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Review of clarifications of procurement legislation by certain types of legal entities. Procurement by budgetary institutions using budgetary and other funds simultaneously (mixed financing) Mixed financing under Federal Law 44

Federal Law No. 44-FZ dated 04/05/2013 “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (hereinafter referred to as Law No. 44-FZ) allows for changes to the terms of the contract in the following cases:

- when concluding a contract- in accordance with Part 18 of Article 34 of Law No. 44-FZ, the customer, in agreement with the procurement participant with whom the contract is concluded in accordance with Law No. 44-FZ, has the right to increase the quantity of goods supplied by an amount not exceeding the difference between the contract price offered such participant, and the initial (maximum) contract price (lot price), if this right of the customer is provided for in the tender documentation, auction documentation. In this case, the price of a unit of goods should not exceed the price of a unit of goods, determined as the quotient of dividing the contract price specified in the application for participation in the competition or proposed by the auction participant with whom the contract is concluded by the quantity of goods indicated in the notice of the competition or auction;

- when executing a contract- in accordance with Part 1 of Article 95 of Law No. 44-FZ, changes in the essential terms of the contract are not allowed, except for their changes by agreement of the parties:

1) if the possibility of changing the terms of the contract was provided for by the procurement documentation and the contract, and in the case of a purchase from a single supplier (contractor, performer) by the contract:

a) when the contract price is reduced without changing the quantity of goods, volume of work or service provided for in the contract, the quality of the goods supplied, the work performed, the service provided and other terms of the contract;

b) if, at the customer’s proposal, the quantity of goods, the volume of work or services provided for in the contract is increased by no more than ten percent or the quantity of goods supplied, the volume of work performed or services provided under the contract is reduced by no more than ten percent. In this case, by agreement of the parties, it is allowed to change, taking into account the provisions of the budgetary legislation of the Russian Federation, the contract price in proportion to the additional quantity of goods, additional volume of work or service based on the price of a unit of goods, work or service established in the contract, but not more than ten percent of the contract price. When reducing the quantity of goods, volume of work or service provided for in the contract, the parties to the contract are obliged to reduce the contract price based on the unit price of the goods, work or service. The price of a unit of additionally supplied goods or the price of a unit of goods in case of a decrease in the quantity of supplied goods provided for in the contract must be determined as the quotient of dividing the original contract price by the quantity of such goods provided for in the contract.

Article 70 of Law No. 44-FZ establishes the procedure for concluding a contract based on the results of an electronic auction.

In accordance with Part 2 of Article 70 of Law No. 44-FZ, a draft contract is drawn up by including the contract price proposed by the participant in the electronic auction with whom the contract is concluded, information about the product (trademark and (or) specific indicators of the product) specified in the application for participation in the auction of its participant, in the draft contract attached to the auction documentation.

Based on the results of the electronic auction, the customer calculates the price per unit of goods (work, service), which is included in the draft contract sent to the winner of the electronic auction.

When the price proposed by a participant in an electronic auction is included in the draft contract, the price per unit of goods (work, service) must be reduced in proportion to the reduction coefficient based on the results of the electronic auction. The sum of prices per unit of goods (works, services) must correspond to the price offered by the winner of the electronic auction and specified in the protocol of the electronic auction.

In accordance with the provisions of Part 4 of Article 70 of Law No. 44-FZ, the auction winner is allowed to post a protocol of disagreements in the unified information system no later than thirteen days from the date of posting in the unified information system the protocol for summing up the results of the electronic auction. In this case, the winner of the auction with whom the contract is concluded indicates in the protocol of disagreements comments on the provisions of the draft contract that do not correspond to the notice of such an auction, the documentation about it and his application for participation in such an auction, indicating the relevant provisions of these documents.

Law No. 44-FZ does not provide for restrictions related to the number of placements of this protocol, taking into account the specified period.

Our company operates according to the standards of Federal Law 223 and Federal Law 44, now we are concluding an agreement with a single supplier for the supply of gas, the total amount is 4 ml, but 60% of this money comes from the budget, and 40% of this money comes from ours. The question is: do we need to split these amounts into two contracts, or can we have one with an additional agreement in which the breakdown is based on the laws and what legal norms should we use when concluding a contract? And an additional question: in what part of the site should we place all this?

