Problems of application of the law 44 fz. Public procurement: modern problems

1. High volume of purchases from sole supplier.

Carrying out competitive procedures for many of the procurement items currently purchased from a single supplier, would ensure support for competition, including small businesses, and, as a result, ensure efficient spending budget funds. In order to minimize purchases from a single supplier, FAS Russia, together with the Ministry of Economic Development, is currently working to approve the procedure for adopting acts on determining a single supplier. Approval of this procedure will reduce the risks of identifying the only suppliers for competitive markets.

2. Conducting a “paper” competition with a high significance of subjective evaluation criteria.

According to the report of the Ministry of Economic Development, for 2016, under 44-FZ, contracts worth 5.3 trillion were concluded. rubles, of which in 13% of cases contracts were concluded based on the results of open competitions. According to Part 2 of Article 51 of the Law on contract system applications for participation in the competition are submitted to paper form. According to the FAS Russia, specified order does not meet the requirements for maintaining the confidentiality of information about procurement participants. Prescribed procedure submission of applications does not ensure an honest determination of the winner and allows the customer, through simple tricks, to familiarize himself with the content of the application, change its content, and also physically prevent its submission, which leads to a restriction of competition. In addition, the Law on the Contract System establishes that when holding competitions, non-price evaluation criteria may be applied, such as: “quality, functional and environmental characteristics procurement object" and "qualification of procurement participants, including whether they have financial resources, by right of ownership or otherwise legally equipment and other material resources, work experience related to the subject of the contract, and business reputation, specialists and other workers of a certain skill level.” Established order Evaluation of applications for participation in the competition provides for the possibility of applying subjective criteria for evaluating applications with a significance of 30% to 100%. For example, the importance of subjective evaluation criteria when purchasing information systems and when selecting an expert organization is 70%, R&D is 80%. When purchasing construction work the significance of subjective criteria reached 40%. IN this situation, if a participant is assigned “0” points according to subjective criteria, victory is possible only if the contract price is reduced by more than 3 times, which leads to the need to apply anti-dumping measures. According to the FAS Russia, reducing the importance of non-price criteria for assessing applications for participation in a competition for the procurement of construction works to 20% helps reduce corruption risks and effectively spend budget funds.

3. Conducting a competition with limited participation when requirements are presented to procurement participants regarding the availability of material resources.

The practice of the FAS Russia in conducting control activities in relation to a competition with limited participation shows high level the number of violations committed by customers. At the same time, according to current law the customer has the right to arbitrarily determine and establish, including non-administered and not related to the subject of procurement, prequalification requirements for procurement participants (requirements for material resources), which significantly limits the number of procurement participants and allows only those “needed” by the customer to be allowed to participate in the competition contractor. Establishing additional requirements for the availability of material resources from a procurement participant cannot clearly indicate the integrity and reliability of procurement participants and does not guarantee an increase in the quality of contract execution. Availability specified requirement significantly increases corruption risks and leads to a reduction in the number of procurement participants.

4. Unilateral termination of contracts at the initiative of the customer, including on the basis of an expert opinion.

Law No. 44-FZ establishes the customer’s right to decide on unilateral refusal from execution of a contract on the grounds provided for by the Civil Code of the Russian Federation for unilateral refusal to perform individual species obligations, provided that this was provided for in the contract. In this case, each customer has the right to independently determine the grounds for unilateral termination contract, as well as terminate the contract based on the results of the examination of the goods supplied, work performed or services rendered. In case of unilateral termination of the contract, information about the supplier must be included in the register unscrupulous suppliers. At the same time, 44-FZ does not contain requirements for persons selected as experts and their responsibility for the results of the examination. In addition, the selection of an expert organization is carried out by the customer based on the results of a competition with the possibility of applying subjective evaluation criteria with a significance of up to 70%. Reception and payment for expert services are carried out by the customer according to general rules acceptance of the results of the executed contract, which means that only the result “needed” by the customer is accepted. Based on the above, the risk of increased corruption at the stage of contract execution increases, due to the customer’s ability to put pressure on the contractor under the contract through the threat of unilateral termination of the contract and the inclusion of information about this participant in RNP.

5. Lack of an effective EMS support system.

Article 30 of Law No. 44-FZ establishes that the volume of purchases from small businesses takes into account contracts concluded with a participant who is not an SMP, the condition for the execution of which is the involvement of subcontractors and co-executors from among the SMP in the execution of the contract. At the same time, the norms of 44-FZ do not contain a mechanism for selecting and administering the involvement of SMP as a subcontractor during the execution of a contract, and also do not contain a prohibition on engaging SMP affiliated with the general contractor as co-executors under the contract.

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Annotation. The article discusses problems in the field of public procurement and ways to solve them. Special attention focuses on the threat of competition in the public procurement market and improving the contract system. The problems of organizing procurement have been studied and ways to optimize them have been developed. The results showed that it is necessary to strengthen the interaction between supervisors and law enforcement and improving legislation. Keywords Keywords: government procurement, competition, contract system, regulatory authorities.

