We involve contractors in the execution of government contracts. Legal advice Involvement of subcontractors under Federal Law 44

Both among customers and among suppliers, scolding is considered good manners. We cannot place ourselves in the camp of ardent opponents of the existing law on public procurement, however, we recognize that criticism is often justified.

One of the shortcomings of the Law, according to state (municipal) customers, is the impossibility of establishing requirements for suppliers. The result is the signing of contracts for large sums with unknown companies that won the bidding, and uncertainty about the timing and quality of execution of the government contract.

When placing an order for work (for example, a government order for construction), customers, trying to get out of the situation, often established a requirement that the work be performed on their own, i.e. prohibited the use of subcontractors. The establishment of such a requirement cut off intermediaries and commercial organizations with a small staff from bidding, which did not allow them to carry out all the work under the government order on their own.

The practice of establishing a requirement to ban subcontracting had almost disappeared by the end of 2010 due to the intransigent position of the FAS. The regulatory authorities considered this requirement to be anti-competitive among contractors and always issued orders to change the documentation.

Unexpectedly for everyone, the Supreme Arbitration Court sided with the customers.

Here is how it was. The municipality's Housing and Communal Services Committee announced an auction for the overhaul of the asphalt concrete road surface. The documentation included a clause prohibiting the involvement of subcontractors in the execution of the contract.

The procurement participant appealed the Committee's actions to the Office of the Federal Antimonopoly Service. OFAS, as always, decided that the provisions of Federal Law No. 94-FZ “On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs” and Federal Law No. 135-FZ “On the Protection of Competition” were violated.

The Federal Antimonopoly Service issued an order to eliminate the violation. The customer, disagreeing with the decision, appealed to the arbitration court. The court of first instance refused to satisfy the stated requirements.

The appellate court decided that the inclusion in the documentation of a condition prohibiting the involvement of subcontractors does not contradict the provisions of the Public Procurement Law, because The auction organizer is given the right to establish requirements for the method and procedure for executing the contract.

The Court of Cassation overturned the decision, considering that the municipal customer was restricting access to participation in tenders by establishing a requirement to prohibit the involvement of subcontractors in the execution of a municipal contract.

The Presidium of the Supreme Arbitration Court of the Russian Federation (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 23, 2010 No. 11017/10) canceled the court decision and indicated the following. Law No. 94-FZ does not exclude the use of Art. 706 of the Civil Code, which allows for the inclusion of a condition on personal performance of work in a contract. The Presidium of the Supreme Arbitration Court noted that the main task of the legislation on the placement of public procurement is not so much to ensure the widest possible range of participants, but to ensure the effective use of funding sources. The requirement to prohibit subcontracting is not prohibited by law and does not restrict access to tendering. If the regulatory authority proves that the condition of performing work without the involvement of subcontractors is included in order to ensure victory for a specific participant, then this condition may be considered a violation.

Thus, if the requirement to prohibit the involvement of subcontractors is established, but several potential suppliers took part in the bidding and there was a normal price reduction, the customer can safely appeal to the decision of YOU. But if there was only one participant, wait for the order of the Federal Antimonopoly Service.

Irina Kudrina

Date of: 24.04.2017

Involving subcontractors (co-executors) to fulfill contracts with customers is a common practice in the activities of various business entities. As a rule, such involvement takes place in the performance of contract agreements (involvement of subcontractors) and contracts for paid services (involvement of co-contractors). With regard to the work contract, it is stated that “if the law or the work contract does not provide for the contractor’s obligation to perform the work provided for in the contract personally, the contractor has the right to involve other persons (subcontractors) in the performance of his obligations” 1, and with regard to the contract for the provision of paid services it is said , that “unless otherwise provided by the contract for the provision of paid services, the contractor is obliged to provide the services personally” 2. In addition, the possibility of attracting subcontractors or co-executors is allowed in relation to contracts for the performance of research, development and technological work 3.

44-FZ itself also contains two separate provisions that relate to the involvement of subcontractors or co-executors. Let's take a closer look at them.

• The possibility for the customer to require the mandatory involvement of subcontractors (co-contractors) from among self-employed enterprises and joint venture non-profit organizations.

