Administrative and criminal liability for violations of procurement legislation under 223-FZ

Before talking about control, it is important to pay attention to liability for violations of 223-FZ. What should not be allowed in procurement activities? Since 2014, changes made to the Code of Administrative Offenses of the Russian Federation by Federal Law No. 122-FZ of May 5, 2014 have come into force.

In this regard, administrative liability is provided for violations of the legislation on the procurement of goods (works, services) by certain types of legal entities. The main type of administrative punishment applied when committing these violations is a fine. In some cases, disqualification is applied. This is one of the youngest types of administrative responsibility.

What offenses are provided for in the Code of Administrative Offences?

• Carrying out procurement, which must be carried out in accordance with the legislation of the Russian Federation in electronic form, in another form. There is PP No. 616, containing a list of goods, works, and services that need to be purchased through an electronic platform. If this norm is violated, then the fine: from 10 thousand rubles. up to 30 thousand rubles. for an official, a fine of 100 thousand rubles. up to 300 thousand rubles. for a legal entity. Norm of the Code of Administrative Offenses of the Russian Federation, Part 1, Art. 7.32.3.
• Carrying out a procurement, which must be carried out in accordance with the legislation of the Russian Federation in electronic form, in another form by an official who has previously been subjected to administrative punishment for a similar offense more than twice. With the legislation of the Russian Federation in electronic form, in another form by an official who has previously been subjected to administrative punishment for a similar offense more than twice. If the norm is violated, a fine of 40 thousand rubles is provided. up to 50 thousand rubles. for an official or disqualification from 6 months to 1 year. Norm of the Code of Administrative Offenses of the Russian Federation, Part 2, Art. 7.32.3.
• Carrying out procurement, which must be carried out in accordance with the legislation of the Russian Federation on the contract system, in a different manner. For violation of the norm, a fine of 20 thousand rubles is provided. up to 30 thousand rubles. for an official, as well as a fine of 50 thousand rubles. up to 100 thousand rubles. for a legal entity. Norm of the Code of Administrative Offenses of the Russian Federation, Part 3, Art. 7.32.3.
• Violation of the deadlines for posting procurement information in the Unified Information System, the placement of which is provided for by the legislation of the Russian Federation on procurement (with the exception of posting changes made to the procurement regulations). For violation of the norm, a fine of 2 thousand rubles is provided. up to 5 thousand rubles for an official and a fine of 10 thousand rubles. up to 30 thousand rubles. for a legal entity. Norm of the Code of Administrative Offenses of the Russian Federation, Part 4, Art. 7.32.3.
• Failure to place in the Unified Information System information on procurement, the placement of which is provided for by the legislation of the Russian Federation on procurement. For violation of the norm, a fine of 30 thousand rubles is provided. up to 50 thousand rubles. for an official, as well as a fine of 100 thousand rubles. up to 300 thousand rubles. for a legal entity. Norm of the Code of Administrative Offenses of the Russian Federation, Part 5, Art. 7.32.3.
• Violation of the deadlines for posting changes to the procurement regulations in the Unified Information System. For violation of the norm, a fine of 5 thousand rubles is provided. up to 10 thousand rubles for an official and a fine of 10 thousand rubles. up to 30 thousand rubles. for a legal entity. Norm of the Code of Administrative Offenses of the Russian Federation, Part 6, Art. 7.32.3.
• Failure to comply with the requirements for the content of the procurement notice. For violation of the norm, a fine of 2 thousand rubles is provided. up to 3 thousand rubles. for an official and a fine of 5 thousand rubles. up to 10 thousand rubles for a legal entity. Norm of the Code of Administrative Offenses of the Russian Federation, Part 7, Art. 7.32.3.
• Presentation of requirements to procurement participants, to goods (works, services), to the terms of the contract, or evaluation and comparison of applications according to criteria and in a manner that are not specified in the procurement documentation. For violation of the norm, a fine of 2 thousand rubles is provided. up to 3 thousand rubles. for an official and a fine of 5 thousand rubles. up to 10 thousand rubles for a legal entity. Norm of the Code of Administrative Offenses of the Russian Federation, Part 8, Art. 7.32.3.
• Failure to comply on time with a legal decision or order of the federal executive body authorized to exercise control in the field of procurement by certain types of legal entities, or its territorial bodies. For violation of the norm, a fine of 30 thousand rubles is provided. up to 50 thousand rubles. for an official and a fine of 300 thousand rubles. up to 500 thousand rubles. for a legal entity. Norm of the Code of Administrative Offenses of the Russian Federation, Part 7.2, Art. 19.5.
• Failure to submit or untimely submission of information about dishonest procurement participants and suppliers (performers, contractors) or submission of knowingly false information about them to the federal executive body authorized to maintain a register of dishonest suppliers. For violation of the norm, a fine of 10 thousand rubles is provided. up to 15 thousand rubles. for an official and a fine of 30 thousand rubles. up to 50 thousand rubles. for a legal entity. Norm of the Code of Administrative Offenses of the Russian Federation Art. 19.7.2-1.

The Code of Administrative Offenses provides for a statute of limitations for bringing to administrative liability - for violations of the norms of 223-FZ - 1 year. Article 4.5. Code of Administrative Offenses of the Russian Federation. That is, if an official or legal entity voluntarily or unwittingly committed an offense, then he can be held accountable only within a year from the date of the offense. But, attention, we are talking only about completed offenses. Continuing offenses cannot be counted. If some information is not posted in the Unified Information System, then it is better to post it, albeit later. This is important, since the fine for failure to post is large, and by posting information, even later, you can avoid an offense that lasts for a year.

There is also criminal liability for violations in the form of sanctions: fines, imprisonment, the right to engage in certain activities, hold a certain position:

Criminal Code of the Russian Federation, Chapter 22. Crimes in the sphere of economic activity:

• Article 183. Illegal receipt and disclosure of information constituting commercial, tax or banking secrets
• Chapter 30. Crimes against state power, interests of civil service and service in local government bodies
• Article 285. Abuse of official powers
• Article 285.1. Misuse of budget funds
• Article 285.2. Misuse of state extra-budgetary funds
• Article 285.3. Entering knowingly false information into the unified state registers
• Article 286. Exceeding official powers
• Article 288. Assignment of powers of an official
• Article 290. Receiving a bribe
• Article 292. Official forgery
• Article 293. Negligence

Procurement control system

Supervisory authorities. The Prosecutor's Office of the Russian Federation, which operates on the basis of the Federal Law of January 17, 1992. No. 2202-1 (as amended on July 3, 2016) “On the Prosecutor’s Office of the Russian Federation.”