State procurements(orders) ensure satisfaction state needs and in last years they are given increased attention. During the period of sanctions and economic crisis The state, to support and revive the economy, is trying to increase the number of orders for domestic enterprises. At the same time, the main task is the need to spend budget funds economically, extracting maximum benefit from them.

Organization and conduct of public procurement is complex system, which consists of various elements, which include the identification of government needs, the formation and placement of orders, the conclusion of government contracts, the execution contractual obligations for the supply of goods, performance of work, provision of services for government needs. The state order is included in unified system government procurement. In the Russian Federation, one of the most popular ways to organize procurement is purchasing from a single supplier, electronic auction and request for quotations. Thus, half of the goods and services are purchased, including by the authorities themselves, which must support competition.

Upon conclusion government contract procurement begins with the identification of a supplier and ends with the fulfillment of obligations. In this regard, it is of interest to analyze legal basis supplies. Current standards legislation concerning state placement order are vaguely interpreted by “customers”, “participants in tenders and requests for quotations” and “controlling authorities in the field of placing orders”.

Because of this, there are often cases of contradictory explanations of the provisions of the law federal authorities authorities, with an ambiguous note at the end of the explanatory documents that the body giving the answer “is not vested with the competence to clarify the legislation Russian Federation". A serious threat to competition in the public procurement market is the collusion of procurement participants among themselves or with procurement organizers. The danger of such bid rigging is the suppression of external competition from firms not participating in the agreement; creating additional barriers to entry for new firms into the market; monopolization of production and sales of goods, reduction of their quality and range. Touching upon the topic of improving the contract system, attention should be paid to the responsibility of the parties for proper execution contract. Lowering prices by unscrupulous suppliers in order to obtain a contract “at any cost”, as a rule, leads to violation of deadlines and/or delivery of goods of inadequate quality.

The customer cannot always insure himself against their actions (for example, when requesting quotes, when security for the execution of the contract is not provided), because after being included in the register of unscrupulous suppliers, such a supplier can open a new one-day company and again participate in procurement. Compensation for damages through the court does not solve the problem due to the length of the procedure and low fines. There has also been a noticeable increase in cases of provision of unsecured or counterfeit bank guarantees. Most often applied to the customer's officials administrative responsibility, but due to the low amounts of fines, it practically does not affect the course of the case. Criminal liability under Articles 178 of the Criminal Code of the Russian Federation (“Restriction of Competition”) and 285 of the Criminal Code of the Russian Federation (“Abuse official powers") is not enough to solve problems and create normal conditions For market competition, others need to be used. An important step One step forward was the introduction of a unified information system, where all government procurement in the Russian Federation is officially carried out. However, this is not enough. The solution to the problem is to increase the information transparency of the entire procurement process and create a single electronic registry bank guarantees, which will allow you to check and control them online.

One of the areas for improving the budget process in the field of procurement should be considered the optimization of interaction between regulatory authorities. The lack of regulation on their interaction complicates the control system and gives rise to a number of negative factors V budget process , including low level legal training customers, recipients, consumers of budget funds; weak feedbacks lead to non-compliance with instructions and proposals, etc. In the course of their work, regulatory authorities face a number of problems when holding them accountable for violations antimonopoly legislation in the field of procurement. In this regard, further study is required legislative framework

The most serious violation of antimonopoly legislation in the field of procurement is the collusion of procurement participants among themselves, or collusion with procurement organizers, since the result of collusion in tenders is the conclusion of a contract in the absence of competition and a decrease in procurement efficiency. Measures are needed to strengthen interaction and joint targeted work of regulatory and law enforcement agencies, public control in the field of procurement to prevent and suppress anti-competitive agreements in the procurement market within the framework of interdepartmental interaction. More efforts should also be made to prevent lobbying

interests of large customers in the authorities legislative branch, tighten liability for violations in public procurement, incl. removal from positions of persons involved in organizing tenders and introducing criminal liability for large or systematic violations. It is necessary to more often rotate officials working in the field of large expensive contracts so that corruption schemes and collusion are not so strong.

Supplier-consumer relationships in the system government order it is necessary to improve, to reduce, and in the future to eliminate, “privileged” segments, shadow niches that hide the collusion of the customer with the supplier. It is necessary to improve methods of securing contracts, create conditions to protect the customer from unscrupulous suppliers, develop information system accompanying purchases. At the same time, control intended use

budget funds continue to be the top priority.

