Major changes 44 fz from 01.07. Legal services. Dispute resolution

For a year now, when making purchases, unitary enterprises have been guided by Federal Law No. 44-FZ dated 05.04.2013 “On contract system in the field of procurement of goods, works, services to meet state and municipal needs. " At the end of 2017, Federal Law No. 504-FZ of December 31, 2017 amended Law No. 44-FZ. The most important innovation is the ability to carry out purchases in electronic form, but other points were not ignored either. Some changes have already begun, some will only take effect from July, and some will become mandatory in 2019. Today we will tell you what it is already necessary to take into account the PM when purchasing and what to prepare for.

16.02.2018

If the customer refused to conclude a contract with the winner.

Part 9 of Art. 31 of Law No. 44-FZ provides for the right of a unitary enterprise to refuse to conclude a contract with the winner of the procurement at any time if it is revealed that the participant does not meet the uniform and additional requirements established by parts 1, 1.1, 2 and 2.1 of this article, or provided an unreliable information regarding their eligibility.

In part 10 of this article, it is noted that when purchasing medicines that are included in the list of vital and essential medicines (VED), refusal to conclude a contract with the winner is possible if it is established that:

the maximum selling price of medicinal products offered by such a procurement participant is not registered (clause 1);
the price offered by such a procurement participant for the purchased medicinal products (if the procurement participant is their manufacturer or if during purchases to meet the federal needs of the NMCK exceeds 10 million rubles, and when purchasing to meet the needs of a constituent entity of the Russian Federation, the municipal needs of the NMCK exceeds the amount established by the highest executive body state power of the constituent entity of the Russian Federation and is no more than 10 million rubles) exceeds their maximum selling price specified in state register the maximum selling prices of manufacturers for drugs included in the list of vital and essential drugs, and the procurement participant refuses to reduce the price when concluding a contract (clause 2).

As before, in such cases, within 1 working day following the day of establishing the fact that is the basis for refusal, it is necessary to draw up and place in the EIS an appropriate protocol, and within 2 working days from the date of its signing, send it to the winner.

Note:

From 01/11/2018, the UP has the right, after posting a protocol on refusal to conclude a contract in the EIS, to conclude a contract with another procurement participant who proposed:

the same price as the winner;
the best conditions for the contract price following the conditions proposed by the winner.

Note that if the customer refuses to conclude a contract with the winner, the supplier (contractor, performer) is determined on the grounds provided for in paragraph 2 of part 10 of Art. 31 of Law No. 44-FZ, the winner is recognized as having evaded the contract with all the ensuing consequences.

We describe the procurement object in a new way.

The rules for describing the procurement object are determined by Art. 33 of Law No. 44-FZ. According to the amendments that came into force on January 11, 2018, the legislators reduced clause 1 of part 1 of this provision by removing the phrase that the description of the object of the procurement must be objective, and correcting the possibility of using indications of trademarks in relation to the object of the procurement.

Now a trademark can be indicated when describing an object in any purchase, provided:

accompanying such indication with the words "or equivalent";
incompatibility of goods on which other trademarks are placed, and the need to ensure the interaction of such goods with goods used by the customer;
procurement of spare parts and Supplies to the machines and equipment used by the customer, in accordance with the technical documentation for these machines and equipment.

Innovations in control activities.

According to Part 15 of Art. 99 of Law No. 44-FZ, control bodies can conduct both scheduled and unscheduled inspections at the request of procurement participants or those carrying out public control a public association or an association of legal entities. At the same time, the procedure for considering complaints depends on the category of the applicant.

According to the new part 15.1 of Art. 99 of Law No. 44-FZ, a complaint from an individual who is not a procurement participant, whose legitimate interests have not been violated, is considered in accordance with Federal Law No. 59-FZ dated 02.05.2006 "On the Procedure for Considering Citizens' Appeals Russian Federation". Recall that citizens can complain about the actions (inaction) of the customer, authorized body, an authorized institution, a specialized organization, an operator of an electronic site or a procurement commission, its members, officials contract service, contract manager.

If such a complaint is filed by a procurement participant or those exercising public control public association or the association of legal entities, it will be considered, as before, in accordance with Ch. 6 of Law No. 44-FZ.

Sending information to the register of unscrupulous suppliers.

Law No. 504-FZ amended Part 4 of Art. 104 of Law No. 44-FZ. Previously, the obligation of the customer to send information about the evaded winner of the procurement in the absence of confirmation of the conclusion of the contract with the procurement participant, whose application or proposal was assigned the second number, was not provided. From January 11, 2018, this condition is excluded and according to the above-mentioned norm, the UP must, within 3 working days from the date of recognition of the winner of the procurement as evading the conclusion of the contract, send to the control body in the field of procurement the information provided for in clauses 1 - 3 of part 3 of Art. 104 of Law No. 44-FZ, as well as documents testifying to the winner's evasion from concluding a contract.

Note:

For untimely sending to the FAS of information to be included in the register of unscrupulous suppliers, or sending inaccurate information and documents, Part 2 of Art. 7.31 of the Administrative Code of the Russian Federation provides for an administrative penalty in the form of a fine for officials in the amount of 20,000 rubles.

Another of the latest changes in the Law No. 44-ФЗ in 5 art. 104 (its new version will come into force on 01.07.2018). It is from this date that unitary enterprises in a situation where the procurement participant with whom the contract is concluded, on the basis of clauses 24, 25 - 25.3 h. 1 of Art. 93 of Law No. 44-FZ evaded the conclusion, send information to the FAS to enter information about this participant in the register of unscrupulous suppliers within 3 working days from the date of recognition of such a participant as evaded (the current version provides for a longer period of 5 working days).

Requirements for procurement participants have been changed.

Article 31 of Law No. 44-FZ establishes requirements for procurement participants. Part 1 of this rule sets out uniform requirements, part 2 talks about additional requirements that may be imposed on participants.

