What Article 44 of the Federal Law is it necessary or possible to conclude an agreement with a hospital for a medical examination of employees of our organization? Considering that there is only one hospital in our city, and the neighboring one is 25 kilometers away, the cost of travel is 40-50 rubles per person. I would not like to include this agreement with 5%. The cost of the contract will be no more than 15-20 thousand rubles. and another question: if we attach a report on the inexpediency of choosing another contractor, will this agreement be included in the 5%?

Answer

The institution also has the right to conduct a competitive procedure for selecting a contractor to provide medical examination services - a competition, auction or request for quotations. Moreover, if only one application for participation is submitted, the institution will have the right to conclude a contract with the only participant who submitted the application if it meets all the requirements (as with the only supplier) on the basis of clause 25 of part 1 of Article 93 of Law No. 44-FZ. Such a contract will not amount to 5 percent of the total annual volume provided for by the schedule. If several applications are submitted (and from a hospital located in a neighboring location), the institution selects the winner in accordance with the provisions of Law No. 44-FZ.

Based on clause 4 of Art. 94 in order to pay for an agreement concluded as a result of a request for proposals (there was only one participant in the request for proposals, the basis for concluding an agreement with him was clause 25 of Article 93 of Law No. 44-FZ), an expert opinion from a third-party organization is required on the quality, full scope of services provided services to the Customer. Subject of the agreement: medical examination of the Customer’s employees (534 people).
Question 1. The agreement for the provision of the above expert services is concluded before the start of the professional medical examination of employees or after?
Question 2. How is a professional medical examination carried out: joint examination of the Customer’s employees by the Contractor’s doctors and representatives of the Expert, review of personal medical records of the Customer’s employees after the medical examination?..
Question 3. Which organization can be considered competent and competent to conduct a professional medical examination?
Thank you.

Answer

According to Part 15 of Art. 3 of the Federal Law of April 5, 2013 No. 44-FZ, expert (expert organization) - a person (individual or legal) who has special knowledge and qualifications on the subject of procurement. No other detailed requirements for qualifications Law No. 44-FZ does not establish experts, with the exception of Part 8 of Art. 41 of Law No. 44-FZ (mandatory licenses, permits, accreditations in established cases). In Part 1 of Art. 41 of Law No. 44-FZ also states that experts are attracted by the customer. Based on this, we conclude:

1. A contract for the provision of expert services can be concluded at any time. This could even be an agreement on the provision of such a service free of charge (no purchase required). This is what many customers do now.
2. The examination may consist of reviewing medical records and interviewing (quality of service) employees of the organization who underwent a medical examination.
3. A doctor with an appropriate diploma may be involved as an expert. It is not necessary to involve the organization at all.

Preliminary medical examination.
Errors in carrying out the first procurement procedures under Federal Law No. 223. Conclusions.

In order to prevent and prevent occupational diseases, monitor the health status of employees of its enterprise, Organizator LLC (customer) in accordance with Order 302 n of the Ministry of Health of Russia, guided by the norms 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 223-FZ) and the Federal Law of July 26, 2006 No. 135-FZ "On the Protection of Competition" (hereinafter referred to as 135-FZ), the procurement regulations approved by order of the director, decided to carry out open request for quotations for the provision of services for conducting periodic medical examinations of employees of Organizator LLC.
In accordance with Art. 212 of the Labor Code of the Russian Federation, the employer is obliged to organize and conduct, at his own expense, mandatory preliminary (upon entry to work) and periodic (during employment) medical examinations, other mandatory medical examinations, mandatory psychiatric examinations of employees, extraordinary medical examinations, mandatory psychiatric examinations of workers at their requests in accordance with medical recommendations with retention of their place of work (position) and average earnings for the duration of the said medical examinations and mandatory psychiatric examinations. In turn, employees, according to the Labor Code of the Russian Federation (Article 214), are required to undergo the above-mentioned medical examinations (including periodic medical examinations). Otherwise, the employer is obliged to suspend or not allow an employee to work who has not undergone a mandatory periodic medical examination in accordance with the established procedure (Article 76 of the Labor Code of the Russian Federation).
The customer LLC "Organizator" (a large enterprise with more than 500 employees) had to carry out a competitive procurement procedure in accordance with 223-FZ, the result of which was to be a concluded contract for the provision of services for conducting a preliminary medical examination worth more than 100 thousand rubles.

