Comments to Federal Law 44 on government procurement. The main thing about the Procurement Law: comments, structure, basic concepts

Brought major changes. The new law added an auction list regulating the purchase of goods through an electronic auction. FZ-44 introduced the Unified Information System. Some of the changes affected procurement planning. The approach to their formation and timing has changed, and the possibility of public discussion has been added.

Federal Law-44 “On Government Procurement” is a document that regulates the system for processing and placing government orders for bidding, using a purchasing system available to both the buyer and the supplier. The document is intended to establish a system for purchasing goods of municipal and state importance.

According to Federal Law 44, customers must create annual procurement schedules, placing them in a single information database for maximum transparency of the process. For goods sold worth more than 1 billion rubles, a condition of mandatory public discussion is imposed. In general, public control has been introduced.

In the executive part of orders, the new law has introduced diversity in their placement. Orders can be placed electronically, on a competitive basis, during closed auctions, etc. Contracts for orders are now supervised by banking organizations. The procedure for their amendment and termination has been changed.

According to Federal Law 44, restrictions are imposed on foreign purchases.

Download FZ-44

Federal Law 44 “On Public Procurement” in the latest edition with comments, available at. The document also contains notes related to changes in the law.

Placing orders

Changes in the law on placing orders mainly affected schedules. The formation of schedules must be done in advance. They are posted by customers on the official website, based on the procedure approved by the Ministry of Economic Development and the Treasury of the Russian Federation.

Changes to the schedule, by law, are made only if there is a change of more than 10% of the cost of goods planned for purchase. To make changes, you must indicate the reasons.

Procurement for municipal needs under 44-FZ

According to 44-FZ, procurement for municipal needs is a process, a set of actions, agreed upon by Federal Law, aimed at meeting state or municipal needs. Any legal entity can become a participant in the transaction; the customer is any government agency. The main change affecting procurement was mandatory public discussion, with a purchase amount of 1 billion rubles or more.

The new law provides for only a few cases when procurement can take place without public discussion:

• with closed determination of suppliers;
• within the framework of defense government orders;
• when purchasing through an electronic auction;
• for purchases that are sold as humanitarian aid.

Federal Law No. 44 “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” was adopted in mid-2013, namely on April 5. Despite this, it came into full force only on January 1, 2014, when replaced Federal Law No. 94.

The most popular method of identifying a supplier is an electronic auction.

The second most popular option is purchasing from a single supplier. About 90% All trading procedures are carried out using these two methods.

The largest government customer of the year was the Highway Service of the Republic of Crimea, which concluded contracts for 152.5 billion rubles.

The second place in terms of the volume of orders, a third less, is occupied by the Ministry of Industry and Trade of Russia.

Advantages of 44-FZ

Ensuring competition in the field of public procurement and municipal orders, which means a real fight against corruption;

transparent rules for conducting tenders, the same for all participants;

creation of a unified information system for customers and tender participants, which unites procurement of all government trading platforms;

the inability to limit the number of participants in placing an order by creating an artificial lack of information;

arbitrary determination of the winner of the auction is excluded: the law obliges the customer to establish and publish in advance the criteria for evaluating applications and proposals of participants;

an exhaustive list of requirements for a procurement participant is specified in the law, which means that the customer cannot limit participation in the tender by imposing additional requirements.

Control in 44-FZ

planning procurement of any kind, the subject of which may be goods, services, etc.;

procedure for determining the executor of the order (supplier or contractor);

conclusion of contracts based on procurement results;

control of compliance with the terms of concluded contracts, monitoring and audit;

control over compliance with all regulations on the contract system in the field of procurement.

In other words, 44-FZ controls and regulates all relations related to the provision of state and municipal needs.

If the customer’s actions contradict the requirements established in 44 Federal Law, then the supplier has the right to file a complaint with the FAS to protect its interests and conduct procurement in accordance with the law.

The advantage of tenders held in accordance with the law on the contract system is that the actions of the customer and supplier are strictly regulated by law and therefore none of them can act outside the framework of 44-FZ. At the same time, any organization can become a participant in government procurement, because GWS purchased for the needs of municipal and state institutions are very diverse and cover a wide range of industries.

Amendments to 44-FZ

A number of important innovations will come into force in 2018. We talked about them in detail in this article.

