Actual changes to the contract system for procurement participants. Actual changes to the contract system for procurement participants Securing the application, contract and warranty obligations

Guide to the contract system:

A guide to procurement disputes:

1. The customer, when describing the procurement object in the procurement documentation, must be guided by the following rules:

1) in the description of the procurement object, the functional, technical and quality characteristics, operational characteristics of the procurement object (if necessary) are indicated. The description of the object of the procurement shall not include requirements or indications in relation to trademarks, service marks, trade names, patents, utility models, industrial designs, the name of the country of origin of the goods, requirements for goods, information, works, services, provided that such requirements or instructions entail a limitation of the number of participants in the procurement. It is allowed to use an indication of a trademark in the description of the object of the procurement, provided that such indication is accompanied by the words "or equivalent" or provided that the goods on which other trademarks are placed are incompatible, and it is necessary to ensure the interaction of such goods with the goods used by the customer, or subject to the purchase of spare parts and Supplies to the machines and equipment used by the customer, in accordance with the technical documentation for the specified machines and equipment;

2) the use of indicators, requirements, symbols and terminology regarding technical characteristics, functional characteristics (consumer properties) of goods, work, services and quality characteristics of the procurement object, which are provided for technical regulations adopted in accordance with the legislation Russian Federation on technical regulation, documents developed and applied in the national standardization system, adopted in accordance with the legislation of the Russian Federation on standardization, other requirements related to determining the conformity of the supplied goods, the work performed, the services provided to the needs of the customer. If the customer does not use the indicators, requirements, conventions and terminology established in accordance with the legislation of the Russian Federation on technical regulation, the legislation of the Russian Federation on standardization, in the preparation of the description of the procurement object, the procurement documentation must contain a justification for the need to use other indicators, requirements, conventions and terminology;

(see text in previous edition)

3) a description of the procurement object may include specifications, plans, drawings, sketches, photographs, results of work, testing, requirements, including with respect to testing, test methods, packaging in accordance with the requirements of the Civil Code of the Russian Federation, marking, labels , confirmation of conformity, processes and production methods in accordance with the requirements of technical regulations, documents developed and applied in the national standardization system, technical specifications, as well as in relation to symbols and terminology;

(see text in previous edition)

4) the procurement documentation must contain an image of the supplied goods, allowing it to be identified and prepare an application, a final offer, if such documentation contains a requirement for the conformity of the supplied goods to the image of the goods for the supply of which the contract is concluded;

5) the procurement documentation must contain information about the place, start and end dates, the procedure and schedule for inspection by the procurement participants of the sample or model of the goods for the supply of which the contract is concluded, if such documentation contains a requirement for the conformity of the supplied goods with the sample or model of the goods, for the supply which the contract is concluded;

6) the procurement documentation must contain an indication of the international nonproprietary names of medicinal products or, in the absence of such names, chemical, grouping names, if the procurement object is medicinal products. When purchasing medicines included in the list of medicines, the purchase of which is carried out in accordance with their trade names, as well as when purchasing medicines in accordance with Clause 7 of Part 2 of Article 83, Clause 3 of Part 2 of Article 83.1 of this Federal Law, shall have the right indicate the trade names of these medicinal products. The specified list and the procedure for its formation are approved by the Government of the Russian Federation. If the procurement object is medicines, the subject of one contract (one lot) cannot be medicines with different international non-proprietary names or, in the absence of such names with chemical, grouping names, provided that the initial (maximum) contract price (lot price) ) exceeds the limit value established by the Government of the Russian Federation, as well as medicines with international non-proprietary names (in the absence of such names with chemical, grouping names) and trade names. The provisions of this clause do not apply when determining the supplier of medicinal products with whom a state contract is concluded in accordance with Article 111.4 of this Federal Law;

(see text in previous edition)

7) the delivered goods must be new goods (goods that have not been used, in repair, including those that have not been restored, which have not been replaced component parts consumer properties have not been restored) unless otherwise provided by the description of the procurement object;

8) procurement documentation for the procurement of construction, reconstruction, overhaul, demolition of a capital construction facility must contain design documentation approved in the manner prescribed by the legislation on urban planning activities, unless the preparation of design documentation in accordance with the specified legislation is not required, as well as cases of procurement in accordance with Parts 16 and 16.1 of Article 34 of this Federal Law, in which the subject of the contract is, among other things, the design of a capital construction facility. The inclusion of project documentation in the procurement documentation in accordance with this clause is a proper fulfillment of the requirements of clauses 1 - of this part.

2. The procurement documentation, in accordance with the requirements specified in part 1 of this article, must contain indicators that make it possible to determine the compliance of the purchased goods, work, services with the requirements established by the customer. In this case, the maximum and (or) minimum values ​​of such indicators are indicated, as well as the values ​​of indicators that cannot be changed.

(see text in previous edition)

3. It is not allowed to include in the procurement documentation (including in the form of requirements for quality, technical characteristics of goods, work or services, requirements for functional characteristics (consumer properties) of goods) requirements for the manufacturer of the goods, for the procurement participant (including requirements qualifications of the procurement participant, including work experience), as well as requirements for the business reputation of the procurement participant, requirements for his production capacity, technological equipment, labor, financial and other resources necessary for the production of the goods, the delivery of which is the subject of the contract, for the performance of work or the provision of services that are the subject of the contract, unless the possibility of establishing such requirements for the procurement participant is provided for by this Federal Law.

4. Requirements for the quality assurance of goods, work, services, as well as requirements for the warranty period and (or) the scope of the provision of guarantees of their quality, for warranty service of the goods (hereinafter - warranty obligations), for the costs of operating the goods, for the obligation to carry out installation and adjustments of the goods, for the training of persons carrying out the use and maintenance of the goods, are established by the customer, if necessary. If the supplier of machinery and equipment is determined, the customer sets in the procurement documentation requirements for the warranty period of the goods and (or) the scope of the provision of guarantees of its quality, for warranty service of the goods, for the costs of servicing the goods during the warranty period, as well as for installation and commissioning. goods, if provided for by the technical documentation for the goods. In the event that a supplier of new machinery and equipment is determined, the customer establishes in the procurement documentation the requirements for the provision of a manufacturer's and (or) supplier's warranty for this product and for the duration of such a warranty. This warranty is provided with this product.

(see text in previous edition)

5. Features of the description of certain types of procurement items may be established by the Government of the Russian Federation.

6. The specifics of the description of objects of procurement under the state defense order may be established by the Federal Law of December 29, 2012 N 275-FZ "On the state defense order".

• Encyclopedia of Judicial Practice. Rules for describing the object of the procurement (Art. 33 of the Law "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs")
• 1. General requirements for the description of the object in the procurement documentation
• 1.1. The customer has the right, with the necessary detail, to include in the procurement documentation such characteristics and requirements for the goods that meet his needs, and is not obliged to justify such needs.
• 1.2. Customer requirements must be unambiguous and the same in all parts of the procurement documentation
• 1.3. When describing the procurement object, the possibility of limiting the number of procurement participants should be excluded
• 1.4. The description of the object of the procurement should be performed in such a way as not only not to limit the number of participants in the procurement, but also to increase the chances of acquiring exactly the kind of goods that is needed.
• 1.5. The description of the object of the procurement must be unambiguous
• 2. Formation of the subject of the contract
• 2.1. Inclusion in one lot of technologically and functionally related goods (works, services) is lawful
• 2.2. The dissimilarity, heterogeneity and non-relationship according to the OKVED codes of the types of work included in the subject of the contract does not in itself mean the absence of a functional connection between them.
• 2.3. The possibility of supplying goods (performing work, rendering services) by different persons does not indicate an illegal combination of contract objects into one lot and restriction of competition
• 2.4. If only the products of a certain manufacturer meet the requirements specified by the customer, this does not constitute a restriction on competition if it is possible to purchase such products from a counterparty.
• 2.5. The lack of an opportunity for persons interested in concluding a contract to deliver goods that meet the needs of the customer does not indicate a limitation by the customer of the number of bidders
• 2.6. Consolidation into one lot of functionally related and united by the final goal of construction work and the supply of equipment is lawful
• 2.7. Consolidation of construction works and supply of equipment in one lot during turnkey construction may be recognized as illegal if certain stages of turnkey construction are not provided for by the purchase.
• 2.8. Consolidation of the supply of computer equipment and the software necessary for its operation into one lot is lawful
• 2.9. If the initial (maximum) contract price exceeds the limit value established by the Government of the Russian Federation, it is illegal to combine a unique and only drug with a drug produced by several manufacturers into one lot.
• 3. Description of the procurement object
• 3.1. The presence of GOST does not exclude the right of the customer independently and, taking into account his needs, to determine specific characteristics for the goods offered for delivery within the parameters established by GOST.
• 3.2. The establishment by the customer of additional values ​​of indicators in comparison with GOST needs to justify the need to use such an indicator
• 3.3. The wording of the requirements for the procurement object, given by reference to GOST, is illegal
• 3.4. The units of measurement specified by the customer in the procurement documentation must correspond to those specified in the corresponding GOST
• 3.5. If the customer does not indicate units of measurement in the procurement documentation, the procurement participant must be guided by the units of measurement specified in the corresponding GOST
• 3.6. The customer has the right to establish in the procurement documentation units of measurement other than those specified in GOST for voluntary use
• 3.7. When concluding a contract for the provision of OSAGO services, the customer is obliged to independently indicate in the procurement documentation information about the Bonus-Malus coefficient
• 3.8. The absence of properly formulated requirements for the procurement object in the procurement documentation may cause an unreasonable reduction in the number of procurement participants
• 3.9. The indication by the customer in the purchase description of the trade name excludes the need to describe the parameters, functional, technical and quality characteristics of such a product, if the specified parameters and characteristics are inherent only to him
• 3.10. The absence of an indication "or equivalent" in the purchase description can be considered justified in the case when the customer needs to ensure interaction of the purchased goods with those already purchased
• 3.11. The customer's indication of the trade name means that the participant must proceed from the conformity of the equivalent not only to the characteristics set forth in the procurement documentation, but also to the characteristics of the goods, the name of which is indicated in the notice.
• 3.12. An obvious technical error in the procurement documentation regarding the indication of the subject of the procurement does not indicate the uncertainty of the object of the procurement
• 3.13. When purchasing medicines, it is allowed to establish a requirement for the residual shelf life in percent, if this does not lead to restriction of competition and is due to the needs of the customer
• 3.14. When purchasing equipment, an indication of the possibility of its delivery with components, the description of the parameters of which is accompanied by the words "no more", "no less", etc., may be recognized as illegal if the manufacturers of such equipment set unchanged parameters for these components
• 3.15. If, during the procurement of construction work, the design and estimate documentation was developed on the basis of a standard design, the presence in the procurement description of the corresponding indication is not necessary

Encyclopedia of Judicial Practice
Procurement Object Description Rules
(Art. 33 of the Law "On the contract system in the procurement of goods, works, services to meet state and municipal needs")

1. General requirements for the description of the object in the procurement documentation

Note

FAS Russia opinion:

When describing the object of the procurement, the customer must accurately describe the scope of work to be performed (clause 5 of the Review of Administrative Practice, prepared by the Office for Controlling the Placement of the State Order of the FAS Russia, May 2016).

1.1. The customer has the right, with the necessary detail, to include in the procurement documentation such characteristics and requirements for the goods that meet his needs, and is not obliged to justify such needs.

Attention

FAS Russia indicates that when approving the procurement documentation, the customer is not entitled to establish requirements for the technical characteristics of the goods suitable for only one product (clause 1 of the Review of Administrative Practice prepared by the FAS Russia State Order Placement Control Department, July 2015)

Depending on his needs, the customer in the auction documentation must establish requirements, in particular, to the quality, technical characteristics (consumer properties), dimensions, packaging of goods, taking into account the specifics of his activities and in order to ensure the effective use of budget funds, subject to the established legislation of the Russian Federation. Federation of provisions aimed at ensuring a competitive environment during bidding.

Accordingly, the customer has the right to include in the auction documentation such characteristics and requirements for the goods that meet his needs and are necessary to perform the relevant functions. In this case, the customer has the right to detail the subject of procurement to the required extent.

In addition, the law does not provide for restrictions on the inclusion in the auction documentation of requirements for goods that are significant for the customer; the obligation of the customer to substantiate his needs when establishing requirements for the supplied goods is also not provided. Moreover, the indication in the documentation of the specific characteristics of the supplied goods is provided for by the procurement legislation. The discretion of the customer is limited only by the requirement of inadmissibility of restricting competition.

The courts correctly indicated that from the systemic interpretation of the above norms it follows that today the legislation in the field of procurement allows the customer to independently form his order, based on the needs of the latter. In particular, when describing the goods, the customer has the right to indicate the quality parameters for the procurement object, which are decisive for him, but at the same time do not limit the number of potential procurement participants; he is not deprived of the opportunity to more accurately and clearly indicate the requirements for the purchased goods.

Based on the analysis of these norms [part 1-3 of Federal Law No. 44-FZ], the courts reasonably indicated that the customer has the right to include in the documentation on holding an electronic auction such characteristics of the goods that meet his needs. In this case, the customer has the right to detail the subject of the electronic auction to the required extent. Federal Law No. 44-FZ does not provide for restrictions on the inclusion in the documentation of an electronic auction of requirements for goods that are significant for the customer; the obligation of the customer to substantiate their needs when establishing requirements for goods is also not provided.

The institution in the auction documentation established the requirements for the medicinal product, taking into account its needs and based on the specifics of the type of activity being carried out. The task of procurement legislation is, first of all, to identify, as a result of tenders, a person whose performance of the contract will most closely meet the objectives of the effective use of funding sources and the customer's needs for the goods necessary for the implementation of his activities. The law does not provide for restrictions on the inclusion in the documentation of an electronic auction of requirements for goods that are significant for the customer and meet his needs. The provisions of the Law also do not oblige the customer, when determining the characteristics of the supplied goods in the documentation, to establish such characteristics that would correspond to all existing types, types, models of goods. The institution, having established the requirements for the goods necessary for it, acted in accordance with Law No. 44-FZ.

The current legislation in the field of procurement allows the customer to independently form his order, based on the needs of the latter. In particular, when describing the goods, the customer has the right to indicate the quality parameters for the procurement object, which are decisive for him, but at the same time do not limit the number of potential procurement participants; he is not deprived of the opportunity to more accurately and clearly indicate the requirements for the purchased goods, including in this situation and for its composition.

The customer, forming these requirements for the characteristics of the goods (cava filters), determined his needs, taking into account the specifics of his activities and the need to purchase cava filters of a special design, non-removable, made of the material he required and having a set of technical characteristics required by the customer.

The Investigation Department [customer] does not dispute the presence of errors in the tender documentation, but indicates that the exact description of the technical characteristics of the goods was given in the design and estimate documentation drawn up by the LLC, which was posted on the official website on the Internet as part of the tender documentation. According to the applicant, the procurement participants were required only in the first parts of the bids to agree to the performance of work and the supply of goods. Consequently, according to the Investigative Directorate of the Investigative Committee of the Russian Federation for the Novgorod Region, the mistakes made do not indicate a violation by the customer of the provisions of Article 33 of Law No. 44-FZ.

This argument was previously cited by the Investigation Department during the proceedings in the courts of first and appeal instances, which reasonably rejected it.

The information on the goods provided in the first part of the application must contain specific, non-ambiguous, indicators that must correspond to the values ​​established by the auction documentation (paragraph "b" of Part 3 of Article 66 of Law No. 44-FZ). Double indication of one procurement object with different indicators, incorrect indication of units of measurement of indicators and non-existent characteristics of the materials used leads to the impossibility of correct filling of the first parts of the bids by the auction participants, and, as a result, to the rejection of bids for participation in the auction (part 4 of Article 67 of Law No. 44 -FZ).

The auction commission came to the conclusion that the procurement participant - LLC, in the information about building materials and products that will be used in the performance of work, does not indicate all the names and indicators of building materials, products provided for by the Technical Part, namely, the 133CH4 pipe is not indicated. 0.

Checking the validity of the grounds for refusing to admit the company to participate in the electronic auction, after analyzing the information contained in the auction documentation, which includes section No. 3 Technical part, consisting of the Terms of Reference and sections of the project documentation, the courts did not establish the presence in the documentation of an indication of a product - a pipe 133X4.0. Therefore, we came to a well-grounded conclusion that the commission had no grounds for recognizing the company's application as not meeting the requirements of the documentation.

The administration's reference to the fact that the scope of work presupposes the presence of pipe 133Ч4.0, which the procurement participant should have indicated in the first part of the application for participation in the auction, in the absence of an indication of such a product in the auction documentation, was rightfully rejected by the courts as not corresponding to the circumstances of the case and contradicting part 2 of article 33 of the Law on the contract system.

The presence of information T1, T2-133CH4.0 in the "Plan TK-10 (new)" scheme, rightfully not recognized by the courts as a circumstance that allows them to draw a conclusion about the exact and understandable formulation by the customer in the auction documentation of the requirement that participants in the order placement of this product as a separate product and its characteristics.

For the item "Heavy concrete, class B 7.5 (M 100)", the customer established the requirement: "The compressive strength class of concrete must not be lower than B 7.5".

This formulation assumes the possibility of the procurement participant offering the value of the indicator B 7.5 and above.

At the same time, in the same position in the column "name of the goods" the customer has set the goods with a fixed indicator - "Heavy concrete, class B 7.5 (M100)".

Thus, in the documentation, the customer established conflicting information about the characteristics of this and the same supplied goods, which entails a violation of the rights of potential auction participants and creates conditions for abuse by members of the auction commission when choosing the winner of the auction.

The courts reasonably did not accept the arguments of the society that the indication of the minimum and maximum values ​​of the indicators of the goods complies with the requirement of Law No. 44-FZ. The customer has the right to indicate in the auction documentation either fixed characteristics of the goods required for delivery, or its minimum, maximum indicators. At the same time, the customer's requirements must be clear and unambiguous, and these indicators in all parts of the auction documentation must be the same.

In clauses 15, 24, 159 and 163 of the Bill of Quantities of Work and Materials, an expanded description of the purchased object is given in comparison with the parameters of GOST 31108-2003 and 6787-2001, which contradicts clause 5 of Section 3 of the Documentation, which provides for the use of only building materials (cement and ceramic tile) corresponding to GOST 31108-2003 and GOST 6787-2001.

Refusing to satisfy the applicant's claim to declare the said decision illegal, the courts of first and appellate instances proceeded from the fact that paragraph 1 of part 1 of Article 33 of Law No. 44-FZ provides that the description of the object of the procurement must be objective.