Within the framework of quotas for purchases from SMP and socially oriented non-profit organizations (SO NPOs) 4 provided for in 44-FZ, the customer, when determining a supplier (contractor, performer), has the right to establish in the procurement notice a requirement for the supplier (contractor, performer) that is not a small entity entrepreneurship or a socially oriented non-profit organization, on the involvement of subcontractors, co-executors from among SMP and SO NPOs in the execution of the contract 5. In this case, this condition is included in contracts indicating the volume of such attraction, established as a percentage of the contract price, and the specified volume is taken into account in the total volume of purchases made by customers from SMP and SO NPOs, and is included in the corresponding report on such purchases, in addition, Contracts should also include a mandatory provision on the civil liability of suppliers (contractors, performers) for failure to fulfill the condition of involving subcontractors, co-executors from among the SMP and SO NPOs in the execution of contracts 6 . Such liability can be expressed in establishing a fine in a certain amount - for example, 1% of the contract price 7.

Please note that the percentage volume of this attraction must be indicated in the contract as a fixed number. If it is indicated in a range value (for example, “not less than 15%”), then although sometimes control authorities may consider this acceptable 8, in the vast majority of cases they regard this as a violation of the law 9. It should also be remembered that this fixed number must be included directly in the draft contract, which is part of the procurement documentation, and not “specified” in the contract when it is concluded - otherwise there will also be a violation of the law 10.

In addition, in accordance with 44-FZ, the Government of the Russian Federation at the end of 2016 approved standard terms of contracts providing for the involvement of subcontractors, co-contractors from among SMP and SO NPOs in the execution of contracts 11 . These conditions, which must be followed by customers who establish a requirement for such involvement in contracts, state, among other things, that the volume of this involvement must be at least 5% of the contract price, and the contractor or performer must, within a certain time frame, document the reporting to the customer on the actual involvement of SMP and SO NPOs as subcontractors or co-executors and payment for the work performed or services rendered. Please note that the contractor (performer) is obliged to pay for goods supplied by the subcontractor, co-performer, work performed (its results), services rendered, individual stages of the execution of the contract concluded with such subcontractor, co-performer, within 30 days from the date of signing by the supplier (contractor, performer ) document on acceptance of goods, work performed (its results), services rendered, individual stages of contract execution. Let us note that this norm is similar to the norm contained in 44-FZ itself and concerns the timing of direct payment by the customer for the work and services of SMP and SO NPOs in the event that the customer makes direct targeted (quoted) purchases from them 12.

Finally, 44-FZ itself contains a rule according to which the customer is obliged to exercise control over the involvement of the supplier (contractor, performer) in the execution of the contract by the supplier (contractor, performer) of subcontractors, co-contractors from among the SMP and SO NPOs 13. This once again demonstrates the importance of such involvement, and the method of this control in practice is precisely the receipt by the customer of appropriate reporting from the contractor or performer (see above).

• The obligation of the supplier (contractor, performer) in some cases to provide the customer with information about co-executors and subcontractors

If the NMCC during a procurement exceeds a certain amount established by the Government of the Russian Federation, the contract must indicate the obligation of the supplier (contractor, performer) to provide information about all co-contractors, subcontractors who have entered into an agreement or agreements with the supplier (contractor, performer), the price of which or the total price of which exceeds 10% of the contract price 14. The specified size of the NMCC is 1 billion rubles. when making purchases to meet federal needs and 100 million rubles. when making purchases to meet the needs of a constituent entity of the Russian Federation and municipal needs 15. This information is provided to the customer by the supplier (contractor, performer) within 10 days from the date of conclusion of the contract with the co-executor, subcontractor, and the contract must provide for liability for failure to provide this information by collecting a fine from the supplier (contractor, performer) in the amount of 1/ 300 of the refinancing rate of the Central Bank of the Russian Federation in effect on the date of payment of the penalty from the price of the contract concluded by the supplier (contractor, performer) with the co-executor, subcontractor, and the penalty is subject to accrual for each day of delay in fulfilling such an obligation 16 . Also, if the supplier (contractor, performer) does not provide the customer with this information, information about this is placed by the customer in the Unified Information System 17. However, these are the only possible sanctions, since failure to provide this information by the supplier (contractor, performer) does not entail the invalidity of the concluded contract on this basis 17.

Let us note that in the practice of control authorities and judicial practice, the absence of a corresponding requirement in the draft contract may serve as one of the grounds for issuing to the customer an order to make changes to the procurement documentation and extend the deadline for filing applications 18 , as well as recognition of the fact of committing an administrative offense 19 , which is in the approval of procurement documentation in violation of the requirements provided for by the legislation of the Russian Federation on the contract system in the field of procurement 20.