The customer faced the following tasks:

• develop procurement documentation that specifies the conditions for the upcoming request for quotation, and subsequently post it on the Environmental Protection System (EIS);
• competently draw up technical specifications indicating what exactly the customer would like to receive from potential participants;
• accept applications from participants within the established time frame;
• review applications, sum up the results of the procurement, reflect them in the protocol, posting it on the Environmental Protection Agency in accordance with the current legislation in the field of procurement;
• conclude an agreement with the winner of the procurement procedure;
• send employees to a medical institution to undergo periodic medical examinations according to the list and schedule drawn up by a specialist in the field of occupational safety.

Application form

Taking into account all employees who needed to undergo a periodic medical examination, a technical specification was drawn up indicating the total number of employees and the necessary examination for each of them according to their professional duties:

Technical task
PROVISION OF SERVICES FOR CONDUCTING PERIODIC MEDICAL EXAMINATION OF EMPLOYEES OF ORGANIZER LLC

The total number of employees is 136 people.

Requirements for medical organizations:

Availability of a document confirming the participant’s compliance with the requirements established in accordance with the legislation of the Russian Federation for persons engaged in medical activities, conducting periodic medical examinations;

When conducting a medical examination, disposable medical instruments and sterile consumables must be used;

A medical organization must have qualified medical personnel;

More than one year of experience in providing similar services.

The initial maximum cost of medical services is 237,000.00 (two hundred thirty-seven thousand) rubles 00 kopecks. (excluding VAT) (the cost of services is formed on the basis of monitoring the market for these services).

Payment for services is carried out by the Customer on the basis of a certificate of completion, by depositing cash into the Contractor's cash register or by bank transfer, by transferring funds to the Contractor's bank account with a deferred payment of 30 calendar days from the date of signing the certificate of services rendered.

Periodic medical examination is carried out according to the schedule agreed with the customer _________________________________________________________

During the period established by the customer (from 10/30/2013 to 11/06/2013), two applications were submitted to participate in the request for quotations for the provision of services for conducting periodic medical examinations of employees of Organizer LLC. The customer's commission reviewed the participants' applications, after which a final protocol of the procurement procedure was drawn up, which displays the results of the request for quotations:

Protocol

After the publication of this protocol on the procurement website, on November 14, 2013, an agreement was concluded with the winner of the request for quotation for the provision of services for conducting a periodic medical examination, after which the employees of Organizer LLC began to undergo the necessary examination.

However, the participant who took second place based on the results of consideration of applications did not agree with the results of the procurement and sent a complaint to the antimonopoly authority on November 19, 2013, where he indicated that the customer did not comply with the requirements of clause 11 of the procurement documentation:

“...the quotation application will be rejected from consideration and evaluation in the following cases:

- failure to provide originals and copies of documents, as well as other information, the requirement for the availability of which is established by the documentation on the request for quotation;

- non-compliance of the procurement participant with the requirements for procurement participants established by the notice of the request for quotation, documentation of the request for quotation;

- non-compliance of the quotation application with the requirements established by the notice of the request for quotation;

- non-compliance of the offered goods, works, services with the requirements of the documentation on the request for quotation;

- provision of knowingly false information as part of the quotation bid, deliberate distortion of information or documents included in the bid...",

since the license to conduct medical examinations of the first place winner was obtained in May 2013. According to participant No. 1, the winner does not have “more than a year of experience in providing similar medical services,” indicating that this is one of the requirements for medical organizations.

In the complaint, the participant asks the antimonopoly service to recognize the results of the open request for quotations as unlawful.

In order to understand the current situation, the OFAS appointed the exact time and place for consideration of the complaint, and also obliged the customer in accordance with the requirements of Part 15 of Art. 18.1 of the Law on Protection of Competition, submit the following information and documents to the antimonopoly authority:

A copy of the charter of Organizer LLC and an extract from the Unified State Legal Entity;

A copy of the Procurement Regulations of Organizer LLC;

A copy of the administrative document on the issue of organizing and conducting a request for quotations;

Notice and documentation of the request for quotations, as well as proof of their placement on the OS;

Changes made to the notice and documentation, clarifications (if any);

Certified copies of applications from participants in the request for quotation;

All protocols drawn up during the request for quotations;

Draft contract, which is an integral part of the procurement documentation;

Agreement concluded with the winner of the quotation request;

A written explanation of the requirement for medical organizations specified in the technical specifications of the request for quotation documentation: “more than one year of experience in providing similar services”;

Indicate what the customer (purchasing commission) was guided by when assessing the applications of procurement applicants for compliance with the requirement “more than one year of experience in providing similar services”;

Written response to the complaint.

