How to indicate a trademark in an auction application. We learn to participate in an auction correctly and analyze the bidding processes

In cases where the subject of the procurement is the provision of services, only consent from the supplier in the first part of the application is sufficient. The text of the document in which this consent is formulated is offered by the electronic platform; the participant must only sign it with his electronic signature. Thus, he confirms his intention to complete all work in full compliance with the requirements of the auction documentation. No other documents are required from him in the first part of the application.

But if the order involves the delivery of any goods or the use of goods in the process of performing work, then consent alone is no longer sufficient. The first part of the application in these cases must clearly and fully present to the customer what the participant is offering. The most important thing is that your product must absolutely satisfy all the customer’s requirements. There are no trifles here, no hope for “maybe”. The customer commission will not allow a participant to bid if the application does not provide information about the product or the product does not meet the requirements of the auction documentation. And, of course, the application will be rejected if false information about the product is provided.

Question: In what form are product data provided in the first part of the application? Is it enough to present it in a word file?

• There are no legal requirements for the form of information provided in the first part of the application. The main thing is that you must provide ALL the information that the Customer requested about the product. The customer may recommend any form of providing information, but in any case these will only be recommendations. You, of course, can meet the Customer halfway and use his form (Word, Excel, etc.), or you can offer a different one.

Question: Is it possible for a participant to attend the consideration of the first parts of applications?

• No. Consideration of the first and second parts of applications is carried out by the customer's auction commission without the presence of participants. In addition, the first parts of applications, in accordance with 94-FZ, are considered anonymously.

Question: If we are a manufacturer of a product, is it possible to indicate the brand of our company's product?

• This is not prohibited by law. And if the auction documentation contains a direct requirement for the delivery of goods of a certain brand (brand) or equivalent, you are required to indicate the trademark.

Question: Does the customer have the right to require potential suppliers to indicate the manufacturer of the product when submitting the first parts of applications?

• Yes, the customer has the right to demand a description of the product, including indicating the manufacturer.

Question: What to do with the first part of the application if a product is being supplied, the quality indicators of which cannot be specified in a specific number? The quality indicators of a product, even in its certificate of conformity, are indicated in the range, either “no more than …”, “no less than …”.

• When specifying characteristics expressed by a range of values, it is important that the range of characteristics of the product you offer is not less than what is required by the auction documentation. Or no more, depending on the context of the customer's requirements.

The UAEF bidding process

The auction bidding process consists of two stages:

1. The main one, where price proposals are submitted to reduce the auction price.
2. Closing of trades.

Question: I went to the auction, but another participant, who also submitted a bid, did not come out for some reason, for example, technical. Should I take a step and reduce the auction price?

• If you do not take any steps, it will be considered that you did not come to the auction. This means that if you want to get a contract, you need to make a price offer - reduce the price by at least 0.5%.

Question: Is it possible to reduce the price by 3 rubles if the step is from 5 to 50?

• You can reduce your price by 3 rubles, even if this offer is outside the auction step, i.e. you are no longer the current leader and you are not improving the current price with your offer. But the auction price can only be reduced by an offer in the auction step.

Question: For example, I know that I will not go below 20% of the price. And then I took second or even third place. The price has already been reduced, for example, by 40%. As a result, the customer rejects the first (for example, problems with documents), and also rejected the second... I, who became the third, will be obliged to finish their deficiencies for pennies... I don’t want to! How can we be here?

• If someone is rejected during the second round of bids, BEFORE the contract is awarded, you will be offered the contract, but at your price, not the winning bidder's price. And you will be obliged to conclude it. If the contract has already been concluded with someone, and this someone failed to fulfill the contract, the Customer may offer you to conclude a contract for the remainder of the work. But it is your right to agree or disagree. In this case, the customer cannot apply any sanctions to you for refusing to conclude such a contract.

Question: How long does it take for the bid security to be returned if a participant participated in the auction but did not win?

• Funds blocked by the ETP as security for the application are unblocked within ONE WORKING DAY after the conclusion of the contract (Clause 17, Article 41.12 of Law 94-FZ). If you took fourth place or more in the final protocol, you have the right to withdraw your application before concluding the contract (Clause 13, Article 41.11 of Law 94-FZ), and the money will be returned to you after the withdrawal of your application, within the same time frame.

Question: Supplier for simplified taxation system. The customer demands an invoice with VAT and justifies the refusal to accept the goods by the non-conformity of the goods...

• Are we talking about government procurement? If yes, then this is wrong. But when concluding the contract, the Supplier had to inform the Customer about its taxation system. If the winner is not a value added tax payer (including on the simplified taxation system), then when concluding a contract, when indicating the contract price, instead of indicating the amount of value added tax, a dash is placed; When paying for goods supplied (work performed, services rendered), the contract price is not reduced by the amount of value added tax and the goods supplied (work performed, services rendered) are paid at the price specified in the contract. (Letter of the Ministry of Finance of the Russian Federation dated December 28, 2011 N 02-11-00/6027).

Online course "": prepare to conclude a government contract in electronic form

When purchasing spare parts and consumables, it is allowed to indicate trademarks without describing their characteristics. This opinion is shared by officials of the Ministry of Economic Development of Russia in a letter dated August 21, 2015 No. D28i-2516.

Restrictions on the use of trademarks in Law No. 44-FZ

When describing the subject of procurement, the customer must be guided by the rules defined by Part 1 of Article 33 of Law No. 44-FZ. The rules state that it is unacceptable to include trademarks in the description. This requirement may limit the number of procurement participants.

