS Russia No. 04-05/650 dated January 26, 2015. , the initial (maximum) contract price is 21,100.00 rubles, therefore, 1% of the initial (maximum) contract price is 211.00 rubles. Thus, a fine was imposed in the amount of 10,000 rubles.

Taking into account that in general procurement cases the word “or equivalent” should be added to the trademark, we will consider cases of procurement of goods with trademarks without the words “or equivalent”.

44-FZ, the features of the description of procurement objects under the state defense order can be established by Federal Law No. 275-FZ of December 29, 2012 “On the State Defense Order” (hereinafter referred to as the Law on the State Defense Order). In accordance with Part 3 of Article 6 of the Law on State Defense Order, when placing a state defense order for the supply of weapons, military and special equipment, military property accepted for service, supply, operation, tender documentation, auction documentation, documentation of a request for proposals must contain an indication of the name or trademarks of such weapons, military and special equipment, and military property.

In accordance with the notice of the Auction and the documentation about the Auction, the object of purchase is: “Automotive crane KS45731M1”. At the meeting of the FAS Russia Commission, Order No. 277 of the Commander-in-Chief of the Ground Forces dated October 30, 2010 (hereinafter referred to as Order No. 277) was presented and an explanation was given that, in accordance with Order No. 277, the KS-45731M1 automobile crane was accepted for supply. Thus, the requirement for the supply of an automobile crane KS-45731M1 does not contradict the provisions of Law No. 44-FZ (see the decision of the Federal Antimonopoly Service of Russia in case No. KGOZ-236/15 dated May 26, 2015).

A special place in the practice of purchasing specific trademarks is occupied by cases of lack of interchangeability of purchased goods.

Thus, in the Applicant’s opinion, his rights and legitimate interests were violated by the actions of the Customer, who established requirements for the technical characteristics of the purchased product, limiting the number of procurement participants, and corresponding to the drug from only one manufacturer, namely Teva LLC (Israel). In accordance with clause 1.2 of the Auction documentation “Description of the procurement object”, the Customer has established the following requirements for the product: international nonproprietary name (hereinafter referred to as INN): “Glatiramer acetate”, solution for subcutaneous administration with a dosage of 20 mg/ml. According to the state register of medicines, trade names of medicines are currently registered in the state register corresponding to the only manufacturer (Teva LLC) producing a medicine with the INN Glatiramer acetate in the form of solution for subcutaneous administration with a dosage of 20 mg/ml .

At a meeting of the FAS Russia Commission, representatives of the Customer reported that the purchase of the drug is carried out in accordance with the needs of the Customer, while, according to the state register of medicines, the purchase of a drug with the INN “Glatiramer acetate” is currently possible only from one manufacturer. Thus, the complaint’s argument was not confirmed and was declared unfounded (see the decision in case No. K-831/15 of July 13, 2015).

It is impossible not to note the practice of purchasing specific trademarks in connection with the need to ensure the interaction of purchased goods with goods used by the customer.

Considering the complaint with the argument that the terms of reference of the Tender Documentation of the second stage of work on the creation of an integrated information and analytical system for monitoring vehicles contains an indication of an automated workstation for monitoring passenger transport with technical characteristics, including the Core_i52500 processor without accompanying the goods with the words “or equivalent” , FAS Russia supported the customer. At a meeting of the FAS Russia Commission, representatives of the Customer explained that, in accordance with clause 69 of the section “Specification of the Customer’s Equipment and Software” of the technical specifications of the Competition documentation, the Customer purchased an automated workstation for monitoring passenger transport with technical characteristics, including a system unit with a Core_i5- processor 2500. In this regard, the Customer did not accompany this technical specification of the system unit with the words “or equivalent” (see the decision of the FAS Russia in case No. K-1420/14 dated September 29, 2014)

In another case, the Applicant’s argument that the Tender Documentation did not properly establish the technical parameters of the stack cable for combining WS-C3750-24FS switches was also not confirmed. In clause 6.2 “Quantity and technical characteristics of the supplied equipment” of the Technical Specifications of the Auction documentation, the following requirement for the supplied equipment is established: “Stack cable for combining WS-C3750-24FS switches into a stack with a length of at least 1 m in the amount of 5 pieces " At a meeting of the FAS Russia Commission, representatives of the Customer explained that the stacking cable for combining WSC3750-24FS switches is necessary to combine existing and operated switches by the Customer that have special interfaces for connecting into a stack for a specific product (see the decision of the FAS Russia in case No. K-469/ 15 dated April 29, 2015).

According to the decision of the Federal Antimonopoly Service of Russia in case No. KGOZ-189/15 dated May 12, 2015. No violations of the law on the Constitutional Code were established when describing the purchased software. Thus, in accordance with paragraphs 1, 2 of the Technical part of the Auction documentation, the technical characteristics of the laptop are indicated: “A pre-installed, licensed operating system no worse than Windows 7 Professional, delivery with a Windows 8.1 Prodowngrade license is allowed. Additionally, a set of office programs must be supplied no worse than Microsoft Office 2013 in a boxed version of the package"; “pre-installed, licensed, operating system no worse than Windows 7 Professional, may be supplied with a Windows 8.1 Prodowngrade license; a pre-installed licensed set of office programs no worse than Microsoft Office 2013 Professional.”