Having stipulated in the auction documentation the requirements for cement used in the work, as well as for ceramic tiles used for flooring with references to specific GOSTs, which establish unambiguous and strict quality criteria for the required goods, the customer informed the procurement participants about the requirements for goods necessary for performance of work. At the same time, the organizer of the tender in any case had to ensure uniform and understandable for the participants requirements for the tender documentation, the most clear criteria for selecting the winner, ensuring the comparability of the proposals submitted by the participants.

1.3. When describing the procurement object, the possibility of limiting the number of procurement participants should be excluded

When conducting a procurement, the customer is endowed with the right to independently determine the object of the procurement based on his needs, but without specifying the requirements for the goods (works, services), potentially limiting the number of participants in the procurement.

When placing a purchase, the customer is endowed with the right to independently determine the subject of the auction and the terms of delivery of goods, performance of work, provision of services, taking into account the observance of prohibitions on requirements for goods, information, work and services, potentially limiting the number of participants in the placement of the purchase.

1.4. The description of the object of the procurement should be performed in such a way as not only not to limit the number of participants in the procurement, but also to increase the chances of acquiring exactly the kind of goods that is needed.

By virtue of the direct indication of the law, the customer in the description of the procurement object indicates the functional, technical and quality characteristics, operational characteristics of the procurement object (if necessary) that meet his needs and are necessary to fulfill the relevant state or municipal functions... Within the meaning of Article 33 of Federal Law N 44-FZ, customers purchasing according to the rules of this law, when describing the procurement object, should thus determine the requirements for purchased goods, works, services in order, on the one hand, to increase the chances of purchasing goods with just such the characteristics that he needs, and on the other hand, do not limit the number of participants in the procurement. The basic rule for describing the object of the procurement is that the description of the object of the procurement must be objective.

The courts reasonably considered that, by virtue of Article 33 of Federal Law N 44-FZ, customers purchasing according to the rules of this law, when describing the procurement object, should thus determine the requirements for the purchased goods, works, services in order, on the one hand, to increase the chances of purchase of goods with exactly the characteristics that he needs, and on the other hand, do not limit the number of participants in the purchase.

The grounds for refusing to admit the entrepreneur's application to participate in the open auction was its inconsistency with the auction documentation, since the information contained in the application allowed an ambiguous interpretation regarding the material from which the work should be performed (Izospan D and hydroglass-insol; galvanized corrugated board and metal tiles are homogeneous materials) ...

Recognizing the contested acts of the antimonopoly body in accordance with the current legislation, the courts, having analyzed the documentation for the auction, proceeded from the fact that the documentation provided for the possibility of replacing the material, and when carrying out the work, you can use not only corrugated board, but also metal tiles, isospan D, hydroglass insol, as indicated by the entrepreneur in the application.

In such circumstances, the courts concluded that the auction commission, when deciding to reject the application filed by the entrepreneur, violated the requirements of parts 1, 3 of Article 67 of the Law on the Contract System, and therefore recognized the decision of the antimonopoly authority dated 12.01.2015 in case No. 690/14 in the contested part.

The ambiguity and ambiguity in the content of the instructions for filling out the application, which allows both the procurement participant and the members of the auction commission to have a double understanding of the characteristics of the materials offered for the work and information about the procurement object in general, leads to restriction of access to participation in the auction, which does not can be recognized as an objective description of the procurement object, in connection with which, when describing the specified indicators of goods, the customer violated the provisions of paragraphs 1 and 2 of part 1 of article 33 of Law No. 44-FZ.

2. Formation of the subject of the contract

2.1. Inclusion in one lot of technologically and functionally related goods (works, services) is lawful

Guided by the provisions of Articles 15 of Article 8, paragraph 1 of part 1 of Article 33, paragraph 1 of part 1 of Article 50 of the Law

The Court of Appeal made a reasonable conclusion that the engineering survey work can be combined with the design work by virtue of Section 5.2. Article 48 of the Urban Planning Code of the Russian Federation, and with work on the development of a project for the planning of the territory due to their technological and functional relationship, which corresponds to part 3 of article 17 of the Federal Law of 26.07.2006 N 135-FZ "On the protection of competition" and paragraph 3 of article 421 of the Civil of the Code of the Russian Federation, which provides for the possibility of concluding a mixed agreement (an agreement containing elements of various agreements provided for by law or other legal acts). The rules on contracts, the elements of which are contained in the mixed contract, apply to the relations of the parties to a mixed contract in the relevant parts, unless otherwise follows from the agreement of the parties or the essence of the mixed contract.

Since the ministry has placed the purchase in the form of work on the development of a project for the planning of the territory and work on the development of project documentation for a linear facility (construction of a highway), such an association complies with the current legislation and does not violate the customer's obligations established by paragraph 1 of part 6 of article 48 of the Town Planning Code of the Russian Federation, taking into account the mixed the nature of the contract concluded as a result of the procurement.

Taking into account the functional and technological relationship of these types of work, their combination is aimed at efficient spending of budgetary funds, since the division of these works into two purchases increases the period design work(first, the procurement of works on the development of the planning project is carried out and after the execution of the contract within the framework of this procurement, it is necessary to plan and carry out the procurement of works on the design of the road construction) and leads to a situation when, at the stage of development of the design documentation for the construction of the road, deficiencies in the territory planning project or results are revealed engineering surveys that must be eliminated by the contractor who performed these works (who may object to the very fact of performing work with shortcomings and their nature, as well as evade their elimination, which significantly delays the process of eliminating shortcomings, affects the quality of work).

In such circumstances, the conclusion of the court of appeal that the conditions of the tender documentation do not violate the requirements of the law and are aimed at efficient spending of budgetary funds is correct.

According to clause 3.1 of the auction documentation, the name of the procurement object: provision of cleaning services for the territory of Veliky Novgorod. The description of the procurement object is given in the terms of reference (Appendix No. 1 to the draft contract), according to which the scope of cleaning services for the territory of Veliky Novgorod includes: summer cleaning of the territory, winter cleaning of the territory, maintenance of waste bins and benches installed in the city-wide territories of Veliky Novgorod , maintenance of the site for temporary storage of estimates and snow.

As follows from the materials of the case, the antimonopoly body indicated in the appealed act that the actions of the Institution to include in the subject of the electronic auction the entire complex of works on cleaning the territory of Veliky Novgorod and the establishment of the maximum amount of security for the application led to an unreasonable limitation of the number of participants in the procurement.

After examining and evaluating the evidence presented by the persons participating in the case according to the rules of Articles 65 and the Arbitration Procedure Code of the Russian Federation, the courts of two instances established that the cleaning services of Veliky Novgorod declared in the subject of the auction have a functional and technological relationship with each other, allow efficient and rational use of budgetary funds. that is significant for the customer.

Under such circumstances, the disputed non-normative act of the Office was rightfully recognized as illegal by the courts as inconsistent with the requirements of Federal Law No. 44-FZ of 05.04.2013 "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs."

The courts made the correct conclusion that the equipment purchased by the department is technologically and functionally interconnected, aimed at equipping a histological laboratory and is used in the process of a single cycle of histological examination.

The argument of the antimonopoly authority about the non-compliance of the subject of the procurement with the conditions established by the customer was subject to consideration by the courts and was rightfully rejected, since the technical features of the set of equipment for equipping a histological laboratory suggest that the process of supplying equipment includes the implementation of works on its installation, adjustment, commissioning and training of specialists, without which it is impossible to maintain the quality of the delivered product and its performance.

2.2. The dissimilarity, heterogeneity and non-relationship according to the OKVED codes of the types of work included in the subject of the contract does not in itself mean the absence of a functional connection between them.

In the opinion of the prosecutor who initiated the administrative offense case (and the judge of the district court, who made the contested decision, agreed with him), the work on the development of multimedia content and the Center's website with work on the manufacture, delivery, installation, transfer and installation of stands and exhibits of the Center are technologically and functionally unrelated, therefore, they are illegally included in one lot.

The antimonopoly body made a decision, which recognized the justified argument of the complaint regarding the illegal inclusion in the tender documentation of equipment for a catering facility, a laundry, with the exception of the equipment specified in clauses 66, 67, 69, 70, 71 of the local estimate, actions of the customer and authorized body found to violate the requirements of part 2 of article 8, paragraph 1 of part 1 of article 33 and paragraph 1 of part 1 of article 50 of the Federal Law dated 05.04.2013 44-FZ "On the contract system in the field of procurement of goods, works and services to meet state and municipal needs", an order was issued, according to which the applicant and the authorized body were ordered to cancel the tender with limited participation in the period up to _.

Believing the contested decision and order of the antimonopoly body to be illegal, the Construction Department applied to the arbitration court with this statement.

The lower courts, taking into account the circumstances and legal relations of the parties established in the case, as well as the laws applicable in this case, came to the conclusion that the stated requirements were satisfied. At the same time, the courts proceeded from the fact that the controversial equipment, namely: a refrigerator temperature cabinet, an electric boiler, a planetary mixer, a vegetable cutter, a juicer, a medium-temperature monoblock, a joiner's workbench, a potato peeler, a desktop electric grinder, a meat grinder, etc., can be purchased by any Building company regardless of its specialization at prices prevailing in the market, and namely entity carrying out construction work can purchase equipment that is technologically more efficient and suitable for installation at the facility under construction.

In this case, the subject of tenders is the performance of work on the construction of facilities (schools and preschool), as well as the supply of equipment and furniture for equipping a catering unit, laundry, installation of a shade canopy, benches, trash cans, carpet dryers, swings, sandboxes, slides, garbage containers.

Since the construction of these facilities and the supply (installation) of equipment can be carried out by different persons, the antimonopoly authority considered that their combination into one lot entails a limitation of the number of bidders.

Meanwhile, potentially any goods (works, services), united in one lot, can be supplied (performed, rendered) by different persons. Due to the absence of a legal prohibition on combining goods (works, services) into one lot, the possibility of supplying goods by different persons in itself cannot be evidence of restriction of competition.

The administration in the auction documentation and the draft municipal contract indicated the possibility of attracting subcontractors to perform work that the contractor organization cannot perform on its own.

In such circumstances, the arbitration court of first instance came to the correct conclusion that in this case the consolidation in one lot of the execution of construction installation works and the supply of equipment and furniture does not violate clause 1 of part 1 of article 33, clause 1 of part 1 of article 64 of Federal Law N 44-FZ and does not entail a restriction on the number of participants in the procurement.

The courts reasonably concluded that the requirements for the supplied goods contained in Part 4 "Terms of Reference" of the electronic auction documentation are necessary and significant to ensure the activities of the Ministry of Informatization and Communications of the Republic of Tatarstan. The documentation on electronic auctions fully complies with the requirements of the legislation of the Russian Federation in the field of procurement, and the actions of the customer do not contradict the provisions of Article 33

The argument of the antimonopoly body about the illegality of combining into one lot of goods that are the subject of the specified electronic auctions, in view of the possibility of delivery software and computer equipment by different persons was lawfully rejected by the courts, since due to the absence of a legal prohibition on combining goods (works, services) into one lot, the possibility of supplying goods by different persons in itself cannot be evidence of the illegality of the documentation on electronic auctions.

The subject of the considered electronic auctions was the right to conclude a state contract for the supply and installation of equipment, and not to manufacture the subject of the procurement, therefore, any legal participant can be a participant in the procurement. individual, an individual entrepreneur, including a person who is not a manufacturer of the goods required for delivery, who is ready to deliver goods that meet the requirements of the electronic auction documentation and meet the needs of the customer.

The fact that any persons interested in concluding a contract do not have the opportunity to deliver goods that meet the needs of the customer does not indicate a violation by the customer of the rights of these persons, as well as a limitation by the customer of the number of participants in the procurement.

The legislation governing the legal relations under consideration does not prohibit the customer from including in the tender documentation a condition on the possibility of attracting subcontractors to perform the work, which was the case in this case. But it is impossible to unequivocally assess the implementation of this law by the customer, as well as the subsequent actual involvement of subcontractors by the only participant in the tender (as indicated by the prosecutor), as confirmation of the absence of technological and functional connection between the objects of purchase of goods, works, services included in one lot.

2.4. If only the products of a certain manufacturer meet the requirements specified by the customer, this does not constitute a restriction on competition if it is possible to purchase such products from a counterparty.

As follows from the materials of the case, the claimant's claim was conditioned by the decision of the Department's commission to reject the Company's application due to the non-compliance of the goods offered by the applicant with the customer's requirements for the composition of powdered milk mixtures for therapeutic and prophylactic nutrition of children. The LLC believes that only the "Malyutka" porridge of the Dutch company "Nutricia" is suitable for the parameters presented by the defendant.

There is no evidence in the materials of the case indicating the restriction of competition, since the goods with the parameters proposed by the customer can be supplied by an indefinite number of suppliers, which is also confirmed by the commercial proposals of other persons in the case.

Consequently, in this case, the rights of the Society are not violated.

As follows from the materials of the case, the claimant's claim was conditioned by the decision of the Department's commission to reject the Company's application due to the non-compliance of the goods offered by the applicant with the customer's requirements for the composition of powdered milk mixtures for therapeutic and prophylactic nutrition of children. The LLC believes that only the Nutrilon GA2 mixture of the Dutch company Nutricia is suitable for the parameters presented by the defendant.

LLC is not a manufacturer of the goods requested by the defendant, but acts as a supplier-seller who purchases goods for the buyer, and is not limited in the choice of counterparties from whom he can purchase goods, including according to the characteristics proposed by the defendant.

The courts established, and this does not contradict the materials of the case, that the inclusion of certain parameters in the auction documentation baby food did not create an advantage for some participants in the placement of an order over others and did not lead to a limitation of the number of participants in the placement of an order.

Article 71 of the Arbitration Procedure Code of the Russian Federation, the courts established that in this case, within the framework of the formation of the order, the Institution was guided by the existing need; the antimonopoly authority did not prove that the requirements for the procurement object formulated by the customer led to a limitation of the number of participants in the auction, and did not refute the statement of the Institution that the gloves it needs were produced not only by RusMed-Upak LLC, but also by Nitriteks (m) Sdn . Bhd. ", Malaysia.

When justifying the initial maximum contract price based on market analysis (by the method of comparable market prices), the Institution sent inquiries to the organizations supplying medical gloves. From LLC "Neya", LLC "Veles", LLC "ATEX GROUP" received commercial offers for the supply of gloves mentioned in the request, including paragraph 19 of Part III "Technical part" of the auction documentation. Thus, examination gloves, sterile neoprene powder-free, can be supplied on the territory of the Russian Federation by various business entities, and not only by manufacturers or their official dealers, who did not participate in the controversial auction at all.

Thus, the courts came to a reasonable conclusion that the description of the procurement object used by the Institution complies with paragraph 1 of part 1 of article 33, paragraph 1 of part 1 of article 64 of Federal Law No. 44-FZ.

In the opinion of the antimonopoly authority, the courts unlawfully failed to take into account that the inclusion in the auction documentation of such an indicator as "storage without limiting the light mode" leads to a limitation of the number of auction participants, since only one medicinal product with the trade name - Tienam by the indicator storage at a temperature not exceeding 25 ° C from 7 registered manufacturers of a medicinal product with an international non-proprietary name Imipenem + Cilastatin. At the same time, there is no need to establish such an indicator, since an institution, having a license to carry out medical activities, is obliged to store medicinal products in accordance with the storage conditions established by the Rules for the storage of medicinal products, approved by order of the Ministry of Health and social development Of the Russian Federation of 23.08.2010 N 706n "On approval of the rules for storing medicines".

The applicant's argument in cassation that the courts, pointing out the establishment by the customer of the requirements for the quality of the goods that he needed, did not take into account another necessary aspect - not to limit the number of participants in the procurement with such requirements, does not correspond to the factual circumstances of the case and the conclusions of the courts, which rightly indicated that the presence of a single manufacturer of a medicinal product does not lead to a limitation of the number of procurement participants, since the subject of the electronic auction was the supply of a medicinal product registered and approved for use in the Russian Federation, and not its manufacture. At the same time, the courts took into account the presence in the case materials of two applications numbered 4 and 5, ready to supply the required drug.

The definition in the auction documentation of the requirements for a medicinal product required by the institution, taking into account the specifics of its use in treatment, cannot be considered as restricting access to participation in the auction. As can be seen from the case materials, five participants applied for participation in the auction. The courts also established that the drug, the supply of which was the subject of the auction, is freely circulating on the pharmaceutical market, the supply of the drug can be carried out by persons holding a valid license to carry out pharmaceutical activities or manufacture of drugs. In this regard, any business entity, subject to the receipt of the necessary license, has the opportunity to supply the drug required by the customer.

The applicant did not provide evidence that the circulation of the drug with the required values ​​in the relevant market is impossible or difficult, and the establishment of the requirements necessary for the customer actually limits the number of potential participants in the procurement or creates an advantage for some participants in the procurement over others.

In the opinion of LLC, the inclusion by the customer in the terms of reference of the requirements for the form of the tablet and the method of its division was aimed at purchasing a medicinal product manufactured under the trade name Glemaz, the only manufacturer of which is "Kimika Montpellier SA" Argentina.

The arguments of the Federal Antimonopoly Service of Russia in the Tula Region that any of the auction participants had the opportunity to purchase medicines from the manufacturer - "Kimika Montpellier SA" Argentina in order to supply them for the needs of the customer is also not documented, and therefore the contested decision in this part is not motivated.

It follows from the materials of the case that section 5 "Terms of Reference" of the auction documentation establishes requirements for functional, technical and quality characteristics, operational characteristics of the subject of purchase (diesel reverse gear units DRRA26K) or its equivalent.

At the same time, in section 5 of the Terms of Reference, the customer intended to purchase marine diesel reverse gear units DRRA-26K or their equivalent, therefore, the supply of goods equivalent to the declared characteristics and requirements of the customer was allowed.

From the letters from Weichai presented in the case materials, it follows that this company in the territory of the Russian Federation in 2014 supplied marine diesel reverse gear units 170 series (8170, 6170) Russian organizations... None of the companies has entered into an exclusive agreement for the supply of these marine diesel-reverse gear units, and therefore the sales of these units are made without any restrictions. At the same time, Weichai noted that the 170 series units are supplied by many companies, including largest customers are: JSC, LLC 1, LLC 2.

Evidence that the company did not have a real opportunity to create or purchase goods that meet the requirements and characteristics established for the procurement object in Terms of reference, in the materials of the case is not presented.