From 01.07.2018, the requirements for participants will be supplemented with one more. In addition to the lack of liquidation, the absence of arrears in taxes and fees, a criminal record of a procurement participant who is an individual or the head of an organization for crimes in the economic sphere, the unified requirement will be that the participant has no restrictions on participation in procurement established by the legislation of the Russian Federation (clause 11, part 1 of Art. . 31).

On the mandatory terms of the contract.

According to the latest amendment to Part 13 of Art. 34 of Law No. 44-FZ from 01.07.2018, the contract must include required condition on the reduction of the amount payable by the UP to a legal entity or natural person, including those registered as individual entrepreneur, on the amount of taxes, fees and other obligatory payments to the budgets related to the payment of the contract, if such payments are to be paid to the budget by the customer.

In addition, a new Part 29 has been introduced into this article, which gives the Government of the Russian Federation the right to establish:

the procedure for determining the minimum period for the supplier (contractor, executor) to fulfill the contract;
requirements for the formation of lots for purchases certain types goods, works, services.

Purchases have been converted to electronic form.

The most ambitious recent change in Law No. 44-FZ is related to the possibility of making purchases in electronic form. In addition to electronic auction in this form it will be possible to conduct an open tender, a tender with limited participation, a two-stage tender, a request for quotations and a request for proposals. Closed procedures can also be carried out electronically.

The provisions on such purchases will come into force on 01.07.2018. Let's take a closer look at them.

Electronic procurement will be carried out:

on an electronic platform - a website on the Internet that meets certain requirements, which uses competitive methods for determining suppliers;
on a specialized electronic platform - an information system, access to which is carried out using secure communication channels for the use of closed competitive methods for determining suppliers.

The list of operators of such sites is approved by the Government of the Russian Federation. If by the time the amendments come into force, no operators have been elected, e-procurement will be carried out at the previous sites.

To monitor and record the actions, inaction of the participants in the contract system, a state Information system which will provide:

recording, including video recording, in real time of actions and inaction of participants in the EIS, on the electronic platform;
storing information about the actions and inaction of the participants in the contract system, including about electronic documents generated by the participants and signed with an enhanced electronic signature.

In this regard, the new Art. 5 of Law No. 44-FZ regulates the organization electronic document management... In particular, it is planned to exchange electronic documents between the participants of the contract system, including the submission of applications for participation in the procurement, final proposals. Such electronic documents must be signed with an enhanced electronic signature and submitted using an electronic platform, conventional or specialized.

At the same time, qualified certificates of keys for checking electronic signatures are created and issued by certification centers that have received accreditation for compliance with the requirements of Federal Law No. 63-FZ dated 06.04.2011 “On Electronic Signatures”.

To participate in electronic procurement in the period from 01.07.2018 to 31.12.2018, you will need to obtain accreditation on the electronic platform in the same way as for participating in an electronic auction.

It should be noted that it is possible to charge a fee for participation in an electronic procedure, normal or closed, or from the person with whom the contract is concluded, subject to the provision of such an opportunity by the Government of the Russian Federation to the operators of the respective sites.

Procurement notice.

From 01.07.2018, changes are made to Art. 42 of Law No. 44-FZ, which establishes a list of information that must be reflected in the notice of procurement. So, from this date, according to Part 3, when purchasing in accordance with Part 4 - 6 of Art. 15 of Law No. 44-FZ, it will be necessary to indicate a specific part of Art. 15, in accordance with which the procurement is carried out. We add that when making a purchase in accordance with parts 5 and 6 of Art. 15 of Law No. 44-FZ, copies of the contracts (agreements) indicated in these parts must be attached to the notification.

In addition, the notice must indicate (parts 9 - 11 of article 42):

the advantages provided by the customer to the enterprises of the penal system and organizations of persons with disabilities;
information on the conditions, prohibitions and restrictions on the admission of goods originating from a foreign state;
information on the procurement of goods, work, services under the state defense order.

The procedure for conducting purchases in electronic form.

Legislators have regulated in detail the conduct of e-procurement. The most detailed regulation was received by an open competition in electronic form - eight new articles are devoted to it, which come into force on 01.07.2018.

In particular, it is determined that a notice of an open tender in electronic form is placed by the customer in the EIS at least 15 working days before the deadline for submitting applications for participation in such a tender. The unitary enterprise will be able to correct the notification no later than 5 days before the deadline for filing applications for participation. Moreover, the deadline for submitting applications for participation in an open tender in electronic form must be extended in such a way that from the date of posting the relevant changes in the EIS until the deadline for submitting applications for participation, this period is at least 10 working days.

Requirements for the content of the notice are established by Art. 54.2, and to the content of the tender documentation - Art. 54.3 of Law No. 44-FZ.

In addition, the procedure for submitting applications for participation in an electronic open tender was considered, the rules for considering and evaluating applications (both the first and second parts) were determined, as well as:

the procedure for considering and evaluating the second parts of applications;
the consequences of declaring an open tender in electronic form invalid.

The amendments provide for two types of application security: cash and a bank guarantee, however, until June 30, 2019, only the first of them can be used.

The rest of the purchases in electronic form also did not go unnoticed. For example, the request for quotations in electronic form is devoted to Art. 82.1 - 82.6, request for proposals - Art. 83.1 of Law No. 44-FZ.

For your information:

Article 83.2 of Law No. 44-FZ establishes uniform rules for concluding a contract based on the results of an electronic procedure. So, within 5 days from the date of posting the final protocols, the customer must place in the EIS and on the electronic platform a draft contract without his signature. Within 5 days from the date of placement of the project, the winner of the electronic procedure must sign the project with an enhanced electronic signature and place it on the electronic platform. Within 3 working days from the date of placement on the electronic site of the draft contract signed by the winner, and the provision of security for the execution of the contract, the UP is obliged to place in the EIS and on the electronic site a contract signed with an enhanced electronic signature of a person entitled to act on his behalf. From the moment the contract signed by the customer is placed in the EIS, it is considered concluded.

Register of procurement participants.

From 01.01.2019, a single register of procurement participants will be kept in the EIS.

