Quote

Article 1. Scope of application of this Federal Law
1. This Federal Law regulates relations aimed at meeting state and municipal needs in order to increase the efficiency and effectiveness of procurement of goods, works, services, ensure openness and transparency of such procurement, prevent corruption and other abuses in the field of such procurement, in part, concerning:
3) concluding a civil contract, the subject of which is the supply of goods, performance of work, provision of services (including the acquisition of real estate or rental of property), on behalf of the Russian Federation, a subject of the Russian Federation or a municipal entity, as well as a budgetary institution or other legal entity a person in accordance with parts 1, 4 and 5 of Article 15 of this Federal Law (hereinafter referred to as the contract);

Quote

Article 3. Basic concepts used in this Federal Law
For the purposes of this Federal Law, the following basic concepts are used:
...
3) purchase of goods, work, services to meet state or municipal needs (hereinafter referred to as procurement) - a set of actions carried out in the manner established by this Federal Law by the customer and aimed at meeting state or municipal needs. The procurement begins with the identification of the supplier (contractor, performer) and ends with the fulfillment of obligations by the parties to the contract. If in accordance with this Federal Law there is no provision for posting a notice of procurement or sending an invitation to take part in determining the supplier (contractor, performer), the procurement begins with the conclusion of the contract and ends with the fulfillment of obligations by the parties to the contract
...
8) state contract, municipal contract - an agreement concluded on behalf of the Russian Federation, a constituent entity of the Russian Federation (state contract), municipal formation (municipal contract) by a state or municipal customer to meet, respectively, state needs, municipal needs;

That is, procurement should be carried out only by concluding a civil agreement (contract). The contract is concluded on behalf of the customer. The customer is a legal entity, therefore the form of the transaction can only be in writing (Article 161 of the Civil Code of the Russian Federation). Officials do not have the right to enter into contracts on behalf of the customer (I may be mistaken, but I couldn’t find it)...
If, from an accounting point of view, obligations should arise through account 302... Through reporting, you can only hand over money to the cash register...

There is no reason to accept goods and materials from an employee within the framework of 44-FZ, only by concluding an agreement with an individual - an employee, and again this is an obligation under the agreement, which must fit into 44-FZ...

Regarding travel expenses - payment for accommodation and purchase of tickets, I think it can go outside the framework of 44-FZ, since this is not a purchase for state (municipal) needs, but an obligation of the employer to the employees to pay these expenses if the payment was made by the employee on his behalf.. .

P.S.: The topic is actually very interesting on the Internet, there is quite a lot of controversy about this, but I didn’t find any convincing arguments from what I looked at. I’m speaking as an auditor... But from the point of view of customers, relatively minor purchases are a big problem...

At the moment there is no official clarification on this matter. Cash or non-cash payment is a method of payment for goods (work, services). Based on the provisions of Law No. 44-FZ, when issuing funds to employees on account, in any case, it is necessary to comply with the requirements of Article 34 of Law No. 44-FZ. Such expenses can be paid by purchasing from a single supplier (for this purpose, clause 4 of part 1 of Article 93 of Law No. 44-FZ is provided). That is, from the literal interpretation of the provisions of Law No. 44-FZ, it follows that when paying expenses by an accountable person (based on a power of attorney on behalf of the institution), it is necessary to conclude a contract. Also, when choosing a procurement method from a single supplier, it is necessary to justify in writing: the impossibility or inappropriateness of using other methods of determining the supplier (contractor, performer); contract price; other essential terms of the contract.

However, in private explanations, employees of the Russian Ministry of Economic Development indicated that concluding a contract when conducting procurement through an accountable entity is not a prerequisite (a document providing the basis for payment is sufficient). But before official clarification appears, it is recommended to conclude a contract on behalf of the institution. In this case, the employee, based on a power of attorney, will receive from the supplier documents confirming the expense - a delivery note, an invoice, a cash receipt or a receipt for the PKO. All completed documents will serve as the basis for the expenses incurred and must be attached to the expense report.