2.5. The lack of an opportunity for persons interested in concluding a contract to deliver goods that meet the needs of the customer does not indicate a limitation by the customer of the number of bidders

After examining and evaluating the evidence presented in the case materials according to the rules established in Article 71 of the Arbitration Procedure Code of the Russian Federation, the courts established that in this case, within the framework of the formation of the order, the Institution was guided by the existing need; in the documentation, the customer indicates several types of technical conditions, in accordance with which various manufacturers manufacture the declared materials and goods, and the proposal by the procurement participants for materials and goods produced in accordance with any of the listed technical specifications would correspond to the Terms of Reference; the antimonopoly authority did not prove that the requirements formulated by the customer for the procurement object led to the limitation of the number of participants in the auction; the fact that any persons interested in concluding a contract do not have the opportunity to deliver goods that meet the needs of the customer does not indicate a violation by the customer of the rights of these persons, as well as the customer's limitation of the number of bidders.

The auction documentation of the institution does not limit the bidders to offer an equivalent for delivery, that is, another product that has similar or improved technical and functional characteristics that meet the needs of the customer.

The fact that any persons interested in concluding a contract do not have the opportunity to deliver goods that meet the needs of the customer does not indicate a violation by the customer of the rights of these persons, as well as the customer's limitation of the number of bidders.

2.6. Consolidation into one lot of functionally related and united by the final goal construction works and the supply of equipment is lawful

As established by the courts of first and appellate instances, contested by the decision of the antimonopoly authority in the actions of the department and the department contract system in the field of procurement of the Administration of the city of Omsk as a customer and an authorized body for holding tenders for the development working documentation on the construction of a school and the performance of work on the construction of a preschool institution in the city of Omsk, violations of part 2 of article 8, paragraph 1 of part 1 of article 33, paragraph 1 of part 1 of article 50, part 2 of article 56, part 5 of article 24 of the Procurement Law were established. unjustified procurement in the form of tenders with limited participation and merging into one subject of procurement of construction work and supply of equipment, in this regard, orders were issued to eliminate the violations by canceling the results of tenders.

Disagreeing with the specified decision and prescription, the department went to court with this statement.

Canceling the decision of the court of first instance in part, the court of appeal considered that in this case the consolidation of purchases into one lot does not violate the provisions of part 2 of Article 8, paragraph 1 of part 1 of Article 33, paragraph 1 of part 1 of Article 50 of the Procurement Law and does not entail a restriction the number of procurement participants.

Article 71 of the Arbitration Procedure Code of the Russian Federation, the evidence presented by the parties, the court of appeal came to a reasonable conclusion that the supply of the controversial equipment and furniture is technologically and functionally related to the construction of a school and a kindergarten, since the final purpose of the procurement was the construction of facilities prepared for operation or the provision of services ...

paragraph 3.14 of the Methodology for determining the cost construction products on the territory of the Russian Federation, approved by the decree

As correctly indicated by the court of appeal, the combination of works on the construction of objects and the supply of equipment in this case meets the needs of the customer, allows you to focus the management functions of all stages of the creation process finished products one organizational structure, to carry out this process in a continuous manner, reducing time costs, and rationally spend budget funds.

The antimonopoly authority believes that the unification of the construction of the facility and the supply of equipment technologically and functionally unrelated to the construction and installation work in one lot leads to an unreasonable limitation of the number of procurement participants.

After examining and evaluating, in accordance with Article 71 of the Arbitration Procedure Code of the Russian Federation, the content of the project documentation and the terms of reference, the court of appeal came to a reasonable conclusion that the subject of the procurement in this case was a complex of construction, installation and commissioning works for the construction of a kindergarten, for the implementation of which the supply of equipment was required ...

The appellate court reasonably indicated that the combination of works on the construction of facilities and the supply of equipment in this case meets the needs of the customer, will ensure their high-quality implementation, effectively and efficiently use budget funds.

Having examined and evaluated the evidence presented by the parties in accordance with Article 71 of the Arbitration Procedure Code of the Russian Federation, the arbitration courts came to a reasonable conclusion that the supply of the disputed equipment is functionally related to the construction of a preschool institution, since the final purpose of the purchase was the construction of an object prepared for operation or the provision of services.

Delivery and installation of this equipment is provided for in the design documentation. The possibility of including in the estimated cost of construction the cost of the purchase of equipment and the cost of work on its installation is established by clause 3.14 of the Methodology for determining the cost of construction products on the territory of the Russian Federation, approved by the decree State Committee Of the Russian Federation for construction and housing and communal services from 05.03.2004 N 15/1.

In the case under consideration, the combination of works on the construction of facilities and the supply of equipment meets the needs of the customer, allows you to concentrate the management functions of all stages of the process of creating finished products in one organizational structure, to carry out this process in a continuous manner, reducing time costs, and rationally spend budget funds.

2.7. Consolidation of construction works and supply of equipment in one lot during turnkey construction may be recognized as illegal if certain stages of turnkey construction are not provided for by the purchase.

From the materials of the case, the courts established that the object of the disputed purchase was named as "Execution of work on the construction of the object" Kindergarten for 200 places in p / r ... "The following scope of work is declared:" turnkey construction "of a two-storey kindergarten building for 200 places with a technical floor, a basement, a technical underground, with a total area of ​​at least 5400 sq. m, with the implementation of all work stipulated by the documentation for the electronic auction, including: internal and external finishing; laying of internal engineering and technical systems (heating, power supply, water supply, sewerage, ventilation, fire alarm and fire alarm, security alarm); construction of external networks of electric lighting, water supply, sewerage, heat supply; installation of technological equipment; landscaping, gardening, installation of small play forms ".

According to the terms of reference of the controversial purchase, the winner of the auction for the construction of the facility "Kindergarten for 200 places in the n / a ..." must, in addition to the construction work itself, supply and install the following "technological equipment": a sewing machine, a piano, a vegetable cutter, bactericidal irradiator, juicer for vegetables and fruits, potato peeler, household refrigerator, dry-heat cabinet, TV set, ironing rink, washing machine, drying machine, grinder-drilling and sharpening-sharpening machines, electric frying pan, industrial electric stove, vegetable cutter, electric meat grinder, bread slicer , roasting cabinet, personal computer.

Checking the arguments of the persons participating in the case, the Court of Appeal proceeded from the requirements of clause 1.2 of the Regulation on the organization of the construction of turnkey facilities, approved by the Resolution of the USSR State Construction Committee of 10.11.1989 N 147 (hereinafter referred to as the Regulation on the organization of turnkey construction) and in this the current moment, from which it follows that the "turnkey" construction method provides for the construction of facilities prepared for operation or provision of services, based on the concentration of management functions for all stages of the investment process in one organizational structure and is carried out as a single continuous complex process of creating a finished construction products (design - construction and installation work, including the completion of construction sites with technological and engineering equipment - commissioning).

paragraph 1 of part 1 of article 33 of the Law on the contractual system in the field of procurement.

In resolving the dispute, the courts proceeded from the fact that the presence of installed software on the supplied computer equipment is technologically related to the supply of computer equipment due to the fact that the use of computer equipment without the necessary software is impractical, the requirements for the supplied goods contained in Part 4 "Terms of Reference" of the documentation on the electronic auction are necessary and significant for ensuring the activities of the Ministry of Informatization and Communications of the Republic of Tatarstan, the documentation on electronic auctions fully complies with the requirements of the legislation of the Russian Federation in the field of procurement, and the actions of the customer do not contradict the provisions of Article 33 of the Law on the contractual system in the field of procurement.

Articles 15, Federal Law of 26.07.2006 N 135-FZ "On Protection of Competition", the Arbitration Procedure Code of the Russian Federation, the courts concluded that the inclusion of technological and functionally related goods (works, services) in one lot does not violate provisions of Article 8, paragraph 1 of part 1 of Article 33, paragraph 1 of part 1 of Article 50 of the Law on the contractual system in the field of procurement and does not entail a limitation of the number of participants in the procurement, the documentation on electronic auctions meets the requirements of the legislation of the Russian Federation, the actions of the customer do not contradict the provisions of the Procurement Law , which was the basis for the recognition of the contested provisions of the decisions and orders invalid.

Bringing the full name to administrative responsibility under Part 4.1 of Art. 7.30 of the Code of Administrative Offenses of the Russian Federation, the official proceeded from the fact that the state customer - the Ministry of Informatization and Communications of the Republic of Tatarstan, in violation of the requirements of paragraph 1 of Part 1 of Art. 33 of the Federal Law of April 05, 2013 N44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" procurement participants and violated the requirements of the current legislation on the contract system.

Canceling the rulings official in relation to the full name and terminating the proceedings, the judge of the district court [rightfully] proceeded from the fact that his actions did not contain an administrative offense under Part 4.1 of Art. 7.30 of the Administrative Code of the Russian Federation.

The systemic interpretation of the above norms [parts 1, 2 of article 33 of the Federal Law N44-FZ] and their consideration in conjunction, allows us to conclude that the current legislation in the field of procurement allows the customer to independently form his order, based on his needs, that is, when describing the customer has the right to indicate the quality parameters for the procurement object, which are decisive for him, but without limiting the number of potential procurement participants.

It should also be noted that the antimonopoly body did not take into account the fact that the presence of installed software on the supplied computer equipment is technically connected with the supply of computer equipment, since its use without the necessary software is impractical.

The antimonopoly body came to the conclusion that the customer, having established in the description of the procurement object the conditions for the need to supply computers and software product, limited the number of participants in the procurement and violated the requirements of paragraph 1 of part 1 of Article 33 of the Law on the contract system in the field of procurement.

It follows from the materials of the case that the subject of the above auction is the supply of computers.

In the description of the object of purchase, the customer specifies the following conditions for the delivery of goods: "Software for the possibility of teamwork if the client part of this software is available on the managed computers."

In this case, as lawfully noted by the courts, the antimonopoly authority did not take into account the fact that the presence of installed software on the supplied computer equipment is technologically connected with the supply of computer equipment, since the use of computer equipment without the necessary software is impractical.

2.9. If the initial (maximum) contract price exceeds the limit value established by the Government of the Russian Federation, it is illegal to combine a unique and only drug with a drug produced by several manufacturers into one lot.

In accordance with the register of medicines on the territory of the Russian Federation, two drugs with INN Ipratropium Bromide + Fenoterol are registered in the form of a solution for inhalation: Berodual, manufactured by Boehringer Ingelheim Pharma GmbH and Co. KG, Germany, and also Ipraterol-native, produced by the limited liability company "Nativa", Russian Federation.

At the same time, the drug with INN Ipratropium Bromide + Fenoterol in the form of an aerosol for inhalation has one trade name - Berodual and this drug is produced only by Boehringer Ingelheim Pharma GmbH & Co. KG, Germany.

Therefore, the courts recognized that the customer, in violation of part 6 of Article 33 of the Law on the Contract System, paragraph 2 of the Government Decree, included in one lot the supply of the drug with the INN Ipratropium Bromide + Fenoterol in different forms release: aerosol for inhalation, as well as solution for inhalation. Provided that one trade name is registered in the form of release of aerosol for inhalation - Berodual, and also that the initial (maximum) price of the contract exceeds the limit value established by the Government of the Russian Federation - 1000 rubles.

In addition, the inclusion in one lot of drugs with INN Ipratropium Bromide + Fenoterol in the form of an aerosol for inhalation, as well as a solution for inhalation, will not allow organizations to participate in the procurement that have the ability to supply only the drug Ipraterol-native, for example, produced by a limited company. responsibility of "Nativ", Russian Federation, including the manufacturer of the specified drug. Combining a unique and only drug with a drug from several manufacturers into one lot leads to abuse on the part of the customer.

As established by the courts, along with other drugs, the customer purchases the drug Temozolomide, a lyophilisate for the preparation of a solution for infusion of 100 ml.

As follows from the state register of medicines, the specified drug has no analogues in the form of release and dosage and is produced by only one manufacturer Schering-Play Labo, Belgium.

Thus, as lawfully indicated by the courts, when developing the auction documentation, the customer combined into one lot drugs with international non-proprietary names that have no analogues registered in the Russian Federation in terms of release form and dosage and are produced by a single manufacturer. At the same time, the initial (maximum) price exceeds the limit value of the initial (maximum) price established by the Decree of the Government of the Russian Federation of October 17, 2013 N 929.

The courts concluded that the requirements of the law for the content of the auction documentation were met, since this documentation specifies the obligation of the procurement participant to comply with the GOST requirements. At the same time, the courts reasonably proceeded from the fact that the State Standards of the Russian Federation always contain a list normative documents, a list of associated GOSTs and SNiPs, the documentation of which is also used in a certain GOST and the customer did not require the procurement participants to indicate a specific number of a particular GOST, if there is no indication of it in the documentation, but asked that the product (material), in principle, comply GOST, regulating a certain type of product (material).

The courts found that when drawing up requirements for the technical and functional characteristics (consumer) properties of goods (materials), the Ministry was guided by the requirements specified in Article 33 of Law No. 44-FZ, and used (in particular, when describing the disputed items) exclusively technical regulations, standards (GOST) and technical conditions governing building materials. The auction documentation establishes indicators of the main materials that will be used when performing work in accordance with the requirements of GOST. The standards establish mandatory and recommended provisions that determine the specific parameters and characteristics of the repair work performed. Also, the customer in the auction documentation set detailed instructions on filling out an application for participation in an electronic auction. That is, based on the requirements of the auction documentation, procurement participants must indicate the indicators of materials in accordance with the requirements of GOST, namely: indicate within the limits specified in the auction documentation.

In addition, the courts concluded that the violations indicated by the department were not significant and were of a formal nature. The Department did not prove that these violations could have misled the auction participants.

The courts rightly concluded that the general requirements of this GOST do not exclude the right of the consumer of such products to purchase them within these parameters, and within the specified limits independently determine the specific characteristics for the product offered for delivery, taking into account the specific needs of the consumer.

Taking into account the above, and also taking into account the specific circumstances in the case [purchase of protein composite dry mixtures in pursuance of the Instructions for the organization health food in medical institutions, approved by order of the Ministry of Health of Russia dated 05.08.2003 N 330], the court of cassation considers that the courts' conclusions about the right of the customer to establish, taking into account his needs, indicators of the nutritional and energy values ​​of dry protein composite mixtures not in wide ranges established in GOST R 53861-2010, and taking into account the specifics of the type of activity carried out, based on the approved calculations for interchangeable products, taking into account their chemical composition.

The court of cassation agrees with the conclusions of the courts that in this case, these indicators for the content of proteins, fats, carbohydrates and energy value in a mixture of protein composite dry are standard, since they are within the limits established by GOST R 53861-2010, therefore, their no justification is required in the auction documentation.

The general requirements of GOST do not exclude the customer's right to purchase protein mixtures with indicators within the parameters established by GOST and, within the specified limits, independently determine specific characteristics for the goods offered for delivery, taking into account the needs of the hospital.

The customer established requirements for the product within the limits of the indicators established in GOST, taking into account their needs and based on the specifics of the type of activity being carried out. In this case, these indicators for the content of proteins, fats, carbohydrates and energy value in the mixture are standard, since they are within the limits established by GOST, therefore, additional justification for the use by the customer of the indicators specified in the auction documentation is not required.

The task of procurement legislation is, first of all, to identify, as a result of tenders, a person whose performance of the contract will most closely meet the goals of efficient use of funding sources and the customer's needs for the goods necessary to carry out his activities. The customer, having established the necessary requirements for the composition of the product, acted in accordance with Law No. 44-FZ. Determination of indicators in the auction documentation within the framework established by GOST cannot be considered as limiting access to participation in the auction.

3.2. The establishment by the customer of additional values ​​of indicators in comparison with GOST needs to justify the need to use such an indicator

The courts, having examined and evaluated the auction documentation, found that the customer, when describing the requirements for the goods (light hatch), used the following characteristics: the maximum value of the indicator: body diameter (D) - up to 760 mm, opening diameter (D1): up to 600 mm, height (H) - no more than 70 mm, the maximum width of the hatch cover (B) should not exceed 630 mm; minimum value of the indicator: body diameter (D) - not less than 640 mm, opening diameter (D1) - not less than 550 mm, height (H) - not less than 60 mm; constant value of the GOST 3634-99 indicator with drawing. As the courts have established, and the persons involved in the case do not dispute, the indicator "maximum width of the hatch cover" in GOST 3634-99 is not established. In the auction documentation, there is no justification for the need to use this indicator.

In such circumstances, the courts came to the correct conclusion that the customer, when describing the object of the procurement, indicating the value of the indicator that was absent in GOST, in violation of Part 1 of Article 33 of Law No. 44-FZ, did not substantiate the need to use such an indicator.

3.3. The wording of the requirements for the procurement object, given by reference to GOST, is illegal

In sub-clause 3.2.2 of clause 3 "Preparation of an application for participation in an auction in electronic form" of section 1.2 of part I of the documentation on an electronic auction, the customer determined that if the technical part specifies the compliance of the goods used with GOST (another current regulatory act) with full with the details, the participant in the order placement is obliged to indicate all specific indicators of this product using not only the technical part of the auction documentation in electronic form, but also the corresponding GOST. Thus, in the first part of the application, the indication of a specific indicator expressed in the corresponding GOST by alternative values ​​is mandatory, and the absence of such an indication means that the participant does not express his full and unconditional consent to the terms of the auction documentation.

Thus, the courts came to a reasonable conclusion that this clause of the documentation on the electronic auction does not comply with clause 1 of part 1, part 2 of article 33 of Federal Law N 44-FZ, since it allows the establishment of requirements for the procurement object without listing them in the documentation on the electronic the auction, but by attaching regulatory (technical) documents (GOSTs) to the documentation and imposing on the auction participant the function of independently choosing the necessary characteristics and indicators of the procurement object that correspond to these regulatory documents.

With the considered case, the customer formulated the requirements for the procurement object by reference to regulatory (technical) documents (GOST), which contradicts clause 1 of part 1, part 2 of article 33 of Federal Law N 44-FZ, according to which the requirements for the procurement object must be specified in the documentation about the auction.

As the study of the documentation on the auction in electronic form (electronic auction) for the supply of Quicksilver 25W-40 boat motor oil or equivalent, approved by the full name, shows, it does not actually contain a description of the requirements for the product and its quality indicators. The reference in the technical specifications of the documentation to "GOST 10541-78. Interstate standard. Motor oils for universal and for automobile carburetor engines. Specifications" (approved and put into effect by the Resolution of the USSR State Standard of 04.08.1978 N 2103), cannot be recognized as appropriate description of the procurement object, since the specified GOST provides for various technical requirements for different types of motor oils, which were not specified in relation to the procurement object within the framework of the auction in question.