Another important document is the Federal Law “On the Prosecutor’s Office of the Russian Federation” Order of the Prosecutor General’s Office of Russia dated December 7, 2007. No. 195 (as amended on June 21, 2016) “On the organization of prosecutorial supervision over the implementation of laws, observance of human and civil rights and freedoms.” In accordance with this act, the prosecutor's office carries out checks.

The Prosecutor's Office supervises the implementation of laws on property, land, business, budget, tax, banking, customs, and antimonopoly legislation. Particular attention is paid to the legality of disposing of state property, identifying and suppressing cases of money laundering, and combating corruption.

An overview of prosecutorial checks can be found on the official website www.procrf.ru. Such checks are carried out constantly, and information is updated frequently.

The following question is often asked: can the Accounts Chamber of the Russian Federation conduct procurement audits carried out in accordance with the norms of 223-FZ? It is important to remember that the powers of the Accounts Chamber are defined in Federal Law dated April 5, 2013 No. 41-FZ. Only within the framework of its powers the Chamber can conduct inspections (Article 5 of the Federal Law) those specified in Article 5 of this Law. That is, the Chamber can check procurements in the event if the customer was allocated budget funds . If the customer was not allocated budget funds, then the Accounts Chamber cannot check.

Customers have an undeniable right to purchase specific products: “...The norms of the Procurement Law do not contain a prohibition on the ability to indicate in the documentation trademarks. Moreover, the Procurement Regulations directly provide for this possibility. In the absence of a direct legislative prohibition, the antimonopoly authority does not have the right to draw conclusions about the needs of an economic entity.”

Resolution of the Federal Arbitration Court of the Moscow District dated July 2, 2014. in case No. A40-77378/2013 Resolution of the Arbitration Court of the Ural District dated 03/03/2016. No. F09-687/16 in case No. A60-28175/2015.

223-FZ (clause 1 part 10) does not contain a prohibition on indicating trademarks . But you should indicate brands carefully. The Procurement Regulations must provide for the possibility of purchasing using trademarks. Then there will be no crime.

A review of judicial arbitration practice includes consideration by courts of the following issues:

• establishing requirements for procurement participants;
• procurement procedure;
• evaluation and comparison of applications;
• powers of the antimonopoly authority.

By the way, if you have any questions:

• conclusion of a contract based on the results of the purchase;
• establishing requirements for the procurement object;
• powers of the antimonopoly authority

The positions of the courts are usually clear, then on the following issues:

• establishing requirements for procurement participants;
• procurement procedure;
• evaluation and comparison of applications, judicial practice has two opposing positions. It all depends on the specifics of the case. A review of judicial and judicial arbitration practice is very useful in procurement activities; it is important to pay attention to the region in which the cases were considered.

Arbitrage practice

This review is very voluminous, but useful, since it concerns procurement activities in accordance with the norms of 223-FZ: “Review of issues of judicial practice arising in the consideration of cases on the protection of competition and cases of administrative offenses in this area” (approved by the Presidium of the Supreme Court of the Russian Federation March 16, 2016).

The main regulatory body is FAS Russia. According to Part 10 of Article 3 223-FZ, the FAS considers complaints about the actions (inaction) of customers when purchasing goods/works/services in the following cases:

1. failure to place a procurement regulation in the Unified Information System, changes made to the said provision, procurement information subject to placement in the Unified Information System in accordance with 223-FZ, or violation of the deadlines for such placement; 2) presenting a requirement to procurement participants to submit documents not provided for in the procurement documentation;
2. procurement of goods, works, services by customers in the absence of a procurement regulation approved and posted in the unified information system and without applying the provisions of 44-FZ;
3. failure to place or place in the Unified Information System inaccurate information about the annual volume of purchases that customers are required to carry out from small and medium-sized businesses.

In addition, if a customer subject to 223-FZ makes a purchase through a tender or auction, complaints about violations of the procedure for such tenders and the procedure for concluding contracts are subject to consideration in the manner established by Article 18.1 of the Federal Law of July 26, 2006 No. 135 -FZ "On Protection of Competition".

Federal Law of July 26, 2006 No. 135-FZ “On the Protection of Competition” Article 15. Prohibition on acts and actions (inaction) restricting competition;

1. Article 17. Antimonopoly requirements;
2. Article 18. Features of the selection of financial organizations;
3. Article 18.1. The procedure for consideration by the antimonopoly authority of complaints about violations of the tendering procedure and the procedure for concluding contracts
4. Article 23. Powers of the antimonopoly authority;
5. Article 52. Procedure for appealing decisions and orders of the antimonopoly authority.

Authorities identify violations during inspections. There are four types of checks:

• PLANNED: carried out in accordance with the control action plan and on the basis of the approved control action plan, it is carried out in the form of an on-site continuous inspection. If an inspection comes to a company, current purchases are checked first in order to stop violations in a timely manner. Next, all reporting documentation for recent years is checked.
• UNScheduled: carried out on the basis of a decision of the head of the FAS Russia, as well as the head of the territorial department of the FAS Russia
• ON-GOING: an inspection that is carried out with a visit to the location of the organization being inspected.
• CAMERAL: inspection, which is carried out at the location of the control body based on received documents and information

When checking related to the customer’s procurement regulations, regulatory authorities primarily determine the following circumstances:

• Has the procurement regulation been properly approved (that is, in compliance with Part 3 of Article 2 of Law No. 223-FZ)? Are the procurement regulations properly published?
• Does the customer comply with the norms of Law No. 44-FZ in its procurement activities during the period when it does not have a properly approved and published procurement regulation?
• Does the approved and published procurement regulation contradict the norms of the Civil Code of the Russian Federation, Law No. 135-FZ and Law No. 223-FZ?
• Do the procurement procedures implemented by the customer comply with the standards of its own procurement regulations?

It is important to work competently and error-free, since even the smallest violations are easy to identify: the search and detection of committed offenses in the EIS by the FAS of Russia, as well as monitoring by the Ministry of Economic Development of Russia using software tools.

Typology of violations.