Briefly, the largest changes can be reflected in the following points:

• government procurement is transferred to electronic form;
• mandatory use of only a qualified electronic signature in government tenders;
• the need for registration in the Unified Information System;
• the ability to provide security for the application with a bank guarantee;
• the conditions and amount of security for the application for participation will change;
• depositing the application security into a special bank account, instead of an account on the electronic trading platform;
• introduction of a standard application form and documentation;
• paid participation in procurement

Download 44-FZ on procurement with the latest changes 2018

OOO ICC"RusTender"

The material is the property of the site. Any use of the article without indicating the source - the site is prohibited in accordance with Article 1259 of the Civil Code of the Russian Federation

Art. 3 reveals the term determination of supplier (contractor, performer), as a set of actions, starting from the placement of a procurement notice or invitation and ending with the conclusion of a contract. That is, the law provides a complete definition of all stages of the procurement process and should be a reference book for all its parties.

The procurement procedure includes, according to Federal Law-44:

• Placement of procurement plans and schedules
• Preparation and placement of procurement documentation
• Determination of supplier (contractor, performer)
• Conclusion of a contract
• Acceptance of goods, works, services
• Posting reports

Cancellation of the supplier determination is possible no later than 5 days before the deadline for submitting applications for the competition and auction and no later than 2 days for requesting quotations.

Planning of purchases according to 44-FZ

Chapter 2 consists of 8 articles (vv. 16-23). It regulates planning, justification, rationing, information about the NMCP (initial maximum contract price), and identification of purchases.
According to 44-FZ, the state customer is obliged to plan purchases, post procurement plans and schedules. Thus, before the procurement is announced, you can plan your participation and search for a tender, waiting for its publication by the customer.

Procurement plans under 44-FZ

Procurement plans should include:

1. Purchase identification code
2. Purpose of the purchase
3. Name of procurement objects
4. Amount of funding
5. Timing, frequency
6. Justification of the initial maximum price and method of determining the supplier

Schedules according to 44-FZ

Schedules should include:

1. Identification code
2. Name and description of the procurement object
3. Specifications:
   • quantity of goods
   • scope of work or service
   • deadlines
   • periodicity
   • starting price
   • advance amount
   • payment stages
4. Additional requirements for participants and their rationale
5. Method for identifying a supplier and its rationale
6. Procurement start date
7. Information about securing the participant’s application and securing the execution of the contract

The schedule (PG) is developed for 1 year. Approved within 10 working days after the customer receives the scope of rights in monetary terms. The PG is posted in the UIS within 3 working days. Procurements that are not included in the schedules are prohibited.

Features of procurement planning within the framework of the State Defense Order (state defense order) are established by 275-FZ “On State Defense Order”.

Procurement under 44-FZ

Chapter 3 makes up more than half the volume of 44-FZ, consists of 7 paragraphs, including 73 articles (Articles 24-96).

This is the most important section for suppliers. It defines types of procurement, stages, deadlines, requirements, etc.

Paragraph 1 – general provisions of the third chapter. Consists of 24 articles and describes:

• ways to identify suppliers
• centralized procurement
• participation in procurement of special entities
• requirements for procurement participants under 44-FZ
• evaluation of applications
• application support forms
• contract service concepts
• specialized and expert organizations

Methods for determining a supplier according to 44-FZ

Paragraph 2 – identification of suppliers through competitions and auctions. Covers 24 articles.

When determining a supplier, customers use competitive methods or purchases without tendering under 44-FZ (purchase from a single supplier).

Competitive methods for determining a supplier under 44-FZ

1. Open competitions
   • Open competition
   • Limited Participation Competition
   • Two-stage competition
2. Closed competitions
   • Closed competition
   • Closed competition with limited participation
   • Closed two-stage competition
3. Auctions
   • Electronic auction
   • Closed auction
4. Request for quotation
5. Request for proposals

Evaluation of applications under 44-FZ

The customer evaluates applications according to the following criteria

1. Operating costs
2. Characteristics
   • Quality
   • Functional
   • Environmental
3. Qualification
   • Financial resources
   • Equipment and other material resources
   • Experience in contract subject matter
   • Business reputation
   • Qualification of specialists

The customer is obliged to indicate in the documentation a list of criteria and their significance.

At the proposal preparation stage, you can estimate how many points each evaluation criterion can bring.

There can be at least 2 criteria, the obligatory one of which is price. In this case, for example, the importance of operating costs cannot be higher than the price.

The procedure for evaluating applications and criteria are established by Government Decree No. 1085 “On approval of the rules for evaluating applications, final proposals of participants in the procurement of goods, works, services to meet state and municipal needs” dated November 28, 2013, the latest version of which was adopted in 2016.