3.4. The units of measurement specified by the customer in the procurement documentation must correspond to those specified in the corresponding GOST

OFAS established that according to clause 122 of the table "Information on functional, technical and quality characteristics, operational characteristics of the procurement object" of subsection 11 of section III "Technical part" of the auction documentation, the customer requires a brick of grade 100 for water absorption - not lower than F50. From clause 129 of the same section III "Technical part" it follows that the customer needs 88-CA glue with a bond strength of 56 rubber, with ST-3 steel 24 hours after gluing at a tear off of at least 11.0 kgf / cm.

The courts made a well-founded conclusion that when specifying in the terms of reference for the positions "Guide profile PN-2" and "Metal profile rack PS-2", the customer did not specify the units of measurement for the twisting of the profiles around the longitudinal axis, for the item "Sand for construction work" the customer does not provide units for measuring the chemical composition of the sand.

3.6. The customer has the right to establish in the procurement documentation units of measurement other than those specified in GOST for voluntary use

The court of appeal established and the materials of the case confirm that Appendix No. 2 to the terms of reference on 9 pages in small print describes "the requirements for the values ​​of the indicators (characteristics) of the goods, or the equivalence of the goods offered for delivery, the goods used to perform work, the provision of services, allowing to determine compliance with the requirements established by the customer ", in which the units of measurement of the value of the indicators of goods (degrees Kelvin and mm / min) are used, which are different from those given in GOST R 54169-2010 and GOST 13344-79.

From the materials of the case, it can be seen that the violation of paragraph 1 of part 1 of Article 64 of Law No.44-FZ imputed to the customer in the contested decision of the Office was expressed, in the opinion of the antimonopoly authority, in a biased description of the procurement object and the use of non-standard values ​​of indicators in describing the technical and quality characteristics of the procurement object and designations (degrees Kelvin and mm / min).

At the same time, the Office did not take into account that GOST R 54169-2010 was approved by order of Rosstandart dated December 21, 2010 N 941-st for voluntary use, while based on Appendix N 1 to the Regulation on the units of quantities allowed for use in the Russian Federation , approved by Decree of the Government of the Russian Federation of October 31, 2009 N 879, which establishes the units of quantities allowed for use in the Russian Federation, their names and designations, as well as the rules for their use and writing, Kelvin is classified as a basic unit of the international system of units.

3.7. When concluding a contract for the provision of OSAGO services, the customer is obliged to independently indicate in the procurement documentation information about the Bonus-Malus coefficient

In the opinion of the institution, there is no violation of part 2 of article 33 of Law N 44-FZ in its actions, since insurers can independently obtain information on the Bonus-Malus coefficient (hereinafter - KBM) by requesting the professional association of insurers - the Russian Union of Motor Insurers (AIS RSA).

As mentioned above, in this case, the price of the contract (insurance premium) is calculated in accordance with Resolution N 739 according to the established formula, taking into account the reduction / increase coefficient (MSC). The absence of the MSC coefficient in the customer's documentation (in the Terms of Reference) did not allow the procurement participant to determine the amount of the insurance premium for each vehicle.

Thus, the customer did not indicate all the necessary components for determining the insurance premium in the procurement documentation, which is a violation of part 2 of article 33, paragraph 2 of article 42 of Law No. 44-FZ.

Information about the presence or absence of insurance payments in the event of insured events that occurred during the period of validity of previous OSAGO contracts was not in the customer's documentation, therefore the quotation participant - OJSC - calculated the amount of the insurance premium using the MSC coefficient based on the data of the automated information system, and the rest of the participants - without the use of a reduction factor.

The drawing up of a technical task by the customer without information for the use of MSC and without indicating the possibility of its use in calculating the insurance premium and the price of the contract led to a clear receipt by the OJSC of a price advantage over other participants based on the results of consideration and evaluation quotation bids, while for specific vehicles the amount of insurance premium determined in the order

After examining and evaluating the evidence presented in the case materials according to the rules established in Article 71 of the Arbitration Procedure Code of the Russian Federation, the courts concluded that the customer in paragraph 3 of the terms of reference of the auction documentation did not establish the functional and quality characteristics of the goods required for delivery.

The arguments of the Health Department that the requirements for the goods can be understood from the name and subject of the purchase, the relationship between the sections of the terms of reference, from the draft state contract, which, among other things, indicates that the supplied goods must comply with the requirements of state standards, sanitary rules and regulations and other requirements for equipment and medical products, a requirement was imposed on the period of quality assurance of the supplied goods, were considered by the courts and reasonably found insolvent and did not testify to the customer's compliance with the requirements of Article 33 of Federal Law No. 44-FZ.

The courts came to the correct conclusion that in this case, the absence in the documentation of the relevant requirements for the goods makes it difficult for the participants in the placement of the order to form proposals for the execution of the state contract and entails a limitation of the number of participants in the placement of the order.

The antimonopoly authority established that in Appendix No. 2 to the terms of reference of the auction documentation, the customer, when describing the requirements for goods, uses non-standard units of measurement for the values ​​of indicators of goods.

The use of units of measurement other than those specified in GOST should not lead to a change in the quality characteristics of the product. In this case, the Court of Appeal established and the Institution is not essentially contested that when recalculating the units of measurement declared in the auction documentation (700 ° K = 417 ° C), the indicators do not coincide with the norms established state standards(600 ° C).

In addition, based on the provisions of GOST 13344-79, the cutting ability of the abrasive paper is measured in mm3 / min, while in paragraph 29 of Appendix No. 2 to the technical task, non-standard units of this indicator are used - mm2 / min.

In such circumstances, the cassation court agrees with the conclusion of the courts that the customer did not properly inform the procurement participants about the requirements for the goods used in the performance of work at the stage of contract execution, which led to a limitation of the number of procurement participants, and therefore the contested decision of the OFAS in terms of establishing violations by the Institution of paragraph 1 of part 1 of article 64 (paragraph 1 and paragraph 2 of part 1 of article 33) of Law No. 44-FZ is lawful and justified.

3.9. The indication by the customer in the purchase description of the trade name excludes the need to describe the parameters, functional, technical and quality characteristics of such a product, if the specified parameters and characteristics are inherent only to him

The indication by the customer in the purchase description of the trade name "Gensupen pen-injector" eliminates the need to describe the functional, technical and quality characteristics of such a pen-pen. This medical device has unique parameters and characteristics inherent only to it, which, in turn, are known to market participants. Thus, the description of the functional, technical and quality characteristics of Gensupen syringe pens in the auction documentation is superfluous.

Attention

FAS Russia believes that when describing the object of the procurement, the customer has the right to indicate specific trademarks only with the obligatory indication of the possibility of supplying goods with equivalent characteristics (clause 2 of the Review of Administrative Practice, prepared by the FAS Russia State Order Placement Control Department, October 2015).

3.10. The absence of an indication "or equivalent" in the purchase description can be considered justified in the case when the customer needs to ensure interaction of the purchased goods with those already purchased

Having established that the AS Smeta software product had already been used at 75 workplaces of executive authorities in order to create a unified centralized accounting department, which provided for the use of the software product at 92 workplaces, the courts concluded that the customer did not include the words " or the equivalent "was due to the objective need to ensure the interaction of the purchased goods (services) with the goods (services) already used by the customer.

Taking into account the foregoing and guided by the provisions of the Federal Law of July 26, 2006 N 135-FZ "On Protection of Competition", the Arbitration Procedure Code of the Russian Federation, the courts concluded that the choice by the customer of a specific automated system in order to ensure the interaction of the purchased goods with the goods already used by the customer, does not violate the provisions of paragraph 1 of part 1 of article 33, paragraph 1 of part 1 of article 64 of the Law on the contract system, which was the basis for recognizing the contested provisions of decisions and orders invalid.

3.11. The customer's indication of the trade name means that the participant must proceed from the conformity of the equivalent not only to the characteristics set forth in the procurement documentation, but also to the characteristics of the goods, the name of which is indicated in the notice.

The courts, having established that the basic configuration of the product - Gazelle verticalizers, according to the Registration Certificate and its annex, differs from the verticalizers subject to delivery within the framework of the auction, such structural elements as a headrest, belts, table, knee rests, side supports bodies, are additional components of the Gazelle verticalizers (walker supports), they are not included in the standard delivery set, we came to the correct conclusion that, in fact, it was established by the requirements of the auction documentation that the Gazelle walker supports were not supplied in their basic version, but in a more complete configuration, or equivalents that meet all the requirements of the auction documentation.

The plaintiff did not refute this conclusion of the courts.

The inclusion of an indication of the trade name - Gazelle walker supports means that the person intending to participate in the auction must proceed from the conformity of the equivalent not only to the technical and other characteristics set forth in the terms of reference, but also to the characteristics of the goods, the name of which is indicated in the notice.

3.12. An obvious technical error in the procurement documentation regarding the indication of the subject of the procurement does not indicate the uncertainty of the object of the procurement

According to the auction documentation, the purchase object was 10 thermohygrometers. Appendix No. 1 to the auction documentation indicates the purpose of the device - measuring temperature and humidity, as well as its characteristics and the completeness of the goods. The courts, after evaluating the notice of the auction, the auction documentation, the protocol, the bid of the auction participant, the statement of the management on the agreement of the conclusion of the contract with the only supplier, concluded that there was a technical misprint in clause 1.1 of the draft contract submitted to the antimonopoly authority in terms of specifying the subject purchases - detectors of excise stamps, since from the analysis of the auction documentation it follows that the customer held an auction for the supply of thermo-hygrometers, the requirements for functional, technical and quality characteristics established in the documentation relate directly to thermo-hygrometers. As follows from the company's application, it offered to supply thermo-hygrometers with the characteristics specified in the auction documentation. In such circumstances, the courts came to the correct conclusion that there were no violations of Article 33 of Law no.44-FZ.

A technical error made during the preparation of the draft contract in the presence of a notice of an auction, auction documentation, a company's application and a protocol for summing up the results of an electronic auction does not indicate that the customer did not specify the goods that are required for delivery in the auction documentation. The presence of a technical error in the draft contract when applying for approval of the conclusion of a contract with a single supplier is not provided for by Law No. 44-FZ and Order No. 537 as a basis for refusing such approval.

3.13. When purchasing medicines, it is allowed to establish a requirement for the residual shelf life in percent, if this does not lead to restriction of competition and is due to the needs of the customer

The Court of Appeal rightly rejected the argument about the incorrect determination of the shelf life of the goods, since the current legislation does not establish an explicit prohibition on the establishment of the residual shelf life in percent. The establishment of the requirement for the residual shelf life, expressed as a percentage, must be conditioned by the needs of the customer (consumers of the goods) and cannot lead to an unreasonable limitation of the number of participants in the procurement.

3.14. When purchasing equipment, an indication of the possibility of its delivery with components, the description of the parameters of which is accompanied by the words "no more", "no less", etc., may be recognized as illegal if the manufacturers of such equipment set unchanged parameters for these components

As established by the antimonopoly body and confirmed by the courts, the terms of reference of the disputed electronic auction for the supply of server equipment include the following characteristics in the name of the components: "processor, type - at least 8 cores of x86 architecture with PM not lower than 2.0 Hz *, cache 3 levels at least 15 MB *, external interfaces, the number of PCI Express expansion slots 2 * ".

Clause 31 of Section 2 of the Information Card of the Electronic Auction stipulates that if in the Terms of Reference the value of the indicator of a technical or functional parameter is accompanied by the words "not less", "not more", "not less", "before", but at the same time marked "*", then this value is accurate and not subject to change, and in the application the participant of the electronic auction indicates such indicators with the words "not less", "not more", "not lower", "before".

Since the disputed indicators with the "*" sign for equipment manufacturers have an exact meaning that the applicant does not dispute the complaint, the requirement to fill out an application using the words "no less", "no more", "no less", "before" correct judgment of the courts, contradicts the requirements of paragraph 1 of part 1, part 2 of Article 33 of the Law on the Contract System, since the value of the indicator with the named words literally implies the variability of the indicator itself, and not its invariability.

3.15. If, during the procurement of construction work, the design and estimate documentation was developed on the basis of a standard design, the presence in the procurement description of the corresponding indication is not necessary

As the courts correctly pointed out, the reference in some drawings of the auction documentation to the city of Kostroma or to another name of the object indicates only the use by the design organization of a standard project for the performance of the relevant work, which does not contradict urban planning legislation.

The absence in the auction documentation of an indication that the design and estimate documentation was developed on the basis of standard modified design documentation does not indicate a violation by the customer of the rules for describing the procurement object established in paragraph 1 of part 1 of article 33 of Federal Law No. 44-FZ.

The Department did not provide evidence that certain positions in the design and estimate documentation mislead the procurement participants when preparing an application for participation in the procurement.

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Date: 05/29/2019

Once again, the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter also the law) is undergoing changes. Changes were introduced by Federal Law No. 71-FZ dated 01.05.2019 and a number of other regulatory legal acts. Consider the key changes in the law on the contract system in relation to procurement participants.

From 01.05.2019 Customers are obliged to purchase services for the organization of recreation and health improvement of children through competitions with limited participation in electronic form. This means that the procedure for participation in this procurement for procurement participants is changing. When participating in the procurement, the applicants confirm the experience in the execution (taking into account the succession) of contracts (agreements) for the provision of services for organizing the recreation of children and their health improvement over the last three years prior to the date of filing an application for participation in the procurement. In this case, the cost of a previously executed contract (agreement) is at least 20 percent of the initial (maximum) price of the current contract, agreement (lot price). In confirmation, the procurement participant must submit a copy (copies) of the previously executed contract (contracts) and (or) agreement (s) concluded by the procurement participant with the customer under 44-FZ or 223-FZ in the application set, as well as submit documents confirming the execution of the specified contracts and (or) agreements without the application of penalties (fines, penalties) to the contractor (clause 9 of Appendix No. 2 to Government Decree No. 99 of 04.02.2015).

From 05/12/2019 the following changes take effect.

For each day of delay in the execution of the contract by the supplier (performer, contractor), the customer charges a penalty. Earlier, in the previous version of the law, the customer had the opportunity to establish a forfeit in an amount exceeding one three hundredth key rate. Now the amount of the forfeit is fixed - one three hundredth of the key rate of the value of the obligations unfulfilled by the supplier (performer, contractor). Penalty interest is calculated for each day of delay in the fulfillment of the obligation provided for by the contract, starting from the day following the day of the expiration of the deadline for the fulfillment of the obligation established by the contract. Such a penalty is established by the contract in the amount of one three hundred of the key rate in effect on the date of payment of the penalty interest The Central Bank Of the Russian Federation from the amount not paid on time. In case of a different procedure for calculating fines or penalties established by law, special rules apply. For example, when calculating penalties in a contract for the supply of hot or cold water supply, penalties are prescribed in accordance with Part 6.2 of Article 13 of Federal Law No. 416-FZ of 07.12.2011 “On Water Supply and Wastewater Disposal”. The penalty interest is set in the amount of one hundred and thirty of the refinancing rate of the Central Bank of the Russian Federation, in effect on the day of actual payment, from the amount not paid on time for each day of delay starting from the next day after the date of the due date of payment until the day of actual payment.

The term for payment by the customer for the delivered goods, the work performed (its results), the services rendered by the supplier (performer, contractor), individual stages of the contract, is no more than thirty days from the date the customer signs the acceptance document. And when purchasing from small businesses or socially oriented non-profit organizations (hereinafter SMP and SONO) - fifteen working days from the date of signing the acceptance certificate. Another payment term may be established by the legislation of the Russian Federation, for example, in order to ensure the defense capability and security of the state, as well as in a number of other cases established by the Government of the Russian Federation.

For a procurement participant, the deadline for appealing against the actions of a customer, an authorized body, a specialized organization, an operator of an electronic site, a procurement commission has changed when filing a complaint with the federal executive body authorized to exercise control in the field of procurement (hereinafter - FAS). Part 3 of Article 105 of the Law defines a five-day period for appealing actions from the date of posting in the unified information system (hereinafter referred to as the EIS) the protocol of consideration and assessment of applications for participation in the tender, the protocol of consideration and assessment of applications for participation in the request for quotations, the protocol of the request for proposals, and in the case of determining the supplier (contractor, performer) by a closed method from the date of signing the corresponding protocol. At the same time, any procurement participant has the right to appeal against the provisions of the documentation or procurement notice, and after the publication of the final protocols, only the participant who submitted an application for participation in the procurement. With regard to electronic procedures, part 4 of Article 105 establishes the same five-day period for appealing the actions of a customer, an authorized body, an authorized institution, a specialized organization, a procurement commission, its members, an official contract service, contract manager, operator of an electronic site, operator of a specialized electronic site. Previously, this period of appeal on the basis of any purchase was 10 days.

Also, the period for consideration and verification by the FAS of the information received about the supplier (performer, contractor) for entry into the register of unscrupulous suppliers (hereinafter - RNP) from the customer was reduced, it was reduced to five working days from the date of receipt of the information. In the previous version, the term was 10 working days. Recall that, according to the law, the customer is obliged to submit information about the procurement participant to the register of unscrupulous suppliers when the procurement participant avoids concluding a contract when it is signed by the procurement winner; when the contract is terminated due to the unilateral refusal of the customer to perform the contract due to significant violations by the supplier of the terms of the contract or in the event of termination of the contract with the supplier (contractor, performer) by a court decision in connection with significant violations of the terms of the contract.

From 01.07.2019 A complaint filed by a participant, information about which is included in the register of unscrupulous suppliers, will not be considered by the FAS. In this case, the condition must be met that the customer, when carrying out the procurement, established in the procurement documentation and the procurement notice the requirement that the procurement participant be absent from the RNP.

To confirm the qualifications in the procurement of certain types of goods, works, services carried out on the electronic site, in relation to the participants of which the Government of the Russian Federation has established additional requirements, the accredited procurement participant must send the electronic site operator (hereinafter - the ES operator) electronic documents for each procurement object, for which the Government has established such requirements. Here we are talking about purchases specified in parts 2 and 2.1 of article 31 of the law, for example, services for organizing summer recovery, or audit and consulting services. This will allow you to participate in purchases with additional requirements. Within five working days after receiving the documents, the ES operator for each type of product makes a decision on the placement of documents in the register of participants. The electronic signature operator refuses to place documents if the procurement participant has not submitted all the documents determined by the Government, or provided documents with violations.

Another novelty in the law is the maintenance of registers of accredited procurement participants. Operators electronic platforms will post on electronic platforms registers of accredited procurement participants. The registers include the following information about the procurement participant:

1. name, company name (if any), if the procurement participant is a legal entity;
2. surname, name, patronymic (if any), if the procurement participant is an individual, including those registered as individual entrepreneur;
3. taxpayer identification number of the procurement participant;
4. date of accreditation on the electronic site;
5. other information and documents.