At a meeting of the FAS Russia Commission, the Customer's representatives explained that the Customer's laptops and workstations run on Windows operating systems and have Microsoft Office suites installed on them. In this connection, for compatibility with laptops and workstations already in use, the Customer needs laptops and workstations with the Windows operating system and office suites of Microsoft Office programs.

However, special attention should be paid to the unlawful practice of purchasing specific software on the basis of the need to provide it with existing software downloaded from developer sites as demo versions.

A striking example is the resolution on imposing an administrative penalty of the Yamalo-Nenets OFAS Russia No. 04-02/89-2015 dated March 27, 2015. The subject of the purchase was the acquisition of non-exclusive (user) license rights to the software. Clause 2 of the Requirements states that the customer acquires a non-exclusive right to use Kaspersky Endpoint Security for Business Standard software. Electronic version (basic license of the Russian version for 1 year). For compatibility with installed software Kaspersky Security Center, Kaspersky Endpoint Security. The supply of an equivalent is not provided due to the need to ensure interaction of this product with the product previously purchased and installed at the facility (in accordance with clause 1, part 1, article 33 of Federal Law No. 44-FZ), due to the need for compatibility with software installed on the Customer's computers.

Meanwhile, based on the explanations and justifications given by the customer, trial versions of anti-virus software are installed on the customer’s computers, which means that this software was downloaded from the site. The customer did not provide documents for consideration of the case confirming the fact that the institution has non-exclusive rights to use this anti-virus software.

The fact of downloading trial versions of the software is confirmed by screenshots, according to which the specified version was installed on October 12, 2014. According to the information posted on the website http://www.kaspersky.ru/, free versions of the program are valid for 30 days, therefore, at the time of completion of the purchase, these programs will no longer work for the customer.

Considering the circumstances stated above, the customer had no legal basis when forming clause 2 of the need to indicate specific software. Consequently, the customer violated the rules for describing the procurement object established by clause 1, part 1, 2 of art. 33 of Law No. 44-FZ. The customer official who approved the documentation was found guilty of committing an administrative offense under Part 4.2 of Art. 7.30 of the Code of Administrative Offenses, a fine of 3,000 rubles was imposed.

Of course, as noted above, it is possible to purchase specific types of spare parts and consumables for machines and equipment only in accordance with the technical documentation for the specified machines and equipment.

According to the Applicant’s complaint, the documentation for the Auction for the supply, including the installation of uninterruptible power supplies for battery modules, contains requirements for the supply of equipment without the words “or equivalent”, which limits the number of procurement participants, namely, a requirement for the supply of a battery of a specific model without the possibility of supply equivalent.

Clause 2.4 of Part II “Technical Requirements” of the Auction documentation establishes a requirement for a battery that “must be compatible with the Customer’s existing Eaton Power ware uninterruptible power supplies” and have a model “CSB GPL 12520 (article GPL 12520).”

At a meeting of the FAS Russia Commission, the Customer's representatives explained that the requirements established in the Auction documentation for procurement participants were determined by the Customer's needs and were established in connection with the need to ensure their compatibility with the equipment available to the Customer.

At the meeting of the FAS Commission, the Customer’s representatives explained that the Customer’s Eaton UPS has CSB GPL 12520 model batteries with GPL 12520 article installed, and also presented the Battery Installation Instructions, according to which the use of batteries from another manufacturer is unacceptable, as it may damage the UPS and possible loss of warranty for the specified UPS. Thus, the Applicant’s argument that the Auction documentation contains requirements for the supply of equipment without the words “or equivalent”, which limits the number of procurement participants, was not confirmed (see.

When placing a municipal order through an open auction in electronic form for laying paving slabs, the auction documentation (in the bill of quantities) indicates the specific name of the tile collection and the requirement that the tiles comply with a specific GOST. The collection name is not accompanied by the words "or equivalent".
Is this a violation of Federal Law No. 94-FZ of July 21, 2005? How can a customer determine the parameters of product equivalence?

Nadezhda Verkhova and Arkady Serkov, experts of the GARANT Legal Consulting Service, know the answer to this question.

