Procurement procedure for 44 Federal Laws. Purchasing method
Normative base
- mining products;
- food and beverages;
- cloth;
- paper;
- medicines;
- computer equipment;
- construction work, etc.
Exceptions to the rules
Special conditions
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Conditions of public procurement under 44-FZ
Procurement under 44-FZ regulated by Chapter 30.
When carrying out any types of procurement, the customer has the right
1) use competitive methods for identifying suppliers;
2) under certain conditions, purchase from a single supplier.
Competitive methods include all types of auctions, widespread tenders, and simplified forms such as requests for quotation and requests for proposals.
A competition is understood as a procurement procedure during which the winner is the one of the procurement participants who offered the most optimal conditions for the execution of the contract.
During the auction, the winner will be the procurement participant who offered the lowest contract price.
A request for quotations is a procedure in which information about the subject of procurement becomes known to an unlimited number of people by posting a notice and a draft contract on the official website on the Internet. With this procurement method, the winner will be determined by the condition of offering the lowest contract price.
A request for proposals is a method of identifying a supplier, similar to a request for quotations, but the winner will be the bidder who submits the best proposal. Procurement under 44-FZ the method of requesting proposals is described in Article 83. This method can only be used in certain cases, such as the purchase of sports equipment and equipment, the purchase of medicines for a specific patient in accordance with medical indications, treatment of a patient abroad, etc.
Procurement under 44-FZ The method of purchasing from a single supplier is regulated by Article 93 of the Federal Law. Here is a wide list of conditions under which such a purchase is possible. Most often, this method is used when carrying out procurement procedures, the participants of which are subjects of natural monopolies, organizations providing services for water and heat supply, sewerage, gas supply (except for the sale of liquefied gas), as well as in cases where the purchase amount does not exceed 100 thousand rubles . Concluding a contract with a single supplier is also possible in cases where competitive procedures have not taken place (however, there are certain restrictions).
Bidding held on an electronic platform is the most popular way to determine a supplier within the framework of relationships in the contract system. In 2016, out of 3 million orders, 58% came from an electronic auction with a total price of placed lots of just over 3.8 trillion rubles. Let's consider in what cases the customer is obliged and has the right to conduct electronic auctions, by what order the current auction list was approved and what goods, works, and services are included in it.
Normative base
Part 2 art. 48 44-FZ establishes the priority of holding an open tender in comparison with other methods of determining a supplier. In all cases, the customer makes purchases through an open tender, with the exception of cases provided, inter alia, by Art. 59, revealing the content of the electronic auction (EA) procedure.
The obligation to purchase certain goods and works only by EA is established by Part 2 of Art. 59. The list was approved by Order of the Government of the Russian Federation dated March 21, 2016 No. 471-r, and can also be additionally established by a subject of the Russian Federation.
In addition to the cases specified in the Order, Part 3 of Art. 59 of the Law contains provisions on the customer’s right to place an order electronically even if the required item is not on the list.
List of purchases by auction method according to 44-FZ
The obligation to conduct an electronic procedure is established, inter alia, for the following objects:
- agricultural goods and services;
- mining products;
- food and beverages;
- cloth;
- paper;
- medicines;
- computer equipment;
- construction work, etc.
The list established by the Government is quite extensive and includes more than 50 OKPD2 classes. A complete list of auction goods under 44-FZ is presented in the above-mentioned Government order.
Exceptions to the rules
The customer has the right not to conduct an EA even if the subject of the order is in the above list in the following cases.
1. If possible, conduct a two-stage or limited participation competition.
Which procurement methods according to the 44-FZ law should be chosen when planning them?
For example: food products (OKPD2-10) are included in the list, however, according to paragraph 6 of Appendix No. 2 to Resolution No. 99 dated 02/04/2015, it is possible to hold a competition with limited participation in the supply of food products purchased for educational and other organizations, with NMCC more than 500,000 rubles.
2. When purchasing food products and drinks purchased for institutions providing educational process and recreation for children, medical organizations, social service institutions, children’s recreation organizations.
3. When purchasing children's clothing.
4. When carrying out work on the construction, reconstruction, overhaul of particularly dangerous, technically complex and unique objects, as well as artificial road structures included in highways of federal, regional or intermunicipal, local significance. Although construction works (OKPD2-43) are included in the list, the customer has the right to hold an open or limited participation competition, depending on the size of the NMCC for these specialized works.
5. When providing services for providing food and servicing ritual events (weddings, banquets on the occasion of the birth of a child, anniversary).
6. When purchasing souvenir and gift ballots for voting in elections and referendums.
7. When purchasing services for the exchange of residential real estate.
Special conditions
The customer has the right to purchase objects included in the auction list in other ways in the following cases:
- for an NMCC not exceeding 500,000 rubles - a request for quotation (or in accordance with Articles 75, 76, regardless of the size of the NMCC on the territory of a foreign state or for the provision of medical care);
- when ordering from a single supplier, according to Art. 93. For example, with NMCC not exceeding 100,000 rubles;
- when conducting a request for proposals, in accordance with Art. 83. For example, when a repeated EA is declared invalid.
To a greater extent, the auction list is a restriction for the open tender procedure, and not a condition for holding an auction.
Responsibility for choosing the procurement method
Art. 7.29 of the Code of Administrative Offenses establishes liability for making an incorrect decision in choosing the method for determining the supplier in the form of imposing an administrative fine in the amount of up to 50,000 rubles.
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Who can become a participant
Today, all issues related to the placement of government orders are regulated by the Law on the Contract System - 44-FZ.
Any legal entity or individual entrepreneur can be a participant in the placement of a state order. Only those registered in offshore zones will not be allowed to purchase. The list of these zones is regularly updated by the Ministry of Finance. At the beginning of 2018, this list included 42 states.