A procurement participant registered in the EIS and accredited on the electronic site has the right to participate in all electronic procedures carried out on the electronic site. Registration of the procurement participant in the EIS and accreditation of the procurement participant on the electronic site are carried out for a period of three years. No earlier than six months before the expiration date of the registration period, the participant must register for a new period. Four months before the expiration date of his registration in the EIS, he is automatically notified by the system. At the same time, a participant has the right to apply for participation in electronic procedures three months before the expiration date of his registration in the EIS.

A single register of procurement participants is maintained by the federal executive body authorized by the Government of the Russian Federation.

The innovations in electronic auction are essential and have long been necessary. The size of the initial maximum contract price (hereinafter referred to as the NMCK) increases if the application submission period is within seven calendar days. At the moment, the NMCK is three million rubles, from July 1, the price threshold will be three hundred million rubles. That is, all large-scale purchases of customers will go through much faster than before. When purchasing construction, reconstruction, overhaul or demolition of a capital construction facility (tenders for real estate), applications will be accepted for at least seven calendar days with the NMCK worth up to two billion rubles.

If the customer establishes additional requirements for procurement participants in the procurement notice and in the procurement documentation, only those procurement participants who have placed supporting documents in the register of participants will be able to submit bids. In this case, the operator sends these documents to the customer within the time frame established by law. The participant has no obligation to submit documents in the second part of the application.

The customer will consider the first parts of the applications at least one, maximum three working days from the date of the deadline for submission of applications. The electronic auction will be held on the first business day after the end date for consideration of the first parts of applications. If the customer cannot determine the quantity of the supplied products in the documentation and the purchase notice, during the electronic auction at the auction itself, the participants reduce the initial price of units of goods, work or services.

If, during an electronic auction, the contract price is reduced to half of the NMCK percent or lower, such an auction is held for the right to conclude a contract. In this case, such an auction is carried out by increasing the price of the contract, taking into account the following features:

1. such an auction is held until the contract price reaches no more than one hundred million rubles;
2. a participant in such an auction is not entitled to submit bids for a contract price higher maximum amount transactions for this participant specified in the decision on approval or on the conclusion of transactions based on the results of such an auction on behalf of the procurement participant;
3. the amount of security for the execution of the contract is calculated based on the NMC specified in the notice of the auction;
4. The “auction step” is up to 5 percent of the contract price specified in clause 1.

Also, innovations will affect electronic auctions for construction work. When the customer includes design documentation in the description of the procurement object, the first part of the participant's application will contain only the consent to perform the work. Consideration of the first parts of bids by the customer, the procurement commission in this case does not exist as a procurement stage. A participant who has submitted his consent and an application for participation in the procurement to the ES operator is automatically admitted to the auction, provided that such an application has not been returned to the procurement participant. The auction takes place 4 hours after the end of the deadline for submitting applications for participation in the procurement. The customer, the procurement commission, considers the second parts of the applications received in the usual manner.

The changes also affected the amount of security for applications for participation in the electronic auction. The security of applications is:

1. from one second to one percent of the initial (maximum) contract price, if the size of the initial (maximum) contract price is from five million rubles to twenty million rubles;
2. from one second to five percent of the initial (maximum) contract price, if the initial (maximum) contract price is more than twenty million rubles.

From 01.07.2019, participants will be able to provide bank guarantees as security for applications for an electronic tender or auction (part 52 of article 112 of the law).

Article 37 of the law regarding anti-dumping measures there was a price limit.

more than fifteen million rubles and there was a decrease in the price proposed by the participant by twenty-five percent or more from the NMCK, the contract is concluded only after such a participant provides the security for the performance of the contract one and a half times more than the amount of the security for the performance of the contract specified in the documentation and the notice of purchase, but not less than in the amount of the advance ( if the contract provides for the payment of an advance).

If, during a tender or auction, the initial (maximum) price of the contract is fifteen million rubles or less and there was a decrease in the price offered by the participant by twenty-five or more percent of the NMCK, the contract is concluded only after such participant provides the security for the execution of the contract one and a half times the amount of the security for the execution of the contract, or information confirming the good faith of such a participant on the date of filing the application, with the simultaneous provision of such a participant in the enforcement of the contract established by the procurement documentation.

The conscientiousness of the procurement participant is confirmed only by contracts executed without penalties, which can be selected from the register of contracts by the number of the register entry. A bona fide participant must, within one year before the date of filing an application for participation in a tender or auction, perform three or more contracts (in this case, all contracts must be executed without applying penalties (fines, penalties) to such participant, or within two years before the date of filing applications for participation in a tender or auction of four or more contracts (in this case, at least seventy-five percent of the contracts must be executed without applying penalties (fines, penalties) to such a participant, or within three years before the date of filing an application for participation in the tender, or auction of three or more contracts (in this case, all contracts must be executed without applying penalties (fines, penalties) to such a participant. In this case, the price of one of the contracts must be at least 20 percent of the NMCK set in the notice and procurement documentation.

A number of changes to the law relate to the essential terms of the contract and the enforcement of the contract. Let's consider them.

Part 1 of Article 34 of the Law is supplemented with the following condition. If the number of goods (works, services) is not determined, the contract must contain the procedure for determining the quantity of the supplied goods, the volume of work performed, the services provided on the basis of the customer's requests. If the contract is divided into stages of delivery of goods, performance of work, provision of services, the price of each stage is set in the amount reduced in proportion to the decrease in the NMCK. For example, a contract includes four stages of delivery of goods, performance of work, and provision of services. The winner of the purchase during the auction reduced the NMCK by five percent. In this case, the customer in the contract reduces the price of each stage by five percent.

New grounds for changing the essential terms of the contract have appeared in the law:

1. Purchase of construction, reconstruction, overhaul, demolition of capital construction, preservation of cultural heritage sites. You can change the contract up to 10 percent of the price.

2. If the contract is concluded for a period of at least a year and its price is or exceeds the amount established by the Government. At the same time, circumstances have arisen in which the execution of such a contract due to circumstances beyond the control of the parties is impossible without changing its conditions; by decision of the Government, the highest executive regional or municipal authority, changes can be made to the contract. In this case, the following conditions must be met:

1. Procurement for construction, reconstruction, overhaul, demolition of a capital construction facility, preservation of cultural heritage sites.
2. As a result of the changes, the contract execution period will not increase, and the price will not increase by more than 30 percent.

3. If the contract for the execution of construction, reconstruction, overhaul, demolition of a capital construction facility, preservation of cultural heritage objects cannot be executed due to circumstances beyond the control of the parties, or if the contract is not executed on time due to the fault of the contractor. In this case, it is possible to extend the contract execution period once for a period that does not exceed the execution period at its conclusion. If the violation of the deadlines was due to the fault of the contractor, then the extension of the deadline is possible when the contractor pays the forfeit.

4. A contract with a single supplier may be changed under clauses 1, 8, 22, 23, 29, 32, 34, 51 of part 1 of article 93 of Law No. 44-FZ.

With regard to contract enforcement and warranty obligations. The customer now has the right to establish in the documentation and the draft contract the requirement to provide warranty obligations, if necessary. Acceptance documents are drawn up after the supplier submits security for warranty obligations in the manner and terms established by the contract. The amount of security for obligations should not exceed 10 percent of the NMCC.

The procurement participant independently determines the method of ensuring the execution of the contract, guarantee obligations (deposit of funds or a bank guarantee), the validity period of the bank guarantee. In this case, the validity period of the bank guarantee must exceed the contractual term for fulfilling obligations by at least one month. Contractors will be able to change the security of the contract during its execution.

In relation to small businesses and socially oriented non-profit organizations (hereinafter SMP and SONO), the procedure for providing security for the execution of the contract is facilitated. Now participants from the SMP and SONO have the right not to provide security if, within three years prior to the date of application, they have performed at least three contracts without penalties. The sum of the prices of such contracts must not be less than the NMCK, which is indicated in the notice and procurement documentation. Information about executed contracts is confirmed from the register of contracts. Succession contracts are excluded. The rule also applies when the customer applies anti-dumping measures.

The contract includes required condition on the timing of the return by the customer to the supplier (contractor, performer) of the funds contributed as security for the performance of the contract (if such a form of security for the performance of the contract is used by the supplier (contractor, performer). all obligations by the counterparty When purchasing from SMP and SONO, the period is 15 calendar days.

The legislator secures the right to conclude a contract with the second participant if the customer terminated the contract unilaterally, by a court decision or by agreement of the parties. The second participant is the applicant who, during the purchase, offered the best conditions after the winner. Participant number two has the right to refuse to conclude a contract. At the same time, if the termination of the contract was unilateral, the contract with the second participant by the customer is concluded only after the information about the winner is entered into the RNP.

When concluding a contract with a second participant, it is necessary to reduce the volume of products and the price in proportion to the obligations fulfilled.

With regard to purchases from sole supplier From July 01, the following changes will come into force. The limit for small purchases has been increased in accordance with paragraph 4 of part 1 of Article 93 of the Law. The maximum price limit for direct purchases will be three hundred thousand rubles instead of the previous one hundred thousand rubles, which will greatly facilitate the life of both the customer and the supplier in relation to “inexpensive” but important purchases. An increase in the price limit to a million rubles when purchasing medicines from a single supplier by decision of the medical commission instead of the previous two hundred thousand introduces an amendment to clause 28, part 1 of Art. 93 of Law No. 44-FZ.

From 31.07.2019 changes come into effect in relation to purchases from a single supplier under clause 5 of part 1 of article 93 of Law No. 44-FZ. The amount of direct purchases of cultural and educational institutions will amount to six hundred thousand rubles instead of the previous four hundred, with a maximum annual volume of such purchases of thirty million rubles. Thus, the procurement participants who conclude direct contracts with customers in the sphere of culture and education under clause 5, part 1 of Article 93 will increase the price limit for concluding contracts.

From 01.10.2019 if the contract provides for stage-by-stage execution and payment of an advance, the customer must include in the notice and in the contract a condition on the amount of the advance for each stage as a percentage of the price of the stage. If the payment is stipulated, the amount of the advance is prescribed in the notice. From July 1, it is not allowed to pay an advance payment to a participant in respect of whom anti-dumping measures are applied.

From 01.01.2020 GIS "Independent Registrar" begins its work. The system is designed to monitor and record the actions and inaction of procurement participants and customers. The main task of the system is to monitor, among other things, the performance of the EIS, as well as electronic sites. Now customers and procurement participants can independently install and use the program. From January 1, 2020, work in the program will be mandatory for all parties involved in the procurement process under 44-FZ.

Summing up, we can conclude that the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs" has undergone significant changes for both procurement participants and customers. Whether this will give the desired result, whether it will facilitate the already complex system of procurement activities of the customer and the involvement of procurement participants at all stages in this activity, time will tell. It remains for us to learn to apply the introduced norms of legislation and to expect the practice of applying innovations.

List of materials used:

1. Federal Law of 05.04.2013 N 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs" as amended by amendments dated 01.05.2019;
2. Federal Law of 01.05.2019 N 71-FZ "On Amendments to the Federal Law" On the contract system in the procurement of goods, works, services to meet state and municipal needs ";
3. Review of changes in procurement under 44-FZ since May 2019. N. Kozlova.

Memo to small businesses: the most frequently asked questions on the application of the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs"

1. Does the customer have the right to require the quantity of goods to be specified in the order when conducting an electronic auction? // FAS position

1. Does the customer have the right to require the procurement participant to describe the chemical composition from which the product will be made, for example, to describe the chemical composition of the steel from which the door body is made? / FAS position

1. The customer in the procurement documentation does not indicate a reference to a specific GOST, which the product must comply with (for example, it must comply with GOST, but it is not specified which one). At the same time, if a participant fills out an application and the indicators do not correspond to GOST, then the application will be rejected. Is it legal? / FAS position

1. How to correctly fill out an application in accordance with the auction documentation or open competition? What indicators need to be specified, and what indicators should be left in the range or unchanged?

1. Can the procurement participant indicate several countries of origin of the goods in the application?

1. Is it legal to reject the first part of the application for participation in the electronic auction in the absence of an indication of the trademark?

in the presence of such information

1. What documents must the procurement participant provide if the offered price is reduced by 25% or more from the initial (maximum) contract price?

1. The right of the customer not to establish the requirement to ensure the performance of the contract in the notice of the procurement and (or) the draft contract (Decree of the Government of the Russian Federation of 11.03.2016 N 182).

19. Resolution The Government of the Russian Federation of 03/14/2016 N 191 "On approval of the Rules for changes by agreement of the parties to the term of the contract, and (or) the price of the contract, and (or) the price of a unit of goods, work, services, and (or) the amount of goods, scope of work, services stipulated by contracts, the term of execution of which ends in 2016 ").

the law

paragraph 1

subparagraph "b"

paragraph 1 of article 451

the first paragraph of this clause.

paragraph one of clause 5

paragraph 1

C new = (C - C p) x ICC + C p,

clause 13 of these Rules.

subparagraph "a" of paragraph 3

clause 6, clause 15 of these Rules.

paragraph 14

C unit new = ((K - C p / C unit) x C unit x ICC + C p) / K,

C n

C unit - the initial price of a unit of goods, work, services provided by the contract;

ICC - price adjustment index established in accordance with paragraph 13 of these Rules.

paragraph 14

C new = C unit. new x K new,

C unit new - the limit value of the new price of a unit of goods, the volume of work performed, services provided, determined in accordance with paragraph 15 of these Rules;

K new - a reduced amount of goods, the amount of work performed, services provided.

C new = C + C 16 x (ID 16n - ID 16) / ID 16,

C - the initial price of the contract;

Ts 16 - the volume of payments in accordance with the terms of the contract in 2016;

ID 16n - forecast deflator index "Investments in fixed assets from all sources of financing" in 2016 as a percentage of 2015, approved by the Government of the Russian Federation as part of the forecast of socio-economic development of the Russian Federation, effective as of the date of the change in the contract;

ID 16 - the forecast deflator index "Investments in fixed assets from all sources of financing" in 2016 in percent by 2015, approved by the Government of the Russian Federation as part of the forecast of the socio-economic development of the Russian Federation, effective as of the date of adoption of the normative legal act on the provision of budgetary funds from the budget of the budgetary system of the Russian Federation for the implementation of an investment project for the construction, reconstruction and technical re-equipment of capital construction facilities, for the preservation of cultural heritage objects (historical and cultural monuments) of the peoples of the Russian Federation, with the exception of scientific and methodological guidance.

paragraph 17

Memo to small businesses: the most frequently asked questions on the application of the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs"

1. Does the customer have the right to require the quantity of goods to be specified in the order when conducting an electronic auction? // FAS position

The procurement participant in the application for participation in the electronic auction for the supply of goods must indicate consent and specific indicators of the goods.

At the same time, the Law on the Contract System does not contain a requirement to indicate the quantity of goods in the application.

Thus, the quantity of the goods is not included in the list of information that the application for participation in the electronic auction should contain, since it is not a specific indicator of the goods, and therefore, when establishing the specified conditions for the performance of the contract in the documentation on the electronic auction, the procurement participants agree to fulfill these conditions contract in accordance with the requirements of the Law on the contract system.

Thus, the customer does not have the right to require, as part of the application for participation in the electronic auction, an indication of the quantity of the supplied goods.

2. Does the customer have the right to require the procurement participant to describe the chemical composition from which the product will be made, for example, to describe the chemical composition of the steel from which the door body is made? / FAS position

Taking into account that the Law on the Contract System does not oblige the procurement participant to have in stock the goods subject to description in accordance with the documentation requirements, the establishment in the procurement documentation of requirements for the description of the chemical indicators of goods by the procurement participants limit the ability of the procurement participants to submit a proper offer as part of the bids for participation in the procurement. competition, auction.

Based on the foregoing, FAS Russia considers that the establishment in the procurement documentation of the requirement for the procurement participants to provide information on the chemical composition of the materials from which the purchased goods are made as part of the bids is a violation of part 5 of article 51, part 6 of article 66 of the Law on the contract system.

3. The customer in the procurement documentation does not indicate a reference to a specific GOST, which the product must comply with (for example, it must comply with GOST, but it is not specified which one). At the same time, if a participant fills out an application and the indicators do not correspond to GOST, then the application will be rejected. Is it legal? / FAS position

2) the use of indicators, requirements, symbols and terminology related to technical characteristics, functional characteristics (consumer properties) of goods, work, services and quality characteristics of the procurement object, which are provided for by technical regulations adopted in accordance with the legislation of the Russian Federation, when drawing up a description of the procurement object on technical regulation, documents developed and applied in the national standardization system, adopted in accordance with the legislation of the Russian Federation on standardization, other requirements related to determining the conformity of the supplied goods, the work performed, the services provided to the customer's needs. If the customer does not use the indicators, requirements, conventions and terminology established in accordance with the legislation of the Russian Federation on technical regulation, the legislation of the Russian Federation on standardization, in the preparation of the description of the procurement object, the procurement documentation must contain a justification for the need to use other indicators, requirements, conventions and terminology;

Thus, when specifying requirements for compliance with GOST in the tender documentation, auction documentation, the customer should be provided with the opportunity to compare GOST and the product, in the description of which it is necessary to be guided by such GOST.

At the same time, the actions of the customer who established the requirements for compliance with GOST in the tender documentation, auction documentation, but did not indicate the specific name of GOST, and also did not establish proper instructions for filling out applications, which allows comparing the described product and GOST, do not comply with paragraph 2 of Part 1 article 64 of the Law on the contract system.

4. How to fill out an application correctly in accordance with the auction or open tender documentation? What indicators need to be specified, and what indicators should be left in the range or unchanged?

The rules for describing the object of the procurement are established in Article 33 of the Law on the Contract System, according to which the description of the object of the procurement must be objective. The customer, when describing the procurement object in the procurement documentation, indicates the functional, technical and quality characteristics, operational characteristics of the procurement object (if necessary).

According to part 2 of Article 33 of the Law on the Contract System, the procurement documentation must contain indicators that allow determining the compliance of the purchased goods, work, services with the requirements established by the customer. In this case, the maximum and (or) minimum values ​​of such indicators are indicated, as well as the values ​​of indicators that cannot be changed.

At the same time, the Law on the Contract System does not contain a prohibition on the use of other indicators of the description of the procurement object.

In addition, FAS Russia informs that when describing the object of the procurement, the customer independently determines the indicators that allow determining the compliance of the purchased goods, work, services with the requirements established by the customer.

At the same time, the customer has the right to include in the procurement documentation only those requirements for the goods used to perform the work, which, in the customer's opinion, are significant for the quality performance of work (provision of services).