The calculation formulas specified in it for assessing the application are not clear to every customer and supplier.

Description of the procurement object under 44-FZ

When describing the procurement documentation, the customer must be guided by the rules

1. Objective nature of the description
2. Characteristics are indicated
   • Functional
   • Technical
   • Quality
   • Operational
3. Requirements should not be included
   • Trademarks, service marks
   • Brand names
   • Patents, utility models
   • Industrial designs
   • Name of place of origin of the goods
   • Manufacturer's name
   • Requirements limiting the number of procurement participants

There are exceptions to these rules. It is possible to indicate trademarks if it is intended to use goods the supply of which is not the subject of the contract.

In this case, the description must include the word “or equivalent”, except in cases of incompatibility of goods or the purchase of spare parts and consumables.

When describing the procurement object, the customer may include

• Specifications
• Plans, drawings, sketches
• Photos
• Results of work and testing
• Requirements for testing and their methods
• Requirements for packaging, marking, labels
• Confirmation of compliance of production processes and methods with technical regulations, standards and conditions
• Conventions and terminology

All goods must be new, not used, repaired or refurbished, unless expressly stated in the documentation.

If necessary, the customer can set requirements

1. By the warranty period
2. Scope of guarantees
3. Warranty service
4. To the costs of operating the product
5. Mandatory installation and commissioning
6. To train persons using and servicing the product

Any participant has the right to send the customer a request for clarification under 44-FZ. The response time to a request for clarification of the provisions of the documentation is two days.

Contract service under 44-FZ

The contract service is needed for planning and implementation by the customer of purchases of goods, works, services to meet state or municipal needs.

According to 44-FZ, the customer is obliged to create a contract service if the volume of purchases under 44-FZ exceeds 100 million rubles per year.

If the procurement volume is less than 100 million, the customer has the right to create a contract service or appoint a responsible person - a contract manager.

The contract service operates on the basis of standard regulations (regulations) approved by Order of the Ministry of Economic Development dated October 29, 2013 N 631 (as amended on October 24, 2016).

The number of contract personnel is at least two people. It is not necessary to create a structural unit; it is enough to approve a permanent composition of employees performing the functions of a contract service and appoint a manager.

Requirements for the qualifications of a contract manager or contract service employees - higher education or additional professional education in the field of procurement.

The basic functions and powers of the contract service are varied and stem from 44-FZ. In order to fulfill them, contract service employees should not disclose information, enter into negotiations with procurement participants, and may involve expert organizations in the work.

Other powers of the contract service:

• Consultations with suppliers, contractors, performers to determine the competitive environment, the best technologies and solutions for ensuring public procurement
• Mandatory public discussion of the procurement of goods, works, services
• Approval of requirements for purchased goods, works, services
• Participation in the consideration of cases of appealing the actions or inaction of the customer to the FAS, claims work
• Development of draft customer contracts
• Checking the bank guarantees of the supplier, contractor, performer
• Arranging the return of funds as security for an application or contract security

Expert organization for 44-FZ

The customer engages experts and expert organizations in accordance with 44-FZ to perform functions, for example, acceptance of goods, works, and services.

Expertise under 44-FZ cannot be carried out:

• Individuals
• Officials or employees of the customer (acting or having been them over the past two years)
• Persons having property interests under this contract
• Close relatives of the customer’s manager, members of the contract service, procurement commission
• Officials or employees of the contractor, supplier, performer
• Legal entities in which the customer or supplier under the contract have shares of 25% or more
• Natural or legal persons who may be directly or indirectly influenced by the supplier or customer

Contract under 44-FZ

Several articles are devoted to the terms of the contract, the procedure for its conclusion, amendments and termination in 44-FZ. Art. 34 sets out general principles. The contract (agreement) is concluded on the terms provided for in the notice, invitation, documentation, application and final offer of the participant.

The term for concluding a contract under 44-FZ is on average from 10 to 20 days from the date of publication of the protocol. At the same time, the supplier contributes security for the execution of the contract under 44-FZ. The most popular method is a bank guarantee to ensure the execution of the contract.

An increase in the contract price is possible at the customer’s initiative by no more than 10% if the quantity of goods supplied increases. The procedure for concluding a contract is described separately for each type of supplier determination.

Tenders under 44-FZ

Federal Law 44-FZ on the contract system does not use the concept of “tender”, which is widely used among suppliers and in the business environment.

