Typical errors of the Federal Law 44 ppt. Typical violations during procurement

All purchases differ from each other in their originality. Sometimes you look and think: “ The amazing is nearby" Most often, those customers who shine with their skills are those who independently place their purchases. If we take statistics for the country, then where an authorized body has been created at the regional level, miracles are reduced to a minimum.

In such procurements, forms of auction documentation have been developed, where customers enter their data, and responsible employees of the management authority check the documentation and, if necessary, return it to the customer for revision. It is clear that everyone is human, everyone makes mistakes and anything can happen. However, the percentage of such errors when working together with an authorized body is minimal.

Why are there so many errors in procurement documents?

The answer to this question is on the surface. Firstly, there is a high workload of customers. Secondly, there is a lack of personnel. Thirdly, lack of professionalism, which can be associated both with a lack of training opportunities and with the employee’s inability to perceive information. Sometimes it's just sloppiness. Of course, not all customers are like this and not everything is so bad.

Large volume of auction documentation

Even the most competent customers have incidents that are associated with huge documentation, where there is a main part in which articles of the law are duplicated, the so-called information card with a description of the subject of procurement, requirements for the participant, for the application, etc., a special part containing the technical part, and the section with the draft contract. All this must be agreed upon.

If there is any change in the law or regulations, all documentation must be taken into account.

Specific example. Changed the requirements for the composition of the first parts. Now there are no such concepts as industrial designs, utility models, patents, etc. Some customers have not looked at the changes and are writing the requirements for the composition of the first parts in the old way. The other part conscientiously brought them into compliance with the law. But despite this, the recommended forms or instructions still contain all the same terrible things and even more, for example, the requirement to indicate the name of the manufacturer of the product. Thus, it seems that the customer changed the requirements in the description, but missed some points.

Hence the first conclusion: If you change something in the auction documentation, make sure you change it in all sections.

Another example. The law changed the requirements for banks issuing . However, there are still phrases in the text of auction documentation that banks should be included in the list provided for in Art. 74.1 Tax Code of the Russian Federation. If the customer cannot, for some reason, keep track of changes in legislation, there is no need to fence the garden.

Conclusion two: cite articles of the law when you are ready to track relevant changes. It’s better to include links to articles in the auction documentation and nothing more. For example, a bank guarantee must be issued by the bank in accordance with Art. 45 44-FZ.

Third example. There are a bunch of sections in the auction documentation, one linking to the other. For instructions, see paragraph such and such section. You look, but in the end this point is about something else, etc. The question arises: why does the customer need documentation with such problems? This is the likelihood of inquiries, this is also a reason for complaints to the antimonopoly service.

Conclusion three: the fewer useless sections in the documentation, the correspondingly fewer errors and inconsistencies.

In order to avoid similar and other errors during procurement, as well as check all current purchases for errors for free and build the necessary reports, check out our program for automating the customer’s work under 44-FZ.

Instructions for filling out the first parts

Instructions are a whole separate topic for an article. You can't say it in one word. Dear customers, remember that the main purpose of this instruction is to help the participant in correctly filling out the first part of the application with technical characteristics. It must not be misleading or open to ambiguity.

Inadequate instructions are still the same reason for requests for clarification and complaints to.

Besides just good instructions, there are two more types.

The first is about nothing: typical phrases about maximum and minimum parameters, unchangeable indicators that do not explain any essence. Just a classification of indicators, nothing more.

Second: a cumbersome section that contains a lot of information, seemingly aimed at removing an unwanted supplier. For example, in addition to the interpretation of all signs, conjunctions and expressions, some instructions contain a ban on the use of many words and their synonyms.

The participant is often stumped. For example, you cannot use the words and their derivatives: “provided for,” “opportunity,” “added,” etc. It is called who is greater. And sometimes they prescribe what the application fields should contain (not from the technical specifications), forgetting that by law the recommended form is not required to be filled out.

Conclusion

In order for auction documentation to comply with the law, it is not necessary to create many sections in it. The purchase notice and documentation should not contradict each other, just like the contents of the AD sections should not contradict each other. Instructions for filling out applications should be informative, not lyrical.