In accordance with Article 51 of the Law on the Contract System, applications for participation in an open tender are submitted in the form and in the order specified in the tender documentation, and must contain the proposal of the participant of the open tender in relation to the procurement object, and in the case of procurement of goods, also the proposed unit price of goods. , information about the country of origin of the goods and the manufacturer of the goods.

Thus, the customer has the right to establish an application form in the tender documentation, in accordance with which the procurement participant must indicate the indicators of the object of the procurement of goods, work, services and the values ​​of such indicators.

At the same time, FAS Russia draws attention to the fact that in accordance with paragraph 4 of part 1 of Article 50, paragraph 2 of Part 1 of Article 64 of the Law on the Contract System, the tender documentation, the documentation on the electronic auction must contain requirements for the content of the application and requirements for the composition of the application for participation. in the purchase, as well as instructions for filling it out.

It follows from the above that the tender documentation, the documentation on the electronic auction must contain proper instructions for filling out the application for participation in the procurement, which allows you to determine the procedure for filling out the application in terms of indicating the indicators of the goods (work, service).

Failure by the customer to establish the proper instructions in the auction documentation, tender documentation, as well as the establishment of instructions that do not allow to unambiguously determine the procedure for filling out the application is a violation of paragraph 4 of part 1 of Article 50, paragraph 2 of Part 1 of Article 64 of the Law on the Contract System and contains signs of an administrative offense provided for part 4.2 of article 7.30 of the Code of Administrative Offenses of the Russian Federation. Additionally, FAS Russia informs that the question of whether the instruction for filling out the application for participation in the procurement is proper or inappropriate must be decided in each specific case, based on the provisions of the procurement documentation, the procurement participant's application and all the circumstances of the case.

5. Can the procurement participant indicate several countries of origin of the goods in the application?

In accordance with part 3 of Article 66 of the Law on the Contract System, the first part of the application for participation in an electronic auction must contain, inter alia, the name of the country of origin of the goods.

According to Article 58 of the Customs Code of the Customs Union (hereinafter referred to as the TC CU), general provisions about the country of origin of goods. The country of origin of goods is the country in which the goods have been fully produced or have undergone sufficient processing (processing) in accordance with the criteria established by the customs legislation of the Customs Union.

In accordance with part 2 of article 59 of the Customs Code of the CU, documents confirming the country of origin of goods are a declaration of origin of goods or a certificate of origin of goods.

In addition, clause 2.1 of the Agreement of the Governments of the Member States of the CIS countries of November 20, 2009 "On the Rules for Determining the Country of Origin of Goods in the Commonwealth of Independent States" (hereinafter referred to as the Agreement) establishes that the country of origin of goods is considered to be a state party to the Agreement, on whose territory the goods have been completely manufactured or have undergone sufficient processing / processing in accordance with the rules for determining the country of origin of goods.

Thus, information about the country of origin of the goods is established in accordance with the provisions of the Customs Code of the CU, according to which, under the information about the origin of goods, it is assumed the country of origin of the goods, in the territory of which the goods were completely produced or underwent sufficient processing / processing.

Based on the foregoing, the procurement participant, when offering a specific product for delivery, indicates in the first part of the application for participation in the electronic auction information about the country of origin of the product.

However, in individual cases the legislation of the Russian Federation establishes the need to obtain a document confirming the compliance of the goods with the requirements established in accordance with the legislation of the Russian Federation. Moreover, such documents may contain, inter alia, information about the country of origin of the goods.

In particular, in accordance with the Rules state registration medical devices approved by the Decree of the Government of the Russian Federation of December 27, 2012 No. 1416, information about the place of manufacture of a medical device is indicated in the registration certificate issued Federal Service on supervision in the field of health care.

Also, in the registration certificate of a medicinal product, which, in accordance with clause 26 of Article 4 of Federal Law No. 61-FZ dated 12.04.2010 "On Circulation of Medicines", a document confirming the fact of state registration of a medicinal product, may indicate several countries of origin of goods.

6. Is it legal to reject the first part of the application for participation in the electronic auction in the absence of an indication of the trademark?

Based on the foregoing, in the absence of an indication of the trademark (if any), service mark (if any), trade name (if any), patents (if any), utility models (if any), industrial designs in the documentation on the electronic auction (if any), the first part of the application for participation in an open electronic auction when concluding a contract for the performance of work or the provision of a service, for the performance or provision of which the goods are used, in addition to the consent of the participant of such an auction to perform work or provide a service under the conditions stipulated by the documentation on such the auction must contain:

Specific indicators of the product used;

An indication of the trademark (its verbal designation) (if any), service mark (if any), company name (if any), patents (if any), utility models (if any), industrial designs (if any);

Name of the country of origin of the goods.

At the same time, information about a trademark, service mark, company name, patent, utility model, industrial design is indicated in the application for participation in an electronic auction only if such information is available.

Thus, the absence of specific indicators in the application for participation in the electronic auction in relation to the goods offered for delivery, used in the performance of work or the provision of services, as well as information about the trademark, service mark, trade name, patent, utility model, industrial design in the presence of such information about a product is the basis for refusing admission to an electronic auction participant due to failure to provide information provided for in part 3 of Article 66 of the Law on the Contract System.

7. What documents must the procurement participant provide if the offered price is reduced by 25% or more from the initial (maximum) contract price?

In accordance with part 2 of Article 37 of the Law on the Contract System, if during a tender or auction, the initial (maximum) contract price is fifteen million rubles or less and the procurement participant with whom the contract is concluded, the contract price is offered, which is twenty-five percent or more lower the initial (maximum) price of the contract, the contract is concluded only after such a participant has provided security for the performance of the contract in the amount specified in part 1 of Article 37 of the Law on the Contract System, or information confirming the good faith of such a participant on the date of filing the application in accordance with Part 3 of Article 37 of the Law about the contract system.

According to part 5 of Article 37 of the Law on the Contract System, the information provided for in Part 3 of Article 37 of the Law on the Contract System is provided by the procurement participant upon sending the signed draft contract to the customer. If such a participant, recognized as the winner of the auction, fails to comply with this requirement, or if the procurement commission recognizes the information provided for in Part 3 of Article 37 of the Law on the Contract System as unreliable, the contract with such a participant is not concluded, and he is recognized as evading the conclusion of the contract.

According to part 6 of Article 37 of the Law on the Contract System, the security specified in Parts 1 and 2 of Article 37 of the Law on the Contract System is provided by the procurement participant with whom the contract is concluded, prior to its conclusion. A procurement participant who has not fulfilled this requirement is recognized as having evaded the conclusion of the contract.

Thus, if a procurement participant proposed a contract price reduced by twenty-five percent or more, such a procurement participant must provide security for the performance of the contract in the amount specified in part 1 of Article 37 of the Law on the Contract System, or information confirming the good faith of such a procurement participant as of the date filing an application in accordance with part 3 of article 37 of the Law on the contract system. If this requirement is not met, such a procurement participant is deemed to have evaded the conclusion of the contract.

At the same time, FAS Russia draws attention to the fact that in accordance with part 4 of Article 96 of the Law on the Contract System, the contract is concluded after the procurement participant with whom the contract is being concluded secures the execution of the contract in accordance with the Law on the Contract System.

Thus, compliance by the procurement participant with the conditions for providing information confirming the good faith of such a participant as of the date of filing the application in accordance with part 3 of Article 37 of the Law on the Contract System does not exempt the procurement participant with whom the contract is concluded from providing security for the performance of the contract in the amount established in procurement notice and procurement documentation in accordance with the Law on the Contract System.

8. The right of the customer not to establish the requirement to ensure the performance of the contract in the notice of the procurement and (or) the draft contract (Decree of the Government of the Russian Federation of 11.03.2016 N 182).

In accordance with Part 2.1 of Article 96 of the Federal Law "On the Contract System in the Sphere of Procurement of Goods, Works, Services to Ensure State and Municipal Needs", the Government of the Russian Federation decides:

Determine the following cases and conditions under which in 2016 the customer has the right not to establish the requirement to ensure the execution of a contract for the supply of goods, performance of work, provision of services to meet state or municipal needs (hereinafter referred to as the contract) in the notice of procurement and (or) the draft contract :

tenders, electronic auctions, requests for proposals are held, in which only small businesses, socially oriented non-profit organizations are participants in the procurement, and in projects whose contracts do not provide for the payment of an advance;

the draft contract contains a clause on the banking support of the contract;

the draft contract contains a clause on the transfer of advance payments to the supplier (contractor, performer) to an account opened by a territorial body of the Federal Treasury or a financial body of a constituent entity of the Russian Federation, a municipal entity in the institutions of the Central Bank of the Russian Federation;

the draft contract provides for the payment of advance payments in the amount of not more than 15 percent of the contract price when making purchases to meet federal needs or in another amount established by the highest executive bodies state authorities of the constituent entities of the Russian Federation, local administrations, when making purchases to meet, respectively, the needs of the constituent entity of the Russian Federation, municipal needs, as well as the customer's settlement with the supplier (contractor, performer) with payment in the amount of not more than 70 percent of the price of each delivery of goods (stage of implementation work, provision of services) to meet federal needs or in a different amount established by the highest executive bodies of state power of the constituent entities of the Russian Federation, local administrations, when making purchases to meet the needs of the constituent entity of the Russian Federation, municipal needs, respectively, and carrying out a full settlement only after the customer accepts all the contract for the goods supplied, the work performed, the services rendered and the complete fulfillment by the supplier (contractor, performer) of other obligations stipulated by the contract (with the exception of warranty obligations).

9. Is not only the price for the right to conclude a contract payable, but also the services rendered following the results of the auction if the auction is conducted by increasing the price for the right to conclude a contract?

According to part 2 of Article 42 of the Law on the Contract System, if it is impossible to determine the scope of maintenance and (or) repair of machinery, equipment, provision of communication services, the customer indicates the price of a unit of work or service in the notice of procurement and procurement documentation. At the same time, the notice of the procurement and the procurement documentation must indicate that payment for the performance of work or the provision of services is carried out at the price of a unit of work or service based on the volume of work actually performed or service rendered, at the price of each spare part for equipment, equipment based on the number of spare parts, the supply of which will be carried out during the execution of the contract, but in an amount not exceeding the initial (maximum) contract price specified in the notice of the procurement and procurement documentation.

In accordance with part 4 of Article 24 of the Law on the Contract System, an auction is understood as a method of determining a supplier, in which the procurement participant who has offered the lowest contract price is recognized as the winner.

At the same time, in accordance with part 23 of Article 68 of the Law on the Contract System, if during an electronic auction the price of a contract is reduced to half a percent of the initial (maximum) contract price or lower, such an auction is held for the right to conclude a contract. In this case, such an auction is carried out by increasing the price of the contract.

Thus, if, during an electronic auction for the provision of services, the contract price is reduced to half a percent of the initial (maximum) contract price or lower, the subject of such an auction becomes the right to conclude a contract, and the winner of such an auction is the participant who offered the highest price for the right to conclude contract. At the same time, the contract price offered by such a procurement participant in this case is not the price of the services to be provided under the contract, but is the price of acquiring the right to conclude it.

Based on the results of an electronic auction for the right to conclude a contract in accordance with part 2 of Article 70 of the Law on the Contract System, the customer places a draft contract in the unified information system, which is drawn up by including the price for the right to conclude a contract proposed by the winner of the electronic auction with whom the contract is concluded.

In accordance with part 12 of Article 70 of the Law on the Contract System, based on the results of an electronic auction for the right to conclude a contract, the contract is concluded only after depositing to the account, which, in accordance with the legislation of the Russian Federation, accounts for transactions with funds received by the customer, the winner of the electronic auction of funds in the amount of the price offered by him for the right to conclude a contract, as well as to provide security for the execution of the contract.

Based on the foregoing, due to the fact that according to the results of the electronic auction for the right to conclude a contract, only the right to conclude a contract is payable, then a sum of money in the amount of the price offered by the winner of the auction for the right to conclude a contract is to be deposited into the customer's account. In this case, the provision of the services specified in the notice, procurement documentation is carried out free of charge.

In addition, FAS Russia draws attention to the fact that depositing funds in the amount of the price offered by the winner for the right to conclude a contract to the customer's account does not relieve the winner of the electronic auction from providing security for the execution of the contract, taking into account the requirements provided for in Article 37 of the Law on the Contract System.

10. Is it legal to reject the application for participation in the tender if the application includes a document confirming the entry of the application security, but at the time of consideration of applications cash have not been received on the customer's account?

According to clause 5 of part 2 of Article 51 of the Law on the Contract System, an application for participation in an open tender must contain documents confirming the entry of security for an application for participation in an open tender (a payment order confirming the transfer of funds as security for an application for participation in an open tender with a bank mark , or a copy of this payment order certified by the bank, or a bank guarantee included in the register of bank guarantees).

In accordance with part 3 of Article 53 of the Law on the Contract System, the tender commission rejects the application for participation in the tender if the tender participant who submitted it does not meet the requirements for the tender participant specified in the tender documentation, or such an application is found not to meet the requirements specified in the tender documentation.

Thus, in the absence of a document in the composition of the application confirming the entry of the security for the application for participation in an open tender, the customer is obliged to reject such an application.

At the same time, in accordance with part 5 of Article 44 of the Law on the Contract System, if the procurement participant as part of the application submitted documents confirming the payment of funds as security for the application for participation in determining the supplier (contractor, executor), and before the date of consideration and assessment of applications, the funds did not arrive at the account specified by the customer in the procurement documentation and on which, in accordance with the legislation of the Russian Federation, transactions with funds received by the customer are accounted for, such a participant is deemed not to have provided security for the application.

Thus, if the procurement participant as part of the application submitted documents confirming the payment of funds as security for the application for participation in determining the supplier (contractor, performer), and before the date of consideration and evaluation of applications, the funds did not arrive at the customer's account, the customer is obliged reject such an application of the bidder.

11. On the application of the Law on the Contract System on the issue of the possibility of establishing by the customer in the tender documentation the evaluation procedure, in which, according to the indicator “ Business reputation»The membership of the procurement participant in the SRO / AC / 54940/15 of 08.10.2015 is subject to assessment

According to paragraph 1 of part 1 of Article 31 of the Law on the Contract System, when making a procurement, the customer establishes uniform requirements to the procurement participants, including on compliance with the requirements established in accordance with the legislation of the Russian Federation for persons supplying goods, performing work, rendering services that are the object of the procurement. Thus, if the legislation of the Russian Federation establishes a requirement for the mandatory membership of an organization in an SRO that carries out activities in the relevant area, the customer is obliged to establish in the procurement documentation a corresponding requirement for procurement participants in accordance with paragraph 1 of part 1 of Article 31 of the Law on the Contract System.

At the same time, in the presence of legislative norms on compulsory membership in an SRO of an organization operating in the relevant field of activity, this requirement is not established by the customer in the procurement documentation as a criterion for evaluating the application "qualifications of a procurement participant", since it is a criterion for admitting a person to participate in purchase.

According to part 1 of Article 32 of the Law on the Contract System for evaluating bids, final proposals of procurement participants, the customer establishes the following criteria in the procurement documentation:

1) the price of the contract;

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

3) quality, functional and environmental characteristics of the procurement object;

4) the qualifications of the procurement participants, including whether they have financial resources, on the basis of ownership or otherwise legal basis equipment and other material resources, work experience related to the subject of the contract, and business reputation, specialists and other employees of a certain qualification level.

The procedure for evaluating bids, final proposals of procurement participants, including the limiting values ​​of the significance of each criterion, is established by Decree of the Government of the Russian Federation dated November 28, 2013 No. 1085 "On approval of the Rules for evaluating bids, final proposals of procurement participants for goods, works, services to ensure needs "(hereinafter - the Rules).

According to clause 27 of the Rules, the indicators of the non-value assessment criterion “the qualifications of the procurement participants, including the availability of financial resources, equipment and other material resources belonging to them on the right of ownership or on another legal basis, work experience related to the subject of the contract, and business reputation, specialists and other employees of a certain qualification level "can be:

a) qualification of labor resources (managers and key specialists) offered to perform work, provide services;

b) the participant's experience in the successful delivery of goods, performance of work, provision of services of a comparable nature and volume;

c) the provision of the procurement participant with material and technical resources in terms of the procurement participant's own or leased production facilities, technological equipment necessary for the performance of work, the provision of services;

d) provision of the procurement participant with labor resources;

e) business reputation of the procurement participant.

At the same time, according to the FAS Russia, in the absence of legislation on the mandatory membership of an organization in an SRO, the provision by a procurement participant of an SRO certificate as confirmation of the "Business reputation" indicator does not indicate a higher qualification level of such a procurement participant, nor does it indicate that that such a procurement participant will be offered the best condition for the execution of the contract.

At the same time, obtaining a SRO certificate by a procurement participant requires time and financial costs on the part of the procurement participant.

Based on the foregoing, the establishment in the procurement documentation as the subject of assessment for the "Business reputation" indicator that a procurement participant has membership in an SRO in a certain area of ​​goods (works, services) may lead to a limitation of the number of procurement participants.

At the same time, the decision on the presence or absence of signs of limiting the number of participants in the procurement is made in each specific case on the basis of documents on the conduct of the corresponding procurement.

12. Is it legal to provide, as part of an application for participation in an open tender, a printed extract from the Unified State Register of Legal Entities, formed in the form electronic document and signed by qualified electronic signature tax authority?

According to the position of the Ministry of Economic Development of Russia, set out in the letter dated October 21, 2015 No. OG-D28-13376, an extract from the Unified State Register of Legal Entities in electronic form signed by a qualified electronic signature of the tax authority can be submitted as part of an application for participation in an open tender, request for proposals if submitted such an application is also in electronic form.

At the same time, in accordance with Part 1 of Article 5 of the Law on the Contract System, applications of participants must be submitted using a unified information system, put into operation in 2016.

At the same time, FAS Russia draws attention to the fact that on paper an extract from the Unified State Register of Legal Entities, generated in electronic form and signed by a qualified electronic signature of the tax authority, is no longer an electronic document.

Thus, in the opinion of the FAS Russia, the submission by a participant of an open tender to the customer of an extract from the Unified State Register of Legal Entities, generated in electronic form and signed by a qualified electronic signature of the tax authority, as part of an application for participation in an open tender on paper does not comply with the requirements of the Law on the Contract System.

13. On the procedure for evaluating the application for non-value criteria / АЦ / 57532/15 dated 19.10.2015

According to paragraph 9 of part 1 of Article 50, paragraph 7 of Part 6 of Article 83 of the Law on the Contract System, the procurement documentation must contain criteria for evaluating bids (proposals) for participation in the procurement, the significance of these criteria, the procedure for considering and evaluating such bids (proposals).