Bibliography 1. Adgamov A.I., Egorov V.A. Current state public procurement systems // Innovation processes in the scientific environment: collection of articles of the International Scientific and Practical Conference. Ufa: OMEGA SCIENCE, 2016. pp. 79-80. 2. Fedorenko I.N. Control and optimization as the basis for increasing the efficiency of spending budget funds in the public procurement system / Mikhailova V.V. / Magazine “Innovative Science”. - 2016. -№12. - pp. 311-313. 3. Bochkova Yu.A. Bid rigging in public procurement / Problems Magazine modern economy

" - 2015. - No. 65. - P. 117-120. 4. Ovsipyan M.V. Problems of organizing public procurement / International scientific research journal. - 2017. No. 9 - P. 31-33 V.A. Egorov, E.A. Muravyova, 2018

Bakina Ilona Sergeevna, postgraduate student of the department of civil, entrepreneurial and transport law Federal State Budgetary educational institution higher vocational education"Far Eastern State University ways and communications" (Khabarovsk), Russia. Leading specialist, expert of the procurement control department of the Federal Antimonopoly Service for the Khabarovsk Territory [email protected]

Problems of enforcement of the Federal Law

“On the contract system in the field of procurement of goods, works, services to ensure government and municipal needs»

Abstract. This article is devoted to the problems identified in practice when applying the Federal Law “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” dated April 5, 2013 No. 44FZ, which arise due to the presence in the law of many technical and legal gaps, as a result of which customers, participants, and regulatory authorities are forced to resolve such problematic issues judicial procedure, through the formation of a unified practice. Key words: procurement; enforcement issues; legislation on the contract system; judicial practice.

Below are the problems encountered in practice in the Khabarovsk Territory during procurement in 2015 and to date, as well as court decisions on these issues, if observed, it is possible to avoid violations of the legislation on the contract system. However, it should be noted that the problems under consideration are also relevant for other regions. Since the Federal Law “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” dated April 5, 2013 No. 44FZ (hereinafter

Law on the Contract System), preceded the federal law“On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs” dated July 21, 2005 N 94FZ (hereinafter referred to as the Law on Placement of Orders), then one can expect that the position of the courts on the application of rules that are essentially have not changed, will also not undergo significant changes. In this regard, I would like to dwell on the right application of such norms and on those problems that are associated with the application of norms and innovations legal gaps, which, if not permitted by the legislator, will have to be resolved judicial authorities, as well as bring decisions of the supervisory authority (Khabarovsk OFAS Russia) and review arbitration practice within the framework of the Law on the Contract System, which was formed during the validity of the Law on the Contract System.

1. Questions arise about who can file a complaint about the actions (inaction) of the customer.

The position of the courts has not changed that any person can appeal in court or in the manner established by 44 Federal Laws to the control body in the field of procurement of actions (inaction) of the customer, authorized body, specialized organization, procurement commission, officials contract service, contract manager, operator of the electronic platform, if such actions (inaction) violate the rights and legitimate interests of the procurement participant. If it is not a procurement participant (but a third-party organization) who submits a complaint to the regulatory authority, then the FAS Russia commission will not consider the arguments of the complaint regarding the procedure for considering applications and summing up the results. Consideration on the above grounds is possible only in court.

2. The question of the legality of combining into one procurement object types of work, services, the implementation of some of which requires a license or different evidence, issued self-regulatory organizations(hereinafter referred to as SRO) in construction is also relevant. For example, should a requirement be included for the availability of licenses issued by SRO if the subject of purchase is equipment medical institution medical equipment, the supply of which does not require a license, but installation is included in the subject of the contract, commissioning works And Maintenance–required or should be included this requirement in case of turnkey construction. In this case, the courts proceed from the purpose of purchasing goods (works, services), the needs of the customer, and other specific circumstances of placing the order. We will answer these questions by giving the following examples.

Subject of the contract: construction kindergarten, which is being implemented in stages, the draft contract provides only for the construction of the facility, then the inclusion in the local estimate of the cost of equipping the kindergarten with equipment, furniture and equipment is a violation of clause 1, part 1, art. 33 of the Law on the Contract System.

Subject of the contract is the construction of a turnkey kindergarten, which includes construction and commissioning operation in this case, combining into one lot is legal.

Thus, if the customer justifies the need for such a complex various works, his actions are not recognized contrary to law about the contract system.

3. Is there an obligation for the customer to establish requirements for goods, works and services, as well as indicators to determine their compliance? established by the customer requirements. This obligation has been preserved in 44 Federal Laws and the customer’s obligation to establish requirements for goods, works and services, as well as indicators that make it possible to determine their compliance with the requirements established by the customer, as well as a corresponding norm establishing the lack of specific indicators as a basis for rejecting the first parts of applications. In this matter arbitrage practice unambiguous. The problem arises when the auction documentation does not explicitly establish requirements and indicators for goods used in the performance of work. Is it legal in this case to reject an application for failure to provide specific indicators? Should the participant search in terms of reference individual indicators the goods mentioned therein.

The practice develops as follows, we will give an example, in accordance with the protocol for considering the first parts of applications for participation in open auction in electronic form, three applications were refused admission to participation because they did not contain specific indicators of the goods, works, services used, corresponding to the values,

established by the documentation about such an auction. However, in the technical part auction documentation the indicators whose values ​​must be indicated to procurement participants have not been established.

It was established that the first parts of the applications were rejected unlawfully, which is a violation of Part 5 of Art. 67 of the Law on the Contract System.