If you doubt anything, open similar purchases from other regions in the EIS and see what they have. As an example, the auction documentation of the contract agency of the Arkhangelsk region (there are also shortcomings there, but overall not bad).

Publication date: 17.12.2018

Please note that the site administration does not always share the opinions of the authors and is not responsible for the accuracy of their information.

The area of ​​government procurement is a very promising area of ​​work. Last year, the value of contracts concluded in accordance with Law 44-FZ exceeded 6 billion rubles. However, bidding for public money is considered a difficult process. , and suppliers. Avoid such missteps and make your path to a government contract easier.

Errors when submitting an application

So, you have found a suitable purchase and want to take part in it. Now you need to read the documentation and submit an application. Let's see what pitfalls a supplier can expect here.

Forgot to look at the instructions

In accordance with law 44-FZ, the documentation must be accompanied by instructions for filling out the application. It is imperative to be guided by it, otherwise mistakes can be made.

Registration in ERUZ EIS

From January 1 2020 year to participate in tenders under 44-FZ, 223-FZ and 615-PP registration is required in the ERUZ register (Unified Register of Procurement Participants) on the EIS (Unified Information System) portal in the field of procurement zakupki.gov.ru.

We provide a service for registration in the ERUZ in the EIS:

Product parameters must be specified in exact values, without using constructions like “ more/less", "from/to" and the like. An exception is made only for characteristics whose range values ​​are provided for by GOST and other standards.

Sometimes customers state the requirements for the procurement object in a complex and confusing way. This may be a consequence of the specifics of the purchased product. But often such technical specifications are a tool unfair competition. We recommend that you carefully read the documentation and fill out the application in strict accordance with the instructions.

Did not indicate the country of origin of the product or its characteristics

First of all, the application expresses the fact of consent to supply, and also indicates the parameters of the proposed product and its country of origin. The only case when specific characteristics of a product need not be listed is if the brand, model or manufacturer is directly indicated in the documentation.

Note! In most cases, the law allows the customer to indicate the brand or manufacturer in the procurement documentation if there is a phrase "or equivalent." Implies that the supplier can offer any other product that meets the equivalence parameters. Moreover, these parameters must also be specified in the terms of reference. So, If you are going to supply an equivalent product, then you need to specify its characteristics in the application.

Concerning country of origin of the goods, then it must be indicated for all purchases for which . The country of origin is the state in whose territory the goods were produced or subjected to sufficient processing. If this parameter is not specified, the application will be rejected.

By the way, indicating several countries of origin of a product cannot be a reason for rejecting an application. This follows from the ruling of the Supreme Court of the Russian Federation dated June 20, 2017 No. 306-KG17-552. The judges found that a product could be produced in a group of countries or a customs union, as well as in part of a country or a separate region.

Did not attach a complete set of documents

You need to carefully consider the additional documents that must be attached to the application. Their composition depends on the situation. It can be declarations, licenses, certificates and so on.

For example, if the procurement is carried out for small businesses and non-profit organizations, documents confirming that the participant belongs to this category of suppliers should be attached to the application.

You expect the customer to remove VAT from the price

Participants who use special tax regimes often make mistakes when assessing the cost of a purchase. The initial contract price may include VAT, and the supplier assumes that since it does not pay this tax, its amount will be excluded from the price.

However, this is not true - the contract will be concluded at the price indicated in the application of the winning bidder. It does not matter what tax regime he applies.

Errors in concluding and executing a contract

So, you won the tender! It is important not to lose vigilance and comply with all formalities for concluding a contract. Let's look at what mistakes suppliers make at this stage.

They delayed signing the contract

Law 44-FZ clearly regulates the time frame within which each party should sign the contract. If the winner of the purchase misses them, he will not only lose the contract and bid security, but also risk falling into Register of unscrupulous suppliers. The customer, even if he wishes, will not be able to meet the supplier halfway and conclude a contract with him later than the deadline established by law.