• Failure to place in the Unified Information System the procurement regulations, changes made to the said regulations, procurement information to be posted, or violation of the deadlines for such placement
• Presentation of requirements to participants to provide documents not provided for in the procurement documentation.
• Purchases of goods, works, and services by customers in the absence of a procurement regulation approved and posted in the Unified Information System and without the application of such regulations. Law on the contract system No. 44-FZ
• Conflict between the norms of the Procurement Regulations and the procurement documentation
• Uncertainty in the Procurement Regulations of the conditions for applying procurement methods

As well as non-compliance with the principles of the Procurement Law No. 223-F3:

• Information openness;
• equality, fairness, absence of discrimination and unjustified restrictions on competition in relation to procurement participants;
• targeted and cost-effective spending of funds.

Typical mistakes and offenses

• Violation of the procedure for placing the Procurement Regulations in the Unified Information System (leads to unlawful procurement by the customer). When the Regulations comply with the norms of 223-FZ and the Civil Code. Otherwise, all purchases must be carried out in accordance with 44-FZ.
• Violation of the terms of placement or failure to place protocols on the results of the procurement in the Unified Information System.
• Late placement or failure to place procurement information in the Procurement Plans (up to and including entering information into the procurement plan after the procurement). Each customer must have 2 procurement plans: an annual plan and a procurement plan for high-tech products, even if goods/works/services are not purchased under any plan. It must be null.
• Failure to provide clarifications to requests for clarification.
• Due to the late date of receipt of the request, a response to the request for clarification is given after the deadline for accepting applications.
• Absence in the procurement documentation of information and information provided for in clause 3, part 9 of art. 4, clause 1, part 10, art. 4 — requirements for the volume of goods, works, and services have not been established.
• Absence of design and estimate documentation in the procurement documentation.
• The characteristics and quantity of parts of equipment to be supplied are not indicated. Suppliers must understand all terms and conditions of the purchase.
• Lack of order, place, deadline for submitting applications for participation in the procurement (clause 8, part 10, article 4).
• The procedure for submitting applications in the Notice and Documentation established by the Customer does not correspond to the procedure for submitting applications for participation in the Request for Proposals established in the Notice on the electronic platform.
• Absence in the procurement documentation of a procedure for payment for goods, work, services (clause 6, part 10, article 4). There are such formulations: “The customer has the right to transfer an advance,” “advance up to 80%.” If there are no specifics, then there is a corruption component when the customer takes actions at his own discretion.
• The absence in the procurement documentation of requirements for UZ and the list of documents submitted by UZ to confirm their compliance with the established requirements of clause 9, part 10, article 4. It is not established for what types of work SROs and licenses must be provided. There are the following formulations: “The indicators of the financial and economic activities of the Ukrzaliznytsia should indicate its solvency and financial stability.” This is quite vague, since it is not known what criteria it will be measured by. Absolutely all criteria must be measurable.
• Absence in the procurement documentation of the procedure for evaluating and comparing applications for participation in the procurement, clause 13, part 10, art. 4.
• The established procedure for evaluating applications does not allow us to objectively identify the best conditions for fulfilling the contract.
• The scoring algorithm has not been established: in what case and how many points are awarded according to the relevant criteria. If the significance of each of the established criteria, as well as the methodology for assigning points according to the corresponding criteria, are not defined in the documentation, which indicates the absence of a procedure for evaluating applications.
• Establishing a requirement for a group of persons (Decision No. 223FZ-91/14 of July 25, 2014, Decision No. 223FZ-74/15 of May 17, 2015 - the requirement that each person included in a group of persons must meet the requirements established in the documentation is illegal) .
• Rejection of the UZ application on grounds not provided for in the Documentation (rejection of the application due to the expiration of its validity period).
• Presentation of unlawful demands on UZ (the presence of “mandatory” voluntary certificates is an illegal restriction of competition). Voluntary certificates cannot be required from procurement participants. This means an illegal restriction of competition.
• Impossibility of the technical specification (description of the procurement object with inflated requirements. Announcement of the procurement of work already completed - “legalization”). You should never get involved with this, since practice shows that late purchases can be checked by representatives of regulatory authorities. They arrive at the work address, but the work has already been going on for a long time or has already been completed. These things are very easy to calculate.
• Establishment of product requirements specific to only one trademark. Thus, the customer limits competition to one manufacturer. There is often a need for one specific product that is tied to compatibility with other equipment already in use.
• Inclusion of heterogeneous products into the lot (purchase).
• Inclusion in the lot (purchase) of “differently licensed” products;
• Requirements for several places of supply (performance of work, provision of services. When the customer enlarges the supply with one purchase. Too many parameters cannot be included in one procurement item, because in this way there will only be one contractor/supplier/executor of the contract.
• Impossible deadlines for deliveries, performance of work, provision of services (Unfeasibility of technical specifications - completion time 1 day).

Questions from participants

Is it a violation to not place in the register of agreements under 223-FZ with a check mark “notification 44-FZ” of an agreement concluded for a mandatory audit under 207-FZ?

223-FZ in part 4 of Article 1 does not regulate the procurement of audit services under 207-FZ. They carry out procurement in accordance with the norms of 44-FZ. But not according to all standards. Procurement is carried out only by competition under 44-FZ. More than the norms of 44-FZ do not apply to such a customer. There is no need to post such an agreement, since it does not relate to 223-FZ.

How many electronic signatures should an organization have?

Advice from practice. It is better to issue at least three electronic signatures. More is possible. The first signature is the signature of the manager with the right to sign the contract. The second is a deputy manager with the right to sign a contract. The third is the one who places information in the Unified Information System, but without the right to sign a contract. The fourth one has administrator rights. One signature is not enough, since the responsibility lies with the individual for whom the electronic signature is issued. Your electronic signature cannot be shared with anyone under any circumstances.

A lease agreement was signed in 2014. At that time, management believed that concluding a lease agreement was not a procurement and therefore information about the agreement should not be posted. The monthly payment amount is more than 100,000 rubles. What to do at the moment?

Yes, according to the Civil Code, rent is not a product/work/service. But funds can only be spent in accordance with 223-FZ or 44-FZ. What reasons will there be for spending the funds? We will have to recognize the lease as a product/work/service. In any case, this is a procurement, so the contract must be placed in the Register of Contracts. Since this agreement was concluded in 2014, it does not need to be posted, since only contracts concluded from January 1, 2015 are subject to placement.