4. Customers often raise the question of the possibility of requiring procurement participants to provide a declaration of the absence of information in the register of unscrupulous suppliers. As part of the consideration of the case, the control body established that the second parts of the procurement participants’ applications were unlawfully recognized as inappropriate, since the participants did not provide a declaration of absence of information in the register of unscrupulous suppliers suppliers. IN in this case it is necessary to distinguish between requirements for procurement participants and requirements for the composition of applications.

In accordance with Part 1.1 of Art. 31 of the Law on the Contract System, the customer has the right to establish a requirement that the register of unscrupulous suppliers (contractors, performers) provided for by this Federal Law contains no information about the procurement participant, including information about the founders, members of the collegial executive body, the person performing the functions of the sole executive body of the procurement participant legal entity.

In Art. 66 of the Law on the Contract System specifies what documents and information should be contained in the second part of the application for participation in the electronic auction, which does not contain a declaration about the absence of unscrupulous suppliers in the register.

According to Part 6 of Art. 66 of the Law on the Contract System, require the participant electronic auction provision of other documents and information, with the exception of provided for in parts 3 and 5 of this article documents and information are not allowed.

Thus, it is unlawful to require the above declaration as part of the application. 5. The flow of complaints about the establishment by customers of technical requirements for goods, indicating a specific model (brand) of equipment, for containers, packaging, packaging, etc., which limit the number of participants in the placement, continues. order. Such appeals by the regulatory authority are often recognized as unfounded, since the complainant cannot prove that the requirements indicate specific equipment, and there is no other equipment that meets the parameters specified by the customer.

The arguments of the complainant and the customer cannot be verified within 5 days. Without the involvement of experts, these disputes cannot be resolved.

But it should be noted that judicial practice in this matter is completely on the side of the customers.

In this case, the customers’ arguments come down to different arguments: the purchased equipment is unique, innovative; technical requirements equipment from different manufacturers is suitable or exactly the same product with the declared characteristics is needed for existing equipment.

For example, the supply requires components - namely, sensors for an existing ultrasound machine, and the documentation indicates that the sensors are compatible with many ultrasound machines, and therefore, for correct operation with the equipment available to the customer - the Vivid7 ultrasound machine - it is necessary to supply sensors with certain parameters, and establishing requirements for sensors of a specific model in this case is legal.

6. Separately, I would like to dwell on the practical issue of including business entities in the register of unscrupulous suppliers (hereinafter referred to as RNP), which often cause problems for customers. The law provides for 3 cases of making a decision to include a procurement participant in the RNP:

If the winner evades the determination of the supplier (contractor, performer) or the only participant from concluding a contract;

Termination of contract by court decision

Unilateral refusal of the customer to fulfill the contract.

Unambiguous judicial practice has developed only on the issue of including in the RNP participants whose contract was terminated by a court decision. Their inclusion in the Register is recognized by the courts as legal.

The rule on the customer’s unilateral refusal to fulfill a contract is relatively new and it is still difficult to talk about the position of the courts. The procurement participant has two options: either to appeal the customer’s decision in court. Or wait until the customer sends information about inclusion in the RNP in antimonopoly authority and if a decision is made to include it in the RNP, appeal this decision. The first method of protection is quite successful.

The customer must comply with the procedure for unilateral refusal to fulfill the contract in full.

In accordance with Part 9 of Art. 95 of the Law on the Contract System, the customer has the right to decide on unilateral refusal to fulfill the contract on the grounds provided for Civil Code Russian Federation for unilateral refusal to fulfill certain types of obligations, provided that this was provided for in the contract.

In accordance with Part 12 of Art. 95 of the Law on the Contract System, the customer’s decision to unilaterally refuse to fulfill the contract no later than within three working days from the date of acceptance said decision, is placed in a unified information system and sent to the supplier (contractor, performer) by mail by registered mail with notification of delivery to the address of the supplier (contractor, performer) specified in the contract, as well as by telegram, or by fax, or to the address Email, or using other means of communication and delivery that ensure that such notice is recorded and the customer receives confirmation of its delivery to the supplier (contractor, performer). Fulfillment by the customer of the requirements of this part is considered proper notification to the supplier (contractor, performer) of a unilateral refusal to fulfill the contract. The date of such proper notice the date the customer receives confirmation of delivery of the specified notice to the supplier (contractor, performer) or the date the customer receives information about the absence of the supplier (contractor, performer) at his address specified in the contract is recognized. If it is impossible to obtain the specified confirmation or information, the date of such proper notification is recognized as the date thirty days from the date of posting the customer’s decision on unilateral refusal to perform the contract in the unified information system.

In accordance with Part 13 of Art. 95 of the Law on the Contract System, the customer’s decision to unilaterally refuse to perform the contract comes into force and the contract is considered terminated ten days from the date of proper notification by the customer to the supplier (contractor, performer) of the unilateral refusal to fulfill the contract.

But if the winner or the only participant evades concluding a contract, inclusion in the RNP is very problematic for the antimonopoly authority.