Let's look in more detail at what options for placing an order are provided for the customer in the contract system, as well as in which he can take part.
Methods for placing orders under 44 Federal Laws
Available for budget institutions:
- competitive (for example, competition);
- non-competitive (for example, purchasing from a single supplier);
- remote (electronic auction);
- for a limited circle (closed competition)
procedures for identifying a supplier.
All these methods of choosing a winner were introduced by the law on placing orders No. 94-FZ more than 12 years ago. However, they are currently adjusted by 44-FZ.
All options for placing a government order (also known as methods for selecting a supplier) can be represented by such a diagram.
Non-competitive method of selecting a performer
Of the above methods of placing an order, only purchasing from a single supplier is a non-competitive method of selecting a contractor. Law 94-FZ allowed it in 37 cases. According to the rules in force at the beginning of 2018, there are 54 such cases.
The services of a single supplier are resorted to when purchasing goods and services from subjects of natural monopolies, works from authors of artistic works or copyright holders, and concluding contracts by order of the government or the president. The full list is presented in Art. 93 of Law 44-FZ.
Purchasing from a single supplier requires less organizational, time and material costs compared to competitive methods. Therefore, regulatory authorities ensure that customers do not abuse this opportunity.
Competitive ways to select a performer
The most common competitive procurement method is an electronic auction. This type of selection is remote (carried out on electronic platforms), is not limited in price and is carried out in accordance with Art. 59 of the Law “On the Contract System”. It is mandatory if services, works or goods listed in Order of the Government of the Russian Federation dated March 21, 2016 No. 471-r are purchased for the needs of the state. Among them:
- food and drinks;
- tobacco products;
- textiles and clothing;
- leather and leather products;
- wood and products made from it (except furniture);
- paper and products made from it;
- petroleum products;
- coal;
- chemical products and substances.
It is also possible to place an order through a competition. This is another competitive method of supplier selection. It can be open or limited participation, or two-stage.
Choosing a procurement method according to 44-FZ
The most common of them can be considered an open competition. Nowadays it is mandatory to establish a requirement to secure the application in the documentation. It must be accepted both in the form of a bank guarantee and in the form of real cash. In addition, compared to 94-FZ, they differ:
- minimum deadlines for submitting applications (not thirty days, but twenty);
- terms for which it is possible to extend the period for accepting proposals (at least 10 days, instead of at least 20);
- procedure for concluding a contract if one application has been submitted or remains (approval required).
When conducting a request for quotations, an important point is the initial maximum contract price (IMCP). When it exceeds half a million rubles, the customer is prohibited from choosing a supplier using this method. This rule can only be violated by customers who work in a foreign country.
As for the request for quotes, after 44-FZ came into force, the customer had the opportunity to make changes to the notice. The main limitation is that these adjustments should not be related to the procurement object. In addition, bid openings are now held publicly.
We will clearly show the features of each option for selecting a performer in the diagram.
Federal Law No. 223 does not have such a strict framework as, for example, Federal Law No. 44. An organization can determine many issues related to procurement activities independently in the corresponding regulations that each customer should have (posted on the website www.zakupki.gov.ru). Including methods of trading. However, Part 3 of Article 3 of Federal Law No. 223 defines the types of procurement that must be present there without fail - these are auctions and competitions.
Mandatory procurement methods under 223-FZ
So, there are only two mandatory procurement methods in accordance with the requirements of Federal Law No. 223 - an auction and a competition. The customer sets the requirements for their implementation independently in the regulations on procurement activities. However, they must not contradict the provisions of the law. In particular, in the area of time limits defined by Part 2 of Article 3 of Federal Law No. 223, which clearly states that at least 20 days must pass from the date of publication of the notice on the website until the end of accepting applications.
There is one interesting point associated with mandatory methods. The customer, according to the law, is obliged to include information about them in the appropriate provision, but he decides whether or not to use this or that method solely himself. As well as on what platform to conduct electronic auctions, in what form to organize the competition - regular or electronic.
Other procurement methods under Federal Law No. 223
The difficulty for suppliers/contractors/performers working with Federal Law No. 223 is that, in addition to the mandatory procurement methods, the customer has the right to include any others in the provision. Therefore, before submitting an application for one or another tender, it is imperative to study the requirements established for it by a specific customer - from the submission form to the composition of the documents.
Among the variety of procurement methods, there are still those that customers use and describe in their regulations most often.
- Request for quotation. Requirements for applications and procedures are established, as a rule, similar to those defined by Federal Law No. 44; few people want to reinvent the wheel. However, among customers there are those who come up with their own rules. For example, they conduct electronic requests for quotes. In this case, the application is submitted not in the usual paper form for this procurement method, but in the form of a document certified by an electronic signature to a site pre-selected by the customer.
This can cause certain difficulties for participants, the main of which is the need to register. After all, it takes a certain time and often the process stretches for several days. Advice about doing everything in advance does not work in this case. Since there are a lot of commercial platforms where procurement can be carried out under Federal Law No. 223.
Request for proposals. The rules for requesting proposals from many customers are similar to those established by Federal Law No. 44. However, as in the previous case, some prefer to abandon paper document management and switch completely to electronic ones.
Request for prices.
Comparative characteristics of Federal Law No. 44 and Federal Law No. 223
Another frequently encountered procurement method among customers working under Federal Law No. 223. As a rule, this is a “simple” purchase with a not too high initial price and minimal requirements for the application.
Competitive negotiations. This procurement method most often hides a fairly wide list of requirements for participants, as well as for the goods supplied/work performed/services provided.
It is difficult to characterize one or another optional procurement method under Federal Law No. 223. After all, each customer in the position establishes its own procedure and requirements, which must be familiarized with before submitting an application. The 4 methods listed above are not all the variety found on the Government Procurement Portal (www.zakupki.gov.ru) and electronic platforms.