Is it possible to change the composition of a single and permanent commission?

All purchases under 223-FZ, except for tenders, can be made without commission. But in the case of bidding, the composition of the commission can be determined independently. Even if this concerns 44-FZ, the composition of the commission is always determined by the customer. The commission is not approved for one financial year. But there is one important condition: more than half of the staff must be trained, that is, have diplomas and certificates in hand.

When concluding a contract of up to 100,000 rubles, is the customer obligated to prepare procurement documentation?

According to the norms of 223-FZ itself, there are no exceptions. For each purchase there must be a notice, documentation and protocol. But an exception is allowed by the explanation of the Ministry of Economic Development. That is, the company will not be fined, but the law itself does not provide for exceptions.

When describing a procurement object based on a single supplier...

A description of the procurement object is always necessary only in case of competitive procurement! When purchasing from a single supplier, you must indicate the specific product, brand and manufacturer. There is no need to indicate GOST standards, since in any case there is only one supplier.

Purchase from a single supplier over 100,000 rubles. Should design and estimate documentation be included in procurement documents?

Yes, this is important, otherwise you may receive a fine from regulatory authorities. You can place it in the procurement documentation.

Purchase of food products by quarter. The quotation is carried out quarterly, not annually. Will this be fragmentation?

Yes, it will be fragmentation. But you need to purchase in a competitive way. If up to 100,000 rubles from a single supplier, this means avoiding competition.

How to set a price threshold for purchasing from a single supplier so that regulatory authorities do not raise questions?

1 million rubles. This is how the practice developed.

Fines under 223-FZ Practice of application of Law No. 223-FZ on procurement in 2014: review of major legislative changes

Speaker: V.V. Don
07/03/2014

On May 16, 2014, the Federal Law of May 5, 2014 came into force. No. 122-FZ “On Amendments to the Code of the Russian Federation on Administrative Offences”. In accordance with this law, the following fundamental changes appeared in the Code of Administrative Offenses of the Russian Federation:

1. The concept “in accordance with the legislation of the Russian Federation in the field of procurement of goods, works, services by certain types of legal entities, including members of the procurement commission” is introduced. The person performing the functions of organizing and implementing procurement, including members of the procurement commission, is an OFFICIAL under the Code of Administrative Offenses of the Russian Federation (see note to Article 2.4 of the Code of Administrative Offenses of the Russian Federation).

Thus, organizations operating under 223-FZ must, by a separate order, appoint a person to carry out the functions of organizing and implementing procurement, who will be equated to an official under the Code of Administrative Offenses and bear administrative responsibility. There may be several such employees, with distribution of responsibilities. Then there must be an order for each of them. If there is no such order, then the official responsible for procurement is the head of the organization.

2. An increased period is established for bringing to administrative responsibility for violations of the legislation of the Russian Federation on procurement, which is 1 year from the date of commission of the administrative offense (see Part 1 of Article 4.5 of the Code of Administrative Offenses of the Russian Federation). It does not matter whether the official responsible for committing the offense continues to work in this organization or not, he will still be brought to administrative responsibility.

3. 11 new administrative offenses are being introduced for violation of procurement legislation (Article 7.32.3, Part 7 and 7.2 of Article 19.5, Article 19.7.2-1 of the Code of Administrative Offenses of the Russian Federation). The competence of the federal executive body authorized to exercise control in the field of procurement of goods, works, services by certain types of legal entities and its officials when initiating and considering cases of administrative offenses has been established (Articles 23.83, 28.3, 28.7 of the Code of Administrative Offenses of the Russian Federation).

1st group of administrative offenses

Administrative offenses related to non-compliance with the requirements of the legislation of the Russian Federation on the placement of information on the procurement of goods, works, services

• Administrative offenses related to failure to post or violation of deadlines for posting information on procurement

The customer is obliged to place in the unified information system (UIS)

1. Legal acts regulating the procurement activities of the customer:

For purchases up to 100 thousand rubles. the customer has the right not to draw up procurement documentation at all and not to place information in a unified information system.

• Administrative offenses related to failure to provide, violation of deadlines for providing information about unscrupulous suppliers (contractors, performers) and dishonest procurement participants

According to the Decree of the Government of the Russian Federation dated November 22, 2012 N 1211 “On maintaining a register of unscrupulous suppliers, provided for by the Federal Law “On the procurement of goods, works, services by certain types of legal entities”, the following information is entered into the Register:

About procurement participants who evaded concluding contracts;

About suppliers (contractors, performers) with whom contracts were terminated by court decision.

Rules for customers to send information about unscrupulous procurement participants and suppliers (performers, contractors) to the federal executive body authorized to maintain a register of unscrupulous suppliers (approved by Decree of the Government of the Russian Federation of November 22, 2012 N 1211). See clauses 3, 4 and 5 of these rules.

Information about evasion from concluding a contract must be sent within 30 calendar days.

If the contract is terminated by a court decision due to a significant violation of the terms of the contract by the supplier (contractor, performer), information is sent within 10 working days.

2nd group of administrative offenses

Administrative offenses related to non-compliance with the requirements of procurement legislation in terms of compliance with the procedure for posting information on procurement and forms of procurement procedures

• Administrative offenses related to violation of legal requirements on compliance with electronic procurement forms

Forms of procurement procedures

In electronic form

Not in electronic form

According to the Decree of the Government of the Russian Federation dated June 21, 2012 N 616 “On approval of the list of goods, works and services, the procurement of which is carried out in electronic form,” the purchase of the following goods, works, services is carried out in electronic form:

Cases when purchases specified in the List may not be carried out in electronic form:

1. If information about the purchase, in accordance with Part 15 of Art. 4 Federal Law-223, is not subject to placement in the unified information system;
2. If the need for procurement arose as a result of an emergency, force majeure, the need for urgent medical intervention, natural or man-made emergencies, as well as in order to prevent the threat of their occurrence;
3. If the purchase is carried out from a single supplier (performer, contractor) in accordance with the procurement regulations.

Features of procurement in electronic form:

• The form for submitting applications for the purchase of these products, with the exception of cases determined by Resolution No. 616, must be exclusively electronic y.
• There is no definition of “electronic form of procurement”: the customer has the ability to accept applications from procurement participants via e-mail (signed with an electronic signature) or can place the purchase on one of the Internet resources that implement the possibility of placing purchases in accordance with the provisions of Federal Law No. 223;
• There is no requirement yet to place purchases electronically on the electronic trading platform.