Contracts must also be concluded in accordance with the provisions of Law No. 44-FZ. For example, you can conclude a contract with a single supplier for the provision of teaching services, as well as the services of a tour guide (guide) by individuals (clause 33 of part 1 of Article 93 of Law No. 44-FZ). When concluding other contracts, it is necessary to carry out the procurement procedure or conclude with a single supplier within the framework of clause 4 of part 1 of Article 93 of Law No. 44-FZ (contracts up to 100 thousand rubles).

in the materials of the Glavbukh System.

From January 1, 2014, the contract system in the field of procurement begins to operate. Therefore, all customers when conducting procurement for state and municipal needs must comply with the new rules established by Law No. 44-FZ of April 5, 2013.*

2. When purchasing goods (works, services) to ensure the safety of persons subject to state protection.

The lists of persons subject to state protection are given in Article 2 of the Law of August 20, 2004 No. 119-FZ and Article 2 of the Law of April 20, 1995 No. 45-FZ.

3. When purchasing precious metals and stones to replenish the State Fund of Precious Metals and Precious Stones of the Russian Federation.

4. When a lawyer is appointed by the bodies of inquiry, preliminary investigation, or the court to participate as:

• defense attorney in criminal proceedings in accordance with the Criminal Procedure Code of the Russian Federation;
• representative in civil proceedings in accordance with the Civil Procedure Code of the Russian Federation.

5. When engaging a lawyer to provide legal assistance to citizens free of charge in accordance with the Law of November 21, 2011 No. 324-FZ.

This is stated in Part 2 of Article 1 of the Law of April 5, 2013 No. 44-FZ.

Maxim Chemerisov,

Director of the Department for Development of the Contract System of the Ministry of Economic Development of Russia

2. 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”

“Article 1. Scope of application of this Federal Law

1. This Federal Law regulates relations aimed at meeting state and municipal needs in order to increase the efficiency and effectiveness of procurement of goods, works, services, ensure openness and transparency of such procurement, prevent corruption and other abuses in the field of such procurement, in part, concerning:*

1) planning the procurement of goods, works, services;

2) determination of suppliers (contractors, performers);

3) concluding a civil contract, the subject of which is the supply of goods, performance of work, provision of services (including the acquisition of real estate or rental of property), on behalf of the Russian Federation, a subject of the Russian Federation or a municipal entity, as well as a budgetary institution or other legal entity a person in accordance with parts 1 and 5 of Article 15 of this Federal Law (hereinafter referred to as the contract);

4) features of contract execution;

5) monitoring the procurement of goods, works, services;

6) audit in the field of procurement of goods, works, services;

7) control over compliance with the legislation of the Russian Federation and other regulatory legal acts on the contract system in the field of procurement of goods, works, services to meet state and municipal needs (hereinafter referred to as control in the field of procurement).

Article 3. Basic concepts used in this Federal Law

For the purposes of this Federal Law, the following basic concepts are used:

3) purchase of goods, work, services to meet state or municipal needs (hereinafter referred to as procurement) - a set of actions carried out in the manner established by this Federal Law by the customer and aimed at meeting state or municipal needs. The procurement begins with the identification of the supplier (contractor, performer) and ends with the fulfillment of obligations by the parties to the contract. If, in accordance with this Federal Law, there is no provision for posting a notice of procurement or issuing an invitation to participate in determining the supplier (contractor, performer), the procurement begins with the conclusion of the contract and ends with the fulfillment of obligations by the parties to the contract;*

Article 93. Purchasing from a single supplier (contractor, performer)

1. Purchase from a single supplier (contractor, performer) may be carried out by the customer in the following cases:*

4) procurement of goods, work or services in an amount not exceeding one hundred thousand rubles. In this case, the total annual volume of purchases that the customer has the right to carry out on the basis of this paragraph does not exceed five percent of the amount of funds provided for the implementation of all purchases of the customer in accordance with the schedule, and amounts to no more than fifty million rubles per year. The specified restrictions regarding the establishment of limit values ​​for determining the amount of funds do not apply to purchases of goods, works, and services carried out by customers for the needs of rural settlements;*

"Small" purchases

Procurement through accountable persons. Things to remember

Even if the “accountables” purchase goods for small amounts, these purchases cannot be made bypassing. But it is much easier to process them, you just need to know a number of important nuances...