Within the prescribed period, the customer submitted all the requested information to the antimonopoly authority. Organizer LLC explained that the procurement commission, when evaluating applications from participants in the request for quotation for the provision of services for conducting periodic medical examinations of employees for compliance with the requirement of “more than a year of experience in providing similar services,” was guided by the documents submitted by the participants. This requirement implied (in the opinion of the customer) the provision of medical services for the same purpose, similar in terms of the totality of essential features (this could be any type of medical services provided by a medical institution). And the procurement documentation requirements do not specifically indicate “experience in providing medical examination services.” The customer also explained that the above-mentioned requirement of the technical specifications for the request for quotations was established by him in order to obtain the necessary services by medical institutions that have positively proven themselves and have been present on the services market for more than a year, to ensure the reliability and quality of medical services, which meets the needs of the customer (in accordance with paragraph. 1 Art. 1FZ No. 223), which is Organizer LLC.

At the appointed time and place, the OFAS Russia commission considered the complaint filed by the participant who took second place in the request for quotations against the actions of the customer, a single commission for an open request for quotations for the provision of services for conducting a periodic inspection of employees of Organizer LLC, with the participation of representatives of the parties by proxy .

Example of a power of attorney for a customer representative

Power of attorney No....

…, (day month Year)

This power of attorney (name of organization), registered (date of registration) at the address: (...), OGRN ______, TIN ________, represented by (position) (full name), acting on the basis of _____________________________________________________,

authorizes________________________________________________________________

(position, full name of the person), passport data (series ___ No., issued by, date of issue), registered at the place of residence at the address: (indicate the person’s registration address):

represent the interests of the organization in the OFAS (specify the subject of the Russian Federation) when considering a complaint (name of the participant who filed it) against the actions of the Customer requesting quotations for the provision of services for conducting periodic medical examinations of employees (name of the organization).

The power of attorney was issued without the right of substitution for a period of one month.

I certify the signature of the authorized representative ______________________________.

Position _____________ (full name)

____________________________________________________________________________________

At a meeting of the OFAS Russia commission, the applicant explained that when Organizer LLC requested quotations in the technical specifications of the procurement documentation for the procurement participants - medical organizations, the requirement was established: “more than a year of experience in providing similar services.” Based on the results of the request for quotations, LLC V was recognized as the winner, which offered the lowest price for the provision of services for conducting periodic medical examinations. According to the applicant, LLC “V” has less than a year of experience in conducting medical examinations, and in this regard, recognizing it as the winner of the procurement is unfounded, and the circumstances set out in the complaint regarding the admission of LLC “V” to participate in the procurement procedure and recognizing the latter as the winner of the quotation request are unlawful actions of members of the commission created by the customer.

The position of the customer was absolutely opposite to the opinion of the applicant; at a meeting of the OFAS commission, the representative of the procurement organizer did not agree with the arguments of the losing participant set out in the complaint, explaining that the request for quotation was carried out in accordance with the requirements of 223-FZ, the Procurement Regulations. Due to the fact that LLC “V” submitted an application with the lowest price and became the winner of the procurement procedure.

The antimonopoly authority examined the documents submitted by the parties and listened to the explanations of the persons participating in the consideration of the complaint. The OFAS commission found that, in accordance with Art. 2 of Law 223-FZ, by order of the director of Organizer LLC, the Regulations on the procurement of goods, works and services for the needs of society were approved, which regulates the customer’s procurement process and contains procurement requirements. In order to carry out trade procedures for the supply of goods, performance of work and provision of services, by order of the director of Organizer LLC, a commission was formed, which was entrusted with the responsibility for organizing procurement.

Analyzing the customer’s documents, the OFAS commission established the fact that a notice was posted on the OOS about a request for quotation for the provision of services for conducting periodic medical examinations of employees of Organizator LLC and the procurement documentation for this purchase, approved by the director of the enterprise (the NMC of the contract by the customer was set at 237,000 rubles).

According to the terms of reference, medical organizations must have more than a year of experience in providing similar services. In accordance with the Procurement Regulations and procurement documentation, the quotation application will be rejected from consideration and evaluation, including in the following cases:

Non-compliance of the procurement participant with the requirements for procurement participants established by the notice of request for quotation and documentation;

Non-compliance of the offered services with the requirements of the request for quotation documentation.

The OFAS commission also examined the protocol drawn up based on the results of the purchase, which indicated that the applications submitted by the participants in the request for quotations met the requirements established by the customer and were allowed for further consideration and evaluation. Participant No. 2, namely LLC “B”, offered a price lower than participant No. 1 (LLC “A”) and was recognized by the customer’s commission as the winner.

The antimonopoly authority analyzed the package of documents for quotation bids of participants. It turned out that participant No. 2 (winner) provided the following information: application form, questionnaire, certificate of state registration and registration with the tax authority, as well as a license to carry out medical activities dated May 22, 2013 with an attachment. There was no information in this application that would indicate experience in providing similar services for more than a year. The application of LLC “A” (participant No. 1) consisted of the same documents (only the license to carry out medical activities was dated 03/06/2013).