Registration of participants in the EIS will be carried out in electronic form based on information and documents in the manner that must be determined by the Government of the Russian Federation. Information and documents about procurement participants registered in the EIS are entered into the unified register of procurement participants.

Registration of the participant in the EIS and accreditation of the procurement participant on the electronic site are carried out for a period of 3 years.

Operators of electronic platforms after registration of a participant in the EIS will have to accredit him at their site.

Amendments to the Law No. 223-FZ

Unitary enterprises should also be aware of the changes in the Federal Law of 18.07.2011 No. 223-FZ "On the procurement of goods, works, services by certain types of legal entities." On December 28, 2017, significant changes were also made to it, allowing purchases in electronic form. But there are other innovations as well.

Unitary enterprises should know that from 31.12.2017 Art. 2 of Law No. 223-FZ supplemented with parts 2.1 - 2.7, which provide the following. Federal body executive power or an organization exercising the powers of the owner of the UE property on behalf of the Russian Federation has the right to approve a standard procurement regulation, as well as determine SUEs for which the application of such a model provision is mandatory when they approve the procurement provision or amend it. A similar right is granted to the executive authorities of the constituent entity of the Russian Federation or local self-government in relation to the state unitary enterprise of the constituent entity of the Russian Federation and the municipal unitary enterprise.

The standard provision should determine the date before which the relevant UEs are required to amend their procurement regulation or approve a new procurement regulation in accordance with the standard provision.

The regulation is posted in the EIS within 15 days from the date of its approval. At the same time, changes in the document are posted. In the latter case, a time frame is specified within which the autonomous institutions must amend their procurement regulations or approve new ones. Such a period cannot be less than 15 days from the date of placement in the EIS of changes in the standard provision.

Changes to 44-FZ from July 1, 2018 provide for new order securing applications and a new form of competitive procedures. There are other important innovations as well. Consider these changes made to Federal Law 44.

Read in the article:

Amendments to 44-FZ from July 1, 2018 introduce Federal Law No. 504-FZ dated December 31, 2017, as well as Government Decree No. 439 dated April 12, 2018.

Amendment 44-FZ in terms of securing applications

From July 1, 2018, the security for the application will be established when the initial maximum contract price (NMCK) within the framework of a tender or auction is more than 1 million rubles.

The customer will also require security for the application in two other cases:

when purchasing by request for proposals, if a repeated tender has not taken place;
in case of an electronic request for proposals, if an open tender, a tender with limited participation, a two-stage tender and an auction (all in electronic form) did not take place.

The requirement to secure the application is mandatory for all participants. But only not in the part of state institutions.

The amount of the collateral consists of two ranges:

from 0.5% to 1%, when the NMCC is from 5 million rubles. up to 20 million rubles;
from 0.5% to 5%, when the NMCC is more than 20 million rubles.

For a number of categories of participants, special conditions... These include organizations of persons with disabilities and institutions of the penal system. The amount of collateral for them has been reduced. It makes up no more than 2% of the NMCK. But at the same time, three conditions must be met simultaneously:

NMCK is no more than 20 million rubles.
in the procurement, advantages are established for these categories of participants;
the participant has a privileged status.

We also note that preferential terms of security for SONO and SMP were excluded from 44-FZ.

The participant has the right to provide security for the application either in the form Money or in the form of a bank guarantee. When conducting a competition in paper form, the participant has a choice of these two types. In an electronic competition, it is possible to secure the application only in cash. In the documentation, it is necessary to secure the right of the participant to choose the method of providing.

Please note that when conducting an electronic tender or an electronic auction, a participant is not entitled to apply for a bank guarantee until June 30, 2019.

Amendments to Law 44-FZ: new electronic procedures

From July 1, 2018, new electronic procedures will be carried out by customers on a voluntary basis. From January 1, 2019, they will become mandatory.

Amendments to Law 44-FZ provide that electronic procedures can now be in the form of:

auction;
competition;
request for proposals;
request for quotes.

The place for conducting electronic procedures is electronic trading platforms. For admission, the participant needs accreditation. The procedure is similar to the current procedure for admission to electronic auctions. A potential participant provides the operator with everything Required documents, in electronic form. In this case, the documents must be signed with an electronic signature.

Note that from July 1, 2018, in order to take part in public procurement, you must have a qualified electronic signature. She can sign any electronic documents. Qualified electronic signature from BuchSoft is accepted at 108 trading platforms.

From 2019, registration will be carried out in a unified information system. It will be free and one-time. Participants will no longer need to be accredited on each trading platform separately.

The UIS will create a unified register of procurement participants. It is a list of all registered participants who have participated, are participating or would like to participate in public procurement. It will be conducted by the Treasury on the EIS website from 01.01.2019.

All participants registered in the UIS will be automatically entered into this register. Registration will be available from 01.01.209 to 31.12.2019.

Other important changes 44-FZ

The time frame for competitive procedures has been reduced. In particular, this applies to the consideration of the first and second part of applications in the framework of the electronic auction will be reduced, e-request quotes. You will have to recalculate the stages of procurement and the timing of each procedure. Determining the terms of the competitive procedure will help you with this.

The clause on mandatory procurement was excluded from 44-FZ open competition... Thus, tender is no longer a priority procurement method.

List uniform requirements added to the procurement participants. Now the participant will be required to confirm that he has no restrictions on participation in public procurement.

The new system "Independent Registrar" will appear. This system will reflect and record the actions of customers and participants. Including, the video recording mode will be available. The system will be useful for resolving disputable situations that have arisen.

For the rest of the changes, see the table below:

Several important changes for auction participants and tenderers will come into effect next year. The editors of the site have prepared an overview of the main amendments to the legislation in the field of procurement under 44-FZ and 223-FZ, so that readers are aware of the innovations.