The courts, and these conclusions are beyond doubt, proceed from the fact that inclusion in the RNP is a sanction for dishonesty, and the decision should not be made formally based on the letter of the law. Thus, the court’s decision when appealing in this case the decision to include in the RNP is based on the internal conviction of the judge about the presence or absence of the participant’s intention to evade concluding the contract. And it is almost impossible to prove the presence of intent on the part of a legal entity.

Any actions of a participant to conclude a contract after the fact of evasion, even those that are obviously useless by virtue of the law (for example, signing a paper contract following the results of an electronic auction) are recognized by the courts as evidence of the participant’s good faith. The courts indicate in their decisions that the procurement participant was not aware of his actions.

Before joining legal force of the Law on the Contract System, the single basis for inclusion in the RNP was assessed by the courts as clearly the provision of a fake as part of the application bank guarantee, while the courts noted that the participant is obliged to submit proper provision execution of the contract, including an appropriate bank guarantee. However, during 2015, the position of the courts changed radically, now the participant is recognized as having made a mistake in good faith in these cases as well. Considering that the sheer number of cases of submitting information about the inclusion of economic entities in the RNP in accordance with the Law on the Contract System has decreased, taking into account the evolving practice, it can be noted that inclusion in the RNP will be an exception rather than the rule.

The above analyzes the problems of applying the norms of legislation on the contract system, which procurement subjects encounter in practice in connection with the formation new system government and municipal procurement, some controversial issues are currently being successfully resolved both through pre-trial dispute resolution and through the formation of judicial practice.

Links to sources1. Federal Law of 04/05/2013 N 44FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” // Russian newspaper. –12.04.2013. №6056.

Federal Law No. 44-FZ dated 04/05/2013 “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (hereinafter referred to as Law No. 44-FZ) has been applied for almost five years. However, during this time, questions regarding the application of law 44-FZ are not decreasing. Today we will answer some of them.

Question:

Does a government institution have the right to conclude several contracts worth up to 100,000 rubles? for the purchase of office supplies from the same organization - the only supplier?

Based on Art. 24 of Law No. 44-FZ, when making purchases, customers use competitive methods to determine suppliers or make purchases from a single supplier. The authority to choose the form of procurement (subject to the provisions of Law No. 44-FZ) belongs to the customer himself.

Based on clause 4, part 1, art. 93 of Law No. 44-FZ, institutions of law enforcement ministries and departments can make small purchases worth up to 100,000 rubles. The annual volume of such purchases should not exceed 2 million rubles. or 5% of the customer’s total annual purchase volume and should not be more than 50 million rubles.

These restrictions do not apply to purchases made by customers to meet the municipal needs of rural settlements.

Other restrictions on procurement in accordance with clause 4, part 1, art. 93 of Law No. 44-FZ no. By the way, the Ministry of Finance drew attention to this in Letter No. 24-02-06/76580 dated November 17, 2017. The agency indicated that the customer has the right to carry out small purchases, including the purchase of goods, works, and services of the same name from the same person, subject to the restrictions for such purchases, provided for by law No. 44-FZ. A similar opinion is shared by the FAS in Letter No. RP/27902/17 dated April 25, 2017, and is also expressed by some courts. Thus, the AS ZSO in the Resolution of January 31, 2018 No. F04-6141/2017 in case No. A75-7581/2017 noted that clause 4 of Part 1 of Art. 93 of Law No. 44-FZ does not limit the number of contracts concluded with the same supplier, the main thing is that the amount for each contract does not exceed 100,000 rubles.

However, some judges believe that artificial crushing the customer of one purchase for several small ones is sometimes a violation of antitrust laws. Thus, the AS Far Eastern Military District, in Resolution No. F03-6688/2016 dated January 26, 2017, considered a complaint against the decision of the Federal Antimonopoly Service, which found no violations in the conclusion of contracts worth up to 100,000 rubles. with the same society. The court found that the reason for concluding such contracts was comparative analysis activities of two economic entities in terms of the quality of services they provide. Since the customer was unable to justify the conclusion of contracts with specific organization if there was an intention of other organizations to provide the same services, the court decided that the customer had limited competition.

AS SKO, in Resolution No. F08-9662/2017 dated January 24, 2018 in case No. A77-531/2015, indicated that purchasing from a single supplier (contractor, performer) is allowed only as an exception to the general rule.

Based on the above, we can conclude that a government institution has the right to conclude several contracts with the same organization - the only supplier in the amount of up to 100,000 rubles. for the purchase of stationery. At the same time, you need to be prepared for possible disputes.

Practice of application of 44 Federal Laws. Question:

Based on the results of receiving goods acceptance committee drew up an act according to which some of the products do not meet the requirements specified in the contract. The supplier wants to appeal this act to the FAS and oblige the organization to accept the goods through the court, citing the fact that the customer’s employees cannot serve as experts on the commission. Is he right? Can an organization be required to accept goods if the examination was carried out by the customer without the involvement of third-party experts?