No security provided

Before signing a contract, the supplier must provide the customer with performance security. There will be little time for this after winning the tender, so you should take care of this issue in advance. If security is not provided, the contract will not be signed with all the ensuing consequences.

The supplier is offered the opportunity to secure performance of the contract in cash or. The choice is made by the participant himself, and the customer cannot limit him in this.

Important! If during trading the price decreased by 25% or more from NMCC, then the winner must deposit the contract security in 1.5 times more specified in the documentation. The customer is not obliged to notify about this - it is understood that the supplier is monitoring this issue independently. If the usual security is paid, the customer will have an excuse not to enter into a contract with the winner.

Were not careful when signing the contract

As when signing any document, when concluding a government contract, you need to be extremely careful. This type of agreement is considered to contain standard language and its terms cannot be changed. This is true, however, sometimes the customer slips the contractor an amended contract. And if the supplier signs it, then he will have to fulfill his obligations or terminate the contract.

It is important to remember that the contract must exactly match the design from the procurement documentation. The customer must enter the data from the winner's application into it. No further provisions can be changed.

When checking a contract, you should pay attention to provisions that describe:

• price and volume of goods supplied;
• deadlines for completing stages and the entire contract;
• payment procedure and terms;
• everything that concerns .

Delivered a different product

Inexperienced suppliers may find themselves in a situation where The declared goods are not enough for delivery. For example, the manufacturer stopped producing this particular model. What to do? Logic dictates that the product can be replaced with a similar one, the parameters of which are as close as possible to the original.

But if in a transaction with another commercial entity this happens in most cases, then with government customers this is not always the case. The point is that they should accept exactly the product that was declared by the supplier when concluding a contract. If you supply a product with absolutely similar characteristics, but, for example, produced in another country, then it will not be accepted.

The only option is to agree with the customer on the delivery of goods with improved characteristics. Of course, this may cost the supplier some profit. But in this case, the customer will be able to carry out acceptance, the contract will not be terminated, and the contractor will not be included in the RNP.

In this article, the author provides an overview of the most common violations associated with the choice of order placement method; with information support for the order, with the preparation of documentation on placing orders and compliance with the procedure for placing orders; with the conclusion and execution of contracts, in compliance with the deadlines for submitting information (information) to the control body.

By virtue of Part 1 of Art. 99 of the Law on the Contract System, control in the field of procurement is carried out by: FAS, bodies of internal state (municipal) financial control, executive power of a constituent entity of the Russian Federation authorized to carry out control in the field of procurement, local government bodies of a municipal district or city district authorized to exercise control in the field procurement, as well as the Federal Treasury, financial authorities of the constituent entities of the Russian Federation and municipalities, management bodies of state extra-budgetary funds. During inspections, these bodies identify various violations committed by budgetary institutions during the implementation of order placement procedures. We will provide an overview of the most common violations in this article.

Violations related to the choice of ordering method

By virtue of Part 1 of Art. 24 of the Law on the Contract System, when making purchases, customers use competitive methods to determine suppliers (contractors, performers) or make purchases from a single supplier (contractor, performer). At the same time, competitive methods for identifying suppliers (contractors, performers) are competitions, auctions, request for quotations and request for proposals.

The institution chooses the method of determining the supplier (contractor, performer) in accordance with the requirements of the Law on the Contract System. So, for example, in accordance with Part 2 of Art. 59 of the Law on the Contract System, the customer is obliged to conduct an electronic auction if goods, works, services are purchased, included in the list established by the Government of the Russian Federation, or in the additional list established by the highest executive body of state power of a constituent entity of the Russian Federation when purchasing goods, works, services to meet the needs of a constituent entity of the Russian Federation, with the exception of cases of procurement through a request for quotation, request for proposals, procurement from a single supplier (contractor, performer) taking into account the requirements of the Law on the Contract System.

By Order of the Government of the Russian Federation dated October 31, 2013 No. 2019-r, the List of goods, works, and services, for the purchase of which the customer is required to conduct an auction in electronic form (electronic auction) (hereinafter referred to as the Auction List), was approved.