Prohibition on engaging subcontractors (co-contractors)

The question of the legality of the customer’s ban on the involvement of subcontractors (co-contractors) for the execution of the contract deserves special attention. Let us say right away that the legal situation here is ambiguous, and official comments on this matter are contradictory.

On the one hand, this prohibition may be considered unlawful, since in this case there is a requirement for the procurement participant to perform work (provide a service) personally, and such a requirement for procurement participants is not provided for in 44-FZ 21. On the other hand, such a prohibition can be considered legitimate, since it represents a condition on the method and procedure for executing the contract after the procurement, and not a requirement for procurement participants 22 . In the practice of the FAS, there are cases when this ban is considered unlawful 24 . But in judicial practice this prohibition may be recognized as lawful 23 . Taking into account the fact that civil legislation provides for the possibility of such a prohibition in the contract itself and the contract for the provision of paid services, it should still be considered legal, at least in relation to these types of contracts.

Coordination of subcontractors (co-contractors) with the customer

In addition, attention should be paid to the issue that concerns the legality of the customer’s requirement to coordinate subcontractors (co-contractors) with him. Here, too, everything depends on whether there is a corresponding requirement in the procurement documentation (draft contract, concluded contract). And again, the legal interpretation of the legality of this ban is not entirely clear.

On the one hand, this requirement may be considered unlawful, since 44-FZ does not contain such a rule, and customers do not have the right to establish requirements for procurement participants that are not provided for by this legislation 25 . Moreover, in accordance with civil law, the contractor must agree with the customer on the involvement of co-executors only when performing research work. On the other hand, this requirement can be considered legitimate, since, as in the above-mentioned case with the ban on the involvement of subcontractors (co-contractors), it represents a condition on the method and procedure for executing the contract; accordingly, it is not an additional requirement for procurement participants and thus not contradicts the condition of 44-FZ, according to which customers do not have the right to establish requirements for participants in violation of this law 25 .

However, both in the practice of the FAS and in judicial practice, this prohibition is recognized as unlawful 27. Therefore, it is still recommended to adhere to this approach.

1 Part 1 Art. 706 Civil Code of the Russian Federation

2 Art. 780 Civil Code of the Russian Federation

3 Art. 770 Civil Code of the Russian Federation

4 Art. 30 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.”

5 Part 5 Art. 30 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.”

6 Part 6 art. 30 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”

7 See, for example, the Decision of the Chelyabinsk OFAS Russia dated October 3, 2016 in case No. 718, 719-zh/2016, which confirms the legality of this approach

8 Decision of the Arkhangelsk OFAS Russia dated May 13, 2016 in case No. 147mz-16

9 See, for example, Resolution of the Arbitration Court of the Far Eastern District dated June 14, 2016 No. F03-1859/2016 in case No. A59-3392/2015, Decision of the FAS Russia dated September 26, 2016 in case No. K-1541/16

10 See, for example, Decision of the Vologda OFAS Russia dated October 27, 2016 No. 5-2/249-16, 4244

11 Decree of the Government of the Russian Federation dated December 23, 2016 No. 1466 “On approval of standard terms of contracts providing for the involvement of subcontractors, co-executors from among small businesses and socially oriented non-profit organizations in the execution of contracts.”

12 Part 8 Art. 30 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.”

13 Part 2 Art. 101 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.”

14 Part 23 Art. 34 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.”

15 Decree of the Government of the Russian Federation dated September 4, 2013 No. 775 “On establishing the size of the initial (maximum) contract price when purchasing goods, work, services, if exceeded, the contract establishes the obligation of the supplier (contractor, performer) to provide the customer with additional information”

16 Part 24 Art. 34 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.”

17 Part 25 Art. 34 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”

18 See, for example, Resolution of the Fifteenth Arbitration Court of Appeal dated January 16, 2017 No. 15AP-18725/2016 in case No. A53-14983/2016

19 See, for example, Decision of the FAS Russia dated December 14, 2016 in case No. K-1981/16, Decision of the FAS Russia dated December 14, 2016 in case No. K-1982/16

20 Part 4.2 Art. 7.30 Code of Administrative Offenses

21 Part 6 art. 31 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”, Letter of the Ministry of Economic Development of Russia dated 12/11/2015 No. D28i-3620

22 Part 1 Art. 706 of the Civil Code of the Russian Federation, Letter of the Ministry of Economic Development of Russia dated December 7, 2015 No. D28i-3551