Alexander BURKOV,

Procurement through reporting

Budgetary institutions, as customers, have the right to issue money to their employees on account for production needs. They are not limited by the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (hereinafter referred to as the Law on the Contract System). However, the following must be taken into account.

Not only its bodies can act on behalf of a legal entity in accordance with the law, other legal acts and constituent documents (Article 53 of the Civil Code of the Russian Federation), but also its representatives. These are persons acting on the basis of a power of attorney issued to them or whose powers follow from the situation (clause 1 of article 182, clause 1 of article 185 of the Civil Code of the Russian Federation). The actions of the representative (accountable person) directly create, change and terminate the civil rights and obligations of the represented institution (Clause 1 of Article 182 of the Civil Code of the Russian Federation).

Since the accountable person, when purchasing goods (work, services) on behalf of the institution, acts on its behalf and in its interests, he acts as an authorized representative of the institution. Therefore, the purchase by him of goods (works, services) for cash on behalf of the customer is qualified as a purchase that must be made in accordance with the rules of the Law on the Contract System.

Based on the above, we can conclude that if goods (work, services) are purchased with amounts issued to accountable persons to meet state (municipal) needs or the needs of institutions, then such relations are regulated by the provisions of the Law on the Contract System and these funds must be taken into account in the schedule for placing orders in 2015 (letter of the Ministry of Economic Development of Russia dated March 28, 2014 No. D28i-385).

"Small" purchases

Let's take a closer look at what you don't need to do when purchasing a small volume.

There is no requirement to draw up a report justifying the impossibility or inappropriateness of using other procurement methods, the starting price and other essential terms of the contract. Cases of drawing up this report are regulated by Part 3 of Article 93 of the Law on the Contract System.

There is no need to post a purchase notice on the website. But for some purchases from a single supplier, it still needs to be published - no later than five days before the date of conclusion of the contract (Part 2 of Article 93 of the Law on the Contract System).

In addition, there is no need to establish security for the performance of the contract. After all, the customer is obliged to do this only in situations provided for in Part 1 of Article 96 of the Law on the Contract System.

On a note

The contract can be concluded in any form provided for by the Civil Code of the Russian Federation, including oral.

Information about such procurement is not included in the register of contracts (Article 103 of the Law on the Contract System). A report on the execution of the contract (Part 9 of Article 94 of the Law on the Contract System) in the form determined by Decree of the Government of the Russian Federation of November 28, 2013 No. 1093 is also not prepared.

When purchasing a small volume, the customer may deviate from the requirements of Article 34 of the Contract System Law.

Purchasing requirements

Information on purchases that are planned to be made in accordance with paragraphs , part 1 of Article 93 of the Law on the Contract System is indicated in the schedule in one line for each budget classification code in the amount of the total annual volume of funds for purchases of goods, works, services not exceeding 100 thousand rubles. and not exceeding 400 thousand rubles. In this case, the calculation of the permissible volume of “small” purchases for the period until the end of 2015 is made without taking into account the schedule.

The maximum amount for cash payments for institutions is 100 thousand rubles.

The customer must correctly determine its total total annual procurement volume, that is, the total amount of financial support approved for the corresponding financial year for procurement, including for payment of contracts concluded before the start of the specified financial year and payable in the specified financial year.

Until 2016, such calculations are made based on the budget estimate or plan of the customer’s financial and economic activities. Until next year, these concepts are not related to the schedule.

To purchase goods, works, and services for an amount not exceeding 100 thousand rubles, the customer must choose a scheme for calculating the volume of “small” purchases: or the total number of such purchases should not exceed 2 million rubles. per year, or you need to focus on 5 percent of the total annual purchase volume.

The first option is suitable for a customer with small volumes of purchases, the second - for a customer with large volumes. When conducting purchases in accordance with paragraphs, part 1 of Article 93 of the Law on the Contract System, it must be remembered that the amount of such purchases is not taken into account when calculating the minimum volume of purchases that the customer is obliged to carry out with restrictions for small businesses and socially oriented non-profit organizations.