Tender is synonymous with identifying a supplier on a competitive basis, which is referred to in law as “procurement”. 44-FZ suppliers sometimes call bidding law or the federal law on tenders and auctions.

Analysis of tenders under 44-FZ is a necessary step before making a decision on participation in the procurement. Study the notice, documentation, technical specifications, draft contract. To participate in tenders under 44-FZ, you will need to provide application security.

Open competition under 44-FZ

Art. 48-55 determine the conditions for holding an open tender (Article 48), documentation requirements, the procedure for submitting and considering applications, and concluding a contract. Participation in an open competition presents major difficulties for suppliers. The customer evaluates bids according to a variety of criteria (Article 53).

An application for participation in an open competition under 44-FZ is submitted in paper form in a sealed envelope.

Applications can be thousands of pages long, weigh tens of kilograms and require weeks to prepare. Most often, the competition is called a tender.

Electronic auction under 44-FZ

In the electronic auction, the supplier who offers the lowest contract price wins.

Bidding under 44-FZ goes down from the initial price per auction step.

Art. 59-71 regulate the conduct of an electronic auction (Article 59), starting from accreditation on electronic platforms (Article 61) to the conclusion of a contract.

The law does not provide a list of electronic trading platforms where electronic auctions are held, so suppliers will have to independently understand the nuances of accreditation and filing an application for an auction, which consists of 2 parts. If the participant was rejected according to the second part of the application 44-FZ, re-read the list of documents (clause 5 of Article 66).

The customer cannot arbitrarily decide which goods, works or services he will purchase at the auction and which not.

He is obliged to conduct purchases in the form of an auction, according to the list of goods, works, services, in the case of procurement of which the customer is obliged to conduct an auction in electronic form (electronic auction), approved by order of the Government of the Russian Federation.

Request for quotations under 44-FZ

Articles 72-79 describe the determination of a supplier by conducting a request for quotations (Article 72). The requirements for conducting a request for quotations (Article 73), the procedure for conducting (Article 74), filing, consideration and evaluation of applications (Article 78) are established.

Request for quotations is the most accessible format for participation in government procurement. To prepare a quotation application under 44-FZ, no digital signature is required for electronic trading

Applications are submitted in paper form in envelopes and certified in the traditional way using the signature of an authorized person and the seal of the organization.

4-7 paragraphs 44-FZ contain a total of 14 articles. They establish the determination of a supplier by conducting a request for proposals, closed methods of identifying suppliers, procurement from a single supplier and features of execution, modification, termination and provision of a contract.

Request for proposals under 44-FZ

The sixth and seventh chapters include 8 articles and contain the procedure for appealing violations of the law and the specifics of certain types of procurement, such as energy service contracts and state defense orders.

The eighth chapter of 44-FZ consists of 3 articles and contains the final provisions and the procedure for the entry into force of certain articles of the law, which, as mentioned above, come into force sequentially over a period of 3 years, starting from January 1, 2014, ending on January 1, 2017 of the year.

Help under 44-FZ

If you have difficulties applying 44-FZ or do not yet know the provisions of this law, you can contact our specialists.

Everything in the documentation is not always clear and transparent. Sometimes customers make mistakes due to inattention or deliberately hide information. The law makes it possible to submit a request for clarification in order to clarify or specify unclear points. Any participant can submit a request, even if they have not yet submitted an application. But only in two types of purchases:

• electronic auction,
• open competition.

Common reasons for submitting clarifications:

Errors or incorrect data

For example, in this purchase there are a lot of errors in the characteristics of the product and there is a partial discrepancy with GOST standards (they are not valid, with incorrect names). The customer responded to the request with a quote from Part 3 of Art. 66. 44-FZ in the spirit of “as we want, so we indicate.” The supplier submitted the second clarification with reference to 44-FZ, stating that the customer must justify the impossibility of using state standards. As a result, the customer replied that he would not take into account more than half of the points when considering and left only 3 points out of 15.

Another example. The customer asked to supply a plaster mixture, the grade of which should be higher than M200, and the compressive strength should be less than 12 MPa. But physically, a combination of such characteristics does not exist. After requesting clarification, it turned out that the customer had missed the HE particle and a mixture with a strength of “at least 12 MPa” was required.

Vague purchasing parameters

In this purchase, the customer, describing the dimensions of the brick, indicated 4 parameters: “more than 145 by 118 by 250 by 165.” The supplier no longer had time to submit a request for proposals, and in a telephone conversation he heard that “purchasing is simply not for everyone.” In this case, you can complain to the FAS, but the supplier decided to refuse such a purchase.