To start effective procurement, it is enough to be accredited on the OTC-tender site. Once accredited, you can easily and conveniently conduct auctions, competitions, as well as requests for prices and proposals. Easy to do in just 2 steps!

When are customers, within the framework of 223-FZ, required to apply the provisions of Law No. 44-FZ on the contract system?

1. When the customer, within the framework of 223-FZ, did not approve and publish the Procurement Regulations within the time limits established by law.

2. When making capital investments in state and municipal property by autonomous institutions and unitary enterprises.

3. Procurements carried out at the expense of subsidies and funds received for the provision and payment of medical care under compulsory medical insurance (CHI) by customers, budgetary institutions that have decided to transfer part of their purchases to the provisions of 223-FZ.

Part 4 of Article 15 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”:

"4. When providing, in accordance with the Budget Code of the Russian Federation and other normative legal acts regulating budget legal relations, funds from the budgets of the budget system of the Russian Federation to autonomous institutions... unitary enterprises... capital investments in objects of state and municipal ownership of such legal entities when planning and carrying out procurement by them at the expense of these funds, the provisions of this Federal Law governing the relations specified in paragraphs 1 - 3 of Part 1 of Article 1 of this Federal Law are extended. At the same time, in relation to such procurements, the provisions of this Federal Law governing procurement monitoring, procurement audit and control in procurement are applied.”

They are not formally classified as customers, but some of their purchases are carried out in accordance with Law No. 44-FZ

• institutions, state unitary enterprises and municipal unitary enterprises, who, in accordance with the Budget Code of the Russian Federation and other normative legal acts regulating budget legal relations, have been provided with funds from the budgets of the budget system of the Russian Federation for capital investments in state and municipal property (Part 4 of Article 15) - the provisions of Law No. 44-FZ governing the execution of the contract do not apply to these persons.
• Legal entities, not being state or mun. institutions, state unitary enterprises or municipal unitary enterprises, in the case of the implementation of investment projects for the construction, reconstruction and technical re-equipment of capital construction projects at the expense of budget investments provided to such persons in accordance with the Budget Code of the Russian Federation (Part 5 of Article 15 of Law No. 44-FZ).
• Budgetary and autonomous institutions, state unitary enterprises and municipal unitary enterprises, to which, in accordance with the Budget Code of the Russian Federation and other regulatory legal acts regulating budgetary legal relations, individual customers (state bodies, management bodies of state extra-budgetary funds, local government bodies) transferred free of charge their powers to carry out procurement within the framework of concluded contracts (agreements) (Part 6 Article 15 of Law No. 44-FZ).

INFORMATION FOR CUSTOMERS UNDER 223-FZ

Federal Law of December 28, 2013 N 418-FZ"On amendments to the Budget Code of the Russian Federation and certain legislative acts of the Russian Federation" from 01/01/2014 the concept of capital investments in state and municipal property objects is revealed. This concept refers to capital investments in capital construction projects of state (municipal) property or the acquisition of real estate objects in state (municipal) property (Article 78.2 and Article 79 of the Budget Code of the Russian Federation).

Capital investments in capital construction projects of state or municipal property (hereinafter referred to as capital investments in state (municipal) property objects) at the expense of budgetary allocations can be made in the form of:

1. Subsidies for capital investments in state (municipal) property.

2. Budgetary investments in the form of capital investments in state (municipal) property.

In both of these cases, capital investments are provided:

1. State and municipal autonomous institutions.

1. State and municipal budgetary institutions.
2. State and municipal unitary enterprises.

Features of these forms of capital investment

1) When providing budgetary investments in the form of capital investments, the state or municipal customer (state authority, local government authority, extra-budgetary fund management body) on the basis of an agreement transfers free of charge its powers as the customer to conclude and execute on behalf of the relevant public legal entity of state (municipal) contracts.

Thus, a state or municipal budgetary or autonomous institution, a state or municipal unitary enterprise is not a customer. The customer here is the relevant public legal entity (Russian Federation, subject of the Russian Federation, municipal entity).

2) When providing subsidies for capital investments to a budgetary or autonomous institution, unitary enterprise, only budgetary allocations are transferred. Moreover, the latter are the customers and spend funds on the basis of an agreement on the provision of a subsidy.

3) Based on the content of paragraph 4 of Art. 78.2 and clause 4 of Art. 79 of the Budget Code of the Russian Federation, capital investments in state (municipal) property are carried out only for the purpose of construction (reconstruction, including elements of restoration, technical re-equipment) or acquisition of capital construction projects.

Thus, subsidies for major repairs of capital construction projects provided to state and municipal autonomous institutions do not fall under the requirements of Part 4 of Article 15 of Federal Law No. 44. These procurements must be carried out by autonomous institutions according to the rules of Federal Law-223, and not Federal Law-44.

4) Until 01/01/2017, subsidies for capital investments in state (municipal) property provided to state or municipal enterprises were removed from the scope of Law No. 44-FZ on the contract system (Part 26 of Article 112 of Law No. 44-FZ on the contract system ).

Features of procurement carried out by budgetary institutions

Budgetary institutions have the right to apply Law 44-FZ or Federal Law No. 223-FZ of July 18, 2011 (the decision is made before April 1, 2013 and is posted in the Unified Information System (Part 2 of Article 15 of Law 44-FZ) for the following types of procurement:

. Procurement through grants transferred free of charge and irrevocably by citizens and legal entities;

Procurement carried out by budgetary institutions as a contractor under a contract (involvement of subcontractors);

Procurement from funds received by budgetary institutions when carrying out other income-generating activities from individuals, legal entities, including within the framework of the main types of activities provided for by its constituent document (EXCEPTION - funds received for the provision and payment of medical care under compulsory health insurance) .

With regard to procurement carried out in 2014, a budgetary institution can develop a Procurement Regulation under 223-FZ and post it on the official website before 04/01/2014 (Part 25 of Article 112 of Law 44-FZ).