Amendments for customers and suppliers under Law No. 223-FZ

1. SMEs will have more customers

In 2020, the norms of the Government Decree of November 15, 2017 N 1383 will come into force, providing, inter alia, the expansion of the list of companies that are required under 223-FZ to purchase goods, works and services from small and medium-sized enterprises (SMEs). In particular, the obligation to comply with procurement quotas will appear for state-owned companies with annual revenues of over 0.5 billion rubles and for autonomous institutions, the annual volume of purchases of which exceeds 250 million rubles.

Another important amendment for business is spelled out in the Decree of the Government of the Russian Federation of August 19, 2016 N 819. According to it, the annual volume of purchases of goods, works, services from SMEs increases from 10 to 15 percent. Moreover, we are talking about the aggregate annual value of contracts concluded with small companies, and the annual volume of purchases that are planned to be carried out based on the results of tenders for small and medium-sized businesses.

Taking into account these changes, customers will have to fill out an updated form for the annual report on the procurement of goods, works and services from SMEs. In addition, lines will appear in it to indicate:

information on the share of purchases from small companies in the total annual value of contracts;
information on the share of purchases in the total annual value of contracts based on the results of tenders or other methods of purchase, in which only SMEs are participants.

2. Control over purchases of individual companies will be tightened

From March 1, 2020, in relation to state-owned companies and their subsidiaries, which annually purchase over 1 billion rubles, they will begin to assess the compliance of draft plans for the procurement of goods, works, services, draft plans for the procurement of innovative products, high-tech products, medicines, draft changes included in such plans. The same documents will be checked from municipal companies and their subsidiaries if the volume of their purchases exceeds 50 million rubles, as well as from credit companies whose annual revenue from the sale of services exceeds 500 million rubles.

And from June 1, 2020, the SME Corporation JSC will begin monitoring the compliance of plans with the subsidiaries of state corporations and state-owned companies purchasing in the amount of 250 million to 1 billion rubles. In the meantime, the executive authorities of the constituent entities of the Russian Federation and (or) the organizations created by them will check the compliance of procurement plans from state unitary enterprises, municipal unitary enterprises, and other municipal organizations whose assets exceed 10 billion rubles and which conclude procurement contracts during the year in the amount of over 50 million rubles.

Amendments Concerning Procurement Under Law No. 44-FZ

3. Not all banks' guarantees are suitable for securing applications and contracts

From January 1, the requirements for banking institutions will be clarified, the guarantees of which are allowed to be used to secure applications for participation in procurement under Law No. 44-FZ and to secure government contracts. According to Art. 12 of the Federal Law of July 29, 2017 No. 267-FZ, the government approves the requirements for the size own funds(capital) of the bank and the level of its credit rating.

To make it easier to navigate, the list of banks that meet all the requirements will become public. It can be found on the website of the Ministry of Finance.

4. Reference data on goods, works and services will appear in the EIS

From January 1, the requirement to supplement the catalog of goods, works, services to meet state and municipal needs in a unified information system (EIS) in the field of procurement with reference information comes into force. The system will host:

information on adopted technical regulations, documents developed and applied in the national standardization system, which apply to goods, works and services;
codes corresponding to the product, work, service in accordance with Russian and international systems classification, cataloging (if any);
information on standard contracts, standard conditions of contracts to be used in the purchase of goods, work, services (if any);
the date the item was included in the catalog;
the date (s) of the beginning of the mandatory application of the information included in the catalog item;
the end date for the application of the catalog item (if necessary);
additional information, including about the characteristics of goods, their manufacturers, trade names, appellations of origin of goods, about prices per unit of quantity of goods, about the volume of work, services and (or) prices per unit of measurement of the quantity of goods, about the terms of delivery of goods, performance works, services.

In addition, from the new year, information and documents (procurement plans, procurement schedules, notifications, protocols, draft contracts) with errors identified during inspections will not be able to get into the EIS. In 2020, this rule will only apply to information about purchases made for federal needs. A year later, the requirement will work for municipal customers (Decree of the Government of the Russian Federation of 03/20/2017 N 315).

9. The register of contracts will be supplemented with new information

Based on the Government Decree of April 13, 2017 No. 443, the customer will enter information on all co-executors, subcontractors from among small businesses and socially oriented non-profit organizations who have entered into agreements with the main supplier (executor) under a government contract. In particular, the register of contracts will contain data on the location of the co-contractor (subcontractor), his TIN, date of conclusion and contract number (if any), subject and price of the contract with the co-contractor (subcontractor).

10. Innovations for certain areas

Let's briefly talk about the new rules for some areas.

Decree of the Government of the Russian Federation of November 15, 2017 N 1380 defines the features of the description of drugs for medical use, which are the object of procurement to meet state and municipal needs.
Since the new year, the obligation is introduced to conduct exclusively electronic trading for the formation of prices for services for the collection and transportation of solid municipal waste for a regional operator (Decree of the Government of the Russian Federation of 03.11.2016 N 1133).
When supplying lighting devices for buildings, highways and city streets, the share of lighting devices other than LEDs is set at 70% of the total volume of such orders (in kind). This is stated in

Law 44-FZ adopted in 2013, and began operating in January 2014.

Now, in order to work for them, you do not need to register and receive accreditation at each site separately. Access is provided by a single registration in the UIS - a unified information system.
This is a portal that contains a register of all purchases, a black list of suppliers, which inexperienced novice participants often fall into due to a banal ignorance of all the subtleties and rules of how everything works here.
Let us explain with a specific example: the law does not require mandatory documentary confirmation of all the information declared by the supplier, but if during the verification process there are even the slightest discrepancies with the actual information (and the data may change in the course of the supplier's activities) it may appear in the Register of Unfair Suppliers (RNP) ... This means that data is entered there not only about the organization itself, but also about the head and founders.
This is, in fact, a cross for the company to receive government orders. After that, it is impossible to take part in tenders for 2 years, and the organization may end up there due to a simple mistake or ignorance of all the rules.