To verify the results of contract execution provided by the supplier (contractor, performer) in terms of their compliance with the terms of the contract, the customer is obliged to conduct an examination. An examination of the results of contract execution can be carried out by the customer on its own or with the involvement of experts and expert organizations on the basis of contracts concluded in accordance with Law No. 44-FZ (Part 3 of Article 94).

Requirements for experts and expert organizations are established by Art. 41 of Law No. 44-FZ. In particular, it was determined that individuals who are or were officials or employees of the customer (Part 2). Requirements for experts who will conduct the examination by the customer are not provided for by Law No. 44-FZ.

The Ministry of Economic Development in letters dated May 18, 2016 No. OG-D28-6773, dated December 1, 2016 No. OG-D28-14217 indicated that the requirements of Part 2 of Art. 41 of Law No. 44-FZ do not apply to cases of examination carried out by the customer.

Courts support this position. For example, the AS VSO in the Resolution of February 21, 2017 No. F02-7873/2016 in case No. A58-636/2016 noted: Part 6 of Art. 94 of Law No. 44-FZ stipulates that, by the customer’s decision to accept the goods delivered, the work performed or the service rendered, the results separate stage execution of the contract, an acceptance committee of at least five people may be created. In this case, such a commission can be considered as a commission of experts for accepting the work performed on its own.

The Ninth Arbitration Court of Appeal, in Resolution No. 09AP-14799/2017 dated July 4, 2017, rejected the argument that the results of the examination of the acceptance of the results of the contract were unreliable due to the fact that the experts were the customer’s employees. The judges indicated: from the interpretation of the norms of Parts 2, 3 of Art. 41, part 3 art. 94, part 15 art. 3 of Law No. 44-FZ it follows that the requirements for experts in accordance with Part 2 of Art. 41 of Law No. 44-FZ apply exclusively to experts and expert organizations, attracted by the customer on the basis of a contract, that is, in the case when the examination is carried out by third party organizations. Since the examination was carried out by the customer, the experts may be his employees.

Since an institution, when conducting an examination of goods supplied, services provided, work performed on its own, should not take into account the requirements of Part 2 of Art. 41 of Law No. 44-FZ, we believe that the FAS or the court does not have the right to oblige an organization to accept goods with defects.

Application of law 44 Federal Law. Question:

The institution is purchasing transport services related to the performance of military maritime transport. Is it possible to use participants’ applications as criteria for evaluating applications? Additional requirements, established in accordance with Part 2 of Art. 31 of Law No. 44-FZ?

Based on Art. 32 of Law No. 44-FZ, in order to evaluate applications and final proposals of procurement participants, the customer establishes the following criteria in the procurement documentation:

contract price;

expenses for operation and repair of goods, use of work results;

qualitative, functional and environmental characteristics of the procurement object;

qualifications of procurement participants, including their availability of financial resources, ownership or other legal basis of equipment and other material resources, work experience related to the subject of the contract, business reputation, specialists and other employees of a certain skill level.

The procedure for evaluating applications, final proposals of procurement participants, including limit values the significance of each criterion is established by the customer in tender documentation in accordance with the Rules for the evaluation of applications, final proposals of participants in the procurement of goods, works, services to meet state and municipal needs, approved by the Resolution Government of the Russian Federation dated November 28, 2013 No. 1085 (hereinafter referred to as the Rules).

According to clause 30 of the Rules, if additional requirements are imposed on procurement participants in accordance with Part 2 of Art. 31 of Law No. 44-FZ, such requirements cannot be used as criteria for evaluating applications (proposals).

By virtue of Part 2 of Art. 31 of Law No. 44-FZ The Government of the Russian Federation has the right to present to procurement participants certain types of goods, works, services, the procurement of which is carried out through tenders with limited participation, two-stage competitions, closed competitions with limited participation, closed two-stage competitions or auctions, additional requirements, including the presence of:

financial resources for contract execution;

equipment and other material resources necessary for the execution of the contract, on the basis of ownership or other legal basis;

work experience related to the subject of the contract and business reputation;

required quantity specialists and other workers of a certain skill level.

The specified additional requirements, as well as the list of documents confirming the compliance of procurement participants with such requirements, are established by Resolution No. 99.

Thus, the application of additional requirements in accordance with Part 2 of Art. 31 of Law No. 44-FZ as criteria for evaluating applications, final proposals in the case of presenting these requirements to procurement participants does not comply with the provisions of procurement legislation. The Ministry of Finance adheres to a similar opinion in Letter dated 02/16/2018 No. 24-02-08/10012.

Question:

During a closed auction, does the customer have the right to reject an application in which subcontract agreements are provided as confirmation of the procurement participant’s compliance with additional work experience requirements in accordance with Resolution No. 99?

In accordance with parts 2, 3 of Art. 31 of Law No. 44-FZ The Government of the Russian Federation has the right to establish additional requirements for procurement participants of certain types of goods, works, services, the procurement of which is carried out through tenders with limited participation, two-stage tenders, closed tenders with limited participation, closed two-stage tenders or auctions. Such requirements are provided for by Resolution No. 99.