Non-competitive procurement methods
In the regulations on procurement activities, the customer has the right to provide not only competitive, but also non-competitive procurement methods. The most common of them is purchasing from a single supplier. However, there are others - direct procurement, non-competitive procurement, and so on.
Their regulations, as in the case of competitive procurement, are determined by the customer independently. Therefore, the usual limit of “no more than 100 thousand rubles”, defined by Federal Law No. 44, does not apply here.
Bidding held on an electronic platform is the most popular way to determine a supplier within the framework of relationships in the contract system. In 2016, out of 3 million orders, 58% came from an electronic auction with a total price of placed lots of just over 3.8 trillion rubles. Let's consider in what cases the customer is obliged and has the right to conduct electronic auctions, by what order the current auction list was approved and what goods, works, and services are included in it.
Normative base
Part 2 art. 48 44-FZ establishes the priority of holding an open tender in comparison with other methods of determining a supplier. In all cases, the customer makes purchases through an open tender, with the exception of cases provided, inter alia, by Art. 59, revealing the content of the electronic auction (EA) procedure.
The obligation to purchase certain goods and works only by EA is established by Part 2 of Art. 59. The list was approved by Order of the Government of the Russian Federation dated March 21, 2016 No. 471-r, and can also be additionally established by a subject of the Russian Federation.
In addition to the cases specified in the Order, Part 3 of Art. 59 of the Law contains provisions on the customer’s right to place an order electronically even if the required item is not on the list.
List of purchases by auction method according to 44-FZ
The obligation to conduct an electronic procedure is established, inter alia, for the following objects:
- agricultural goods and services;
- mining products;
- food and beverages;
- cloth;
- paper;
- medicines;
- computer equipment;
- construction work, etc.
The list established by the Government is quite extensive and includes more than 50 OKPD2 classes. A complete list of auction goods under 44-FZ is presented in the above-mentioned Government order.
Exceptions to the rules
The customer has the right not to conduct an EA even if the subject of the order is in the above list in the following cases.
Procurement methods under 44 Federal Laws
If possible, conduct a two-stage or limited participation competition.
For example: food products (OKPD2-10) are included in the list, however, according to paragraph 6 of Appendix No. 2 to Resolution No. 99 dated 02/04/2015, it is possible to hold a competition with limited participation in the supply of food products purchased for educational and other organizations, with NMCC more than 500,000 rubles.
2. When purchasing food products and drinks purchased for institutions providing educational process and recreation for children, medical organizations, social service institutions, children’s recreation organizations.
3. When purchasing children's clothing.
4. When carrying out work on the construction, reconstruction, overhaul of particularly dangerous, technically complex and unique objects, as well as artificial road structures included in highways of federal, regional or intermunicipal, local significance. Although construction works (OKPD2-43) are included in the list, the customer has the right to hold an open or limited participation competition, depending on the size of the NMCC for these specialized works.
5. When providing services for providing food and servicing ritual events (weddings, banquets on the occasion of the birth of a child, anniversary).
6. When purchasing souvenir and gift ballots for voting in elections and referendums.
7. When purchasing services for the exchange of residential real estate.
Special conditions
The customer has the right to purchase objects included in the auction list in other ways in the following cases:
- for an NMCC not exceeding 500,000 rubles - a request for quotation (or in accordance with Articles 75, 76, regardless of the size of the NMCC on the territory of a foreign state or for the provision of medical care);
- when ordering from a single supplier, according to Art. 93. For example, with NMCC not exceeding 100,000 rubles;
- when conducting a request for proposals, in accordance with Art. 83. For example, when a repeated EA is declared invalid.
To a greater extent, the auction list is a restriction for the open tender procedure, and not a condition for holding an auction.
Responsibility for choosing the procurement method
Art. 7.29 of the Code of Administrative Offenses establishes liability for making an incorrect decision in choosing the method for determining the supplier in the form of imposing an administrative fine in the amount of up to 50,000 rubles.
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We will figure out step by step what is needed to conclude a contract with a single supplier under Federal Law 44, when it is necessary to publish a notice, when a report is required - justification. Mandatory rules that must be taken into account when purchasing from a single supplier, both for the customer and the supplier or contractor.
The customer has the right to conclude a contract with a single supplier only on the grounds provided for in Part 1 of Article 93 of Law No. 44-FZ. Before signing a contract, regardless of the selected paragraph of Article 93 of Federal Law 44, procurement must be included in the procurement plan and schedule plan.
In what cases does the customer have the right to enter into a contract with a single supplier?
Concluding a contract with a single supplier is a right, not an obligation, of the customer, but there is an exception. According to parts 1 and 5 of Article 24 and part 1 of Article 93 of Law No. 44-FZ, in cases where an open competitive procurement has not taken place and there is one application that meets the requirements of the documentation, the customer is obliged to conclude a contract with a single supplier. The position is confirmed by the Ministry of Finance in letter dated September 12, 2017 No. 24-02-08/58934 and the Ministry of Economic Development in letter dated March 31, 2017 No. OG-D28-4021
How to purchase from a single supplier?
1. Entering the purchase into the procurement plan and schedule
Uniform rules for all purchases under Federal Law 44: you cannot carry out purchases that are not included in the procurement plan and schedule. This rule also applies to purchases from a single supplier, in accordance with Part 11 of Article 21 of Law No. 44-FZ and letter of the Ministry of Economic Development dated March 31, 2017 No. OG-D28-4021.
If a contract is concluded that is not in the schedule, the contract service employee or contract manager will pay a fine of 30,000 rubles. The punishment is provided for in Part 1.6 of Article 7.30 of the Code of Administrative Offences.