Documentation of an open auction in electronic form (hereinafter referred to as the Auction) must comply with the requirements provided for in Part. 1-3.2, 4.1-6 art. 34 of Federal Law No. 94-FZ of July 21, 2005 “On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs” (hereinafter referred to as Law No. 94-FZ). In accordance with Part 1 of Art. 41.6, part 2 art. 34 of Law N 94-FZ, documentation of an open auction in electronic form, among other things, must contain the requirements established by the customer for the quality, technical characteristics of goods, works, services, requirements for the functional characteristics (consumer properties) of goods and other indicators related with determining the conformity of the supplied goods, work performed, services provided to the customer’s needs. In this case, the maximum and (or) minimum values ​​of such indicators, the values ​​of which cannot be changed, used to determine compliance with the customer’s needs or equivalence when performing work must be indicated.
Thus, the customer himself sets the requirements for the purchased goods; accordingly, he can present the requirements provided for by GOST, technical conditions, technical regulations (see the decision of the OFAS for the Tambov region dated March 29, 2011 N 58-2-09/1010, the decision of the OFAS for the Novosibirsk region dated 02.09.2009 N 08-01-270, resolution of the Federal Antimonopoly Service of the North-Western District dated 04.14.2011 N F07-1513/11, FAS Central District dated 28.10.2010 N A08-766/2010-26). The customer’s requirement that the purchased goods (works, services) comply with GOST can be recognized as unlawful only if such a GOST does not actually exist (decision of the OFAS commission for the Chelyabinsk region dated 02/14/2011 N 54-zh/2011).
According to Part 3 of Art. 34 of Law N 94-FZ, documentation about the Auction may contain an indication of trademarks. However, when listed in auction documentation for trademarks, they must be accompanied by the words “or equivalent.” The equivalence of goods is determined in accordance with the requirements and indicators established in accordance with Part 2 of this article. In this regard, we note that “equivalent” is a Latin word that means “equal”, “equal”. It follows that the equivalence of a product is determined by its equivalence to meet the needs of the customer of the product specified in the documentation about the Auction, and its compliance with the indicators specified there. We can say that in fact, in the indication of Part 1 of Art. 41.6 of Law N 94-FZ, the phrases “conformity to the customer’s needs” and “equivalence” are used as synonyms: “to determine compliance with the customer’s needs or (which is the same thing) equivalence.”
In other words, Law No. 94-FZ actually prohibits the customer, as a general rule, from placing an order through an Auction for a specific product designated by a specific trademark. The Customer may indicate in the Auction documentation only a range of indicators or deviations from the given firm indicators. A specific trademark can only be indicated to indicate an example of a product that corresponds to the indicators specified in the documentation about the Auction, and therefore to the needs of the customer. However, any product whose characteristics lie within the range defined by the Auction documentation is considered equivalent, that is, equivalent to the one whose trademark is indicated in the Auction documentation as an example.
Indication in the auction documentation of indicators that can only be met by one product, a product designated by one trademark, can be regarded as a violation of the law (see, for example, the decision of the OFAS for the Khabarovsk Territory dated August 29, 2011 N 164, the resolution of the OFAS for the Republic of Tatarstan dated 07/27/2011 N A04-668/2011, decision of the Federal Antimonopoly Service dated 04/27/2012 N K-724/12; resolution of the Seventeenth AAS dated 08/30/2012 N 17AP-8066/12, topic 3 of the Review of judicial practice on issues related to placement orders for the supply of goods, performance of work, provision of services for state and municipal needs (prepared by the Department for Control of Placement of State Orders of the FAS Russia, January 2013), topic 1 of the Review of clarifications of legislation on the placement of orders for the supply of goods, performance of work, provision of services for state and municipal needs when placing orders for the provision of services in the construction sector (prepared by the Department for Control of Placement of State Orders of the FAS Russia, March 2012)).
Exceptions are indicated in the same part 3 of Art. 34 of Law N 94-FZ: cases of the need to ensure compatibility of purchased goods with goods used by the customer, as well as cases of placing orders for the supply of spare parts and consumables for machines and equipment used by the customer (which, in our opinion, is a special case of the previous one) .
Thus, in the Auction documentation it is necessary to indicate the range of indicators or deviations from the given firm indicators and provide an indication of the trademark of the product corresponding to these indicators as an example. In this case, any product whose characteristics are determined by indicators lying in the specified range is considered equivalent to the one given as an example.
In any case, it is the customer who sets the requirements for the equivalence of goods based on his needs (topic 3 of the Review of judicial practice on issues related to placing orders for the supply of goods, performance of work, provision of services for state and municipal needs (prepared by the Department for Control of Placement of State Orders of the FAS Russia , May 2011)).
In this situation, the Auction documentation indicates the name of the “collection”. The legislation does not contain such a term in relation to goods. In practice, a “collection” is understood as a number of goods (types, models of goods) united by constructive and (or) design solutions, designated by a specific trademark. That is, the name of the collection, in fact, is the next step in specifying the definition of the product, after indicating the trademark. Therefore, there is a high probability that the regulatory authorities will consider the indication of the name of a collection of paving slabs without the words “or equivalent” to be unlawful (see, for example, Topic 2 of the Review of Administrative Practices (the practice of applying the Code of Administrative Offenses of the Russian Federation) in the field of placing orders for the supply of goods, performance of work, provision of services for state and municipal needs (prepared by the Department for Control of Placement of State Orders of the FAS Russia, June 2011), decision of the FAS Russia dated January 11, 2013 N K-30/13).