Among the documents with which procurement participants can confirm their compliance with additional requirements are copies of previously executed contracts or agreements and copies of work completion certificates. However, in this resolution It is not specified which agreements and contracts will confirm work experience.

Indeed, on the one hand, subcontractors:

are not organizers of the provision of services or performance of work;

are hired to perform part of the work;

are not responsible for timely delivery the result of work under the contract;

Dont Have civil relations with the customer;

are not liable to the customer (see, for example, the Decision of the Federal Antimonopoly Service of the Russian Federation dated October 23, 2017 in case No. K-1395/17 or the Resolution of the AS UO dated September 20, 2017 No. F09-5147/17).

On the other hand, work experience is important to the customer, and it does not matter whether the contractor (performer) acted as a general contractor or a subcontractor. According to the Ninth Arbitration Court court of appeal, set out in the Resolution of April 26, 2018 in case No. 09AP-12038/2018 in case No. A40-201856/17, otherwise should be qualified as a restriction of competition.

Accordingly, when making a decision to reject an application to participate in closed auction We recommend that you evaluate the experience of the participant, and not the name of the contract. If the participant actually performed the work for which the contract was concluded, even under a subcontract agreement, there are no grounds for rejecting his application (see Determination of the RF Armed Forces dated July 12, 2017 No. 310-KG17-8121).

Question:

The institution of the penal system has entered into a contract, the terms of which do not define the stages of its implementation, but work is accepted weekly and payment is made monthly. When should a contract performance report be drawn up?

Based on Part 9 of Art. 94 of Law No. 44-FZ, the results of a separate stage of contract execution, information about the goods supplied, work performed or service rendered are reflected by the customer in the report.

There is no need to draw up a report on the execution of a contract concluded in accordance with clauses 4, 5, 23, 42, 44, 46 or 52 of Part 1 of Art. 93 of Law No. 44-FZ.

The regulation on the preparation and placement in the Unified Information System of a report on the execution of a state (municipal) contract and (or) the results of a separate stage of its execution was approved by Decree of the Government of the Russian Federation of November 28, 2013 No. 1093. According to clause 3 this provision The penal system institution must draw up a report in the following cases:

1) if the customer has paid for the goods supplied, work performed, services provided (obligations under the contract) and signed the acceptance document. The report is also drawn up when obligations are paid and results are accepted for a separate stage of contract execution;

2) if the contract is terminated. Moreover, the grounds for its termination are unimportant here.

For your information:

Law No. 44-FZ does not contain the concept of the contract execution stage. In this regard, in order to avoid the occurrence controversial situations The Ministry of Finance in Letter No. 24-03-07/14504 dated 03/05/2018 recommended that institutions indicate the presence or absence of stages of contract execution. At the same time, in the procurement documentation and the draft contract, it is necessary to establish the stages of contract execution (including the stages of its payment).

A report on the execution of a contract or its individual stage is prepared on the basis of documents on the fulfillment of acceptance and payment obligations. That is, if the goods delivered, the work performed, the services provided were accepted, but payment for the contract was not made, posting a report is not required.

If, in accordance with the terms of the concluded contract, services of a continuing nature are provided and the stages of contract execution are not defined, but acceptance and payment for goods supplied (work performed, services rendered) are made at certain intervals (for example, monthly or quarterly), based on the results of partial acceptance, payment and examination of goods (works, services), it is necessary to prepare and post in the Unified Information System a report on the execution of a separate stage of the supply of goods (performance of work, provision of services). The Ministry of Finance takes a similar position (see Letter No. 24-03-07/14504).

Accordingly, the institution is obliged to draw up a report on the execution of a separate stage of the contract each time after payment accepted goods, work or service, regardless of the establishment of contract stages, in the case under consideration - once a month.

Question:

Is it possible to include single commission for procurement in the institution of a contract service employee?

Based on Art. 38 of Law No. 44-FZ, customers whose total annual procurement volume exceeds 100 million rubles create contract services (with the creation of a special structural unit not necessary). If the customer’s purchase volume is less than this amount, a contract manager may be appointed - executive, responsible for the implementation of a purchase or several purchases, including the execution of each contract.

The contract service operates in accordance with the regulations (regulations) developed and approved on the basis of standard provision(regulations) approved by Order of the Ministry of Economic Development of the Russian Federation dated October 29, 2013 No. 631.

According to Part 1 of Art. 39 of Law No. 44-FZ, to determine suppliers (contractors, performers), with the exception of purchasing from a single supplier (contractor, performer), the customer creates a procurement commission. The decision to create such a commission is made by the customer before the start of the procurement. At the same time, the composition of the commission and the procedure for its work are determined, and a chairman is appointed.

Part 6 of Art. 39 of Law No. 44-FZ establishes restrictions on who cannot be a member of the commission. Basically, the prohibition applies to persons in respect of whom there is a conflict of interest with procurement participants or the fact of their personal interest has been proven on other grounds.