The Auction List includes construction, reconstruction, and major repair work included in group 45 “Construction Work” (except for code 45.12) of the All-Russian Classification of Products by Type of Economic Activities (OKPD) OK 034-2007 (KPES 2002), with the exception of construction work , reconstruction, major repairs of especially dangerous, technically complex capital construction projects, artificial road structures included in federal, regional or intermunicipal, local highways, as well as work included in this group, if the initial (maximum) contract price for implementation purchases to meet state needs exceed 150 million rubles, municipal needs – 50 million rubles.

Thus, the customer is obliged to conduct an electronic auction in the case of the procurement of any construction work (code 45 OKPD OK 034-2007 (KPES 2002)), except for work related to code 45.12 OKPD OK 034-2007 (KPES 2002), if the initial (maximum) the contract price for such purchases to meet state needs does not exceed 150 million rubles, municipal needs - 50 million rubles.

Article 7.29 of the Code of Administrative Offenses of the Russian Federation provides for liability for:

• for the choice by an official of an institution of a method for identifying suppliers in violation of the requirements of the Law on the Contract System, which entails the imposition of an administrative fine in the amount of 30 thousand rubles;
• for procurement in any other way, if the Law on the Contract System requires such procurement to be carried out through a competition or auction. This violation entails the imposition of an administrative fine on officials in the amount of 50 thousand rubles;
• for making a decision to hold a competition with limited participation, a closed competition with limited participation, a two-stage competition, a closed two-stage competition, a closed competition, a closed auction in cases not provided for by the Law on the Contract System, or violation of the procedure and deadlines for sending it to the body authorized to implement control in the field of procurement of information and documents to coordinate the use of these methods of determining the supplier, which entails the imposition on officials of an administrative fine in the amount of 50 thousand rubles.

Quite common violations classified in this group are the following:

• procurement of goods, works, services from a single supplier in excess of the annual volume of purchases established by clauses 4, 5 of Part 1 of Art. 93 of the Law on the contract system;
• procurement of goods, works, services from a single supplier by concluding a one-time agreement for an amount exceeding 100 thousand and 400 thousand rubles, provided for, respectively, clauses 4 and 5 of Part 1 of Art. 93 of the Law on the contract system;
• procurement of goods, works, services in violation of Part 2 of Art. 72 of the Law on the Contract System by requesting quotations with an initial (maximum) contract price exceeding 500 thousand rubles;
• conclusion of a contract with a single supplier (contractor, performer) in accordance with Part 1 of Art. 93 of the Law on the contract system without competitive procedures in the absence of legal grounds;
• conclusion of a contract in violation of clause 25, part 1, art. 93 of the Law on the contract system with a single supplier (contractor, performer) without agreement with the control body in the field of procurement, when such approval is required.

Violations related to information support of orders

The Law on the Contract System establishes requirements for the procedures and timing of posting information on procurement. The most common violations belonging to this group are cases of non-posting or violation of deadlines for posting on the official website of procurement documentation, protocols drawn up during the procurement, reports on the execution of the contract, and other documents related to the procurement, the posting of which is mandatory.

For example, the customer is obliged to place in the unified information system a notice of a request for quotation and a draft contract concluded as a result of such a request, no less than seven working days before the expiration date of applications for participation in the request for quotation, and when making a purchase goods, work or services in an amount not exceeding 250 thousand rubles, and in cases provided for in Art. 76 of the Law on the Contract System - no less than four working days before the expiration date of the specified period (Part 1 of Article 74 of the Law on the Contract System). Based on the meaning of this norm, the deadline for submitting applications of procurement participants should be:

• at least seven working days - for purchases in an amount exceeding 250 thousand rubles;
• at least four working days – for purchases worth less than 250 thousand rubles.

Failure to comply with these deadlines may result in the institution being brought to administrative liability under Parts 1.2 and 1.3 of Art. 7.30 Code of Administrative Offenses of the Russian Federation.

At the same time, it should be taken into account that the establishment in the notice of shorter periods than determined by Part 1 of Art. 74 of the Law on the Contract System, constitutes the objective side of the administrative offenses, liability for which is provided for in Part 8 of Art. 7.30 Code of Administrative Offenses of the Russian Federation.