The portal also contains a lot of useful information. Soon they plan to place a full database of bidders on the site under 44-FZ and a list of services and products that are suitable for cooperation under this law.
Control in procurement
Each order is checked by the Ministry of Finance of the Russian Federation. This is necessary to assess how transparently and objectively the supplier is determined, a tender or an auction is being held.
But not only the Ministry of Finance exercises control, the FAS monitors the observance of competition, where suppliers file complaints about violation of their rights by customers, unlawful rejection of applications and other violations of 44-FZ.
Who can be a tender participant
You are a supplier, manufacturer of products or services and want to participate in the procurement. What should you do next?
First of all, you should decide whether you are suitable forrequirements for procurement participants44-FZ.
Bidding law establishes that participants can be representatives of small, medium and big business, including individual entrepreneurs, non-profit organizations.
The supplier is the person:
no debts to the budget for taxes and fees;
not belonging to offshore enterprises;
no previous convictions (if we are talking about a legal entity, the manager and chief accountant should not have any previous convictions);
not brought to administrative responsibility for the last two years;
not affiliated (not in any way interconnected) with the customer;
not in the Register of Unscrupulous Suppliers;
not in the process of liquidation, suspension of its activities or bankruptcy;
has no restrictions on participation in tenders regulated by legislative acts of the Russian Federation.

When submitting an application, the supplier declares compliance with the requirements. If further it turns out that he misled, the customer refuses to sign the contract and he gets into the RNP. After that, all doors are closed in front of him.
Many suppliers do not pay serious attention to this aspect, at first they underestimate it due to inexperience, and then it becomes too late and nothing can be done.
About 1000 suppliers get into the RNP every month. Today it has more than 16 thousand records that have been there for 2 years.
If you do not know the legislation on public procurement perfectly, just came into this area and want to play it safe against the risk of getting into the RNP - it is better to use the services of professionals than to retire from the public procurement sector and lose lucrative contracts! Please contact to ask any questions of interest.

Well, if you fit all the customer's requirements, it's time to figure out what purchases are, and how they can go.
How are purchases carried out?
Updated h state order actprovides onlye-procurement on all types of tenders. An exception is some closed auctions.
Detailed trading scheme:
The customer draws up a schedule;
Determines the type of tender;
Determines the initial maximum contract price (hereinafter - NMCK);
Places information about upcoming trades;
Places the tender itself;
The parties sign an agreement;
The customer determines the supplier;
Customer accepts the completed order, based on the results, a report is drawn up.

All stages are very important, the supplier is faced with many subtleties and peculiarities in each of them, so we will consider them in more detail.
Planning
Previously, for planning purchases, the customer used plans, and based on them, prepared schedules. New edition the law abolishes them, now planning is carried out by the customer only according to procurement schedules.
There is a key difference between these documents: the schedule can be changed, supplemented and expanded if necessary. This is a kind of guarantee for the contractor of the seriousness of the customer's intentions.

What is it per document and why does the supplier need to know about it? The schedule is a list of purchases planned by the customer, reflectedin diagrams and tables.
The supplier can learn from the schedule:
what exactly is planned to be purchased;
requirements for performers;
purchase method;
NMCK;
conditions for participation;
terms;
securing the contract;
criteria for evaluating the result.

The next step is to determine the starting price and post a notice.
Definition of NMC
The customer determines the maximum price at which the bidding will begin on the basis of the reverse auction principle. The principles on the basis of which the price is set are also dictated by 44-FZ (Article 22).
The customer determines the price:
by analyzing market prices;
using the normative method (at cost rates), which establishes Article 19 of 44-FZ;
according to the tariff method, it is used for services in the field of housing and communal services, telecommunications, the Internet;
according to the project or estimate, used for construction services, in reconstruction, overhaul, etc .;
using a costly method if no other can be used.

You can use one or several methods in combination. Once the NMCC has been identified, suppliers will reduce it. But this does not mean that the offer with the lowest price will win.

Federal Law 44-FZprovides for anti-dumping measures. If the price decreases by more than 25% of the NMCK, the supplier must provide guarantees, or confirmation of the quality of its products or works with information on the previous 3 transactions from the procurement register, show the absence of fines and penalties for them.
And if there were no contracts for the last 12 months, you will need to prepare data on 4 previous transactions for the previous 2 years.
Publication of a tender notice
At this stage, the customer places a notice in the EIS. It contains the rules for determining the supplier and key information about the tender:
contact details of the customer and his official representing the organization in the auction;
the main terms of the contract, what and where to deliver, what service to provide or work to perform, terms, stages, place of delivery

The customer indicates the source of financing and the price, there are several options: it can be the NMCK, or the approximate value of the price, or the formula by which it is calculated.
The notice includes:
method of choosing an executor, contractor;
time, place and method of accepting applications;
identification code of the tender, and if the purchase is carried out under Part 5.6 of Art. 15 44-FZ, then a copy of the contract must be attached to the notification;
restrictions for some suppliers, if any;
the amount of the application security for depositing to a special account or bank guarantee;
privileges for suppliers if the tender is carried out under Articles 28, 29 44-FZ;
conditions for foreign suppliers and restrictions, if any;
information on the defense order.

What tenders are there
The customer has the right to place orders with a single supplier or choose a competitive method for determining the supplier under Art. 24 44-FZ.
Open competition
When not only the purchase price is important, but also the quality:
Provides for the open placement of information about the procurement in the EIS;
The requirements are the same for all participants;
The customer examines the applications of candidates and compares them in terms of price, quality of work, qualifications of employees, experience in fulfilling such orders;
The winner is the supplier who offered the most favorable terms.

Open competition with limited participation
This type of procurement is required for services approved by government decree No. 99 dated February 4, 2015. The limitations are related to the required narrow qualifications of the supplier.
Such purchases relate to completely different areas, from restoration activities and transportation to high technologies and projects in the field of nuclear energy.

In this case, additional requirements are imposed on the contractor:
sufficient resources (financial and technical) to fulfill the order;
experience in implementing similar projects;
sufficient level of qualifications of employees;
ownership of the required equipment.

Open two-stage competition
At the first stage, contractors submit an application without cost;
The customer evaluates the experience, qualifications, quality of services and weeds out inappropriate offers;
Among the rest, the second stage is carried out, at which the performers are considered by price.