There are special purchases for which simplified planning is provided: not each contract is written in the schedule, but the total annual amount of purchases by type of expense (subparagraph “a” of paragraph 2 of the Requirements for the form of the schedule from Government Decree No. 553 dated 06/05/2015 and in subparagraph “a” of paragraph 2 of the Requirements for the form of the schedule, which the Government approved by Resolution No. 554 dated 06/05/2015).
Such special purchases include information about purchases that are planned to be carried out in accordance with clause 7 of part 2 of Article 83 and clauses 4, 5, 23, 26, 33, 42 and 44 of part 1 of Article 93 of Federal Law 44 in relation to each of the following procurement items :
- medicines purchased in accordance with clause 7 of part 2 of article 83 of the Federal Law;
- goods, work or services in an amount not exceeding 100 thousand rubles (clause 4 of part 1 of Article 93 of Federal Law 44);
- goods, work or services in an amount not exceeding 400 thousand rubles (clause 5 of part 1 of Article 93 of Federal Law 44);
- services related to sending an employee on a business trip (clause 26 of part 1 of Article 93 of Federal Law 44), as well as participation in festivals, concerts, performances and similar cultural events (including tours) on the basis of invitations to attend these events;
- teaching services provided by individuals;
- tour guide services provided by individuals;
- services for the maintenance and repair of one or more non-residential premises transferred for free use or operational management to the customer, water, heat, gas and energy supply services, security services, household waste removal services if such services are provided to another to a person or other persons using non-residential premises located in the building in which the premises are located, transferred to the customer for free use or operational management;
- work related to the collection and processing of primary statistical data when conducting federal statistical observation on the territory of the Russian Federation in accordance with the legislation of the Russian Federation on official statistical records, performed by individuals (clause 42 of part 1 of article 93 of Federal Law 44);
- services for granting the right to access information contained in documentary, documentographic, abstract, full-text foreign databases and specialized databases of international science citation indices (clause 44 of part 1 of article 93 of Federal Law 44);
Deadline for making changes to the procurement plan and plan - schedule
This also has its own peculiarities for purchasing from a single supplier. Since July 2018, the deadline of 10 calendar days for purchases from a single supplier has been canceled and a new one has been established. From July 1, 2018, change the procurement schedule from a single supplier at least one calendar day before publishing the purchase notice. In this case, publish the notice no earlier than the day you post the changed schedule in the Unified Information System.
Law No. 44-FZ does not indicate when to make changes to the schedule if it is not necessary to publish a notice of purchase from a single supplier. In this case, it is better to use the general rule to make changes 10 calendar days before you enter into a contract, rather than one calendar day. An exception is purchases under paragraphs 9 and 28 of part 1 of Article 93 of Law No. 44-FZ, when changes are made one day before the conclusion of the contract, in accordance with paragraphs 9 and 10 of the Rules from Resolution No. 553, paragraphs 11 and 12 of the Requirements from Resolution No. 554.
2. Calculation of the price of a contract with a single supplier
To calculate the contract price, use one or more methods:
- market analysis method;
- normative method;
- tariff method;
- design and estimate method;
- costly method.
The customer has the right to use other methods for calculating the price of a contract with a supplier if the listed methods cannot be used. In this case, in the price justification, include a justification for the impossibility of using basic methods, in accordance with parts 1 and 12 of Article 22 of Law No. 44-FZ and in the letter of the Ministry of Economic Development dated October 13, 2014 No. OG-D28-7883.
E If you choose the wrong method for calculating the NMCC, the contract service employee will pay a fine from 20,000 to 50,000 rubles. under Part 1 of Article 7.29.3 of the Administrative Code.
3. Drawing up a contract
When drawing up a contract, indicate the essential conditions in accordance with Law No. 44-FZ. But when purchasing from a single supplier, the following exceptions are provided:
- responsibility of the customer and counterparty;
- contract execution schedule, even if the contract is concluded for a period of more than three years and the price is more than 100 million rubles;
- the procedure and period for payment for goods, work or services, the procedure and period for acceptance;
- the condition is that you reduce the price of the contract with an individual or legal entity by the amount of taxes and other obligatory payments to budgets.
In addition, the customer is not obliged to use standard contracts.
The above exceptions apply only for purchases under clauses 1, 4, 5, 8, 15, 20, 21, 23, 26, 28, 29, 40, 41, 44-46 and 51-53 of part 1 of article 93 of Law No. 44- Federal Law.
When purchasing from a single supplier for other reasons, include all essential conditions, in accordance with Part 15 of Article 34 of Law No. 44-FZ.
It is imperative to include calculation and justification of the price in the contract. An exception is purchases in which you do not prepare a justification for the impossibility of conducting competitive procurement, namely in cases of procurement from a single supplier (contractor, performer), provided for in paragraphs 1, 2, 4, 5, 7, 8, 15, 16, 19 - 21 , 24 - 26, 28, 29, 33, 36, 42, 44, 45, 47 - 48, 50 - 54 parts 1.
In such transactions, price calculation and justification are not required to be included in the contract. However, if included, there will be no violation of the law - Part 4 of Article 93 of Law No. 44-FZ and the decision of the Arbitration Court of the Lipetsk Region dated August 31, 2016 No. A36-2054/2016.
The customer is obliged to calculate and justify the price when he creates a schedule, so the calculation and justification must be prepared, even if there is no obligation to include information in the contract. (clause 1 of part 3 of article 18 of Law No. 44-FZ and letter of the Ministry of Economic Development dated 02.11.2017 No. D28i-142 and dated 04.26.2017 No. D28i-1859)
4. Preparation of the report - justification
To purchase goods, works, services from a single supplier, the customer is obliged to justify in the report:
- impossibility or inappropriateness of other procurement methods;
- contract price;
- other essential terms of the contract.