Contents of the procurement notice (part 8.9, article 4 of Federal Law-223)

The procurement notice must include, among other things, the following information:

Procurement method (open tender, open auction or other method provided for by the procurement regulations);

Name, location, postal address, email address, contact telephone number of the customer;

Subject of the agreement;

Place of delivery of goods, performance of work, provision of services;

The term, place and procedure for the provision of procurement documentation, the amount, procedure and timing of payment of the fee charged by the customer for the provision of documentation, if such a fee is established by the customer, with the exception of cases of provision of documentation in the form of an electronic document;

Place and date of consideration of proposals from procurement participants and summing up the procurement results.

Contents of procurement documentation - Part 10, Article 4

Technical specifications (requirements for quality, technical, functional characteristics of products, their safety, dimensions, packaging, shipment of goods, work results and other requirements)*;

Requirements for the content, form, design and composition of the application;

Instructions for filling out the application by procurement participants;

Place, conditions and terms (periods) of delivery of goods, performance of work, provision of services*;

Information about the initial (maximum) contract price (lot price);

Form, terms and procedure for payment for goods, work, services;

The procedure for forming the contract price (lot price) (with or without taking into account the costs of transportation, insurance, payment of customs duties, taxes and other obligatory payments);

The procedure, place, start date and end date for filing applications for participation in the procurement;

Requirements for procurement participants and a list of documents submitted by procurement participants to confirm their compliance with the established requirements;

Forms, procedure, start date and end date for providing procurement participants with explanations of the provisions of the procurement documentation;

Place and date of consideration of proposals from procurement participants and summing up the procurement results;

Criteria for evaluating and comparing applications;

The procedure for evaluating and comparing applications.

Features of the formation of procurement notices

"IV. The procedure for posting a procurement notice, procurement documentation and a draft contract

21. The customer’s representative, using the functionality of the official website, generates a procurement notice, including the information provided for in Part 9 of Article 4 of the Federal Law. If a different procurement method is established, the customer’s representative, using the functionality of the official website, generates a procurement notice, including the information provided for this procurement method by the procurement regulations along with the information provided for in Part 9 of Article 4 of the Federal Law.

22. With the procurement notice, an electronic version of the procurement documentation and an electronic version of the draft contract, which is an integral part of the procurement notice and procurement documentation, are posted on the official website.”

Requirements for the procurement protocol

Regulations on posting procurement information on the official website (approved by Decree of the Government of the Russian Federation dated September 10, 2012 No. 908):

"VII. The procedure for posting protocols drawn up during the procurement and information about changes to the contract

34. Protocols drawn up during the procurement must contain information on the volume, price of the purchased goods, works, services, contract execution period, as well as other information provided for by the Federal Law and the procurement regulations posted on the official website.

35. Protocols drawn up during the procurement are also posted in graphical form.

36. The protocol drawn up during the procurement is considered to be properly posted on the official website after posting in accordance with paragraph 4 of these Regulations in the public part of the official website of the protocol drawn up during the procurement, formed in accordance with paragraph 34 of these Regulations, and the documents provided for clause 35 of these Regulations."

3rd group of administrative offenses

Administrative offenses related to failure to comply with the instructions of the federal executive body authorized to exercise control in the field of procurement of goods, works, services by certain types of legal entities, or its territorial body

The most important changes to procurement legislation introduced by Federal Law No. 396-FZ of December 28, 2006 “On Amendments to Certain Legislative Acts of the Russian Federation”

Federal Law of December 28, 2013 No. 396-FZ “On Amendments to Certain Legislative Acts of the Russian Federation” introduced the following important norms into 223-FZ:

1. The concept of “official website” has been replaced by a “unified information system” (part 2.1 of article 1, article 4, part 10 of article 8).

2. From 01/01/2015 The Register of contracts concluded by customers under 223-FZ (Article 4.1) is put into effect.

Federal Law No. 396-FZ dated December 28, 2013 “On Amendments to Certain Legislative Acts of the Russian Federation” from January 1, 2015 introduces a mandatory Register for customers under 223-FZ of contracts concluded by customers. Information on the conclusion of contracts, their changes, as well as the results of the execution of contracts by customers under 223-FZ will be entered into the specified Register of Contracts.

Article 4.1 of the Federal Law of July 18, 2011 No. 223-FZ:

“Within three working days from the date of conclusion of the contract, customers enter information and documents established by the Government of the Russian Federation in accordance with Part 1 of this article into the register of contracts. If changes have been made to the contract, customers enter into the register of contracts such information and documents in respect of which changes were made. Information on the results of contract execution is entered by customers into the contract register within ten days from the date of execution, amendment or termination of the contract.”

3. “The Government of the Russian Federation has the right to establish the specifics of the participation of small and medium-sized businesses in procurement carried out by individual customers, the annual volume of purchases that these customers are required to make from such entities, the procedure for calculating the specified volume, as well as the form of the annual report on procurement from small entities and medium-sized enterprises and requirements for the content of this report" (Part 8, Article 3 of Federal Law 223-FZ).

4. From 01.01.2016, Part 8.1 of Article 3 223-FZ comes into force: “8.1. In the event that the customer fails to fulfill the obligation to make purchases from small and medium-sized businesses during the calendar year in the amount established by the Government of the Russian Federation in accordance with paragraph 2 of part 8 of this article, or the placement of unreliable information about the annual volume of purchases from such entities included in the report, provided for by Part 21 of Article 4 of this Federal Law, or failure to place the specified report in the unified information system, the procurement provision of such a customer from February 1 of the next year until the end of such year is recognized as not posted in accordance with the requirements of this Federal Law. In this case, when purchasing, the customer is guided by the provisions of Federal Law No. 44-FZ of April 5, 2013 “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

5. The procurement regulations of a budgetary institution are approved by the body exercising the functions and powers of the founder of a state or municipal budgetary institution (Part 3 of Article 2).

6. The cases in which a budgetary institution has the right to apply 223-FZ have been clarified (clause 4 of part 2 of article 1).

Federal Law of December 28, 2013 No. 396-FZ “On Amendments to Certain Legislative Acts of the Russian Federation” introduced the following important norms into the Federal Law of July 26, 2006 No. 135-FZ “On the Protection of Competition”:

1. Antimonopoly requirements for bidding and request for quotation from 01/01/2014 also apply to requests for proposals conducted within the framework of 44-FZ (parts 1-4 of Article 17).

2. Antimonopoly requirements for bidding, request for quotation, request for proposals within the framework of 44-FZ from 01/01/2014 apply to all purchases within the framework of 223-FZ (part 5 of article 17).

