Public, departmental and internal control of procurement of medical organizations: key aspects. Public control over the activities of social protection bodies in the Russian Federation Organizations of public control in the field of procurement

Let us answer the question: what is public control under 44-FZ, find out about the goals and forms, as well as who can exercise this control and what powers they have when exercising control in the field of procurement.

Who is authorized to conduct public control

The key innovation of Law 44-FZ was giving the public the right to control procurement. A major role was played by the adoption of the Law “On the Fundamentals of Public Control in the Russian Federation” dated July 21, 2014 No. 212-FZ (hereinafter -). Who has the right to exercise public control under 44-FZ? What powers are vested in subjects of public control?

Subjects of public control under 44-FZ are listed in Part 1 of Art. 102 of Law No. 44-FZ. So, public control has the right to exercise according to Federal Law 44:

• citizens;
• public associations (hereinafter referred to as PAs);
• associations of legal entities.

In accordance with Art. 7 of the Law "" of May 19, 1995 No. 82-FZ, the latter can be formed in one of the following forms:

• public organization;
• public fund;
• Political Party;
• social movement;
• public institution;
• public initiative body.

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State bodies and municipalities are obliged to provide the said persons with the opportunity to carry out control.

Goals and forms of public control under 44-FZ

Goals and forms of control

• Public control under 44-FZ is carried out for the purposes of:
• development and improvement of the contract system;
• identifying and preventing violations of regulations in the field of public procurement;

informing control authorities in case of detection of violations.

• Law No. 212-FZ establishes the following types of public control:
• public monitoring;
• public inspection;
• public examination;
• public discussions;

public (public) hearings; other forms of interaction.

Let's consider some of them in relation to 44-FZ.

The scope of control will be optimized, inspections will be streamlined, and the work of customers will be restructured. Municipalities will be deprived of the powers of control bodies. Controllers at all levels will be prohibited from conducting centralized purchases for customers.

Public monitoring

Public monitoring is one of the forms of control. It is carried out publicly and openly using information and telecommunication systems, including the Internet (Part 3 of Article 19 of Law No. 212-FZ). Based on its results, the subject of control prepares a final document, which is sent to the object of control for consideration and posted online.

According to clause 3, part 3, art. 102 of Law No. 44-FZ, public associations and associations of legal entities have the right to carry out independent monitoring of procurement and assessment of the effectiveness of procurement, including assessment of procurement and the results of contract execution in terms of their compliance with the requirements of Law No. 44-FZ. Depending on the results of public monitoring of procurement and assessment of the effectiveness of procurement, its organizer has the right to initiate (Part 7, Article 19 of Law No. 212-FZ) public discussion, public (public) hearings, public inspection, public examination.

As part of public monitoring, the subject of control has the right to send a request to the customer for information (clause 2, part 3, article 102 of Law No. 44-FZ).

Public check

The organizer of a public inspection has the right to request from the inspected body or organization the documents and other materials necessary for its conduct (Part 6, Article 20 of Law No. 212-FZ). However, this design does not take into account two key components - the obligation to bring to the attention of the head of the organization being inspected information about the public inspection, the timing, procedure for conducting it and determining the results, as well as who has the right to legally conduct a public inspection. And if the first component consists in formally informing the object of public control of administrative and other acts regarding all actions and regulations of the subject of control, then the second allows us to identify legal conflicts of norms.

As they say in Part 2 of Art. 20 of Law No. 212-FZ, a limited number of persons can initiate a public inspection. They can be the Commissioner for Human Rights in the Russian Federation, the Commissioner under the President of the Russian Federation for Children’s Rights, the Commissioner under the President of the Russian Federation for the Protection of the Rights of Entrepreneurs, Commissioners for Human Rights, for Children’s Rights, for the Protection of the Rights of Entrepreneurs, for the Rights of Indigenous Peoples in the Subjects of the Russian Federation, Public Chamber of the Russian Federation.

Public chambers of constituent entities of the Russian Federation, public chambers of municipalities and other subjects of public control can initiate a public audit only in cases provided for by the legislation of the Russian Federation. Consequently, PAs, like other subjects of public control that claim to carry out public inspection, are obliged to conduct it only in cases directly provided for by the legislation of the Russian Federation. At the same time, Law No. 44-FZ does not provide for such a form of control as public inspection.