In accordance with part 8 of Article 32 of the Law on the Contract System, the procedure for evaluating bids, final proposals of procurement participants, including the limiting values ​​of the significance of each criterion, are established by Decree of the Government of the Russian Federation of November 28, 2013 No. 1085 "On approval of the Rules for evaluating bids, final proposals of procurement participants goods, works, services to meet state and municipal needs ”(hereinafter referred to as the Rules).

In accordance with paragraph 4 of the Rules for the assessment of bids (proposals), the customer sets in the procurement documentation cost evaluation criteria (including the contract price), as well as non-cost evaluation criteria (quality, functional and environmental characteristics of the procurement object, as well as the qualifications of procurement participants ). At the same time, paragraph 10 of the Rules establishes that in the procurement documentation in relation to non-value evaluation criteria, indicators may be provided that reveal the content of non-value evaluation criteria and take into account the peculiarities of evaluating purchased goods, works, services according to non-value evaluation criteria.

In accordance with the provisions of clause 8 of the Rules for the assessment of bids (proposals), the customer establishes in the procurement documentation at least two evaluation criteria, one of which must be the criterion "contract price". Consequently, in order to evaluate bids (proposals) for participation in the procurement, the customer has the right to establish in the procurement documentation both one of the non-cost criteria and both non-cost criteria.

According to clause 3 of the Rules, "evaluation" is the process of identifying, according to the evaluation criteria and in the manner prescribed in the procurement documentation, the best conditions for the execution of the contract specified in the bids (offers) of the procurement participants, which were not rejected.

1. Based on the foregoing, in order to identify the best conditions for the execution of the contract, the procedure for evaluating bids, established by the customer in the procurement documentation, must contain:

1. the subject of assessment, which makes it possible to determine an exhaustive list of information to be assessed by the customer's procurement commission and, accordingly, to be submitted by the procurement participants in their bids to obtain an assessment based on non-value criteria;
2. instructions for filling out the application, which allows you to determine what information is subject to description and submission by the procurement participants for evaluation by the commission of the customer for the procurement;
3. dependence (the formula for calculating the number of points provided for by the Rules, or the assessment scale) between the number of points awarded and the information provided according to the criterion "qualitative, functional and environmental characteristics of the procurement object" (criterion indicators);
4. dependence (the formula for calculating the number of points provided for by the Rules, or a rating scale that provides for a proportional scoring) between the number of points awarded and the information provided according to the criterion "qualifications of procurement participants" (criterion indicators), given that the information provided according to the specified criterion can be quantified.

In the opinion of the FAS Russia, the identification of the best proposal for the execution of the contract is most facilitated by the establishment, in the order of evaluating bids for participation in the procurement, the formula for calculating the number of points provided for by the Rules, if the subject of evaluation by a non-cost criterion (indicator) is the quantity of a qualitative, qualifying characteristic ( for example, the number of contracts executed by the procurement participant).

2. In accordance with paragraph 11 of the Rules for the evaluation of applications (proposals) for each criterion evaluations used 100-point rating scale... If, in accordance with paragraph 10 of the Rules in relation to the evaluation criterion, the customer provides for indicators in the procurement documentation, then for each indicator its significance is established, according to which the assessment will be made, and the formula calculating the number of points awarded for such indicators, or scale the limiting values ​​of the significance of the assessment indicators, which sets the intervals for their changes, or the procedure for their determination. To evaluate bids (proposals) according to non-cost evaluation criteria (indicators), the customer has the right to establish the maximum required minimum or maximum quantitative value of qualitative, functional, environmental and qualification characteristics that are subject to assessment within the specified criteria. In this case, when evaluating bids (proposals) according to such criteria (indicators), the procurement participants who made an offer corresponding to such a value, or the best offer, are assigned 100 points. Sum quantities significance of indicators the evaluation criterion should be 100 percent.

Based on the foregoing, if there is a non-value criterion in the procurement documentation, the assessment procedure should contain:

1. significance in relation to each indicator, which, in accordance with paragraph 3 of the Rules, is expressed in percentages the weight of the indicator;
2. the sum of the values ​​of the significance of the indicators of the evaluation criterion in the amount of 100 percent;
3. a formula for calculating or a scale of points, providing for the assignment of each indicator from 0 up to 100 points(for further multiplication by the coefficient of significance of the indicator).

Compliance with the above provisions in aggregate will ensure the application of the point scale specified in paragraph 11 of the Rules 100 by criterion(it is possible to assign the best offer according to the criterion assessment of 100 points).

The appendix provides an example of the order for evaluating bids, containing indicators of the non-value criterion for evaluating bids.

3. In the case of establishing in the procurement documentation the indicator "participant's experience in the successful delivery of goods, performance of work, provision of services of a comparable nature and volume" of the criterion "qualifications of procurement participants" the provision of services with the subject of the procurement being carried out, including, indicates the unit of measurement of volume.
4. When establishing the procedure for evaluating bids for participation in the procurement for the performance of construction work, the following should be followed.

In accordance with clause 11 of the Rules, in the event of a procurement, as a result of which a contract is concluded that provides for the performance of construction work, the customer is obliged to establish the indicator "participant's experience in the successful delivery of goods, performance of work, rendering services of a comparable nature and volume" of the criterion "qualifications of procurement participants" , with the exception of the case provided for in clause 30 of the Rules. In this case, the significance of the indicator should be at least 50 percent of the significance of all non-cost evaluation criteria.

The classification of construction works by the hierarchical method and the sequential coding method is presented in code 45 All-Russian classifier products by type economic activity(OKPD) OK 034-2007.

Thus, the customer, when making a purchase for the performance of any work included in the code 45 of the OKPD (except for the case provided for in paragraph 30 of the Rules), sets the indicator "participant's experience in the successful delivery of goods, performance of work, provision of services of a comparable nature and volume" of the criterion " qualification of procurement participants ”with a significance of at least 50 percent of the significance of all non-cost evaluation criteria.

14. Is it legal to reject the application for the participant's failure to submit the request for quotations as part of the application a copy of the document confirming the compliance of the procurement participant with the requirements established by the legislation of the Russian Federation?

According to clause 1 of part 1 of Article 31 of the Law on the Contract System, when carrying out a procurement, the customer establishes uniform requirements for procurement participants, as well as compliance with the requirements established in accordance with the legislation of the Russian Federation for persons who supply goods, perform work, provide services that are the object of the procurement ... These requirements include, in particular, the requirement for a procurement participant to have a license if the relevant type of activity is subject to licensing in accordance with the legislation of the Russian Federation.

In accordance with paragraph 1 of part 1 of Article 73 of the Law on the Contract System, the notice of the request for quotations must contain information on the requirements for the participants in the request for quotations.

Thus, in the event that, in accordance with the legislation of the Russian Federation, the procurement object belongs to licensed types of activity, the customer in the notice of the request for quotations is obliged to establish a requirement for the participant in the request for quotations to have an appropriate license provided for by the legislation of the Russian Federation.

At the same time, part 3 of Article 78 of the Law on the Contract System establishes requirements for the documents and information provided as part of the application for participation in the request for quotations, while the requirement to provide a copy of the document confirming the compliance of the procurement participant with the requirements established by the legislation of the Russian Federation is not established ...

According to part 4 of Article 78 of the Law on the Contract System, it is not allowed to require the participant of the request for quotations to provide other documents and information, with the exception of those provided for in Part 3 of Article 78 of the Law on the Contractual System of Information and Documents. Part 7 of Article 78 of the Law on the Contract System also does not provide for the rejection of the application for the participant's failure to submit the request for quotations as part of the application a copy of the document confirming the compliance of the procurement participant with the requirements established by the legislation of the Russian Federation.

Thus, the customer does not have the right to establish in the notice of the request for quotations the requirement for the procurement participants to submit the request for quotations as part of the application a copy of the document confirming the compliance of the procurement participant with the requirements established by the legislation of the Russian Federation.

At the same time, in accordance with part 8 of Article 31 of the Law on the Contract System, the procurement commission checks the compliance of the procurement participants with the requirements specified in paragraph 1 of part 1 and part 1.1 (if any such requirement) of Article 31 of the Law on the Contract System, and in relation to certain types purchases of goods, works, services with the requirements established in accordance with parts 2 and 2.1 of Article 31 of the Law on the Contract System, if such requirements are established by the Government of the Russian Federation, and also has the right to check the compliance of procurement participants with the requirements specified in paragraphs 3 - 5, 7 - 9 part 1 of article 31 of the Law on the contract system. The Procurement Commission does not have the right to impose on the procurement participants the obligation to confirm compliance with the specified requirements, unless the specified requirements are established by the Government of the Russian Federation in accordance with Parts 2 and 2.1 of Article 31 of the Law on the Contract System.

At the same time, in accordance with part 9 of Article 31 of the Law on the Contract System, the removal of the procurement participant from participation in the determination of the supplier (contractor, performer) or refusal to conclude a contract with the winner of the determination of the supplier (contractor, performer) is carried out at any time before the conclusion of the contract, if the customer or the commission in the course of procurement finds that the procurement participant does not meet the requirements specified in part 1, parts 1.1, 2 and 2.1 (if any) of Article 31 of the Law on the Contract System, or has provided inaccurate information regarding its compliance with the specified requirements.

Thus, the quotation commission and the customer, in the absence of a copy of the document confirming the compliance of the procurement participant with the requirements established by the legislation of the Russian Federation in the application, have the right to check its actual existence by other means, including by sending requests to the relevant licensing authorities, studying the registers of licenses for official sites of licensing authorities.

If the quotation commission or the customer reveals a discrepancy between the procurement participant, including the winner of the request for quotations, with the license requirement established in the notice of the request for quotations, then such participant must be removed from participation in the request for quotations or the customer must refuse to conclude a contract with such a participant in the manner prescribed by parts 9 and 11 of Article 31 of the Law on the Contract System.

15. When purchasing medicinal products, can a customer require a specific package of a medicinal product or additional devices for administration?

The law on the contract system is not allowed to include in the procurement documentation requirements for the manufacturer of the goods, since such a requirement limits the number of participants in the procurement.

Regarding the establishment in the documentation of an open auction in electronic form, the requirements for the form and material of the packaging of the medicinal product, as well as for additional devices (adapters) for the administration of medicinal products, the FAS Russia reports the following.

The shape and material of the packaging of the medicinal product, as well as additional devices (adapters) for the administration of medicinal products, do not affect the therapeutic properties of medicinal products, are not specific indicators of the product and are set by the manufacturer.

Thus, the establishment in the documentation of an open auction in electronic form of a requirement for a specific package of a medicinal product, as well as for additional devices for the administration of medicinal products, may lead to a limitation of the number of procurement participants and, as a consequence, to a restriction of competition.

16. Is it legal to establish a requirement for the residual shelf life of drugs and medical devices, expressed as a percentage?

FAS Russia draws attention to the fact that the question of the possibility or impossibility of using certain formulations in the technical documentation to indicate the expiration date should be considered depending on the product markets on which the purchase takes place. So, for some medical devices, the shelf life (service) can be set and determined by the manufacturer by a specific date, and for others, the shelf life (service) begins from the moment the medical device is put into operation. Accordingly, the following position of the FAS Russia is applicable to the procurement of medical devices that have an expiration date that is not related to the introduction of a medical device into operation.

In the process of registration of a medical device, its quality, effectiveness and safety are proved. Consequently, the fact of state registration of a medical device means its compliance with the requirements of quality, efficiency and safety during its shelf life.

Thus, business entities offering medical devices for the same product market (or one medical device) for delivery, but having different shelf life or different residual shelf life, in the event that customers establish requirements for shelf life expressed as a percentage, are placed in unequal conditions.

So, for example, participant No. 1 proposed a medical device with a shelf life of 3 years, participant No. 2 - 2 years, the customer purchases a medical device for a period of 1 year, while the remaining shelf life in percentage terms is 70%, therefore, to meet the customer's requirements , participant No. 1 must supply a medical device with a residual shelf life of 2.1 years, and participant No. 2 - 1.4 years. In this case, the remaining shelf life of the medical devices of the two participants covers the period of the needs of the goods consumption by the customer. Thus, participant No. 1 is forced to deliver goods with an expiration date relative to the shelf life of participant No. 2, exceeding 1.5 times. Either participant No. 1 and participant No. 2 proposed the same medical device with a shelf life of 2 years, but participant No. 1 can supply a medical device with a residual shelf life of 70%, and participant No. 2 - 60%, while the actual remaining shelf life is medical devices is 1.4 years and 1.2 years, respectively, which satisfies the period of consumption of a medical device by the customer - 1 year. Meanwhile, the participant No. 2 with the requirement for the remaining shelf life, expressed as a percentage, will not be able to participate in the procurement.

Thus, customer requirements for the remaining shelf life of a medical device, expressed as a percentage, may entail the establishment of unequal conditions for manufacturers of medical devices, restriction of competition and a reduction in the number of procurement participants. In addition, the customer's indication of a reasonable expiration date defined by a specific period (in days, months, years) during which medical devices must remain fit for purpose, or a specific date until which medical devices must remain fit for their intended use, is not burden for the customer, and significantly reduces the risks of limiting the number of procurement participants, and as a result, competition.

In order to prevent the restriction of competition, FAS Russia believes that the residual shelf life of medical devices established in the procurement documentation by state and municipal customers should be justified and determined by a specific period (for example, in years, months, days) during which medical devices are retained. its suitability, or a specific date until which medical devices must retain their suitability for their intended use.

17. Can the customer establish a requirement for a specific dosage of a medicinal product or for the number of tablets in a package?

Due to the fact that the properties of a medicinal product are its qualitative characteristics and determine the choice of the consumer, similar (in terms of INN, dosage form and dosage) medicinal products refer to interchangeable medicinal products, except in special cases when it is impossible to substitute between medicinal products with one INN and different trade names are defined in the process of their application.

The dosage of the medicinal product corresponds to the amount of the active substance contained in a unit volume of the medicinal product. Thus, for example, all drugs with the INN “clopidogrel” in the dosage form “film-coated tablets” at a dosage of 75 mg should be considered equivalent.

At the same time, the number of units of a medicinal product (tablets, capsules, vials, ampoules, etc.) in a package does not in any way affect the therapeutic properties of a medicinal product.

At the same time, the establishment of requirements for the number of tablets in a package in the procurement documentation may lead to a limitation of the number of participants in the procurement.

In the opinion of FAS Russia, if the customer establishes requirements for the number of tablets in a package, while establishing the total number of required packages, or the supply of an equivalent number of packages with a large number of tablets without the possibility of supplying an equivalent number of tablets in other packages, such actions may lead to limiting the number of procurement participants and, as a result, limiting competition.

Additionally, FAS Russia informs that the rejection of the application for participation in the electronic auction on the basis of non-compliance dosage form, the volume of filling the vial, packaging of the medicinal product, the form and material of the packaging of the medicinal product or an additional device for administering the medicinal product proposed by the procurement participant, the requirements established by the auction documentation, is a violation of part 5 of Article 67 of the Law on the Contract System.

At the same time, the issue of the legality of refusal to participate in the procurement must be resolved in each specific case, based on the analysis of the documents, as well as the requirements established by the customer in the procurement documentation.

18.The parties to the contract must try to resolve the dispute before going to court (Federal Law of 03/02/2016 N 47-FZ "On Amendments to the Arbitration Procedure Code of the Russian Federation")

1) in article 4:

b) part 5 shall be stated in the following edition:

"5. A dispute arising from civil legal relations may be referred to the arbitration court for resolution after the parties have taken measures for pre-trial settlement after thirty calendar days from the date the claim (demand) is sent, unless other terms and (or) procedure are established by law or agreement , with the exception of cases of establishing facts having legal significance, cases on awarding compensation for violation of the right to legal proceedings within a reasonable time or the right to execute a judicial act within a reasonable time, insolvency (bankruptcy) cases, corporate disputes, cases on the protection of the rights and legitimate interests of a group of persons, cases on early termination of legal protection of a trademark due to its non-use, cases on challenging decisions of arbitration courts. Economic disputes arising from administrative and other public legal relations may be referred to the arbitration court for resolution after observing the pre-trial procedure for resolving the dispute, if it is established by federal law. ";

A conclusion can be drawn by considering the amendments to the Arbitration Procedure Code of the Russian Federation. As a general rule, a dispute arising from civil legal relations, the parties will have the right to refer to the arbitration court only after they have taken measures for pre-trial settlement.

The right to go to court will arise after 30 calendar days from the date when one of the parties sent a claim or demand (unless another procedure is established by law or contract). We believe that the changes concern both contracts concluded under Law No. 44-FZ and contracts under Law No. 223-FZ.

19.The rules for changing, by agreement of the parties, the term for the execution of the contract, and (or) the price of the contract, and (or) the price of a unit of goods, work, services, and (or) the amount of goods, scope of work, services provided for in contracts, the term of execution of which ends in 2016 (ResolutionThe Government of the Russian Federation of 03/14/2016 N 191 "On approval of the Rules for changes by agreement of the parties to the term of the contract, and (or) the price of the contract, and (or) the price of a unit of goods, work, services, and (or) the amount of goods, scope of work, services stipulated by contracts, the term of execution of which ends in 2016 ").

1. These Rules determine the procedure for changing in 2016, by agreement of the parties, the term of execution of the contract, and (or) the price of the contract, and (or) the price of a unit of goods, work, services, and (or) the amount of goods, scope of work, services stipulated by contracts (including government contracts, municipal contracts, civil contracts budgetary institutions for the supply of goods, the performance of work, the provision of services for the needs of customers, concluded before the date of entry into force of the Federal Law "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs"), the deadline for which ends in 2016 ( hereinafter referred to as contracts).

2. Changes in the terms of contracts provided for in paragraph 1 of these Rules are allowed within the limits of the volume of financial security brought to customers for the acceptance and (or) fulfillment in 2016 of obligations under the contracts.