23 See, for example, the Decision of the Federal Antimonopoly Service of Russia dated October 20, 2014 in case No. K-1505/14

24 See, for example, Resolution of the Thirteenth Arbitration Court of Appeal dated June 11, 2015 No. 13AP-8710/2015 in case No. A56-75576/2014, Decision of the Arbitration Court of the Sakhalin Region dated August 26, 2015 in case No. A59-2287/2015

25 Part 6 Art. 31 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.”

For the customer and procurement participants, the issue of subcontracting is quite acute. The customer quite reasonably wants the person with whom the contract is concluded to fulfill it independently. And the contractor does not always have suitable resources for this. Although Law No. 44-FZ does not directly prohibit this, in most cases the contractor should not be limited in attracting subcontractors. Only in some construction works the customer has the right to demand that the contractor independently perform a certain amount of work. On the contrary, the procurement participant must even involve subcontractors from among the SMP and SONCO when the procurement conditions require it.

Is it possible to restrict a public procurement participant from engaging a subcontractor?

There are only two legal cases when you can restrict a participant from using subcontractors:

• work contract for construction and reconstruction of capital construction projects. The contractor must independently perform the types of work determined by the Government of the Russian Federation for an amount of at least 25% of the contract price. The contractor can be allowed to select the volume and specific types of work from the mandatory list and include the corresponding condition in the contract (Part 2 of Article 110.2 of Law No. 44-FZ, paragraph “b”, Clause 2 of Resolution No. 570);
• involving SMP and SONKO in the contract. You can limit the procurement participant and require the involvement of subcontractors from among SMP and SONKO. To do this, establish the specified requirement in the notice of procurement, and also provide in the draft contract the standard conditions approved by the Government of the Russian Federation. Please note that the above-mentioned subcontract is taken into account in your volume of purchases from SMP and SONKO (Parts 5 - 7, Article 30 of Law No. 44-FZ).

In all other cases, we do not recommend limiting the right of procurement participants to choose and attract subcontractors (co-contractors). Controlling authorities and courts may recognize this as a restriction of competition (see Resolutions of the FAS Russia dated June 23, 2017 in case No. K-1235/16/AK347-17, Ninth Arbitration Court of Appeal dated December 8, 2016 No. 09AP-56212/2016 in case No. A40 -78257/16).

What are the features of attracting subcontractors to a government contract?

When making purchases, take into account the specifics of attracting subcontractors established by both Law No. 44-FZ and the Civil Code of the Russian Federation.

Coordination of subcontractors with the customer

The contractor under a contract for research and development work can involve third parties only with the consent of the customer (clause 1 of Article 770 of the Civil Code of the Russian Federation).

In all other cases, do not require subcontractors to coordinate with you; both the FAS Russia and the court, as a rule, recognize such a requirement as unlawful.

Obligation to submit subcontract agreements to the customer

You do not have the right to demand that subcontracts be presented to you, except in two cases:

• exceeded 1 billion rubles. for federal needs or 100 million rubles. for the needs of the subject, and the volume of subcontracted work reached 10% of the contract price (Part 23, Article 34 of Law No. 44-FZ);
• you are conducting a procurement with a requirement to involve subcontractors from among SMP and SONCO. This follows from the standard conditions for attracting such subcontractors approved by the Government of the Russian Federation.

But keep in mind that in these two cases, the contractors themselves do not have the obligation to present contracts to you. First of all, it is you, as the customer, who must establish such requirements in the draft contract and monitor their implementation (part 6 of article 30, part 23 of article 34, part 2 of article 101 of Law N 44-FZ).

Subcontracting within the framework of 44-FZ— this is the involvement of third-party organizations to partially or fully fulfill obligations under a government contract.

In public procurement practice, situations quite often occur when the winning bidder delegates partial or full fulfillment of contract obligations to third parties.

There are 2 options for attracting subcontractors under 44-FZ:

when the contractor is obliged to use the services of third parties, in the case of procurement from SMP, SONKO, because this is reflected in the customer's requirements;

The contractor, at his own discretion, hires a subcontractor to perform the contract. In this case, there are a number of limitations, which we will discuss below.

Attracting subcontractors from SMP, SONKO

In Part 1 of Art. 30 44-FZ establishes that government customers are required to carry out at least 15% of their annual procurement volume from small businesses or socially oriented non-profit organizations.