Do not generate a justification report for all transactions with the supplier.
|
A justification report is needed |
Clauses 3, 6, 9, 10-14, 17-18, 22, 23, 30-32, 34, 35, 37-41, 46, 49 of Part 1 of Article 93 of Law No. 44-FZ |
|
No justification report needed |
Clauses 1, 2, 4, 5, 7, 8, 15, 16, 19-21, 24-26, 28, 29, 33, 36, 42, 44, 45, 47, 48, 50-54 of Part 1 of Article 93 Law No. 44-FZ |
The rules are established in Part 3 of Article 93 of Law No. 44-FZ.
5. Coordination of purchase with the control body
When competitive procurement does not take place and you enter into a contract with a single supplier, agree on the deal with the control body. Agree on a contract with a single supplier based on the results of a failed closed procurement in any case. It is also always necessary to agree on a deal with a single supplier based on the results of an open procurement, with three exceptions:
- an autonomous institution conducts procurement under Part 4 of Article 15 of Law No. 44-FZ;
- the legal entity is conducting a procurement under Part 5 of Article 15 of Law No. 44-FZ;
- The request for quotation did not take place.
Contracts with single suppliers based on the results of electronic procurement do not need to be agreed upon. (clause 24-25.3 of part 1 of article 93 of Law No. 44-FZ)
6. Publication of the notice
When purchasing from a single supplier, publish a notice in the Unified Information System. The obligation is provided only for transactions under clauses 1-3, 6-8, 11-14, 16-19 of part 1 of article 93 of Law No. 44-FZ. When purchasing for other reasons, the notice does not need to be published.
Mandatory information is indicated in the notice:
|
Customer information |
Name, location, postal address. |
|
Conditions of a contract |
Name and description of the procurement object. |
|
Restrictions |
Restrictions on purchasing only among SMP and SONO |
|
Contract security |
The amount of security for the performance of the contract. |
|
Banking support |
Write information about bank support for the contract or indicate that bank support is not provided |
You must place a notice in the Unified Information System at least five calendar days before the date you enter into the contract. When purchasing with state secrets, there is no need to publish a notice. The requirement to publish a draft contract with a single supplier along with the notice is not established in Law No. 44-FZ. (clauses 1, 2, 4, 8 of Article 42 and in Part 2 of Article 93 of Law No. 44-FZ)
If you violate the deadline for publishing the notice by one working day, the contract service employee will pay a fine of 3,000 rubles, the organization - 10,000 rubles. In case of violation for more than one working day, the fine for an official is 15,000 rubles, for an organization - 50,000 rubles. If you violate the procedure for publishing a notice, the fine will also be 15,000 and 50,000 rubles. The punishment is provided for in parts 1.2-1.4 of Article 7.30 of the Code of Administrative Offenses. In addition, controllers may fine for violating the deadlines for concluding a contract.
7. Conclusion of a contract
Conclude a contract with the food supplier on time according to the schedule. In doing so, observe the restrictions indicated in the table.
|
Happening |
Deadline for concluding a contract |
|
Not earlier than five calendar days from the date of publication of the notice |
|
|
Electronic procurement failed |
No earlier than 10 calendar days from the date when the final protocols of electronic tenders or auctions were published in the Unified Information System. When requesting quotes and requesting proposals, the period is seven calendar days |
|
Received approval from the Federal Antimonopoly Service for a transaction with a supplier based on the results of a failed closed procurement or open paper procurement |
No later than 20 calendar days from the date on which approval was received |
|
An open paper purchase did not take place and the transaction with the supplier does not need to be agreed upon (except for a request for quotation) |
No later than 20 calendar days from the date of publication of the protocol on the failed competitive procurement |
|
Request for quotations failed |
No earlier than seven calendar days from the date when the protocol for consideration and evaluation of applications was posted in the Unified Information System, and no later than 20 calendar days from the date when this protocol was signed |
The deadlines are listed in Part 10 of Article 83.2, paragraphs 24-25.3 of Part 1, Part 2 of Article 93 of Law No. 44-FZ.
If you conclude a contract in violation of the terms, the responsible employee will pay a fine of 50,000 rubles. under Part 3 of Article 7.32 of the Administrative Code.
8. Notification to FAS
If you have entered into a contract with a single supplier under clauses 6, 9, 34 or 50 of part 1 of Article 93 of Law No. 44-FZ, notify the procurement control body about this. To do this, send a notification to one of the organizations:
- FAS - for procurement for federal needs;
- control body in the field of state defense procurement - for procurement within the framework of the state defense order;
- executive body of a constituent entity of the Russian Federation that controls procurement - for procurement for regional needs;
- local government body that controls procurement - when purchasing for municipal needs.
Attach a copy of the contract and the rationale for its conclusion to the notification. Send the documents to the control body no later than one business day from the date of conclusion of the contract. Such rules are established in Part 2 of Article 93 of Law No. 44-FZ.
If you do not send the documents to the controllers on time, the contract service employee will be fined 15,000 rubles, and the organization - 100,00 rubles. under Part 1 of Article 19.7.2 of the Administrative Code.
The selection of performers occurs using different methods: either competitive or non-competitive. Let's see their differences and how to choose:
1 All methods of procurement within the framework of 44-FZ from July 1, 2018.
At the moment, there are different purchasing methods, let’s look at them in the picture, and below we’ll look at each of them. 
2. Competitive method of procurement under 44-FZ from July 1, 2018
Competitive procurement methods- this is a type of procurement in which tenders are held, as a result of which the winning person is selected. Contest- a method of determining the contractor, through bidding, the winner is the participant who offers the best conditions for the transaction. If you need help finding competitions, tenders or auctions, you can use.
1. Open competition- this is one of the subtypes of competitions in which information about its conduct is available to many people who want to take part in it, since information about the conduct is posted on and any interested person who meets the procurement requirements can take part in it. The winner is the person who offered the most favorable ratio of price and terms of execution of the transaction. It can be carried out both in paper and electronic form. Read more about the open competition.