As a general rule, the course of a period defined by a period of time begins the next day after the calendar date or the occurrence of an event that determines its beginning (Article 191 of the Civil Code of the Russian Federation).

By virtue of Part 1 of Art. 2 of the Law on the Contract System, the legislation of the Russian Federation on the contract system in the field of procurement is based, among other things, on the provisions of the Civil Code. Taking into account the above, the start date of the application submission period is the day following the day the notice of the request for quotation is posted in the unified information system. Moreover, if the last day of the period falls on a non-working day, then the end of the period is considered to be the next working day following it (Article 193 of the Civil Code of the Russian Federation).

It should also be taken into account that, according to Art. 194 of the Civil Code of the Russian Federation, if a deadline is set for performing any action, it can be performed before 24 hours of the last day of the deadline. However, if this action must be performed in an organization, then the period expires at the hour when the corresponding operations in this organization, according to established rules, cease. Therefore, the expiration date for submission of bids should be understood as the date of expiration of the deadline for submission of quotation bids, inclusive.

Thus, the period provided for in Art. 74 of the Law on the Contract System, begins on the first working day after posting a notice of a request for quotation.

The notice of a request for quotation must be available for review during the entire period for submitting applications to participate in the request for quotation without charging a fee.

It should be noted that violation of the deadlines for posting in the unified information system in the field of procurement of information and documents for no more than two working days entails the imposition of an administrative fine on officials in the amount of 5 thousand rubles, and on legal entities - 15 thousand rubles. (Part 1 of Article 7.30 of the Code of Administrative Offenses of the Russian Federation). Let us recall that, for example, a notice of an open tender is placed by the customer in the unified information system no less than 20 days before the date of opening of envelopes with applications for participation in an open tender or opening of access to applications submitted in the form of electronic documents for participation in an open tender.

In addition, responsibility is provided for failure to place in the unified information system in the field of procurement information and documents, the placement of which is provided for by the Law on the Contract System. Committing this offense entails the imposition of an administrative fine in the amount of 50 thousand rubles on officials, and 500 thousand rubles on legal entities. (Part 3 of Article 7.30 of the Code of Administrative Offenses of the Russian Federation).

This group of violations, in particular, includes the following cases:

• failure to post or violate deadlines for posting procurement plans and schedules on the all-Russian official website;
• failure to make or violation of deadlines for making changes to procurement plans when the need for goods, works, and services changes;
• failure to post other documents and information specified in Part 3 of Art. 4 of the Law on the contract system.

Violations during the conclusion and execution of contracts

In accordance with Part 1 of Art. 34 of the Law on the Contract System, the contract is concluded on the terms stipulated by the notice of procurement or invitation to participate in determining the supplier, procurement documentation, application, final offer of the procurement participant with whom the contract is concluded. The exception is cases when a notice of procurement or an invitation to participate in determining the supplier (contractor, performer), procurement documentation, application, or final offer are not provided.

Violations related to the conclusion and execution of contracts include:

• violation of terms of the contract. So, for example, the conclusion of a contract based on the results of a tender and auction should be carried out no earlier than 10 days from the moment of posting the relevant protocols on the official website, and based on the results of a request for quotation - no earlier than seven days from the moment of posting the protocol for the consideration and evaluation of quotation bids on the official site;
• concluding a contract without providing security for the performance of the contract;
• conclusion of a contract on conditions different from the conditions stipulated in the procurement documentation, notice of a request for quotation, including changes in the subject of the contract, contract price, quantity of goods supplied, volumes of work performed and services provided, changes in the timing of the contract, and its other essential conditions in the absence of legal grounds;
• absence of mandatory conditions in contracts provided for by the Law on the Contract System. The Law on the Contract System establishes a list of necessary conditions to be included in the concluded contract, which are established by parts 4 - 9, 11 - 13, 23, 26 - 28 of Art. 34 of the Law on the contract system. The list of cases when these requirements may not apply is established by Part 15 of Art. 34 of the Law on the Contract System;
• failure to carry out an examination of the delivered goods for compliance with the terms of the concluded contract in accordance with Part 3 of Art. 94 of the Law on the contract system. Let us recall that the examination of the results stipulated by the contract can be carried out by the institution on its own or experts and expert organizations can be involved in its implementation;
• violation of the procedure for terminating a contract in the event of a unilateral refusal to fulfill the contract;
• contract extension;
• changes in the terms of the concluded contract during its execution, including changes in the subject of the contract, the price of the contract, the quantity of goods supplied, the volume of work performed and services provided, changes in the timing of the contract, and its other essential conditions in the absence of legal grounds established by Art. 95 of the Law on the Contract System.