According to paragraph 5 of Art. 30 44-FZ, if the customer in the tender documentation establishes a requirement for a contractor who is not an SMP or SONKO to involve small businesses in the execution of the contract, then it must clearly reflect the scope of work that must be performed by such organizations. The volume is set as a percentage of the NMCC.

If this requirement exists, the winning bidder enters into a subcontract agreement with SMP, SONKO, and the customer will count the volume of work performed by such a subcontractor against the annual volume of purchases from small businesses in the procurement report.

In the event of a violation by a contractor who is not an SMP or SONCO of the requirement to involve such organizations in the execution of the contract, the contract must be terminated by the customer unilaterally.

In addition to fulfilling the customer's request to engage a subcontractor, suppliers can take such a step at their own discretion. Let's consider this circumstance in more detail.

Subcontracting for the execution of a government contract

Some contractors do not inform the customer that third parties were involved in the execution of the contract, and it is not always possible to track such actions.

Why might the customer not like this approach?

It’s simple: when drawing up tender documentation, the auction organizer clearly indicates the mandatory conditions for participants, for example, the presence of licenses, SRO or certain experience in procurement.

The winner of the tender, involving a subcontractor in the execution of the contract, may ignore these conditions, which is likely to affect the quality and other parameters of the work (provision of services or delivery of goods).

Naturally, the customer may not be satisfied with this approach. But it is possible to track the entire process of contract execution only if there is complete reporting on the flow of funds spent on the contract.

The general contractor independently pays for all services under the contract with the subcontractor and bears full responsibility to the customer for the quality of these services.

Prohibition on engaging subcontractors under 44-FZ

For violating the prohibition on engaging subcontractors to perform the contract, sanctions may be applied to the supplier.

The Federal Law on the Contract System identifies a number of industries in which the winning bidder is prohibited from hiring third parties to carry out a government contract.

Previously, this applied to the field of scientific research work, but since 2017 the ban has affected subcontracting for construction work, the list of which is below.

05.25.2017 RF PP 05.15.17 No. 570 came into force

This document contains:

the list and scope of work on the construction and reconstruction of capital construction projects, which the winner of the government order must carry out independently, without the involvement of intermediaries;

changes that were made to the rules for determining the amount of the fine for improper performance of obligations under the contract.

The list of types of work includes 34 items:

1. Preparatory work

2. Excavation work

3. Engineering preparation of the territory

4. Engineering protection of the territory

5. Piling work

6. Construction of foundations and foundations

7. Construction of load-bearing structures

8. Construction of external enclosing structures

9. Roof installation

10. Facade work

11. Interior finishing work

12. Installation of internal sanitary systems

13. Construction of internal electrical systems

14. Installation of internal pipeline systems

15. Construction of internal low-current systems

16. Installation of handling equipment

17. Installation of technological equipment

18. Commissioning work

19. Construction of external electrical networks and communication lines

20. Construction of external sewerage networks

21. Installation of external water supply networks

22. Installation of external heat supply networks

23. Installation of external gas supply networks

24. Construction of road pavement for highways

25. Road construction works

26. Construction of the upper structure of the railway track

27. Pipeline installation

28. Construction of transitions of networks and pipelines through natural and artificial obstacles

29. Construction of tunnels

30. Arrangement of adits

31. Construction of artificial structures

32. Dredging and diving work

33. Hydraulic work

34. Improvement

Now the customer is obliged to include in the terms of the tender documentation possible types of work that the contractor must perform independently.

Until July 1, 2018, the total volume of specific work performed by the contractor under the terms of the contract must be at least 15% of the cost of the contract.

After July 1, 2018, the volume of work independently performed by the supplier should not be less than 25%.

Important: in the draft contract, the customer includes only possible types of work that the contractor can perform independently. And directly at the conclusion of the contract, in agreement with the contractor, specific types of work are prescribed.

All the above requirements and conditions apply to notices and contracts that were published and concluded after the entry into force of the resolution of May 15, 2017 No. 570.

Video "Subcontracting in government procurement"

Fines for violating the ban on subcontracting under 44-FZ

The new resolution also provides for sanctions for violation by the contractor of the condition prohibiting the use of subcontracting.

A supplier who has used the services of a subcontract to provide the types of work described above must pay a fine in the amount of 5% of the cost of the work performed by the subcontractor.

Subcontracting under 223-FZ

There are no restrictions in Federal Law 223 on the involvement of third parties to fulfill a contract. The supplier must carefully study the customer's Procurement Regulations. As in the case of 44-FZ, there may be a requirement to attract subcontractors from SMEs.