2. Competition with limited participation- this is one of the subtypes of competitions in which a complex category of goods is purchased; any interested person can take part, provided they have the required qualifications. The winner is the person who offered the most favorable ratio of price and terms of execution of the transaction. It can be carried out both in paper and electronic form. Subscribe and work with advance payment from the customer, do not freeze your funds!
3. Two-stage competition- this is one of the subtypes of competitions in which procurement takes place not only according to the main criteria, but also according to additional ones. It consists of two stages; at the second stage, the winner is selected who was able to offer the most favorable ratio of price and terms of execution of the transaction. It is used when conducting complex technical experiments, in cases where there are certain details in the execution that need to be discussed in advance. Any person who meets the stated requirements can take part. It can be carried out both in paper and electronic form.
4. The last subtype combines three different competitions at once, these are:
- Closed two-stage competition
These subspecies are combined into one because they have one definition:
This subtype differs from others in that a certain circle of people can take part in such purchases. To participate in these procurements, persons must have all the resources to execute the transaction and receive an invitation notice. As a rule, this type of procurement is associated with government, secret tenders. The winner here is the person who offered the most favorable ratio of price and terms of execution of the transaction. It can be carried out both in paper and electronic form.
Auction- a type of procurement carried out only in electronic format, in which all interested participants who have passed through the selected ETP and received can take part. Full information about the auction can be found in our.
This is the most popular method of procurement, since this method is the fastest of all possible. But there are a number of restrictions, for example, the initial maximum price should not exceed more than 500 tr. When carrying out this procurement method, the participant hands over the envelope with the application to the customer or sends it through the ETP; any person who sent his application on time can participate. The notice of the event can be found on the EIS website. The winner is the person who offered the lowest total transaction price. You can read more about requesting quotes.
Any interested person who meets all the stated requirements can take part in this form. As a rule, this type of procurement is used in accordance with the established Government list. The announcement is posted on the official EIS resource. The winner will be the person with the most ideal conditions for completing the transaction. You can read more.
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3. Non-competitive methods of determining procurement
Non-competitive procurement has only one subtype - purchase from a single contractor. In this type of procurement, bidding and participation in them are not implied in principle, since the customer himself chooses with whom to enter into a contract and sends it directly to the contractor. Also, this type of procurement is carried out in cases where one application was submitted in competitive types of procurement. You can read more about this type of service.
4. Video instructions for purchasing methods under 44-FZ
For a guaranteed result in tender procurement, you can seek advice from the experts of the Entrepreneurship Support Center. If your organization is a small business, you can get a number of advantages: advance payments for government contracts, short payment terms, conclusion of direct contracts and subcontracts without a tender. and work only under profitable contracts with minimal competition!
Law 44-FZ provides for several ways to conduct public procurement. Some are more popular and used as basic ones, while others are used much less frequently. But they all have their own characteristics, nuances and limitations in application, and this must be taken into account when choosing a procurement method. In this article we will talk about the most popular procurement methods and figure out which method to choose in a given case.
The most popular procurement methods
As practice shows, frequently applicable and popular procurement methods are:
- electronic auction;
- purchases from a single supplier;
- request for quotations;
- open competition.
In addition, they are the most transparent, competitive and beneficial for the customer. In turn, closed procurement methods, request for proposals, a competition with limited participation or a two-stage competition are permissible only in the cases established for them, if this does not contradict Law No. 44-FZ. However, when choosing a procurement method, the customer must focus not only on the popularity and availability of a particular method, its advantages or his own wishes, but also on the restrictions and requirements outlined in Law No. 44-FZ. All of these methods impose certain requirements on the customer and the terms of the contract and are used in certain cases.
Please note that administrative liability is provided for choosing an illegal procurement method.
In what cases can you choose to purchase from a single supplier?
Purchasing from a single supplier is most convenient for customers if the contract price is insignificant. The customer can purchase from a single supplier any goods, works, or services worth no more than 100,000 rubles. True, in paragraph 4 of part 1 of Art. 93 there are a number of conditions and they should not be ignored.
The main advantages of the procurement procedure from a single supplier:
- you can conclude a contract with a supplier known to the customer;
- there is no need to divert significant resources to carry out the contract conclusion procedure;
- minimal risks of violations during the procurement procedure that are beyond the control of the customer, for example, a technical failure on the electronic platform;
- shorter duration and simplicity of the procedure compared to competitive methods of identifying a supplier.
At the same time, purchasing from a single supplier has several disadvantages:
- high risk of claims from inspectors. due to the fact that this procurement method is associated with wide opportunities for abuse in the expenditure of budget funds and the risks of collusion with the supplier;
- limited opportunities to reduce the contract price or provide the best conditions for its implementation due to the lack of competitive procedures for selecting a supplier.
The list of cases in which the customer can purchase from a single supplier is contained in Part 1 of Art. 93. In cases not specified in the list, the customer does not have the right to purchase goods (work, services) from a single supplier.
If the customer is not obliged to use any specific method, but purchasing from a single supplier is not possible, then an open tender (Article 48) or an electronic auction (Article 59) is held. And in some cases, you can conduct a request for quotations (Part 2 of Article 72) or a request for proposals (Part 2 of Article 83).
Oksana Shipunova at the webinar “ " spoke about the features of purchasing from a single supplier.
Electronic auction
Maximum transparency and objectivity in choosing the winner is the main reason for the popularity of electronic auctions.
Advantages of an electronic auction:
- minimal risk of making claims regarding the procurement procedure: acceptance and registration of applications, return of application security, storage of electronic documents, since these functions are provided by the operator of the electronic platform.