Please note that administrative liability for these violations is established by Art. 7.32 Code of Administrative Offenses of the Russian Federation.

Violations related to the preparation of documentation for placing orders and the procedure for placing orders

For the purpose of conducting a procurement, the institution develops procurement documentation, which must contain information provided for by the Law on the Contract System. During checks of the correctness of drawing up such documentation, control authorities often identify the following cases:

• formation of the initial (maximum) price of the contract in violation of the requirements provided for in Art. 22 of the Law on the Contract System;
• lack of justification for the initial (maximum) contract price in the procurement documentation;
• establishing in the procurement documentation requirements for the procurement object that do not comply with the Law on the Contract System;
• establishing in the procurement documentation requirements for procurement participants, the amount of security for applications for participation in determining the supplier (contractor, performer), the size and methods of securing the execution of the contract, which do not comply with the Law on the Contract System;
• establishing in the procurement documentation requirements for procurement participants to submit information and documents not provided for by the Law on the Contract System as part of the application for participation in determining the supplier (contractor, performer);
• inclusion in the procurement documentation (including in the form of requirements for quality, technical characteristics of a product, work or service, requirements for the functional characteristics (consumer properties) of a product) of requirements for the manufacturer of the product, for the procurement participant (including requirements for the qualifications of the procurement participant , including work experience), as well as requirements for the business reputation of the procurement participant, requirements for the availability of production facilities, technological equipment, labor, financial and other resources necessary for the production of goods, the supply of which is the subject of the contract, to perform work or provide services that are the subject of the contract, except in cases where the possibility of establishing such requirements for the procurement participant is provided for by the Law on the Contract System.

During checks of the correctness of the procedures for determining a supplier (contractor, performer), the following cases occur:

• reducing the deadline for submitting applications for participation in procurement;
• violations of the procedure for accepting applications for participation in procurement;
• violation of the procedure for considering and evaluating applications for participation in procurement, final proposals of procurement participants, established by the procurement documentation;
• violation of the deadline for opening envelopes with applications for participation in the request for quotations;
• failure to extend the deadline for submitting quotation bids in cases established by the Law on the Contract System.

There are also violations related to the selection of procurement participants and the selection of the winner in determining the supplier (contractor, performer), which, in particular, include the following cases:

• rejection of an application for participation in a competition, refusal of admission to participate in an auction, request for quotations on grounds not provided for by the Law on the Contract System;
• recognition of an application for participation in a competition, auction, request for quotations that meets the requirements of the procurement documentation, if the participant who submitted such an application should be denied access to participation in the procurement in accordance with the requirements of the legislation on the contract system in the field of procurement;
• selection of the winner in procurement in violation of the requirements of the legislation on the contract system.

Violation of the procedure for sending information to the register of contracts

By virtue of Part 3 of Art. 103 of the Law on the Contract System, budgetary institutions, within three working days from the date of conclusion of the contract, are required to send to the Federal Treasury information about the conclusion of the contract, its amendment, execution or termination, in order to include this information in the register of contracts.

It should be noted that failure to send, untimely submission of information to be included in the register of unscrupulous suppliers (contractors, performers), or failure to submit, untimely submission of the register of contracts containing information constituting state secrets, information (information) and (or) documents to be included in such registers of contracts, if the sending, submission of the specified information (information) and (or) documents are mandatory in accordance with the Law on the Contract System, or the submission, sending of unreliable information (information) and (or) documents containing unreliable information, entails imposition on officials persons an administrative fine in the amount of 20 thousand rubles.