Documentation format is too complex

For example, in an electronic auction for the renovation of a building, the terms of reference took up 2,268 pages in PDF format. The maximum period for preparing an application for the auction is 15 days. It is very difficult to read all the requirements and make an application in accordance with them. As a result, this purchase was canceled, but due to a complaint about the content of the draft contract.

They purchase prohibited goods or goods that are included in the national regime

In this procurement there should be preferences for Russian goods according to Order No. 155, but the customer indicated another OKPD2 - 58.29.12.000 (Network software on electronic media). The code in this case should be 26.20: the customer purchases servers and specifies the code for the software on the media. The supplier, who could receive preferences, is interested in submitting a request for proposals so that the customer changes the data.

Request in electronic auction

A request for clarification of the provisions of the auction documentation can be submitted by any participant accredited to the ETP. You can submit no more than 3 requests per auction. The request must be submitted no later than 3 days before the closing date for applications.

Participants make a request and receive a response in the ETP interface where the procedure takes place. For example, on Sberbank-AST a participant submits a request for clarification in his personal account. This request will not be visible to other procurement participants.

The customer must respond within two calendar days. The clarification document is published on the ETP without indicating the author of the request and is duplicated in the Unified Information System. There it will be seen by all procurement participants who may have the same questions regarding the documentation.

Request in an open competition

Participants in an open competition send a request in writing. The template is not regulated, but you can do it on the organization’s letterhead. Indicate the documentation item for which clarification is needed, and the request itself.

The request must be received by the customer no later than 5 days before the deadline for submitting applications. If possible, it is better to submit it personally in an envelope so that the document is definitely accepted.

Within 2 working days from sending the request, the customer is obliged to send in written or electronic form an explanation of the provisions of the tender documentation. The answer is also published in the Unified Information System, where it is available to all other participants.

Is it possible to submit a request for clarification in the form of a scanned document with a stamp and signature by email?

44-FZ stipulates only the written form, but there is a letter from the Ministry of Economic Development dated May 6, 2014 N 10073-EE/D28i. It says: “a complaint submitted by fax or in the form of an electronic document without using an electronic signature will not comply with the provisions of Law No. 44-FZ.” That is, a document signed with a qualified signature is legally significant and the customer is obliged to accept it.

In practice, everything depends on the customer’s loyalty. If it is not formality that is important to him, but the quality of the purchased goods, he will promptly respond to a request received by e-mail. And if he wants to weed out unnecessary participants, then the request submitted “not according to the rules” will simply be ignored.

What about other procedures?

Questions may arise in other procurements. You cannot submit a formal request for clarification, but you can call the contact person listed in the documentation. According to 44-FZ, communication with the customer before signing the contract is prohibited, but it all depends on the specific specialist:

• Someone won't want to talk when they hear your question,
• Someone will answer in detail if they are interested in making the purchase happen.

If you see gross violations and restrictions on competition in a request for quotation, and the customer does not answer questions kindly, you have the right to complain to the FAS. If you are right, the customer will be ordered to change the documentation, and the deadline for submitting applications will be extended.

Customer actions

The task of a conscientious customer is to answer the supplier’s question as accurately and specifically as possible and post the answer in the Unified Information System within 2 days of receiving the request. It is in the interests of the customer to respond to requests in a timely manner, because a supplier who misunderstood the conditions may deliver the wrong product that was needed, or save on materials if the GOST requirement was not specified, etc.

In addition, part 1.4. Article 7.30 of the Code of Administrative Offenses provides for liability for failure to publish such information or violation of the publication deadline:

• for officials - 15,000 rubles,​
• for a legal entity - 30,000 rubles.

If the customer does not comply with the rules for responding to requests for clarification, this may serve as a reason to invalidate the electronic auction based on a complaint from participants.

Supplier Actions

There are several options for participants who have submitted a request for clarification.

• If you are satisfied with the explanations received from the customer, you can prepare an application.
• If not, submit a second and third request, trying to refer to articles of laws and other regulations that confirm that the customer is wrong.
• If you have reached your request limit, the terms of the contract remain unacceptable, and you have already submitted an application, it is best to withdraw it to avoid the risk of not fulfilling the contract.
• If you want to continue to fight for the contract, complain to the FAS about the contents of the documentation.

If the customer is interested in supplying a quality product or service, your request will be answered correctly. If not, most likely he is affiliated with another supplier and there is a risk that they will still find a reason to find fault with your application.