- a small number of restrictions on conducting an electronic auction. In this case, the likelihood of checking the correctness of the choice of method for determining the supplier is reduced;
- the confidentiality of the participants is maintained and, therefore, the likelihood of collusion or forgery is reduced;
- the opportunity to involve a specialized organization in organizing and conducting an electronic auction.
However, an electronic auction has a number of disadvantages that also need to be taken into account:
- it is impossible to assess the quality of the goods (work, services) supplied, since participants’ applications are assessed only by price;
- a longer procedure for identifying a supplier compared to a request for quotation, request for proposals and procurement from a single supplier;
- the risk of missed deadlines and violation of the procedure for conducting an electronic auction due to technical failures on the electronic platform;
- the risk of claims against the customer due to possible errors during the procedure, since it is complex and multi-stage;
- It is impossible to select several lots, as provided for during a competition and a closed auction.
The electronic auction format is used in two cases: when this method is directly prescribed by law or when it is impossible to use other, more convenient for the customer methods due to existing restrictions.
1) if purchases are made of goods, works, services included in the list approved by Order of the Government of the Russian Federation dated March 21, 2016 No. 471-r, or in the additional list established by the highest executive body of state power of a constituent entity of the Russian Federation, the customer is obliged to conduct an electronic auction.
2) the customer has the right to independently choose an electronic auction:
- if the law does not allow purchasing goods (works, services) from a single supplier or by requesting quotations,
- if it is not necessary to evaluate participants’ proposals based on the quality of goods (qualifications of participants, work experience and other non-cost criteria).
Request for quotation
Request for quotations is the most convenient way for the customer to determine a supplier (contractor, performer) regardless of the type of goods, works, services, if it is necessary to quickly carry out a small-cost purchase.
Request for quotations is also carried out to provide humanitarian assistance or eliminate the consequences of natural or man-made emergencies.
Restrictions on the customer's request for quotation are contained in Part 2 of Art. 72. But in some cases the restrictions imposed by paragraph 2 of Art. 72 for the size of the NMC of the contract can be ignored (Article 75 and Article 76).
A request for quotations cannot be carried out in cases where the customer is obliged to use closed methods for identifying a supplier (Part 1 of Article 84) or by holding a tender with limited participation (Article 56). There are no other restrictions on requesting quotes.
The main advantages of the quotation request procedure are:
- supplier identification is faster compared to electronic auctions and competitions;
- minimal risks of claims related to errors during the procedure, due to its accessibility, small amount of documentation and clear regulation of the procedure;
- minimal risks of violations beyond the control of the customer, for example, a technical failure on the electronic platform;
- the ability to use other (non-cost) criteria to evaluate applications in addition to the contract price criterion (Part 1.4 of Article 32).
Requesting quotes has a number of disadvantages:
- high probability of verification for the legality of choosing this method of determining the communication provider with the establishment in Part 2 of Art. 72 restrictions on conducting a request for quotation;
- a wider area of responsibility of the customer compared to electronic methods of determining the supplier (reception and registration of applications, ensuring their safety and confidentiality, storage of documents);
- high risks of participation in the request for quotations by unscrupulous procurement participants due to the inability to establish the security of the application;
- inability to allocate lots during procurement.
An article about all the nuances of this procurement procedure
Open competition
Holding an open competition allows you to:
- obtain more information about potential suppliers, in particular, find out not only the offered price, but also the qualifications of the supplier, possible guarantees, etc.
- transfer part of the functions for conducting an open tender to a third party, which is very helpful in complex procurements.
Limited Participation Competition
Holding an open competition with limited participation is possible in specific cases:
- When purchasing goods, works, services, the implementation of which is technologically complex due to their specific nature, and the sale of such goods, works, services can only be carried out by specialists who have the required level of qualifications and training (Resolution of the Government of the Russian Federation of November 28, 2013 No. 1089) ;
- When performing work:
- To preserve cultural heritage sites;
- For the restoration of museum collections of the Museum Fund of the Russian Federation, documents of the Archive Fund of the Russian Federation and especially valuable and rare documents of library collections;
- In which the contractor's (performer's) access to library, archive and museum accounting databases and security systems is required.
Two-stage competition
The customer has the right to conduct a two-stage tender while simultaneously meeting two conditions:
- The competition is held to conclude:
- contracts for scientific research, design work (including architectural and construction design), experiments, surveys, for the supply of innovative and high-tech products;
- energy service contract;
- contract for the creation of a work of literature or art, performance (as a result of intellectual activity);
- To clarify the characteristics of the procurement object, it is necessary to discuss it with the procurement participants (Part 2 of Article 57).
Closed competition
A closed competition is considered a rather lengthy and complex procedure, so it is not popular.
Closed methods for identifying suppliers (contractors, performers) are used only in four cases:
1. procurement of goods, works, services necessary to meet federal needs, if information about such needs constitutes a state secret;
2. procurement of goods, works, services that constitute state secrets, provided that such information is contained in the procurement documentation;
3. conclusion of contracts:
- for insurance, transportation and protection of valuables of the State Fund of Precious Metals and Precious Stones of the Russian Federation,
- on insurance, transportation, protection of museum objects and museum collections,
- for insurance of rare and valuable publications, manuscripts, archival documents (including their copies) of historical, artistic or other cultural significance;
4. procurement of cleaning services, driver services to support the activities of judges and bailiffs (Part 2 of Article 84).
Request for proposals
The main advantage of a request for proposals is its shorter duration than a competition. At the same time, an important disadvantage is the impossibility of canceling the procedure and making changes to the notice and documentation.