Most often, such competitions are organized among construction, design organizations, as well as companies working in the field of science, innovation and high technology.

Closed competition
The customer himself invites participants to a closed tender, so it is available only to a select circle of suppliers.
This is due to the need to restrict access to information containing commercial, state secrets, goods with special value (rare stones and metals, manuscripts, archival documents) or special services for representatives of the judicial and law enforcement system and government officials.
If the contractor meets the stated requirements, he requests the receipt of tender documentation and only after that gets acquainted with the features of the project, and decides whether to apply or not.
The parties to the closed tender must be checked by the Federal Antimonopoly Service.
Electronic auction
According to statistics, more than 60% of tenders are held in the format of an electronic auction.
An important stage is filling out the documentation about the electronic auction, since in fact, it contains all the information about it with attachments and consists of general information and purchase documents with attachments: estimate, examination, defective statement, information card with a notice, etc.

The conduct of an electronic auction is established by Art. 68 44-FZ.
Main steps:
The supplier's application is divided into two parts. anonymous, and the second is personalized;
The customer studies the first parts without knowing which companies sent them;
Then, either admits suppliers to the auction, or rejects bids;
Eligible candidates place lower bets, the lowest bidder wins;
After that, the customer checks the second part of the application, it contains licenses, documents of the organization;
If the customer rejected the winner at the stage of consideration of the second part, the participant who took the second place wins;
The state customer signs a contract with him.

Request for quotes
This procedure is simple and fast. It is enough for the supplier to send a request with a price once.
The customer compares all bids and decides on the price. The initial cost is not more than 500 thousand rubles.
Request for proposals
Often, if the auction did not take place or a repeated tender is held, the customer resorts to a request for proposals, because he could not choose the right one among those received at the auction or competition.
He himself appeals to the performers with a request to send the cost and other information.
Securing the application
To participate in the tender, the contractor must deposit funds to secure the bid. This is a kind of guarantee that the contractor will fulfill his obligations and evidence that the contractor has the means to fulfill the order.
If the contractor refuses to conclude a contract, the amount is transferred to the customer as compensation, and the supplier is included in the RNP, in accordance with Art. 104 h. 2.
The application can be secured in two ways: by cash (transfer of the amount to a special account) or by a bank guarantee.

Procurement participants can choose a specific method at their discretion. But a special account must be opened without fail, without submitting an application. Details of what a special account is and what it is for.
Transfer of the amount to a special account
When making a purchase, the customer specifies the amount of security for the application and the conditions on which it is accepted.
Important!We recommend that you transfer funds in advance and attach the confirmation of the transfer to your participation documents. Otherwise, if the funds are not received before the customer considers the applications, the security will be considered not paid.
The amount of collateral is from 0.5 to 5% of the NMCK (Art. 44 44-FZ):
0.5% -1% of the NMCK at NMCK up to 20 million rubles;
0.5% -5% of the NMCC, if the NMCC is more than 20 million rubles.

Bank guarantee
What bank guarantee? This is a way of securing obligations, in which the bank undertakes to pay the amount of security if any problems arise with the performance of the contractor's obligations.
But the guarantee must be irrevocable so that the amount from BG could be unconditionally transferred to the customer after the breakdown of the contract.

Which can issue a guarantee, you can see on the website of the Ministry of Finance, it is constantly changing. The amount of the penalty has also been established, according to 44-FZ it is 0.1% of the amount of the NMCK.
Conclusion of a contract
According to Article 34 44-FZ, the contract contains:
the subject of the contract isdescription of the procurement object under 44-FZ
price;
the form of the contract;
method of payment and receipt of the result;
the rights and obligations of the participants;
their responsibility.

C The price of the procurement object remains unchanged during the entire period of the contract.

It is possible to change its conditions, according to Art. 95 44-FZ, but in the following cases:
NMCK was reduced by a single supplier with the same volume of products or services;
Increased or decreased purchase volume - up to 10%;
The terms of financing have changed;
The contractor offers services or products of higher quality.

Terms of conclusion of contracts
Violation of the terms and other important conditions of 44-FZ entails bringing to responsibility and entering information about the enterprise or individual entrepreneur in the register of unscrupulous counterparties: suppliers (RNP).
The law regulates the following terms:
placement of the draft contract by the customer during 5 days;
following the results of e-procurement, you need to sign an agreement during 5 days;
the signed contract is published by the customer before 3 days;
for requests for quotations and proposals, the total terms are floating - from 7 days;
at open auctions and competitions - from 10 days.

Dates are indicated excluding weekends. It is important to consider:
if the supplier did not provide all of the documentation to the customer, then this may be considered as evasion from the conclusion of the agreement. In such a situation, the customer has the right to recover the costs of the tender through the court;
if the winner changed his mind to sign the contract or violated the terms, then the customer contacts the contractor who took second place. Such a refusal does not provide for any sanctions. The competition is declared invalid.

After the conclusion of the contract, the process of order implementation itself begins. When the work is completed, it remains to wait for acceptance. The contractor notifies the customer about the completion of the work, and he draws up a report.
Based on the results, he transfers to the contractor an act of work performed, an invoice or a justified refusal. The contractor can challenge it.
Dispute resolution
Based on the results of the won tender, the contractor may find information that does not correspond to the initially declared information: a different price, volume, terms, etc. He needs to send a protocol of disagreements to the customer within 5 days from the date of the announcement of the procurement results.
Remember that many vendors use contention protocol to deliberately stretch the time before signing a contract. They need this in order to get a bank guarantee or for other purposes.

For an experienced customer, such manipulations are obvious. If this happens this time, then with the next purchases, he is unlikely to contact you. Take care of everything in advance, and if you still do not have enough time - contact us! The customer reviews the protocol within 3 days.
Termination of the agreement
If disagreements arose after the conclusion of the contract and it was not possible to resolve them, the termination of the contract is possible (Art. 95 44-FZ):
by mutual agreement of the parties;
in accordance with a court decision;
unilateral refusal (if there are grounds).