Thus, the PA does not have the right to initiate a public audit as part of control in the contract system in the field of procurement. In turn, clause 4, part 3, art. 102 of Law No. 44-FZ gives PAs the right to submit to control authorities an application to carry out activities within the framework of Law No. 44-FZ.

Oksana Balandina, chief editor of the State Order System

Procurement procedures are checked at every stage - from planning to fulfillment of contract obligations. The main regulatory authorities are the FAS and the Federal Treasury. However, not only these two departments control the work of the customer. Read who else checks procurement procedures and what inspectors pay attention to.

There are no new articles that have not entered into force.

Citizens and public associations and associations of legal entities have the right to exercise public control over compliance with the legislation of the Russian Federation and other regulatory legal acts on the contract system in the field of procurement (hereinafter referred to as public control) in accordance with this Federal Law. State authorities and local governments are obliged to ensure the possibility of exercising such control.

Public control is carried out in order to implement the principles of the contract system in the field of procurement, promote the development and improvement of the contract system in the field of procurement, prevent, identify violations of the requirements of the legislation of the Russian Federation and other regulatory legal acts on the contract system in the field of procurement and inform customers, control bodies in the field procurement about identified violations.

Public associations and associations of legal entities exercising public control have the right to:

• 1) prepare proposals for improving the legislation of the Russian Federation on the contract system in the field of procurement;
• 2) send requests to customers for information on procurement and the progress of contracts;
• 3) carry out independent monitoring of procurement and assessment of the effectiveness of procurement, including assessment of the implementation of procurement and the results of execution of contracts in terms of their compliance with the requirements of this Federal Law;
• 4) apply on your own behalf to state bodies and municipal bodies with an application to carry out control measures in accordance with this Federal Law;
• 5) apply on your behalf to law enforcement agencies in cases where the actions (inaction) of a customer, an authorized body, an authorized institution, a specialized organization, procurement commissions and their members, contract service officials, contract governing signs of a crime are identified;
• 6) go to court in defense of violated or disputed rights and legitimate interests of a group of persons in accordance with the legislation of the Russian Federation.

Requests for information on procurement and the progress of contract execution, other requests submitted by public associations and associations of legal entities are considered by customers in accordance with the legislation of the Russian Federation on the procedure for considering citizens' requests.

Members of public associations and associations of legal entities are obliged to ensure the confidentiality of information, access to which is limited in accordance with federal laws and which became known to them in the course of exercising public control.