• increasing the efficiency and effectiveness of procurement of goods, works, and services. Effective and economical spending of budget funds is not only one of the main goals of Law No. 44-FZ, but also one of the basic principles of the Budget Code of the Russian Federation. According to Art. 34 of the Budget Code of the Russian Federation, customers “must proceed from the need to achieve specified results using the least amount of funds (economy).”
• ensuring openness and transparency of government procurement, ensuring access to information. Achieving this goal was realized in the creation of a Unified Information System, in which it is possible to track all stages of procurement, complaints and decisions of regulatory authorities on these complaints. All information collected in one place greatly simplifies the work of both system users and regulatory authorities.
• preventing corruption and other abuses in procurement. When conducting an electronic auction, participants act under numbers, and not under their own names, the customer will find out after the fact who won the auction. When requesting quotes, envelopes can be submitted anonymously; only during the procedure of opening the envelopes will the customer find out who submitted the applications. Such measures help to minimize the possibility of unfair competition.

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.

Six principles of the contract system

Principle No. 1 - openness and transparency. The principle is expressed in the fact that all information about government procurement, with the exception of that relating to state secrets, is publicly available in the Unified Information System. Anyone can obtain information about who is purchasing what, on what terms, and how the supplier is or will be determined.

Principle No. 2 - ensuring competition. Competition must be based on the principle of “fair price and non-price competition between procurement participants” (Article 8 of Law No. 44-FZ). Any legal entity or individual can become a participant in government procurement if it meets the mandatory requirements imposed on suppliers by 44-FZ. Unreasonable restriction of competition is contrary to Law No. 44-FZ and entails administrative liability for the customer and its officials.

Principle No. 3 - professionalism. This means, first of all, the professionalism of the customer. Customers “take measures to maintain and improve the level of qualifications and professional education of officials involved in procurement” (Part 2 of Article 9 of Law No. 44-FZ). Procurement under 44-FZ is a complex process consisting of several stages. Only a professionally savvy specialist - a contract manager - can plan a purchase promptly, competently and without violations, prepare documentation, conduct a competitive procedure and sign a contract.

Principle No. 4 - Encouraging the use of innovative technologies and processes. The principle is expressed in the fact that when purchasing, the customer must make a choice in favor of high-tech goods, works and services, if possible.

Principle No. 5 - unity of the contract system. Law No. 44-FZ regulates all government procurement, regardless of the scope and subject of the purchase. Compliance with the requirements of 44-FZ is mandatory for all customers and all procurement participants.

Principle No. 6 - responsibility for the result. Customers are responsible for the preparation of documentation, for ensuring competition in procurement, for the legal selection of a supplier, and for fulfilling their obligations under the contract. Participants are responsible for the accuracy of the information provided, for timely provision and confirmation of their good faith, if necessary, for the execution of the contract. And if any of them fails to fulfill their responsibilities, they will be forced to bear responsibility for the violation.

Differences between 44-FZ and the previous regulator 94-FZ

Among the main differences of 44-FZ are:

• EIS. The unified information system is designed to ensure maximum transparency and openness of procurement. Previously, control systems did not allow a quick, objective and comprehensive assessment of the legality of a particular purchase.
• Register of bank guarantees. In accordance with Article 45 of Law No. 44-FZ, bank guarantees provided by procurement participants “must be included in the register of bank guarantees,” otherwise the customer will not be able to accept such security. Frequent cases of fraud with bank guarantees obligated the legislator to provide for the customer a kind of “insurance” against dishonest entrepreneurs and banks.
• Anti-dumping measures under Article 37 of Law No. 44-FZ. When a participant significantly underestimates the price, he must confirm his good faith or provide security “in an amount exceeding one and a half times the amount of security for the execution of the contract.” This will allow the customer to make sure that such a participant intends to conclude a contract and not disrupt the purchase.
• New competitive ways to determine a supplier and criteria for evaluating applications.
  Law No. 44-FZ provides for five main ways to determine a supplier.
• Expanded requirements for procurement participants. For example, 94-FZ obligated customers to allow for procurement only those participants who are not listed in the RNP. According to 44-FZ, the customer can establish a requirement that not only a legal entity, but also individuals - representatives of the organization’s management team - be absent from the RNP.

Methods for identifying a supplier

Law No. 44-FZ provides five ways to determine a supplier in accordance with Article 24:

• contest;
• auction;
• request for quotations;
• request for proposals;
• purchase from a single supplier.