Government Decree N 1352 (as amended on December 16, 2016) prescribes the obligation to pay for contracts under 223-FZ within a period of no later than 30 days from the date the customer signs acts of acceptance of goods, works or services under the contract.

Therefore, if a subcontractor is selected through procurement under Federal Law 223, payment for its services must be made within the above period after their acceptance.

The general contractor cannot rely on the deadlines specified in the customer’s Procurement Regulations to pay for subcontracting services that he used to fulfill his obligations under the contract.

Assessing the innovations in restrictions on subcontracting work, we can conclude that the main purpose of this resolution is to force the supplier to fulfill the obligations under the contract independently, at least at least part of them.

This will help minimize the activities of companies that only win a tender, and its execution is completely transferred to subcontractors, making money on the difference in the cost of the contract and payment to the actual contractor.

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

After determining the winning bidder, the next step and final stage is the conclusion of the contract.

State, municipal contract - this is an agreement, concluded on behalf of the Russian Federation by a state or municipal customer in order to meet the relevant state or municipal needs. The draft contract is prepared by the Customer independently, attached to the electronic auction documentation and is an integral part of it.

Often in practice, trading participants are faced with situations where The customer in the draft contract directly establishes a ban on the involvement of subcontractors. The question arises, Is this provision of the contract legal? Is this not infringing on the legal right of the Contractor to involve other persons in the fulfillment of its obligations?

Based on the provisions of paragraph 1 of Article 706 of the Civil Code of the Russian Federation, if the contractor’s obligation to perform the work provided for in the contract personally does not follow from the law or the contract, the contractor has the right to involve other persons (subcontractors) in fulfilling his obligations. In this case, the contractor acts as a general contractor. Thus, Engaging a subcontractor is the right of the Contractor.

At the same time, due to the principle of freedom of contract, enshrined in civil law, the parties are free to establish their rights and obligations on the basis of the contract. Based on these provisions of the law, it is believed that the contract can directly provide for the need to fulfill the obligation personally by the Contractor.

Why, in fact, are Customers so “afraid” of subcontractors?

The fact is that, having offered the lowest price for the execution of the contract and winning the bidding, future contractors, having concluded a state contract, attract subcontractors, and the state contract is fully or partially carried out by an organization that has not passed the competitive selection, about whose activities the state customer sometimes has no idea. That is, the contract is fulfilled in whole or in part not by the person who won the auction, but by an organization independently selected by the contractor.

Regarding the conditions prohibiting the involvement of subcontractors, judicial practice and the practice of the Federal Antimonopoly Service have developed an ambiguous position.

On the one hand, a number of regulatory bodies - the Ministry of Economic Development of Russia and the Federal Antimonopoly Service of Russia - continually point out to the Customer the illegality of such contract terms. (Decision of the FAS Russia dated October 20, 2014 in case No. K-1505/14, Decision of the FAS Russia dated July 26, 2011 in case No. K-1578/11; Decision of the FAS Russia dated January 24, 2011 in case No. K-107 /eleven)

But the general practice of arbitration courts, including the Supreme Arbitration Court of the Russian Federation, takes a different point of view and, in the overwhelming majority of cases, justifies such actions of the Customer. (Resolution of the Thirteenth Arbitration Court of Appeal dated June 11, 2015 No. 13AP-8710/2015 in case No. A56-75576/2014, Decision of the Arbitration Court of the Republic of Kalmykia dated April 21, 2015 in case No. A22-4831/2014, Decision of the Arbitration Court of the Sakhalin Region dated August 26 .2015 in case No. A59-2287/2015).

The Presidium of the Supreme Arbitration Court of the Russian Federation, by its Resolution of December 28, 2010 N 11017/10 in case N A06-6611/2009, recognizes as legitimate the requirement of the state (municipal) customer prohibiting the contractor from engaging subcontractors in the performance of the relevant contract, unless it is proven that this condition is included specifically in order to ensure victory at the auction for a specific business entity.

In general, the Law on the Contract System does not prohibit the inclusion in the documentation of requirements about the method and procedure for executing the contract, as well as the condition that the work under the contract be performed directly by the contractor. The establishment of this requirement does not lead to a restriction of competition.

Thus, based on the provisions of the law and the law enforcement practice of arbitration courts, we can conclude that establishing a ban in a state or municipal contract on the involvement of subcontractors is a completely legitimate action of the Customer.