It should also be remembered that the inclusion of knowingly false information in the register of unscrupulous suppliers (contractors, performers) entails the imposition of an administrative fine on officials in the amount of 50 thousand rubles.

Violation of deadlines for submitting information (information) to the control body

This group of violations includes cases of failure to submit or violation of deadlines for submitting information (information) to the control body, if the submission of such information (information) is mandatory. So, for example, when making a purchase from a single supplier (contractor, performer) in the cases provided for in paragraphs 6, 9 and 34 of Part 1 of Art. 93 of the Law on the Contract System, the customer is obliged to notify the control body in the field of procurement about such a purchase no later than one working day from the date of conclusion of the contract. A notice of procurement is sent when it is carried out to meet federal needs, the needs of a constituent entity of the Russian Federation or municipal needs, respectively, to the federal executive body authorized to exercise control in the field of procurement, or a control body in the field of state defense procurement, an executive body of a constituent entity of the Russian Federation, a local body self-government of a municipal district or local government body of a city district authorized to exercise control in the field of procurement. This notice is accompanied by a copy of the concluded contract with the rationale for its conclusion.

In addition, budgetary institutions are required to submit to the control body in the field of procurement and internal state (municipal) financial control bodies, at the request of such bodies, documents, written explanations, information on procurement (including information on procurement that constitutes a state secret), and also give oral explanations (Part 28, Article 99 of the Law on the Contract System).

Failure to provide information or submission of knowingly false information to the body authorized to exercise control in the field of procurement of goods, works, services to meet state and municipal needs entails in accordance with Art. 19.7.2 of the Code of Administrative Offenses of the Russian Federation imposes an administrative fine on an official in the amount of 15 thousand rubles. For legal entities the amount of the fine is
10 thousand rubles.

Other violations

In addition, control authorities identify the following violations:

• procurement of goods, works, services from small businesses in an amount that does not comply with the requirements of Art. 30 of the Law on the Contract System;
• making a decision to create a procurement commission after posting a notice of such procurement;
• discrepancy between the number of members of the procurement commission and the requirements of Part 3 of Art. 39 of the Law on the Contract System;
• unauthorized performance of its functions by the commission if less than 50% of the total number of its members is present at the meeting;
• the absence of persons on the customer’s commission who have undergone professional retraining or in the field of placing orders;
• procurement of goods that do not meet energy efficiency requirements;
• violation of the requirements for the content of the protocol drawn up during the procurement;
• failure to comply with the requirements of regulatory authorities;
• failure to carry out claims work.

In conclusion, we note that by virtue of Art. 107 of the Law on the Contract System, persons guilty of violating the legislation of the Russian Federation and other regulatory legal acts on the contract system in the field of procurement bear disciplinary, civil, administrative, and criminal liability in accordance with the legislation of the Russian Federation. As we can see, violations, including those committed by budgetary institutions during the procedures for placing orders, are quite numerous. There are no less numerous reasons for bringing institutions to administrative responsibility. We hope that our article will help the institution avoid financial losses in the event of an inspection by regulatory authorities.

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.”

During the execution of a government contract, both the customer and the supplier may encounter circumstances that require changing the terms of the contract. 44-FZ clearly defines the rules for changing essential conditions. But what about those items that do not fall under this definition?

Let's consider whether it is possible to make changes to the contract under 44-FZ after conclusion, and how to make possible adjustments.

What are considered non-essential conditions?

Neither the law on the contract system nor civil law defines non-essential conditions. Based on the norms of the Civil Code of the Russian Federation (Chapter 28), we can give the following definition - these are the parameters of a government contract that are not essential for this type of transaction and do not require the consent of each party. In other words, changing non-essential terms of the contract under 44-FZ does not affect the result of the contract.