The first four purchasing methods are competitive procedures. Purchasing from a single supplier can be carried out in a number of cases - when the competitive procedure did not take place (not always), when we are talking about small purchases of up to 100 thousand and in other cases provided for in Article 93 of Law No. 44-FZ.

Contest- this is a method of determining a supplier, in which the winner is the participant who offered the best conditions for the customer, that is, price is not the only criterion for evaluating applications (Part 3 of Article 24 of Law No. 44-FZ).

There are competitions:

• open (Article 48 44-FZ);
• with limited participation (Article 56 44-FZ);
• two-stage (Article 57 44-FZ);
• closed (Article 84.85 44-FZ);
• closed with limited participation (Articles 84.85 44-FZ);
• closed two-stage (Article 84,85 44-FZ).

Auction is a method of determining a supplier in which the main evaluation criterion is price. The participant who offered the lowest price will be recognized as the winner of the auction (Part 4, Article 24 of Law No. 44-FZ). An auction must be held if the customer purchases goods, works and services included in the list approved by Order of the Government of the Russian Federation dated March 21, 2016 No. 471-r.

Auctions are:

• electronic (Article 59 of Law No. 44-FZ);
• closed (Article 86 of Law No. 44-FZ).

Request for quotation- a form of procurement in which the winner is the participant who offered the lowest contract price (Part 1, Article 72 of Law No. 44-FZ).

Request for proposals- a procurement in which the winner is the one whose proposal best meets the requirements for a product, work or service established by the customer (Part 1 of Article 83 of Law No. 44-FZ).

Electronic procurement platforms under 44-FZ

Procurement under 44-FZ is carried out on 6 specialized electronic platforms.

• CJSC "Sberbank-Automated Trading System";
• State Unitary Enterprise “Agency for State Order, Investment Activities and Interregional Relations of the Republic of Tatarstan” (All-Russian Electronic Commerce System);
• JSC Electronic Trading Systems (National Electronic Platform);
• OJSC Russian Auction House;
• RTS-Tender LLC;
• JSC "Unified Electronic Trading Platform".

Trading under 44-FZ can only be carried out on these sites.

Planning and algorithm for procurement under 44-FZ

Procurement planning. All purchases carried out by the customer must be included in the schedule and procurement plan. You cannot purchase something that is not included in the schedule and procurement plan. Decree of the Government of the Russian Federation No. 73 of January 25, 2017. introduced new forms of schedules and procurement plans.

To conduct a purchase under 44-FZ, the customer needs:

1. Register (re-register) in the Unified Information System and on the ETP, obtain an electronic digital signature (EDS) at the Treasury. Those who registered in the Unified Information System (US) before July 15, 2016 must register again. The deadline is 04/01/2017; if this is not done, access to your personal account will be denied. The requirement is indicated in the Order of the Federal Treasury dated December 30, 2015 No. 27n.
2. Appoint a contract manager or create a contract service. In accordance with the requirements of Article 38 of Law No. 44-FZ, a contract service must be created for those customers whose annual purchase volume is above 100 million rubles. For the rest, a contract manager can be appointed. Since January 2017, the contract manager and contract service employees must have higher or additional education in the field of procurement.
3. Place plans and plans - procurement schedules in the Unified Information System.
4. Prepare and post procurement documentation (choose the correct method for determining the NMCC). This must be done taking into account the national regime and all existing bans on the supply of imported products.
5. Make a purchase. Depending on how the supplier is determined, the customer must publish intermediate and final protocols. In the auction - a protocol for the consideration of the first parts of applications, a protocol for summing up the results of the auction, in a request for quotations - a protocol for the consideration and evaluation of applications for participation. It is necessary to strictly adhere to the deadlines for posting documents. Administrative liability is provided for violation of deadlines.
6. Sign contract. The EIS library already has several standard contracts for certain types of procurement items. The development of the contract is carried out by the contract service of the customer or the contract manager.
7. Accept the product/work/service.
8. Pay for the contract and post reports.

If the winner avoids concluding a contract, the customer is obliged to submit information to the FAS. FAS, in turn, decides to include such a supplier in the register of unscrupulous suppliers.