How to add a purchase to the schedule

Important to remember

It is prohibited to include in the terms of a bank guarantee a requirement that the customer submit to the guarantor judicial acts confirming the principal’s failure to fulfill the obligations secured by this bank guarantee (Part 4 of Article 45 of the Law on the Contract System).

• the amount payable by the guarantor to the customer in the cases established by Part 13 of Article 44 or Article 96 of the Law on the Contract System;
• obligations of the principal, the proper fulfillment of which is ensured by the guarantee;
• the obligation of the guarantor to pay the customer a penalty in the amount of 0.1 percent of the amount payable for each day of delay;
• the condition according to which the fulfillment of obligations under the bank guarantee is the actual receipt of funds into the account on which, in accordance with the legislation of the Russian Federation, transactions with funds received by the customer are recorded;
• validity period of the bank guarantee, taking into account the requirements of the articles and the Law on the Contract System;
• a suspensive condition providing for the conclusion of an agreement for the provision of a bank guarantee for the obligations of the principal arising from the contract at its conclusion, in the case of a bank guarantee being provided as security for the execution of the contract;
• the list of documents established by the Government of the Russian Federation, provided by the customer to the bank simultaneously with the requirement to pay the amount of money under the bank guarantee.

Setting additional requirements

Additional requirements for a bank guarantee, the procedure for maintaining and placing a register of these guarantees in the Unified Information System, and the form of the requirement for payment under the guarantee are defined in Decree of the Government of the Russian Federation dated November 8, 2013 No. 1005.

Since December 20, 2014, it has been in effect as amended by Decree of the Government of the Russian Federation of December 9, 2014 No. 1339.

The new edition retains the rule that a bank guarantee must be issued on paper or in the form of an electronic document.

At the same time, it is clarified that such a document can be signed with an enhanced non-qualified electronic signature by a person who has the right to act on behalf of the bank under the conditions provided for by the civil legislation of the Russian Federation and Article 45 of the Law on the Contract System.

The bank guarantee must include such provisions.

1. The customer’s right to submit a written request for payment of a sum of money and (or) part of it under a bank guarantee in the event of improper fulfillment or non-fulfillment of obligations by the supplier (contractor, performer), as well as in cases established by part 13 of Article 44 of the Law on the Contract System.

7 min to read

Approximate time

Print
and take it with you

Print this article

Download article

Examination

The supplier has violated obligations: amounts can be withheld

The Government of the Russian Federation has identified a number of cases when customers in 2015 can enter into government contracts without providing security (Resolution of the Government of the Russian Federation of March 6, 2015 No. 199). If such a condition is nevertheless established, then these amounts are accounted for in a separate personal account. Moreover, later they can be retained against penalties...

Olga FUTSAI, expert of the magazine “Government Procurement in Institutions”

Contract security – protection from fraudsters

The winner of the purchase must make an advance payment if this is provided for in the contract. At the same time, making an advance is always associated with risk. After all, there is a possibility that the counterparty, having taken an advance payment, will not fulfill its part of the obligations. Therefore, legislators have provided several mechanisms to protect against unscrupulous suppliers. In particular, the advance payment should not exceed the amount of the contract security (collateral).

And when a contract is financed using subsidies for capital investments in construction projects of state (municipal) property or for the acquisition of real estate, the amounts withheld are reflected on the personal account with the mark “without the right to spend.”

Transactions with these funds will not be possible until the institution submits to the treasury department information about transactions with targeted subsidies provided to the state (municipal) institution (f. 0501016). At the same time, in columns 6 and 8 the withheld amounts are indicated, and in column 9 - the planned expenses.

State institutions must transfer the withheld amounts to the appropriate budget.

Transfer and return of funds by a government agency

Amounts of security withheld by a government institution are subject to transfer to the income of the corresponding budget, to meet the needs of which a contract was concluded (subclause 6, clause 1, article 46 of the Budget Code of the Russian Federation).

And the provision, the source of financing of which is an interbudgetary transfer, must be returned to the budget from which it was provided.