What points of the government contract can be corrected without changing key contractual agreements? The following sections can be distinguished:

1. Payment details of the parties. During the execution of the contract, both the customer and the supplier have the right to adjust current and correspondent accounts and change the bank for transferring funds.
2. Location of organizations. Address, contact information in the form of telephone, email are subject to editing without the need to obtain permission from the other party.
3. Arithmetic and spelling errors: typos in the name of the organization, in the last name, first name, patronymic of the parties to the contract, incorrect calculations in the specifications that do not coincide with the contract price.

Depending on the stage of the procurement, changes in the terms of the contract under 44-FZ occur in a different order. Next, we will consider how the terms of a contract are changed - the stages of conclusion and execution.

How to change a contract at the conclusion stage

The supplier sends the customer a protocol of disagreements indicating changes in non-material terms of the government contract and the reasons for such adjustments. For example, in connection with a change in the location of the organization, the “Details” section is requested to be read in a new edition. If the purchase was carried out electronically, then it is mandatory to send a protocol of disagreements using the software and hardware of the trading platform operator. If the customer has a need for minor adjustments, the functionality of the platforms allows you to revoke the contract for revision and re-send the corrected version to the participant.

The protocol of disagreements or the revised contract must be reviewed to determine whether the amendments are significant or not.

If non-essential conditions change, the contract is concluded. If the supplier sent a protocol of disagreements, the customer changes the contract and re-sends the revised version to the winner for signature.

Amendments to the contract due to a technical error in 44-FZ are possible only if the contract was signed by both parties and posted in the Unified Information System in its original form. Corrections to an erroneous contract are made only after its publication in the Unified Information System.

Moreover, if the inaccuracy is insignificant, it is better for the parties to ignore it and sign the agreement as is. If the error significantly affects the outcome of the contractual relationship and threatens with penalties, then the parties must draw up a protocol of disagreements and correct it.

For example, a change in the conditions in the specification at the stage of concluding a contract (technical error in calculations, etc.) is made after the agreement is entered into the register of contracts. After discovering an inaccuracy and registering data about the contract in the Unified Information System, the parties draw up an additional agreement, which makes adjustments to the contractual terms at the stage of concluding the relationship.

How to change a contract at the execution stage

Changes to non-essential terms of the contract under 44-FZ by agreement of the parties are also possible at the execution stage. Similar to the first case, the stages of notification and analysis of adjustment proposals are repeated, and the third step is to draw up an additional agreement indicating all the necessary parameters.

The customer subsequently needs to reflect all changes made in the Unified Information System by publishing an adjustment report.

When essential conditions cannot be changed

Amendments to the contract under 44-FZ according to clause 1, part 1, art. 95 44-FZ is impossible when requesting quotes (Letters of the Ministry of Finance of Russia dated December 1, 2017 No. 24-03-07/79960, dated November 9, 2017 No. 24-03-07/73936).

Also, during the execution of the contract, it is unacceptable to change the source of financing, since this is an essential parameter (Letter of the Ministry of Economic Development No. D28i-2286 dated 08/03/2015).

The following parameters are also not allowed to be changed:

1. Change of executor of the contract (Part 5 of Article 95 44-FZ). An exception is the reorganization of the supplier (legal entity) in the form of transformation, merger or accession. In this case, it is possible to replace the customer with the transfer of all rights and obligations to the new customer organization (Part 6, Article 95 44-FZ).
2. The period for delivery of goods, performance of work, provision of services, unless otherwise specified in the contract.
3. Adjustment of the contract price by more than 10%.

Particular attention should be paid to the increase in the VAT rate to 20% from 01/01/2019. From 01/01/2019, a new rate will apply to all contracts that were concluded before the VAT increase. The total cost does not change, and the tax increases at the expense of the contractor (Letter of the Ministry of Finance of Russia No. 24-03-07/61247 dated 08/28/2018). This requirement is not applicable for contracts that meet the criteria set out in Government Decree No. 1186 of December 19, 2013.

When drawing up the contract, the IPC of another procurement was erroneously indicated, but in all related documents - notice, schedule, procurement plan, documentation - it was correct. Only in the contract, and the contract has already been concluded. Is it possible to draw up an additional agreement to change the IKZ?

Answer