It is possible to organize a purchase through a request for proposals:
- when purchasing sports equipment and equipment, sports equipment, for the participation and preparation of sports teams of the Russian Federation in the Olympic and Paralympic Games (clause 2, part 2, article 83);
- When concluding a contract with a foreign organization for the treatment of citizens of the Russian Federation outside the Russian Federation;
- When making purchases by diplomatic missions and consular offices of the Russian Federation, trade missions of the Russian Federation and other customers to support their activities outside the Russian Federation if the contract price does not exceed 15,000,000 rubles;
- When purchasing goods, works, services in the event of termination of the contract in accordance with Part 9 of Art. 95 Law No. 44-FZ;
- When purchasing medications for the patient’s medical indications (subject to the decision of the medical commission);
- After the repeated competition or electronic auction is declared invalid;
- When purchasing folk arts and crafts products with registered designs (in accordance with the Decree of the Russian Federation of January 18, 2001 No. 35);
- When purchasing services to protect the interests of the Russian Federation, carried out outside its borders with the involvement of experts and lawyers (in the case of filing claims against the Russian Federation in the judicial authorities of foreign states, international courts and arbitrations).
Webinars and training and advanced training programs at the School of Electronic Trading:
- on tenders, where experts and practitioners share their experience of participating in procurement, comment on changes in legislation, the position of the FAS and the courts.
- Improve your qualifications on the course "" for contract managers, contract service specialists and purchasing commissions. The program was developed based on the requirements of the professional standard “Procurement Specialist”.
Government customers make 15% of all purchases from non-profit socially oriented organizations.
What does 44-FZ regulate?
- Planning, monitoring and audit of procurement.
- Selection of suppliers.
- Conclusion of contracts and their execution.
- Procurement control.
What does 44-FZ not regulate?
- Procurement of services from international financial organizations.
- Procurement of services for state protection of judges, officials, court participants and other people.
- Purchases of precious metals and precious stones to replenish the State Fund.
- Procurement related to the support of facilities and information systems for the 2018 FIFA World Cup and the 2017 FIFA Confederations Cup.
- Purchasing free legal assistance or defense in court.
- Procurement of election commissions for elections and referendums.
- Payment for participation in procurement.
Who adopts legal acts under 44-FZ?
- President of Russian Federation;
- Government of the Russian Federation;
- Federal executive authorities;
- Rosatom;
- Roscosmos;
- State authorities of the constituent entities of the Russian Federation and local governments.
44-FZ is based on the provisions of the Constitution, Civil and Budget Codes of the Russian Federation
Principles of the contract system
Important Definitions
State customer is an organization that needs goods and services and pays for the purchase. For example, hospitals, schools, universities, scientific institutes,
Provider- a legal or natural person, including individual entrepreneurs, who participates in the procurement and supplies goods and services.
Zakupki.gov.ru— website of the unified information system (UIS), where customers publish purchases and reports. The EIS contains registers of all concluded contracts, unscrupulous suppliers, complaints against customers and other important information.
Initial contract price (IMC)— the cost of delivery of goods, which is set by the customer. The NMC must be justified. Suppliers cannot offer a price higher than the NMC.
Electronic marketplace— a website on which customers place purchases, suppliers submit applications for participation in purchases, and electronic auctions are held.
Specialized electronic platform— a website with access via secure communication channels, where closed purchases are carried out.
Application for participation- these are documents and information that the supplier submits in written or electronic form to participate in the procurement.
Unified Information System (UIS)
Currently contains
- Information about purchases, the ability to search for them,
- Contract templates,
- Standardization rules
- Information on market prices for goods,
- Procurement plans, schedules,
- Reporting on completed contracts,
- Register of unscrupulous suppliers.
- Unified registration and register of procurement participants.
- Unified catalog of goods, works and services.
- Publication of procurement under RF PP No. 615 (major repairs).
Coming in 2020
- A system for recording the actions of procurement participants in the Unified Information System and on 8 federal ETPs.
Access to information on the EIS is free. If information about the same purchase, customer, contract, etc. on the UIS and in another source is different, then priority goes to the information on the UIS.
EDI organization
Suppliers can apply to participate in procurement on electronic trading platforms. In cases determined by the government, electronic document flow may also pass through the Unified Information System. All documents are signed electronically:
- Customers receive an electronic signature free of charge from the Federal Treasury. They work with it in the EIS and on the ETP.
- Suppliers require a signature to participate in e-procurement. Since July 1, 2018, the system uses qualified signatures in public procurement. Suppliers can obtain a signature from an accredited certification authority.
National regime
The national regime was introduced to give advantages to suppliers of Russian goods and goods from other Eurasian Economic Community member countries. Read more about him here.
Procurement methods
Depending on the source of income, government customers can make purchases under both 44-FZ and 223-FZ. According to 44-FZ, if an organization spends budget money. According to 223-FZ, if it spends its own and it has a procurement provision.
Planning
Procurement plans* |
Schedules |
|
This is the basis for schedules. |
You cannot make a purchase that is not included in the schedule. |
|
The description of each purchase contains:
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| Formed for 3 years. This is the validity period of the federal budget law. | Formed for the financial year. |
| Plans can be changed. Come into force within 10 working days after the budget is approved. They are published in the Unified Information System, on their websites and in any printed publications within 3 working days after approval, unless they are a state secret. |
Come into force within 10 working days after the budget is approved. They are published in the Unified Information System within 3 working days after approval, unless they constitute state secrets. |
| The plan must justify the object of each purchase in accordance with standard costs. |
The NMC must be justified in the schedule. Customers also take into account procurement quotas in different ways and must make 15% of all purchases from small businesses and socially oriented organizations. |
* From October 1, 2019, customers will plan purchases only according to 3-year schedules; purchase plans will be cancelled. Until the end of 2019, it is still necessary to draw up a procurement plan and schedule.
During an inspection or upon a complaint from a supplier, the FAS may recognize the purchase as unfounded. Then it is adjusted or cancelled. The perpetrators are brought to administrative responsibility.
All government purchases are regulated. The quantity, price, characteristics of goods and services are established by the federal and local legislation of the Russian Federation.