3. These Rules apply to contracts with a term of performance over 6 months, the performance of which, due to circumstances beyond the control of the parties, is impossible without changing their terms and the subject of which is:

a) delivery of goods, performance of work, provision of services included in the lists approved federal authorities state authorities (federal state bodies), governing bodies of state off-budget funds of the Russian Federation, the State Atomic Energy Corporation "Rosatom", as well as the most significant federal state institutions of science, education, culture and health, determined in accordance with the legislation of the Russian Federation, the highest executive state authorities of the constituent entities of the Russian Federation, local administrations in relation to procurement to meet, respectively, federal needs (carried out by the indicated federal state authorities (federal state bodies), governing bodies of state extra-budgetary funds of the Russian Federation, the State Atomic Energy Corporation "Rosatom" and their subordinate customers , as well as the most significant federal state institutions of science, education, culture and health, determined in accordance with compliance with the legislation of the Russian Federation), the needs of the constituent entity of the Russian Federation, municipal needs, except for the work specified in subparagraph "b" of this paragraph. At the same time, the price of the contract must exceed 1 million rubles when making purchases to meet federal needs, the amount established by the highest executive bodies of state power of the constituent entities of the Russian Federation, local administrations when making purchases to meet the needs of the constituent entity of the Russian Federation, municipal needs, respectively, and be no more than than 5 million rubles if the contract was concluded to meet the needs of a constituent entity of the Russian Federation, municipal needs based on the results of tenders, electronic auctions, requests for proposals, in which only small businesses, socially oriented non-profit organizations could participate in the procurement;

b) construction, reconstruction, technical re-equipment of capital construction facilities, including the acquisition of equipment included in the estimate for construction, reconstruction, technical re-equipment, and (or) carrying out work to preserve cultural heritage objects (historical and cultural monuments) of the peoples of the Russian Federation, with the exception of scientific -methodical guidance.

4. These Rules apply to contracts in which the currency is the Russian ruble.

5. Changes in the terms of the contract provided for in paragraph 1 of these Rules are drawn up by an additional agreement to the contract, the basis for the preparation of which is a written request from the supplier (contractor, performer) sent to the customer in writing, justifying the impossibility of fulfilling the contract without changing its conditions due to significant a change in circumstances in accordance with Article 451 of the Civil Code of the Russian Federation.

The customer does not have the right to make a decision to increase the price of the contract, the price of a unit of goods, work performed, services rendered without the request of the supplier (contractor, performer) specified in the first paragraph of this clause.

6. The customer decides to amend the contract based on:

a) from the need to fulfill, as a matter of priority, contracts, the subject of which is the supply of goods necessary for the normal life support of citizens (food, means for the provision of an ambulance, including a specialized ambulance, medical care in an emergency or urgent form, medicines);

b) from the need to achieve the results of measures of state (municipal) programs, federal targeted programs or non-programmatic areas of activity (functions, powers) of public authorities (local governments), as well as those adopted in established order decisions on the provision of funds from the budgets of the budgetary system of the Russian Federation for capital investments;

c) from the volume of actually fulfilled obligations stipulated by the contract, as of the date of the decision to amend it;

d) from the approved and communicated to the customer the amount of financial security for the acceptance and (or) fulfillment in 2016 of obligations under the contracts.

7. The customer decides to amend the contract within a period of not more than 30 days from the date of receipt of the documents and information specified in the first paragraph of clause 5 of these Rules, and sends the supplier (contractor, performer) a notice of the decision.

8. When preparing an additional agreement to the contract, the customer ensures that the new terms of the contract are agreed with the supplier (contractor, performer).

9. Calculation and justification of changes in the terms of the contract specified in paragraph 1 of these Rules is drawn up in an appendix to the supplementary agreement to the contract, which is an integral part of the contract.

10. An additional agreement to a contract concluded in accordance with these Rules cannot provide for an increase in the quantity of the supplied goods, the volume of work performed or the services provided.

11. The change in the term of the contract is carried out by agreement of the parties within 2016.

12. The contract price (with the exception of contracts, the subject of which is the construction, reconstruction and technical re-equipment of capital construction objects of state and municipal property), by agreement of the parties, can be increased and is determined within the value calculated by the formula:

C _new= (C - C _NS) x ICC + S _NS,

C - the initial price of the contract;

WITH _NS- the amount of funds transferred by the customer under the contract;

ICC - price adjustment index established in accordance with paragraph 13 of these Rules.

13. For the purposes of these Rules, federal government bodies (federal government bodies), government bodies of state extra-budgetary funds of the Russian Federation, the State Atomic Energy Corporation "Rosatom", as well as the most significant federal state institutions of science, education, culture and health, as defined in in accordance with the legislation of the Russian Federation, the supreme executive bodies of state power of the constituent entities of the Russian Federation, local administrations or their authorized executive bodies of the constituent entities of the Russian Federation, local self-government bodies, respectively, quarterly price adjustment indices are approved for each item of goods, works, services (names of groups of goods, works , services) included in the lists provided for by subparagraph "a" of paragraph 3 of these Rules. By a decision of the local administration, indices approved by the supreme executive bodies of state power of the constituent entities of the Russian Federation or their authorized executive bodies of the constituent entities of the Russian Federation, on the territory of which the corresponding municipalities are located, can be used to change the prices of contracts.

14. The decision of the customer to reduce the quantity of goods, the volume of work performed, the services provided may be made in accordance with paragraph 6 of these Rules. In this case, the price of a unit of goods, work, services may be increased in accordance with paragraph 15 of these Rules.

15. The unit price of goods, work, services in the case specified in paragraph 14 of these Rules is determined within the value calculated by the formula:

C _{units new}= ((K - C _NS/ C _units) x D _units x ICC + S _NS) / TO,

K - the amount of goods, the amount of work performed, the services provided, provided for by the contract;

WITH _NS- the amount of funds transferred by the customer under the contract;

C _units- the initial price of a unit of goods, work, services stipulated by the contract;

ICC - price adjustment index established in accordance with paragraph 13 of these Rules.

16. The contract price in the case specified in clause 14 of these Rules, by agreement of the parties, can be changed and is determined within the value calculated by the formula:

C _new= C _{units new} x K _new,

C _{units new}- the limit value of the new price of a unit of goods, the volume of work performed, services provided, determined in accordance with paragraph 15 of these Rules;

TO _new- reduced quantity of goods, volume of work performed, services rendered.

17. The change in 2016 of the price of the contract, the subject of which is the construction, reconstruction and technical re-equipment of capital construction facilities, the preservation of cultural heritage objects (historical and cultural monuments) of the peoples of the Russian Federation, with the exception of scientific and methodological guidance, is determined within the value calculated by the formula:

C _new= C + C ₁₆ x (ID _16n- ID ₁₆) / ID ₁₆,

C - the initial price of the contract;

C ₁₆- the volume of payments in accordance with the terms of the contract in 2016;

ID _16n- the forecast deflator index "Investments in fixed assets from all sources of financing" in 2016 as a percentage of 2015, approved by the Government of the Russian Federation as part of the forecast of the socio-economic development of the Russian Federation, effective as of the date of the change in the contract;

ID ₁₆- the forecast deflator index "Investments in fixed assets from all sources of financing" in 2016 as a percentage of 2015, approved by the Government of the Russian Federation as part of the forecast of the socio-economic development of the Russian Federation, effective as of the date of adoption of the regulatory legal act on the provision of budgetary funds from the budget of the budgetary system of the Russian Federation for the implementation of an investment project for the construction, reconstruction and technical re-equipment of capital construction facilities, for the preservation of cultural heritage objects (historical and cultural monuments) of the peoples of the Russian Federation, with the exception of scientific and methodological guidance.

18. When the price of a contract is changed, the subject of which is the construction, reconstruction and technical re-equipment of capital construction facilities, carrying out work to preserve cultural heritage objects (historical and cultural monuments) of the peoples of the Russian Federation, with the exception of scientific and methodological guidance, the amount of costs agreed by the customer and the contractor , to be included in the consolidated estimate of the cost of construction, should not exceed the current estimated standards for certain types costs approved in accordance with the legislation of the Russian Federation.

19. The highest executive bodies of state power of the constituent entities of the Russian Federation, local administrations, when making purchases to meet the needs of the constituent entity of the Russian Federation, municipal needs, respectively, may establish other specifics of amending contracts in terms of changing the term of the contract and (or) the price of the contract, and (or) unit prices of goods, work, services, and (or) the amount of goods, scope of work, services stipulated by contracts, the subject of which is the construction, reconstruction and technical re-equipment of capital construction facilities, performance of works to preserve cultural heritage objects (historical monuments and culture) of the peoples of the Russian Federation, with the exception of the scientific and methodological guidance, including the use of other indices (coefficients) instead of the deflator indices specified in paragraph 17 of these Rules, which ensure the calculation of the maximum value of the increase in the contract price.

Two quantities are called proportional if the ratio of their values ​​remains unchanged.

Hello dear colleague! Surely, you perfectly understand the meaning of the term preference. This is a certain advantage or benefit that is given to someone. Such benefits can be provided to states, enterprises or organizations to support certain types of activities. 44-FZ also provides for a number of preferences, which will be discussed below in this article. We will take a closer look at what these benefits are and who can take advantage of them. So let's get started ...

1. Preference: what does it mean under 44-FZ?

The purpose of Federal Law No. 44-FZ is not only to create an open and competitive environment for public procurement, but also to support certain categories of suppliers who participate in these procurements.

According to the requirements of 44-FZ, preferential conditions are provided for 3 categories of participants:

Let's now take a closer look at what preferences are provided for each category of participants.

2. Preferences of the NSR and SONKO under 44-FZ

Before talking about the advantages for the SMP and SONKO established by 44-FZ, I propose to understand in detail what kind of participants they are and what requirements they must meet.

Small businesses (SME) must meet the requirements of Article 4 of the Federal Law of July 24, 2007 No. 209-FZ "On the development of small and medium-sized businesses in the Russian Federation".

Firstly , the share of the Russian Federation in the authorized capital of the SME should beno more than 25% , and the share of foreign legal entities. persons and legal entities persons (who are not SMEs) in the authorized capital must benot more than 49% .

Secondly , the average number of SME employeesshould not exceed 100 people inclusive.

Thirdly , revenue excluding VAT or book value of assetsshould not exceed 800 million rubles (Note: The limit values ​​of income are determined by the Decree of the Government of the Russian Federation No. 265 of 04.04.2016).

We have dealt with the subjects of small business, we are moving on ...

Socially oriented non-profit organizations (SONKO) - organizations in the forms provided for by Chapter II of the Federal Law "On Non-Commercial Organizations" dated January 12, 1996, No. 7-FZ(excluding state corporations, state-owned companies and political parties).

These organizations must carry out the activities listed in Article 31.1 of Law No. 7-FZ:

• social service, social support and protection of citizens;
• providing legal assistance free of charge or on a preferential basis to citizens and non-profit organizations and legal education of the population, activities to protect human and civil rights and freedoms;
• measures for medical rehabilitation and social rehabilitation, social and labor reintegration of persons carrying out illegal consumption of narcotic drugs or psychotropic substances;
• etc. (a total of 18 types of activities).

Now let's look at the advantages that are established by 44-FZ for these categories of participants.

Purchase volume

Customers are required to make purchases from SMP and SONKO in the amount ofnot less than 15% the total annual volume of purchases (AGOZ). Moreover, such purchasesshould not exceed 20 million rubles (part 1 of article 30 44-FZ).

An important point: Participants who do not belong to this category cannot take part in the procurement.

Also, for Customers, Article 7.30 of the Code of Administrative Offenses of the Russian Federation provides for liability for non-compliance with the legislation on placing an order with SMP and SONKO.

According to part 11 of article 7.30 of the Code of Administrative Offenses of the Russian Federation, the procurement of goods, works, services to meet state and municipal needs from the SMP, SONKO in an amount less than the amount provided for by the legislation of the Russian Federation on the contractual system in the field of procurement entails the imposition of an administrative fine on officialsin the amount of 50,000 rubles .

SMP and SONKO on subcontracting

The customer during the purchaseRIGHT install in the notice there is a requirement for a supplier that is not a SMP or SONKO to involve subcontractors, co-contractors from the SMP, SONKO in the execution of the contract (part 5 of article 30 44-FZ).

Shortened payment terms under the contract

If the purchase is carried out only among SMP and SONKO, then the contract includes a mandatory condition for the Customer to pay for the delivered goods, work performed, services rendered on time n e within 15 working days from the date of signing by the Customer of the acceptance document (part 8 of article 30 44-FZ). For other purchases (not for SMP and SONKO), this period is no more than 30 calendar days.

The OIC size is calculated from the offered price

If a contract is concluded based on the results of a procurement among SMEs and SONKOs, the size (abbreviated as OIC), including the one provided taking into account, is set from the price at which the contract is concluded, but cannot be less than the size (part 6 of article 96 44 -FZ). In all other purchases, the size of the OIC is set from the NMCC, and not from the winner's proposed price.

OIC may not be provided

A procurement participant with whom a contract is concluded based on the results of a procurement among SMEs and SONCOs is exempt from the provision of OICs, including taking into account anti-dumping measures, if such a participant provides informationabout 3 executed contracts without fines and penalties within 3 years prior to the date of application to participate in the purchase. Whereinthe sum of the prices of such contracts must be at least NMCK specified in the notice of procurement and procurement documentation(part 8.1 of article 96 44-FZ).

What does it mean? This means that if a participant (SMP, SONKO) has 3 executed contracts under 44-FZ over the past 3 years, for which no fines and penalties have been charged, then he can provide information about these contracts to the Customer and not provide contract enforcement. The main thing is that the total price of these three contracts should not be less than the NMCK of the purchase in which it won.

For the convenience of checking and providing such information, there is an excellent service that in a matter of seconds allows you to determine whether you need to provide OIC to the Customer for a specific purchase or not.

The verification steps are very simple:

1. You follow the link;
2. In the window that opens, enter your TIN and the registration number of the purchase in which you won;
3. Click on the "Check" button;
4. Receive information on executed contracts;
5. Copy the information received to the site when signing the contract or prepare an information letter (in free form) to be provided to the Customer.

Reduced fines

The amount of the fine for non-performance or improper performance by the supplier (determined based on the results of the purchase among the SMP and SONKO), the obligations under the contract are establishedin the amount of 1% of the price of the contract (stage), but not more than 5 thousand rubles and not less than 1 thousand rubles (Clause 4 of the Decree of the Government of the Russian Federation No. 1042 dated 30.08.2017.).

When making purchases on a general basis, the fines are much higher (See clause 3 of the RF Resolution No. 1042 of 08/30/2017):

3. Preferences for organizations of people with disabilities under 44-FZ

MUST provide benefits to organizations of people with disabilities in relation to the contract prices they offer, the amount of prices for units of goods, work, services in the amount of up to 15%in accordance with the procedure established by the Government of the Russian Federation and in accordance with the lists of goods, works, services approved by the Government of the Russian Federation (part 3 of article 29 44-FZ).

The list of such goods (works, services) is established by the Decree of the Government of the Russian Federation of April 15, 2014 No. 341 "On the provision of benefits to organizations of persons with disabilities when determining the supplier (contractor, performer) in relation to the contract price they offer, the sum of the prices of units of goods, work, services" (together with the "Rules for granting benefits to organizations of persons with disabilities when determining a supplier (contractor, performer) in relation to the contract price they offer, the sum of the prices of units of goods, work, services").

Disabled People's Organizations - All-Russian public organizations of disabled people (including those created as unions of public organizations of disabled people) and organizations whose authorized (pooled) capital consists entirely of contributions from All-Russian public organizations of disabled people (Art. 29 44-FZ).

Criteria for classifying organizations as organizations of persons with disabilities

All-Russian public organizations of disabled people (OI), their unions: 80% of members are disabled

Organizations whose authorized (pooled) capital is 100% composed of OI contributions:

- the average number of disabled people in relation to other employees - at least 50%;

- share wages disabled persons in the wage fund - at least 25%.

How does the 15% preference under 44-FZ work?

Suppose that the Customer purchases goods from the list of the PP of the Russian Federation No. 341 dated April 15, 2014, and the documentation establishes an advantage for organizations of disabled people in the amount of 15%. The initial maximum contract price is 100,000 rubles.

Participant # 1 (not OI) offered a price of 85,000 rubles. And Participant No. 2 (OI) in his application indicated the price - 80,000 rubles. Participant # 2 won because he indicated the price below. But since the Customer established a 15% preference for organizations of people with disabilities, then Participant No. 2 can exercise his right and send the Customer a demand to increase the price offered by him by 15%. Thus, the contract with Participant # 2 will be concluded at a price of 80,000 + 15% = 92,000 rubles.

The only rule in this case is that the price at which the contract with the winner will be concluded does not exceed the NMCK set in the documentation. In our case, this rule is observed, since NMCK - 100,000 rubles, and the contract with a 15% preference was concluded for 92,000 rubles.

If Participant # 2 (OI) had won with a price of 90,000 rubles and would have exercised his right to receive an advantage of 15%, then the contract would have been concluded with him for 100,000 rubles, and not for 103,500 rubles (90,000 + 15% ).

4. Preferences of the UIS under 44-FZ

When conducting purchases, with the exception of purchases from a single supplier, the CustomerMUST to provide UIS institutions and enterprises with advantages in relation to the contract price they offer, the sum of the prices of units of goods, work, services in the amount of up to 15%in accordance with the procedure established by the Government of the Russian Federation and in accordance with the lists of goods, works, services approved by the Government of the Russian Federation (part 2 of article 28 44-FZ).

The list of goods (works, services) is established by the Decree of the Government of the Russian Federation of July 14, 2014, No. 649 "On the procedure for providing institutions and enterprises of the penal system with advantages in relation to the contract price they offer, the sum of the prices of units of goods, work, services."

Institutions and enterprises of the penal system - organizations from the list contained in the Decree of the Government of the Russian Federation No. 89 dated 01.02.2000 (as amended on 22.11.2018) "On approval of the list of types of enterprises, institutions and organizations included in the penal system."

Such institutions include: bases of material and technical and military supply, construction management, educational institutions etc.

The principle of operation of the preference of 15% for institutions of the penal system is the same as in the above example for organizations of persons with disabilities. The difference lies only in the list of goods (works, services), which for the UIS is established by the PP of the Russian Federation No. 89 of 02/01/2000.

Finally, there is one more general preference for disabled people's organizations and penal institutions. Its essence is as follows.

In the event that the procurement is carried out in accordance with Articles 28 and 29 44-FZ, the procurement participant is an institution or enterprise of the penal system or an organization of disabled people and the NMCK makesmore than 20 million rubles , the amount of the order securitycannot exceed 2% of NMCK (part 17 of article 44 44-FZ).

For all other purchaseswith NMCK more than 20 million rubles, the amount of security for the application is set in the amount of 0.5% to 5% of NMCK .

So we discussed with you what preferences are provided by 44-FZ for procurement participants. However, in addition to the preferences we have considered, there is also Article 14 44-FZ, which establishes preferences for domestic producers and manufacturers from the EAEU countries, but this is already a topic for a separate article.

That's all for me today. I hope this information was useful to you. And if so, then do not be lazy to like and support the article with your voice. You can ask all questions on this topic in the comments below, I will be happy to answer them.