The edition of the Law of the Russian Federation “On the Protection of Consumer Rights” dated July 18, 2011 deprived public consumer organizations of carrying out checks to ensure compliance with consumer rights. Unfortunately, despite the fact that inspections are prohibited, there are no fewer public inspectors and they still visit entrepreneurs as public inspectors, since now the Law of the Russian Federation “On the Protection of Consumer Rights” states that “Public associations of consumers ( their associations, unions) in order to implement their statutory goals have the right to:... exercise public control over compliance with consumer rights...". This right of public inspectors, enshrined in the new edition, to visit entrepreneurs with virtually the same verification mission indicates that the matter of public control will continue and therefore it is necessary to understand its essence.
The problem with conducting public control by public consumer organizations has long been well known and lies in the fact that instead of protecting the interests of consumers directly, social activists (or rather, pseudo-social activists) are engaged in the fact that, under various pretexts, they try to obtain money from entrepreneurs, that is, they engage in extortion. Let's look at the whole situation in more detail.
The actions of such pseudo-social organizations, specially created and aimed at making profit, undermine the authority of the entire consumer community and the institution of public control itself. At the same time, public or, as it is also called, civil control is necessary and is a legal tool for protecting, in this case, the consumer market from illegal actions of unscrupulous entrepreneurs who sell goods and food products that are dangerous to the health and lives of citizens.
Visits of public organizations cannot cause any harm to the interests of law-abiding entrepreneurs. Conducting public control and conclusions on them should be perceived as prevention of violations in business and recommendations for eliminating shortcomings, if any. Even if a public organization uses its right to further implement the results of the inspection - to appeal to Rospotrebnadzor, the court, etc., then with the competent work of a lawyer or attorney, all such attacks can be easily removed and will not harm the business. The main advice that can be given here to an entrepreneur who is approached by public organizations is not to pay them anything. Any even insignificant money will fuel their illegal activities. Having received money in one place, the “public inspectors” - the burglars - will act with great impudence at another retail outlet. Thus, the system of corruption in the consumer market is strengthened, and the money paid by entrepreneurs to such pseudo-social activists is still compensated from the wallet of the ordinary consumer, worsening his already difficult situation.
On August 1, 2011, the Federal Law of July 18, 2011 No. 242-FZ “On amendments to certain legislative acts of the Russian Federation on the implementation of state control (supervision) and municipal control” came into force, Article 1 of which amended the Law “ On the protection of consumer rights" (hereinafter referred to as the law).
The new version of the Law significantly expanded the powers of Rospotrebnadzor, as a body exercising state supervision in the field of consumer rights protection, and delegated to public consumer associations the right to monitor compliance with consumer rights by sellers (manufacturers, performers, authorized organizations or authorized individual entrepreneurs, importers).
In introducing a new concept - public control, the Law does not provide its interpretation, does not explain or regulate the procedure, forms and methods of its implementation by public associations of consumers. In this case, the activities of public associations of consumers or public control are carried out based on the general principles and meaning of civil legislation, the requirements of good faith, reasonableness and fairness.
In accordance with the Law “On Public Associations” (No. 82-FZ dated May 19, 1995), a public association is a voluntary, self-governing, non-profit formation created on the initiative of citizens united on the basis of common interests. The public association carries out its activities in accordance with the Charter and is free to determine its internal structure, goals and objectives. The forms and methods of activity of a public association cannot contradict the Charter of the public association and current legislation.
The new version of the Law imposes a number of restrictions on the activities of public consumer associations. Based on the provisions of Article 45 of the Law, it can be argued that public consumer associations are not entitled to:
- carry out checks of compliance by sellers (manufacturers, etc.) with mandatory requirements established by federal laws and other regulations and legal acts governing relations in the field of consumer protection;
- carry out checks1 of compliance of goods (work, services) with mandatory requirements ensuring the safety of goods (work, services) for the life and health of consumers, the environment, checks aimed at preventing actions that mislead consumers, and preventing damage to consumers’ property established in compliance with international treaties of the Russian Federation, federal laws and other regulatory legal acts of the Russian Federation;
- carry out sampling and samples of goods intended for sale and sold to consumers, for conducting their research and testing;
- issue orders from sellers (manufacturers, etc.) to stop violations of consumer rights, to stop violations of mandatory requirements, to eliminate identified violations of mandatory requirements, to take measures to ensure the prevention of harm to the life, health and property of consumers, and the environment;
- draw up protocols on administrative offenses in the field of consumer protection, consider cases of these administrative offenses and take measures to prevent such violations.
At the same time, the legislation does not directly prohibit public associations of consumers from the following actions:
- create public control groups that are vested with the appropriate powers provided for by the Charter of the public association;
- at your own expense, carry out a “control” purchase of goods (services), which can subsequently be used as evidence (together with a document certifying the purchase);
- independently make a decision on the further use of the results of public control (application to the seller (performer, etc.) with a proposal to voluntarily eliminate identified violations, informing state supervisory authorities and local governments, contacting the Prosecutor's Office, contacting the media, etc. .).
Public associations of consumers, whose charters provide for the corresponding type of activity and statutory goals, in order to exercise the right to conduct public control over compliance with consumer rights, have the right to carry out any activity not prohibited by law, aimed at identifying and preventing consumer rights. Thus, public consumer organizations, when carrying out their activities, have the right to:
1. Independently determine the form of public control, which can be carried out in the form of direct public control, as well as monitoring, surveys, systematic observation, etc.
2. Carry out public control measures:
- compliance by sellers (manufacturers, etc.) with mandatory requirements established by federal laws and other regulatory legal acts governing relations in the field of consumer protection;
- for the compliance of goods (works, services) for the life and health of consumers and the environment;
- aimed at preventing actions of the seller (manufacturer, etc.) that mislead consumers;
- aimed at preventing sellers (manufacturers, etc.) from causing harm to consumers’ property.
3. Require the seller (manufacturers, etc.) to provide documents (perform actions), the obligation to submit (perform) which, at the request of consumers, is established by law, in particular Art. 10 “On the protection of consumer rights”, rules for the sale of certain types of goods, and other regulatory legal acts regulating relations in the field of consumer rights protection.
4. Document facts indicating violation of consumer rights by drawing up/filling out public control forms, taking photos and videos, and making “control” purchases of goods (services).
5. Notify the seller (manufacturer, etc.) in writing about the results of public control, about violations of legislation in the field of consumer protection identified during the control, and offer to voluntarily eliminate these violations.
6. File a claim for non-obstruction in the implementation of public control in the event of a refusal to carry it out from the seller (manufacturer, etc.)
7. Bring claims to the courts to stop illegal actions of the seller (manufacturer, etc.) in relation to an indefinite number of consumers.
8. On your own initiative, involve the state control (supervision) body in participation in the case to give an opinion on the case in order to protect consumer rights;
9. Send information to the state supervisory authority (Rospotrebnadzor) and local government authorities about facts of violation of consumer rights identified during public control:
- about non-compliance by sellers (manufacturers, etc.) with mandatory requirements established by federal laws and other regulatory legal acts governing relations during public control:
- about non-compliance of goods (works, services) with mandatory requirements ensuring the safety of goods (works, services) for the life and health of consumers and the environment;
- about the actions of the seller (manufacturer, etc.), misleading consumers;
- on preventing sellers (manufacturers, etc.) from causing damage to consumers’ property.
10. Require the state supervision body (Rospotrebnadzor) and local governments to verify the facts identified during public control and, if confirmed, take measures to suppress violations of consumer rights.
11. Disseminate information (including through the media) about the results of public control, if it will contribute to the realization of the rights and legitimate interests of consumers.
12. Submit to the Prosecutor's Office material on bringing to justice persons engaged in the production and sale of goods (performance of work, provision of services) that do not meet the mandatory requirements imposed on them, as well as violating the rights of consumers established by laws and other regulatory legal acts of the Russian Federation .
13. Submit to the Prosecutor's Office and federal executive authorities materials on bringing to justice persons who sell goods and services that do not meet the mandatory requirements for them, as well as violating the rights of consumers established by laws and other regulatory legal acts of the Russian Federation.