What are the areas outside the law 44-FZ
The following cannot participate in tenders under 44-FZ:
international financial organizations;
companies or persons providing services in the field of legal protection of judges, officials, other officials.

You cannot purchase under this law:
precious metals and stones to replenish the State Fund;
unpaid legal defense assistance;
services of the election commission.

conclusions
Law 44-FZ - large-scale legal act(more than 250 pages), which is very difficult to consider within the framework of one article. We tried briefly highlight basic momentsof this law, telljust about complicated- for Dummies ".
If you still have questions, you can take our training on 44-FZ or order support for the auction. In this case, you will not have to worry about anything - we will carry out the procedure in full compliance with 44-FZ and guarantee the admission of your application to the auction.

From January 1, 2019, regular changes have come into force in the procedure for the procurement of goods, works and services for state and municipal needs. Experts of the Credit Insurance Agency will tell our readers what awaits participants in public procurement in the new year.

Transition to e-procurement

Perhaps the most important change in the procedure for conducting public procurement is the transfer of procurement procedures into electronic form. This work began back in 2018, but from July 1, 2018, electronic procurement was the right of the customer. From January 1, 2019, this has become mandatory. Purchases will be carried out in in electronic format in the shape of:

Auction;

Competition;

Request for quotes;

Request for proposals.

In a number of individual cases will be allowed to conduct purchases in "paper form". But this applies to closed procurement and emergency situations, the list of which is determined by Law No. 44-FZ "On the contractual system in the field of procurement":

Ensuring the activities of the customer on the territory of a foreign state (Art. 75, 111.1);

Providing an ambulance medical care in an emergency or urgent form (Article 76);

Provision of humanitarian aid or liquidation of the consequences of natural or man-made emergencies (Articles 80, 82);

Closed procurement (art. 84);

Procurement from sole supplier(Art. 93);

Procurement behavior in accordance with the decision of the Government of the Russian Federation (Article 111).

Registration of procurement participants in the EIS. Formation of URUZ

From January 1, 2019, the provisions of Art. 24.2 of the Federal Law No. 44-FZ "On the contractual system in the field of procurement". The article provides for the mandatory registration of all bidders in the Unified Procurement Information System (EIS). The Unified Register of Procurement Participants (ERUZ) has been created in the UIS, where information about registered participants is automatically entered. The Federal Treasury was appointed responsible for the creation and maintenance of the ERUZ.

Registration in the EIS is carried out in electronic form; participants in the procurement will need to register for registration.

Registration will be free of charge, it will be valid for 3 years, registration can be renewed no earlier than 6 months before its expiration.

An important feature is that companies registered in offshore zones will not be able to register in the EIS and take part in public procurement.

You can read more about the registration of procurement participants in the EIS in the article on our website.

Registration of suppliers in the EIS

Changing the procedure for accreditation on trading floors

From January 1, 2019, Article 61 of Law No. 44-FZ, which regulates the accreditation of participants on electronic platforms, has become invalid. At the same time, the accreditation procedure, according to which procurement participants were required to go through the accreditation procedure at each of the electronic platforms, ceased to operate. From January 1, 2019, you can obtain ES accreditation only by registering in the EIS.

Procurement participants who have passed registration in the EIS and entered into the ERUZ automatically receive accreditation at all electronic trading platforms admitted to work with public procurements. Accreditation will be carried out by operators of electronic platforms within 1 working day from the date of completion of registration in the EIS.

Increase in VAT up to 20 percent

From 1 January 2019, Law No. 303 of 03.08.2018 comes into effect, providing for an increase in value added tax (VAT) from 18 to 20 percent. At the same time, the preferential VAT rate of 10% remains unchanged for certain types of food products, children's goods, medicines.

The new VAT rate should be taken into account by customers when calculating the initial maximum contract price (NMC) for the 2019 procurement. Participants in the procurement must remember that according to the new version of clause 13 of Art. 34 of Law No. 44-FZ, which entered into force on July 1, 2018, the contract includes a mandatory condition to reduce the amount to be paid by the customer legal entity or to an individual, including those registered as an individual entrepreneur, for the amount of taxes, fees and other obligatory payments to the budgets of the budgetary system of the Russian Federation related to the payment of the contract, if, in accordance with the legislation of the Russian Federation on taxes and fees, such taxes, fees and other obligatory payments are subject to payment to the budgets of the budgetary system of the Russian Federation by the customer.

In other words, if the customer is a VAT payer, then when paying for the delivered goods, work performed or services rendered, he must automatically reduce the amount due to you by the amount of VAT payable to the budget. And if your company is not a VAT payer, then this means that you will receive 20% less than the price specified in the contract, and in turn will not be able to accept VAT deduction.

And what will happen to contracts concluded before January 1, 2019, if payment for them is made after the VAT increase?

Initially, the Ministry of Finance decided that under long-term contracts, the VAT increase would be on the shoulders of the executors. The agency considered that the increase in the tax rate is a commercial risk for the contractor. According to Law No. 44-FZ "On the contractual system in the field of procurement," the contract price is fixed and is determined for the entire period of execution. The procurement participants know that the contract price cannot be changed and agree to the terms of the customer by submitting bids.

This position was stated in the information letter of the Ministry of Finance of Russia dated 08.28.2018 N 24-03-07 / 6124.

But on December 27, 2018, the President of the Russian Federation signed Law No. 502-FZ "On Amendments to the Federal Law" On the Contract System in the Procurement of Goods, Works, Services for State and Municipal Needs. "

In accordance with new edition Law 44-FZ, which has already entered into force, due to the increase in the VAT rate to 20%, it is allowed, by agreement of the parties, to change the price of contracts concluded before January 1, 2019 within the limits of the increase in VAT in respect of goods, works, services, the acceptance of which is carried out after 1 January 2019. This condition will be valid until October 1, 2019.