But in some cases exceptions apply. These include:

• use of goods the supply of which is not the subject of the contract;
• incompatibility and non-interchangeability of goods;
• the need to ensure the interaction of purchased goods with those that the customer already uses;
• purchase of spare parts and consumables for used machines and equipment in accordance with their technical documentation.

When the customer’s indication of a trademark is legal

Department officials believe that in the situation under consideration (purchase of spare parts and consumables), the customer has the right to indicate only the trademark. Also, he is not obliged to describe the characteristics of the product.

At the same time, participants in the contract system must remember the general rule for describing procurement items - when indicating specific trademarks, the words “or equivalent” must be included.

In the first part of the application, participants in the electronic auction are required to indicate the trademark of the products they offer. But the fact that this mark is absent from the application does not give the right to its automatic rejection.

In accordance with the provisions of Law No. 44, in the first part of the submitted application, participants in an electronic auction are required to indicate the trademark of the products they offer. However, the fact that the application does not contain this mark does not automatically give the right to reject it. Before deciding that such a participant is not allowed to participate in the auction, the customer needs to figure out whether the product actually has a trademark. Otherwise, you can run into penalties in the amount of up to 30,000 rubles.

Let us consider, using a number of examples from administrative practice, cases where customers both unlawfully and quite legally rejected applications in which the products did not have a trademark.

In the first part of the submitted application for holding an electronic auction for the supply of goods, it is necessary to indicate the trademark (its verbal designation) (). The meaning of this condition is that by indicating the brand, the specification of the product is ensured, otherwise the customer will not be able to understand what they want to offer him. If goods are supplied in batches, there is a risk of receiving products from different brands and manufacturers.

Meanwhile, when submitting bids, auction participants often do not register a trademark. In some cases, they do this out of ignorance or even intentionally. However, often the goods they offer simply do not have a trademark. If the antimonopoly service determines that an application that does not contain a trademark was rejected by the auction commission unlawfully, then a fine in the amount of one percent of the NMCC (in the range of 5 - 30 thousand rubles) may be imposed on each member of the contract service.

We will show in what cases an application in which the participants do not register a trademark can be rejected by the customer, and when, by doing this, they violate the law.

When an application that does not contain a trademark must be rejected

All members of the auction commission paid 5.0 thousand rubles. due to the unlawful rejection of a participant’s application that does not contain a trademark. If an auction application without a trademark is rejected, then customers must provide evidence that in fact such a mark exists. In the three examples given in this chapter, customers managed to do this. In all cases, participants were not allowed to participate in the electronic auction for the supply of goods due to failure to indicate a trademark in their applications. They did not agree with the customers’ decision and sent a complaint to the Russian Antimonopoly Service.

1. Instead of the brand itself, the phrase “trademark” was indicated. In the first case, the participant in the auction for the purchase of heraldic products did not indicate a trademark in the submitted application, but simply wrote that “the product and packaging labels contain: a) the stamp (trademark) of the manufacturer of the goods.” At the meeting of the FAS Commission, the applicant, in his justification, presented a certificate of registration of the stamp (trademark) (FAS decision of January 29, 2016 No. K-124/16). However, this argument played against him, that is, it was evidence of the existence of a trademark, and a certificate for it should be available by default. Law No. 44 provides for its indication in the first part of the submitted application. The participant did not do this. The Antimonopoly Service took the customer's side.
2. Instead of a trademark, the manufacturer is indicated. In the first part of his application, the participant in the electronic auction indicated the country of origin and the manufacturer by position. For example, item 7 looked like this: “Electric digester boiler KPEM-350-O, OJSC Chuvashtorgtekhnika, Russian Federation.” The participant believed that this was a trademark. However, at a meeting of the Antimonopoly Service Commission, the customer provided information that the equipment of Chuvashtorgtekhnika OJSC is produced only under the Abat brand (FAS decision No. K-100/16 dated January 26, 2016). He received this information in response to a request from OJSC Chuvashtorgtekhnika. As a result, since the products manufactured by this company have their own trademark, FAS took the customer’s side.
3. The name is not indicated, but an Internet link. The first part of the application submitted by the auction participant did not indicate the trademark of the proposed product, but contained the text “digital voice recorder.” Next was a link, when clicked, a product under the Olympus brand was displayed. For the customer, this was evidence that, even if there was a trademark, the participant did not display it in the application as expected. The FAS commission recognized the actions of the customer, who rejected the application of this participant, as lawful (FAS decision of November 9, 2015 No. K-1495/15).

A trademark is a designation for the individualization of goods produced by individual entrepreneurs or legal entities. This is recognition of the exclusive right to a product, which is certified by a certificate. State registration of a trademark is carried out by the federal authority in the State Register of Service Marks and Trademarks of the Russian Federation.

When an application that does not have a trademark should not be rejected

Based on the Contract System Law, participants in electronic auctions must indicate the trademarks of the products offered for delivery only if they are available. This is indicated in brackets of Law No. 44 (subparagraph “a”, paragraph 1, part 3, article 66).

The procurement commission does not have the right to reject an application if it does not know exactly whether the proposed product has a trademark (its verbal designation). This applies to the moment when the commission considers the first parts of applications (the customer’s protocol must contain the reason why the participant was not admitted to the auction). Not all customers realize this. However, such mistakes do not go unnoticed: you have to pay for making them.

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 items 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