In case of mixed financing, contract legislation applies. This is stated in the Letter of the Ministry of Economic Development of the Russian Federation dated December 31, 2014 No. D28i-2887. Therefore, if you intend to use two laws, then you need to conduct two different purchases with different agreements, one of which will be a contract.

Question: On the possibility of budgetary institutions to carry out purchases using budgetary and other funds simultaneously (mixed financing).

The Department for Development of the Contract System of the Ministry of Economic Development of the Russian Federation has considered the appeal of the Federal State Budgetary Educational Institution of Higher Professional Education on the issue of the legality of budgetary institutions to enter into contracts with mixed financing and reports the following.

It should be noted that according to Part 2 of Article 15 of Law No. 44-FZ, if there is a legal act (procurement regulations, which is a document that regulates the procurement activities of the customer and must contain procurement requirements, including the procedure for preparing and conducting procurement procedures (including methods procurement) and the conditions for their application, the procedure for concluding and executing contracts, as well as other provisions related to ensuring procurement) (hereinafter referred to as the procurement regulations), adopted by a budgetary institution in accordance with paragraph 6 of part 3 of article 2 of the Federal Law of July 18, 2011 No. 223-FZ "On the procurement of goods, works, services by certain types of legal entities" (hereinafter referred to as Law No. 223-FZ) and posted before the beginning of the year in the unified information system in the field of procurement of goods, works, services to meet state and municipal needs, this The institution has the right to carry out in the relevant year, in compliance with the requirements specified in Law No. 223-FZ and the procurement legal act:

at the expense of grants transferred free of charge and irrevocably by citizens and legal entities, including foreign citizens and foreign legal entities, as well as international organizations that have received the right to provide grants on the territory of the Russian Federation in the manner established by the legislation of the Russian Federation, subsidies (grants), provided on a competitive basis from the relevant budgets of the budget system of the Russian Federation, unless otherwise established by the conditions determined by the grant givers;

as a contractor under a contract in the event that other persons are involved on the basis of a contract during the execution of this contract to supply goods, perform work or provide services necessary to fulfill the obligations of this institution under the contract;

at the expense of funds received when carrying out other income-generating activities from individuals, legal entities, including within the framework of the main types of activities provided for by its constituent document (with the exception of funds received for the provision and payment of medical care under compulsory health insurance).

Thus, budgetary institutions have the opportunity to exercise the right to purchase in accordance with the provisions of Law No. 223-FZ only in the cases established by part 2 of Article 15 of Law No. 44-FZ.

In all other cases, including procurement at the expense of budgetary and other funds simultaneously (mixed financing), budgetary institutions must be guided by the provisions of Law No. 44-FZ* when carrying out procurement activities.

At the same time, the Department for Development of the Contract System of the Ministry of Economic Development of Russia draws attention to the fact that clarifications of a government body have legal force if this body is endowed, in accordance with the legislation of the Russian Federation, with special competence to issue clarifications on the application of the provisions of regulatory legal acts. The Ministry of Economic Development of the Russian Federation is a federal executive body, in accordance with the current regulatory legal acts of the Russian Federation, including the Regulations on the Ministry of Economic Development of the Russian Federation, approved by Decree of the Government of the Russian Federation of June 5, 2008 No. 437, not vested with the competence to clarify the legislation of the Russian Federation.

From January 1, 2014, budgetary and autonomous institutions were given the opportunity, in addition to the law, subject to certain conditions, to carry out government procurement in accordance with the Federal Law.

Law No. 44-FZ is a fairly strict law that imposes serious restrictions on the methods of procurement, as well as on the amounts and volumes of purchases of goods, works, and services. A prerequisite is the justification of the initial price of the contract, a description of the full functional characteristics of goods, works, and services.

Against this background, Law No. 223-FZ looks softer. For example, the law does not require justification for procurement; the procurement plan can be changed for any reason and at any time. Also, according to the law, justification for the initial (maximum) contract price is not required.

The advantage of Law No. 223-FZ compared to Law No. 44-FZ is the possibility of making changes to a contract already concluded with a supplier - extending the term, increasing the price, changing the volume, etc.