Preferences for medicines from the EAEU countries

From January 1, 2019, amendments to the Decree of the Government of the Russian Federation of November 30, 2015 N 1289 "On restrictions and conditions for the admission of medicinal products originating from foreign countries included in the list of vital and essential medicinal products, for the purpose of purchasing to ensure state and municipal needs "(Decree on amendments from 05/12/2018, No. 572).

The changes introduced during public procurement give preference to medicines from Russia and other countries of the EAEU - Armenia, Belarus, Kazakhstan and Kyrgyzstan. Medicines, all stages of production of which were carried out on the territory of the EAEU member states, receive 15% price preferences provided for by the Order of the Ministry of Economic Development of March 25, 2014 No. 155.

Changes in the reporting of purchases from small businesses

From January 1, 2019, the procedure for calculating the volume of purchases from small businesses has changed. Customers were allowed to include in the calculation of the total annual volume of purchases purchases from a single supplier from among small businesses (SMEs) or socially oriented non-profit organizations (SONCO), which are carried out in the event that a competitive method of determining a supplier (among SMEs) is recognized as invalid.

According to Part 4 of Art. 30 44-FZ, the customer may also cancel the restriction on participation in the procurement of only representatives of the SMP and SONKO in the event that the initial competitive procedure was declared invalid either due to the rejection of all bids, or in the absence of bids for participation (or final bids).

This innovation greatly simplifies the life of customers, because in accordance with the current legislation, at least 15% of contracts must be concluded with representatives of the SMP or SONKO. And taking into account purchases from a single supplier, which will begin to be taken into account in the aggregate annual volume, it will become easier to reach the established rate of 15%.

Recall that in 2018, the total volume of purchases from SMP and SONKO did not include contracts concluded with a single supplier.

Changing the procedure for calculating payments under government contracts with an advance

From January 1, 2019, customers are required to include in the terms of contracts providing for an advance, the procedure for calculating subsequent payments. This is due to the entry into force from January 1, 2019 of the Resolution of the Government of the Russian Federation of November 28, 2018 No. 1430 "On Amendments to the Regulation on Measures to Ensure the Execution of the Federal Budget".

There are two payment methods:

1. If the contract does not contain stages of work execution, or the stages are performed sequentially, then the amount of subsequent payments is calculated as the difference between the value of actually delivered goods, work performed, services rendered and the total amount of the previously paid advance payment.

2. If the contract contains stages of its execution, the deadlines for which coincide, then the amount of subsequent payments is calculated as the difference between the cost of actually delivered goods, work performed, services rendered and the amount calculated as the product of the amount of the advance payment stipulated by the contract in percentage terms and the cost of actually delivered goods, work performed, services rendered.

The specified settlement procedure applies only to federal customers. In 2018, this procedure was provided for government contracts with treasury support for advance payments.

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Clarification of anti-dumping measures

From January 1, 2019, if at the initial (maximum) contract price of up to 15 million rubles, the price falls during the bidding process by more than 25%, the amount of contract enforcement increases by 1.5 times, or information is provided on the good faith of the contractor with simultaneous providing security for the execution of the contract in the amount specified in the procurement documentation.

Cancellation of securing applications for state unitary enterprises and municipal unitary enterprises

From January 1, 2019, state and municipal institutions are exempt from the need to provide security for an application for participation in procurement procedures.

Cancellation of external expertise

From January 1, 2019, external expertise is not required if the contract is concluded as a result of failed electronic procedures.

We told you about the most important changes in the procedure for conducting state and municipal procurement, which come into force on January 1, 2019.But the list of upcoming innovations in 2019 is not limited to this. It's just that some changes will take effect a little later:

Mandatory use of the Unified Trade Aggregator "Birch"

From March 1, 2019 it will become mandatory to use the Unified Trade Aggregator (EAT) "Beryozka" for government customers to conduct purchases for small amounts.
You can read more about EAT "Birch" in the article on our website.

Expansion of methods of securing applications

From July 1, 2019 the procurement participant will have the right to independently choose the method of securing bids for participation in electronic procurement. In addition to depositing funds into a special account, it will be possible to use bank guarantees as collateral for applications. This will facilitate access to procurement for many companies.

Reduction of the amount of security for the performance of the contract by the amount of fulfilled obligations

From July 1, 2019 the amount of the security for the execution of the contract is reduced in proportion to the value of the fulfilled obligations, the acceptance and payment of which by the customer was carried out in the manner and terms stipulated by the contract.

At the same time, the reduction in the amount of security for the execution of the contract, provided in the form of a bank guarantee, is carried out by the customer by waiving part of his rights under this guarantee. The date of such refusal is the date of inclusion of information on the partial fulfillment of obligations under the contract in the relevant register of contracts. If a new (reduced) security for the performance of the contract is provided, the customer does not return the guarantee to the bank, and no collection under such a guarantee is made.

Replacement of a bank guarantee in case of revocation of the bank's license

From July 1, 2019 in case of revocation of the license from the guarantor bank, the procurement executor is obliged to provide new security for the execution of the contract no later than 1 month from the date of receipt of the notification from the customer. This provision is necessarily included in the contract. In this case, the amount of security can be reduced by the amount of fulfilled obligations under the contract.

Creation of GIS "Independent Registrar"

From October 1, 2019 the state information system (GIS) "Independent Registrar" should start working. The system is designed to monitor the performance of the EIS and electronic platforms, record the actions or inaction of procurement participants in the EIS and on the electronic signature, as well as store the specified information. It is assumed that the use of the GIS "Independent Registrar" will increase the transparency of procurement and reduce the number of violations during procurement procedures.

If you want to know what other changes in 44-FZ await you in the near future - read the new article on our website "The most important directions of reforming the public procurement system for the period up to 2024". Believe it or not, the main innovations are yet to come!

O recent changes in 44-FZ, adopted in April 2019, you can find out in a new article on our website. Major changes will come into effect on July 1, 2019. But some have already begun to operate on May 1 and 12, 2019. Do not miss important changes in legislation, be always up to date!

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