Customer reporting under 44-FZ

The customer is obliged to publish a report in the Unified Information System:

• By volume of purchases from SMP and SONKO. The procedure and form of the report are regulated by Decree of the Government of the Russian Federation No. 238 of March 17, 2015.
• For completed contracts. The form and procedure for submitting the report is described in Government Decree No. 1093 of November 28, 2013. The report must be accompanied by the results of the examination and a document confirming the acceptance of the results in accordance with Part 10 of Art. 94 of Law No. 44-FZ. Separate reporting is provided for the register of contracts (Article 103 of Law No. 44-FZ) and separate reporting for the stages of contract execution (Part 9 of Article 94 of Law No. 44-FZ).
• For purchases from a single supplier, contractor. The customer must justify the need for procurement in this particular way in accordance with Part 3 of Article 93 of Law No. 44-FZ.

Timely placement of the report is the personal responsibility of the contract manager. For violation of deadlines, administrative liability is provided under Art. 7.30 Code of Administrative Offenses of the Russian Federation.

Who can participate in procurement under 44-FZ

According to the requirements of Law No. 44-FZ, procurement participants can be any legal entities and individuals, regardless of their location and legal form, if they comply with the requirements of Article 31 44-FZ.

Cannot participate in procurement persons who:

• have a criminal record under Articles 289, 290, 291, 291.1 of the Criminal Code of the Russian Federation. If anyone from the management team of a participant has an outstanding or unexpunged criminal record under these articles, they cannot participate in government procurement. It is also not allowed to apply “punishment in the form of deprivation of the right to occupy certain positions or engage in certain activities” to a procurement participant in accordance with Part 1 of December 28, 2016;
• were prosecuted under Article 19.28 of the Code of Administrative Offenses of the Russian Federation 2 years before participating in the procurement (Part 2 of Law No. 489-FZ of December 28, 2016);
• are in a state of liquidation, bankruptcy or suspension of activity;
• have debts to the budget to pay taxes, fees, penalties, fines;
• are under the jurisdiction of Turkey or under the direction of Turkish citizens when it comes to the procurement of works and services;
• are offshore companies;
• have a conflict of interest with the customer, its managers, contract manager, and members of the commission. A conflict of interest is understood as the presence of direct family ties.

What does a supplier do to participate in government procurement?

In order to become a participant in government procurement you must:

1. Obtain an electronic signature from a special certification center;
2. Register on the trading platform. Send the organization’s constituent documents to the site operator;
3. Install and configure digital signature;
4. Be accredited on trading platforms according to 44-FZ;
5. Find a procurement of interest independently or with the help of special organizations, familiarize yourself with its requirements, prepare and submit an application for participation in a timely manner;
6. Decide on the form of securing the application (contract). If the procurement form allows, using a bank guarantee is more convenient and cheaper. Confirm good faith, if necessary, in the manner prescribed by the procurement method.
7. If you win, sign the contract in a timely manner (submit a protocol of disagreements).

You can participate only after detailed familiarization with the terms of purchase. If any item in the procurement documentation raises questions, you can contact the customer for clarification.

Procurement control

Departmental control. The rules for conducting departmental control in public procurement are regulated by Decree of the Government of the Russian Federation dated February 10, 2014 No. 89. In accordance with Art. 100 of Law No. 44-FZ, departmental control is carried out by:

• government agencies;
• State Atomic Energy Corporation Rosatom;
• State Corporation for Space Activities "Roscosmos";
• management bodies of state extra-budgetary funds;
• municipal authorities.

FAS controls the procurement procedures themselves. Powers to control public procurement are distributed between the Treasury and the Ministry of Economic Development in accordance with Decree of the Government of the Russian Federation of September 30, 2014 No. 996. Currently, treasury control is under Part 5 of Art. 99 of Law No. 44-FZ suspended in accordance with Decree of the Government of the Russian Federation No. 315 of March 20, 2017:

• for federal customers until 01/01/2018;
• for municipalities and constituent entities of the Russian Federation until 01/01/2019

From July 1, 2017, the Ministry of Economic Development will transfer to the Ministry of Finance all powers to control the UIS and regulate the entire contract system.

Internal control. It is expressed in the fact that the customer must control the execution of the contract by the supplier (Article 101 of Law 44-FZ). Control over the involvement of subcontractors and co-executors also lies with the customer. The customer determines the control methods himself; they are not prescribed by law.

Public control. Implemented in the ability of citizens, public associations and associations of legal entities to publicly discuss government procurement and request all documents of interest from customers. Customers are required to deal with such requests in accordance with the general procedure. As part of public control, the following can be carried out:

• independent monitoring;
• assessment of the effectiveness of public procurement.

As part of public control, a third party, who is not a procurement participant, may file a complaint with the supervisory authority.