If you have already worked with government procurement under Law No. 44-FZ, then it will not be difficult for you to master the application of Law No. 223-FZ.

Initially, it was assumed that Law No. 223-FZ would be applied by state corporations, state-owned companies, subjects of natural monopolies, in other words, commercial organizations located in the sphere of state interests or carrying out regulated activities. Currently, Article 15 of Law No. 44-FZ allows budgetary and autonomous institutions to bring part of their procurement under Law No. 223-FZ, according to which procurement can be carried out at the expense of grants and funds from income-generating activities (except for compulsory health insurance funds). It should be noted that for Moscow customers, Law No. 223-FZ does not work; they must work only in accordance with Law No. 44-FZ.

How to start working according to Law No. 223-FZ?

First of all, a budgetary or autonomous institution must develop a Procurement Regulation and a procurement plan. Next, send the Regulations to your founder for approval. The next stage is to place the Procurement Regulations and the procurement plan in the Unified Information System (www.zakupki.gov.ru). If this procedure is carried out during the current year, then according to Law No. 223-FZ, purchases can be made from January 1, 2015.

Blended finance procurement

Sometimes it may be necessary to make a purchase simultaneously from two sources of financing (the first source of financing is subsidies received for the implementation of government tasks, the second is funds from income-generating activities). Unfortunately, this cannot be done within the framework of one agreement. In this case, a budgetary or autonomous institution must make a purchase only in accordance with Law No. 44-FZ. Or there is another option - to break the purchase itself into parts. Then the Procurement Regulations need to provide for the following point: the basis for purchasing from a single supplier according to Law No. 223-FZ is the conclusion of an agreement with a supplier with whom an agreement has already been concluded under Law No. 44-FZ.

Olga Pokidova, development manager for the "" direction of the SKB Kontur company

It should be borne in mind that clarifications of a government body have legal force if this body is endowed, in accordance with the legislation of the Russian Federation, with special competence to issue clarifications on the application of the provisions of regulatory legal acts.

All letters discussed below are not normative in nature. Each of them expresses the position of the ministry on a particular issue in the field of procurement. However, compliance with the recommendations specified in them will one way or another help the customer in his procurement activities.

Application of 44-FZ and 223-FZ

General provisions

Letter of the Ministry of Economic Development dated March 17, 2016 No. D28i-715

It is necessary to apply the provisions of 223-FZ for all procurement activities, including in the case of the purchase of goods, works and services for their further resale.

Letter of the Ministry of Economic Development dated March 24, 2016 No. D28i-683

It is necessary to apply the provisions of 223-FZ when carrying out all procurement activities both for one’s own needs and for servicing apartment buildings.

Investments

Letter of the Ministry of Economic Development dated March 4, 2016 No. D28i-546

Investment projects implemented by the JSC are included in the register of investment projects in accordance with the provisions of 223-FZ. In the case of JSC implementation of investment projects at the expense of budget investments provided in accordance with the Budget Code of the Russian Federation, it is necessary to be guided by the provisions of 223-FZ

Letter of the Ministry of Economic Development dated May 27, 2016 No. D28i-1376

The provisions of 223-FZ do not apply when the subject of concluding an investment partnership agreement is the pooling of deposits and the implementation of joint investment activities by the participants of such a partnership for the purpose of making a profit. However, if any participant in an investment partnership agreement is subject to the provisions of 223-FZ, then when the managing partner (on behalf of all partners) concludes a GWS agreement, the norms of 223-FZ must be applied.

Letter of the Ministry of Economic Development dated March 28, 2016 No. D28i-766

When concluding contracts for the construction (reconstruction, including elements of restoration, technical re-equipment) of capital construction projects when providing budget investments to a legal entity (JSC) in the case of implementing investment projects, such a person must be guided by the norms of 44-FZ.