Article 102. Public control over compliance with the requirements of the legislation of the Russian Federation and other regulatory legal acts on the contract system in the field of procurement

1. Citizens and public associations and associations of legal entities have the right to exercise public control over compliance with the legislation of the Russian Federation and other regulatory legal acts on the contract system in the field of procurement (hereinafter referred to as public control) in accordance with this Federal Law. State authorities and local governments are obliged to ensure the possibility of exercising such control.

2. Public control is carried out in order to implement the principles of the contract system in the field of procurement, promote the development and improvement of the contract system in the field of procurement, prevent, identify violations of the requirements of the legislation of the Russian Federation and other regulatory legal acts on the contract system in the field of procurement and inform customers and control bodies in the field of procurement about identified violations.

3. Public associations and associations of legal entities exercising public control have the right to:

1) prepare proposals for improving the legislation of the Russian Federation on the contract system in the field of procurement;

2) send requests to customers for information on procurement and the progress of contracts;

3) carry out independent monitoring of procurement and assessment of the effectiveness of procurement, including assessment of the implementation of procurement and the results of execution of contracts in terms of their compliance with the requirements of this Federal Law;

4) apply on your own behalf to state bodies and municipal bodies with an application to carry out control measures in accordance with this Federal Law;

5) apply on your behalf to law enforcement agencies in cases where the actions (inaction) of a customer, an authorized body, an authorized institution, a specialized organization, procurement commissions and their members, contract service officials, contract governing signs of a crime are identified;

6) go to court in defense of violated or disputed rights and legitimate interests of a group of persons in accordance with the legislation of the Russian Federation.

4. Requests for information on procurement and the progress of contract execution, other requests submitted by public associations and associations of legal entities are considered by customers in accordance with the legislation of the Russian Federation on the procedure for considering citizens' requests.

5. Members of public associations and associations of legal entities are obliged to ensure the confidentiality of information, access to which is limited in accordance with federal laws and which became known to them in the course of exercising public control.