In this case, the following KBK codes are indicated:

• 000 2 18 00000 00 0000 151 “Revenues of the budgets of the budget system of the Russian Federation from the return by the budgets of the budget system of the Russian Federation of the balances of subsidies, subventions and other inter-budgetary transfers with a specific purpose from previous years” - in the absence of a need for return;
• 000 2 19 00000 00 0000 000 “Return of the balances of subsidies, subventions and other interbudgetary transfers with a designated purpose from previous years” - if it is necessary to return funds for their subsequent use for the same purposes (based on the decision of the main manager of budgetary funds).

Subsequently, the withheld advance, by decision of the main manager of budget funds, can be returned to the customer.

Thus, if the withheld security was received during the financial year in which the obligations were paid, upon return, the government agency can use the funds to conclude a new government contract.

If amounts are withheld after the end of the financial year in which the advance is paid, the amount can only be returned to fulfill obligations that are due in the current financial year under the concluded contracts.

Important to remember

Amounts remaining after appropriate deductions must be returned to the counterparty within the period stipulated by the contract.

7 min to read

Approximate time

Print
and take it with you

Print this article

Download article

Procurement under Law No. 223-FZ

The rules for purchasing from entrepreneurs have been determined

The Government of the Russian Federation has established rules for procurement with the participation of small businesses made from funds from income-generating activities under Law No. 223-FZ (Resolution of the Government of the Russian Federation of December 11, 2014 No. 1352). Many institutions will need to comply with new regulations as of July 1.

Alexander BURKOV, Leading Analyst at the Institute of Purchasing and Sales Management named after. A. B. Solovyova State University-Higher School of Economics

Special rules do not apply to everyone

Features of the participation of small and medium-sized businesses in procurement from the own funds of budgetary organizations are mentioned in paragraph 2 of part 8 of article 3 of the Federal Law of July 18, 2011 No. 223-FZ “On the procurement of goods, works, services by certain types of legal entities” (hereinafter referred to as the Law No. 223-FZ).

The Government of the Russian Federation has the right to establish:

• features of the participation of small and medium-sized businesses in procurement;
• annual volume of purchases (which these customers are required to purchase from small and medium-sized businesses) and the procedure for calculating such volume;
• the form of the annual report on procurement from small and medium-sized businesses and the requirements for the content of this report.

At the same time, there is a limit on the number of employees: micro-enterprises must have up to 15 employees, small enterprises - up to 100 employees, and medium-sized enterprises - up to 250 employees.

On a note

The volume of revenue for the previous year for recognizing a business as small (medium) is limited to the following amounts (excluding VAT): micro-enterprises - 60 million rubles; small enterprises – 400 million rubles; medium-sized enterprises – 1 billion rubles. (Resolution of the Government of the Russian Federation dated February 9, 2013 No. 101).

Purchasing from entrepreneurs

At the same time, procurement participants will have to declare in their applications that they belong to a small business (clause 11 of Regulation No. 1352).

Note that the maximum initial (maximum) price of the contract when purchasing only among small businesses will be 200 million rubles. (clause and Regulations No. 1352).

How to determine annual purchase volume

Part 5 of Regulation No. 1352 provides that the annual volume of purchases from small and medium-sized businesses is set at no less than 18 percent of the total annual value of contracts concluded by customers based on the results of purchases.

The total annual value of contracts concluded as a result of procurement intended exclusively for small and medium-sized firms must be at least 10 percent of the total volume of contracts concluded by customers as a result of procurement.

This is stated in paragraph 5 of Regulation No. 1352.

The rules for calculating the total annual volume of purchases are set out in parts of Regulation No. 1352 and take into account numerous features of the application of the norms of Law No. 223FZ by various customers.

Important to remember!

The annual report is prepared in the form approved by Resolution No. 1352 and posted in the Unified Information System no later than February 1 of the year following the reporting year.

Don't forget to report your purchases

Regulation No. 1352 establishes requirements for the content of the annual report on the purchase of goods, works, and services by individual legal entities from medium and small businesses.

It is important that this reporting is prepared by all customers, regardless of annual revenue. The customer must remember that the rules related to the preparation and publication of the report are also supplemented by the requirements of Part 19

6 min to read

Approximate time

Print
and take it with you

Print this article