The dates for the entry into force of certain provisions of Law No. 44-FZ on the contract system have changed.

The right of a budgetary institution to adopt a procurement regulation under 223-FZ is until 04/01/2014 (Part 25 of Article 112).

Questions from listeners

Question:Is it necessary to post each individual change in the Procurement Regulations as a separate document, or is it sufficient to post the new edition of the Procurement Regulations with all changes in a unified information system?
Answer:Both options are acceptable.

Question: Is it possible to establish in the evaluation of applications that the winner is the one who offers the lowest price excluding VAT?
Answer: Can.

Question: The contract is for 3 months, the volume changes monthly, and an additional agreement is concluded after 3 months. When is the deadline for posting changes?
Answer: The terms are calculated from the moment of conclusion of the additional agreement. In order to make changes, the customer has 10 calendar days.

Question: If the Regulations specify a deadline for posting a notice of purchase from a single supplier, will there be a fine in case of violation?
Answer: Yes.

Question: Is the procurement plan approved by order?
Answer: 223-FZ does not regulate this issue.

Question: Under what law are procurements carried out using funds from the Federal Migration Service?
Answer: Purchases at the expense of the Federal Migration Service by budgetary institutions are carried out in accordance with 44-FZ.

Question: Is it possible to place a zero plan for the purchase of high-tech products for 4 years, i.e. designate 2014-2018?
Answer: Yes, the plan for the purchase of high-tech products must be placed for 4 years.

Question: Can the State Budgetary Institution conclude 2-3 contracts for up to 100 thousand rubles within a year? for the purchase of fuel and lubricants? Will there be a fine for this?
Answer: If the customer works under 223-FZ and its Procurement Regulations provide for these types of purchases, then there will be no fine for this.

Question: Can a pharmacy post one plan instead of two?
Answer: The law requires the publication of two plans - a procurement plan and a procurement plan for high-tech products and medicines, including for pharmacies.

Question: How are purchases carried out under a contract concluded before the entry into force of 223-FZ?
Answer: Procurements are carried out in the order that was in effect before the entry into force of Law 223-FZ.

Question: What liability can there be for the incorrect selection of bidders? Is it possible to recognize a request for quotation as invalid if one application has been received, and purchase from this supplier as the only supplier?
Answer: Administrative liability for incorrect selection of a participant in a quotation request for officials ranges from two thousand to three thousand rubles, for legal entities - from five thousand to ten thousand rubles. In order for the customer to be able to purchase from a single supplier in the situation described in the question, it is necessary to stipulate in the procurement regulations that in the event of a failed procurement procedure for any reason, the customer has the right to purchase from a single supplier.

Question: Is the absence or incorrect indication of statistics codes in procurement plans a violation?
Answer: Currently, liability for violation of the absence or incorrect indication of statistics codes in procurement plans is not provided for by law.

Question: If an agreement was concluded for an amount of up to 100 thousand rubles and the amount for which it was concluded has expired, will it be a violation to enter into a new agreement?
Answer: No , will not be a violation.

Question: If there is an annual procurement plan under 223-FZ, is it necessary to place a separate procurement plan for audit services under 44-FZ or can this purchase be included in the plan under 223-FZ?
Answer: The purchase of audit services is not subject to 223-FZ. For this reason, the customer cannot include audit services in the procurement plan under 223-FZ. The audit law states that audit services are purchased in accordance with the law on the contract system 44-FZ. Accordingly, when purchasing audit services, the customer either carries out only the procurement procedure in accordance with the requirements of 44-FZ, or fully complies with 44-FZ. In accordance with 44-FZ, the customer has no obligation to draw up and post a procurement plan for audit services.

Question: Is it necessary to post a procurement plan if the total purchase amount does not exceed five hundred thousand rubles, individual contracts - up to forty thousand rubles?
Answer: According to 223-FZ, in any case, you need to post a procurement plan.

Question: Does the customer have the right to accept quotes by email?
Answer: The right, if provided for in the Procurement Regulations.

For violation of Federal Law 223, and other regulatory legal acts of the Russian Federation adopted in accordance with it, the perpetrators are liable in accordance with the legislation of the Russian Federation. As a rule, this threatens to pay a fine, because... the culprit bears administrative responsibility.

Which one is specified in the Code of Administrative Offences. The average penalty for non-compliance with the requirements of the law for officials is 15 - 30 thousand rubles, and for legal entities - a couple of zeros more.

In general, all violations in the activities of customers can be divided into several groups:

violation of the terms and place of publication of the application regulations;

concealment of procurement information;

artificial restriction of competition (incorrectly drawn up technical specifications, unlawful rejection of applications for participation, etc.);

incorrect form of procurement of certain categories of goods.

Table of fines under 223-FZ in 2017 for violations

Full information on liability for violation of Federal Law 223 can be found in the Code of Administrative Offenses of the Russian Federation, namely in Art. 7.32.3; Art. 19.5; Art. 19.7.2-1; Art. 23.83.

Our specialists will help you draw up a complaint to the FAS to protect your interests in the auction.

The authors of the amendments to the federal law on fines established a sufficiently high level of financial liability to encourage participants and customers of public procurement to comply with the requirements of the law. The amendments are aimed at preventing violations of the Federal Law and complying with the instructions of regulatory authorities (FAS).

Fines under 223-FZ - pros and cons of the system

Tightening control over violations of 223-FZ and punishment for them is a controversial phenomenon. On the one hand, this motivates customers and performers not to break the rules, and on the other, it increases the FAS workload significantly. Why is that bad?

Imagine this situation: the customer publishes a purchase notice 1-2 days late. According to amendments to Federal Law 223, he faces a fine of 3,000 rubles. The case is being sent to the FAS, although the delay could well have been caused by a failure in the UIS (unified information system). The result is that I overload the service with small matters that do not affect anyone’s interests and do not pose any danger to the participants.

Already today, the FAS reviews thousands of cases annually, and if cases involving fines of 2-3 thousand rubles are added to them, the service load will be at its maximum. As a result, the investigation of more important cases that actually affect corruption in the country will drag on for years. Another serious risk is bureaucratic.

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

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Administrative punishment (fine or other type) depends on the violation:

When assigning a punishment, the specific circumstances of the violation and the person who committed it are taken into account >>>

Violation of deadlines for posting information in the UIS
Law No. 223-FZ establishes deadlines for performing certain actions during procurement procedures.