The customer’s representative at the commission meeting when considering the complaint did not provide documentary evidence of the provision of similar services by LLC “V” (the winner) for more than a year. The arguments that the participants in the request for quotation meet the requirement of the procurement documentation “more than a year of experience in providing similar services” are based on the dates of state registration of legal entities indicated in the certificates submitted by the participants in the quotation applications were not accepted by the OFAS Commission, since in accordance with the current legislation Russian Federation state registration of a legal entity indicates its creation. The customer's representative also explained that the participants in the request for quotation have long been positively recommended in the region as medical institutions that provide quality services to the population by qualified specialists, information about them is freely available on the Internet, as well as on advertising posters in the city. However, the antimonopoly authority required documentary confirmation of the above.

In addition, during the consideration of the complaint by the OFAS commission, it was established that the application of the losing LLC “A” also did not contain information about the institution’s compliance with the requirement “more than a year of experience in providing similar services.” The licenses to carry out medical activities, namely to conduct medical examinations, submitted by participants in the procurement procedure as part of applications were issued in 2013. That is, following the Procurement Regulations and procurement documentation, quotation bids submitted by procurement participants should have been rejected due to their non-compliance with the requirements.

Having studied the evidence presented and the case materials, the FAS commission came to the conclusion that the customer violated the procedure for conducting a request for quotation, which is established in the Regulations and procurement documentation.

At the time of consideration of the complaint, the customer entered into an agreement with the winner of the purchase, according to which LLC “V” had already begun to fulfill its obligations to conduct periodic medical examinations of employees of LLC “Organizator”.

Based on the results of consideration of the complaint, the FAS commission decided to recognize the applicant’s complaint as justified and not to issue an order to LLC “A”. Neither party appealed this decision in court.

Conclusions:

• requirements for procurement participants must be clear and understandable so that when they are studied by suppliers (contractors/performers) there is no ambiguity about what exactly the customer needs (for example, what does “experience of similar services” mean? if the customer is interested in periodic medical examination services , then this is exactly what should be indicated in the terms of purchase).
• Each requirement that the customer sets must have documentary evidence. Participants provide the necessary information as part of the application. In order to avoid confusion and questions on the part of applicants for concluding a contract, it is necessary to clearly and clearly state which documents need to be sent to the customer (if necessary, indicating how to prepare them correctly, for example, notarize, stitch and number, etc.). d.).
• Before filing a complaint with the antimonopoly authority, the applicant should be sure that his application has been submitted in accordance with all established requirements of the customer’s procurement documentation, all documents are correctly prepared and executed in the proper manner (the desire to establish fairness in the procurement process should be based on one’s own impeccability in preparing and submitting an application for participation).

To perform their official duties, employees of our company are required to undergo primary medical examinations and toxicological studies. An enterprise cannot enter into an agreement for the provision of services with a specific medical institution due to the fact that employees come from different localities. They undergo these inspections at their place of residence, and the Company compensates them for the expenses incurred for this. Will primary medical examinations be considered a purchase under Law No. 44-FZ or can these costs be reimbursed to employees as compensation?

Answer

Oksana Balandina, chief editor of the State Order System

From July 1, 2018 to January 1, 2019, customers have a transition period - they are allowed to carry out both electronic and paper procedures. Starting from 2019, tenders, auctions, quotations and requests for proposals on paper will be prohibited, with eight exceptions.
Read what kind of purchases to carry out on the ETP, how to choose a site and obtain an electronic signature, what are the rules for concluding contracts during the transition period and after.

Letter of the Ministry of Economic Development of Russia dated July 22, 2016 No. D28i-1986

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“... The medical examinations specified in the appeal in accordance with the provisions of the contract under Article 213 of the Labor Code of the Russian Federation are carried out at the expense of the employer.

Thus, in the case indicated by you in your appeal, the procurement of medical services by an accountable person is carried out to meet the state or municipal needs of the customer. Moreover, in accordance with Parts 1 and Article 24 of Law No. 44-FZ, customers use competitive methods to determine suppliers when making purchases ( contractors, performers) or make purchases from a single supplier (contractor, performer).

The list of cases of procurement from a single supplier (contractor, performer) is specified in Part 1 of Article 93 of Law No. 44-FZ.

It should be noted that in the case specified in the appeal, the customer has the right to conclude a contract in accordance with paragraph 4 of part 1 of Article 93 of Law 44-FZ...” Magazine "Goszakupki.ru"