Often, control authorities issue orders to customers to exclude contract managers or contract service employees from the procurement commission, if they are included in it. According to the controllers, such a combination is a conflict of interest in terms of objective assessment of participants’ applications due to the fact that the commission is entrusted with the functions of determining the supplier, and the responsibilities of the contract service are aimed at organizing procurement, including interaction with participants.

However, the Ministry of Economic Development in Letter No. D28i-142 dated January 11, 2017, came to the conclusion that combining the functions of a member of the procurement commission in an institution and a contract manager does not violate Law No. 44-FZ.

The Supreme Court of the Russian Federation in its Determination dated May 15, 2018 No. 309-KG18-2967 also indicated that direct ban There is no requirement for contract service employees to participate in the procurement commission. If the personal interest or conflict of interests of the commission members has not been identified, the mere presence of a contract service employee on the commission does not indicate the personal interest of such a person.

Based on the above, we believe that a contract service employee can be included in the unified procurement commission in an institution.

Decree of the Government of the Russian Federation dated 04.02.2015 No. 99 “On the establishment of additional requirements for participants in the procurement of certain types of goods, works, services, cases of classifying goods, works, services as goods, works, services, which due to their technical and (or) technological complexity , innovative, high-tech or specialized in nature, only suppliers (contractors, performers) who have required level qualifications, as well as documents confirming the compliance of procurement participants with the specified additional requirements.”

FAS Russia prepared a final report on its work in 2017, in which it highlighted key problems in the field of public procurement. Dedicated to them separate chapter document. It contains 11 points.

In particular, the FAS calls one of the problems the exit from the Law on the contract system of municipal unitary enterprises and state unitary enterprises that conduct procurement through subsidies. Let us remind you that such trades unitary enterprises has the right to carry out according to Law No. 223-FZ. The department noted that goods, works and services are often purchased in this way in fairly competitive markets, and the procedures are not as strictly regulated as under Law No. 44-FZ. The FAS stated that subsidies to municipal unitary enterprises and state unitary enterprises can be transferred to on a competitive basis, which does not contradict the law.

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The department considers an increase in the number of purchases from a single supplier. Often such procedures are carried out in competitive areas - construction, supply of medical products. The FAS recalled that previously the Government of the country was recommended to minimize purchases from a single supplier. The department also stated that, together with the Ministry of Economic Development, they are working to introduce a procedure for adopting acts on identifying a single supplier. These measures should lead to support for competition, experts say. There are two other problems associated with purchasing from a single supplier. One of them is that 223-FZ does not contain a list of cases of procurement from a single supplier, which gives excessive freedom to customers. The FAS also criticized the lack of legal act

requirements for procurement methods. This has led to the number of procedures used approaching 4.5 thousand. Many of them disguise purchases from a single supplier, the department believes. The FAS believes that holding “paper” tenders with an increased importance of subjective evaluation criteria has a negative impact on procurement procedures. In particular, the department criticized the submission of applications in paper form. Experts noted that this procedure does not contribute to the fair determination of the winner and does not guarantee the preservation confidential information

about the participants. The FAS recalled the transfer of most procedures in 2018 to electronic form. The department also reported that it supports reducing the importance of non-price criteria for evaluating participants’ proposals. Another problem in the field of government procurement, according to the FAS, is the holding of a competition with limited participation, during which participants are required to have material resources. Such conditions carry corruption risks, according to antimonopoly service . It was noted that the presence Money does not yet indicate the reliability of the company as a supplier. On the contrary, experts observe the low quality of applications submitted for similar procedures

. The FAS stated that this requirement should be excluded from the list of possible ones. Often in procurement documentation, customers set additional requirements for participants’ applications: for example, they ask not only to provide product, but also indicate specific indicators technical processes and test results. This limits competition, the department believes. They recalled that the Ministry of Economic Development is developing a catalog of goods, works and services with a unified description of procurement objects. Standardization should help avoid the establishment of additional requirements.

The possibility of the customer to terminate the contract in unilaterally FAS also saw risks. Customers can independently determine the reasons for termination, as well as choose specialists for examination, therefore they have the opportunity to put pressure on the performers, the department believes.

The FAS noted that in the field of government procurement there is no efficient system small business support. Special Issues caused the point that the volume of purchases from SMEs takes into account contracts under which small and medium-sized enterprises are involved as subcontractors. In this case, no selection mechanism is provided.

Two more problems identified by the FAS are related to Law 223-FZ. In particular, it does not contain requirements for the description of the subject of procurement, a list of requirements for participants, a procedure for evaluating applications, or rules for drawing up protocols.

In addition, Law No. 223-FZ does not require electronic platforms, which led to increased cases of bidding on electronic trading platforms affiliated with the customer. Often they are shell companies.

Amendments to Law No. 223-FZ, which entered into force on last days last year, the text of the law was more than doubled. It will become more difficult to work: some of the new rules bring this law closer to the contract system. Although there are amendments that simplify the life of the customer under 223-FZ. , and which ones can be postponed until the end of 2018.