Requirements for deadlines for violation of which a person may be held administratively liable

Responsibility for violation of the specified deadlines is provided for in Part 4 of Art. 7.32.3 Code of Administrative Offenses of the Russian Federation.
If the delay is caused by long-term (more than one working day) technical problems in the UIS, the customer is not held liable if two conditions are met (Part 13 of Article 4 of Law 223-FZ):
– information is posted on the customer’s website within the time limit established for its placement in the Unified Information System;
– information is posted in the UIS within one business day after the problems are resolved.

Failure to post procurement information in the Unified Information System
Responsibility for this violation is provided for in Part 5 of Art. 7.32.3 Code of Administrative Offenses of the Russian Federation. The customer may be held liable for failure to place:
– notice of procurement, procurement documentation, draft contract;
– changes made to such notice and such documentation;
– clarifications of procurement documentation;
Continuation of the list
– protocols drawn up during the procurement;
– information about changes in the volume, price of purchased goods, works, services or terms of execution of the contract when concluding and executing the contract in comparison with those specified in the protocol, which was drawn up based on the results of the procurement (Part 5 of Article 4 of Law No. 223-FZ);
– changes made to the procurement regulations (Part 1, Article 4 of Law No. 223-FZ);
– procurement plan (part 2 of article 4 of Law No. 223-FZ);
– plan for the purchase of innovative products, high-tech products, medicines (Part 3 of Article 4 of Law No. 223-FZ);
– information and documents sent to the register of contracts (part 2 of article 4.1 of Law No. 223-FZ);
– a monthly report on the number and total cost of contracts concluded by the customer (Part 19, Article 4 of Law No. 223-FZ);
See How to place procurement reports in the Unified Information System under Law N 223-FZ.
– information on the annual volume of purchases that the customer is obliged to make from SMSP - if the customer is obliged to carry out a certain volume of purchases from such entities (Part 21, Article 4 of Law No. 223-FZ).

Responsibility does not arise if the UIS does not contain procurement information, which, in accordance with Part 15 of Art. 4 of Law N 223-FZ is not required to be posted.

Recommendation. If administrative proceedings have been initiated against the customer due to failure to place information in the Unified Information System, it is advisable to place it before the consideration of the case and submit the relevant evidence to the hearing of the case. In this case, a smaller fine may be applied, since the customer’s actions will be qualified as a violation of the deadlines for posting information in the Unified Information System (see, for example, Resolution of the Khabarovsk OFAS Russia dated February 15, 2016 in case No. 8-04/19).

Failure to comply with the requirements for the content of the notice and procurement documentation
Administrative liability under Part 7 of Art. 7.32.3 of the Code of Administrative Offenses of the Russian Federation may be attracted in the following cases:
– the information in the procurement notice does not correspond to the information in the documentation (Part 8, Article 4 of Law No. 223-FZ);
– information is missing in the procurement notice (Part 9, Article 4 of Law No. 223-FZ).

Examples of possible violations of requirements for the content of a procurement notice

There is no information in the procurement documentation (Part 10, Article 4 of Law No. 223-FZ).

Examples of possible violations of requirements for the content of procurement documentation

Violation of the procedure for reviewing, evaluating and comparing applications
Responsibility for this violation is provided for in Part 8 of Art. 7.32.3 Code of Administrative Offenses of the Russian Federation. They may be brought to attention in the following cases (Part 6, Article 3 of Law No. 223-FZ):
– when considering applications, the application was rejected due to its non-compliance with the requirement for procurement participants, the subject of procurement or the terms of the contract, which is not in the documentation or is inaccurately established (see, for example, the Guide to Disputes in the Field of Procurement (223-FZ));
– an application that does not meet the requirements established in the documentation was accepted for evaluation and comparison;
– when evaluating applications, criteria were used that were not specified in the documentation, and the criteria established in it were not used;
– ranking of applications or assignment of evaluation points to them is carried out in an order that is not in the documentation.

Failure to comply in a timely manner with the legal requirement of the control body to eliminate violations
For failure to comply with a legal decision or order of the FAS Russia and its territorial bodies to eliminate violations of procurement legislation within the time period established in this decision or order, Part 7.2 of Art. 19.5 of the Code of Administrative Offenses of the Russian Federation provides for an administrative fine.
At the same time, a person cannot be held accountable for delay in fulfilling an order if, before the expiration of the deadline for its execution, an application to appeal this order has been accepted for proceedings by the arbitration court (Part 2 of Article 52 of the Law on Protection of Competition).

Failure to provide, untimely provision or provision of false information for inclusion in the register of unscrupulous suppliers
The customer’s obligation to provide FAS Russia for inclusion in the RNP information about suppliers who have evaded concluding a contract, and about suppliers with whom contracts were terminated by a court decision due to a significant violation of conditions, is established in Part 2 of Art. 5 of Law No. 223-FZ.
Administrative liability may arise in the following cases:
1) the information provided for in clauses 2 - 4 of the Rules for sending by customers information about unscrupulous procurement participants and suppliers (performers, contractors) to the federal executive body authorized to maintain a register of unscrupulous suppliers (approved by the Decree of the Government of the Russian Federation dated 22.11) has not been provided .2012 N 1211), or knowingly false information about an unscrupulous supplier was provided;
2) the deadlines for providing information about the dishonest procurement participant have been violated:
– if he evades concluding a contract - 30 calendar days from the date of expiration of the term for signing the contract or from the date of concluding the contract with another procurement participant (clauses 2, 3 of these Rules);
– if the contract is terminated by a court decision - 10 working days from the date of such termination (clause 4 of the above Rules).
The listed violations entail the imposition of an administrative fine under Art. 19.7.2-1 Code of Administrative Offenses of the Russian Federation.

Circumstances that are taken into account when determining administrative liability
The type of administrative punishment and the amount of the fine for committing a specific offense depend on the following factors:
1) the person who is held accountable:
– official – a person (customer’s employee, member of the procurement commission) who is entrusted by the customer with the functions of organizing and conducting a procurement or carrying out certain actions during which a violation was committed (Article 2.4 of the Code of Administrative Offenses of the Russian Federation);
– the customer as a legal entity;

2) specific circumstances of the offense (part 2 of article 4.1