Organizations located abroad

Letter of the Ministry of Economic Development dated March 29, 2016 No. D28i-771

The norms of 223-FZ do not apply to organizations established abroad when they carry out procurement activities. If a branch of a PJSC is not registered in the Unified State Register of Legal Entities (USRLE), then by definition it is not a customer. Charitable activities are not remunerative in nature, and in the understanding of 223-FZ is not a procurement, and therefore does not fall within the scope of its regulation. Relations related to the reimbursement of expenses to employees for mandatory preliminary and periodic medical examinations are not considered procurement under 223-FZ.

Financial operations

Letter of the Ministry of Economic Development dated June 29, 2016 No. D28i-1635

Financial transactions, such as membership fees, fines, state duties, payroll taxes, VAT, transport taxes, payment for the provision of information contained in the Unified State Register, within the meaning of 223-FZ are not procurement.

Agency agreement, lease, bank deposit, bank guarantee

Letter of the Ministry of Economic Development dated April 26, 2016 No. D28i-1060

Purchases carried out by an agent under an agency agreement on behalf and at the expense of the customer are regulated by the norms of 223-FZ. The organizer of procurement procedures has the right to prescribe the procedure for their implementation in his Procurement Regulations.

Letter of the Ministry of Economic Development dated June 15, 2016 No. D28i-1491

When concluding lease agreements, the provisions of 223-FZ apply.

Letter of the Ministry of Economic Development dated June 1, 2016 No. D28i-1488
Letter of the Ministry of Economic Development dated June 15, 2016 No. D28i-1497

The conclusion of bank deposit and bank account agreements is a procurement within the meaning of 223-FZ.

Letter of the Ministry of Economic Development dated April 29, 2016 No. D28i-1132

The issuance of a bank guarantee is carried out in accordance with the provisions of 223-FZ.

The customer decides independently how to purchase the above-mentioned purchases (purchases under an agency agreement, rent, bank deposit, bank guarantee), indicating this in the Regulations. Most customers prefer purchasing from a single supplier. However, organizers of procurement procedures also have the right to conduct competitive procurement. In this case, customers do not have any problems or restrictions under 223-FZ. It is possible that those organizations (state unitary enterprises and municipal unitary enterprises) that will soon become customers under 44-FZ may have difficulties in making such purchases.

Health care

Letter of the Ministry of Economic Development dated February 29, 2016 No. D28i-469

The customer has the right to purchase GWS for the needs of state and municipal BUs, using funds allocated by this institution for the provision and payment of medical care under compulsory health insurance in accordance with birth certificates in accordance with the provisions of 44-FZ.

Letter of the Ministry of Economic Development dated April 13, 2016 No. D28i-940

If the procurement was started by the State Budgetary Healthcare Institution in accordance with the norms of 223-FZ, then in the future the reorganized entity, regardless of its organizational and legal form, will continue to apply the norms of the law under which it was originally carried out.

This letter can be applied not only to budgetary institutions, but to many situations that arise for customers in the procurement process, including state unitary enterprises and municipal unitary enterprises switching to 44-FZ. If the procurement notice under 223-FZ was placed by the customer before 01/01/2017, then its further execution also takes place within the framework of this law.

Blended finance

Letter of the Ministry of Economic Development dated March 4, 2016 No. D28i-545

With mixed financing, budgetary institutions must be guided by the norms of 44-FZ when carrying out procurement activities.

State unitary enterprises and municipal unitary enterprises

Letter of the Ministry of Economic Development dated March 30, 2016 No. D28i-774

Until January 1, 2017, municipal government enterprises were customers under 223-FZ and are required to apply its norms when carrying out their procurement activities.

Letter of the Ministry of Economic Development dated June 29, 2016 No. D28i-1645

State (municipal) unitary enterprises, when carrying out commercial activities and generating income, use property that is in state or municipal ownership. In this regard, it is justified to extend 44-FZ to purchases by such enterprises, including through funds from activities that generate income.

Budget institutions

Letter of the Ministry of Economic Development dated June 8, 2016 No. D28i-1458

If the Procurement Regulations are approved and posted in the Unified Information System in 2016, a budgetary institution will be able to carry out procurement in accordance with the provisions of 223-FZ no earlier than 2017, within the framework of those exceptions that are named 44-FZ.

Until this point, the BU must purchase goods, works and services in accordance with the provisions of the Law on the Contract System. If the customer publishes the Regulations not in 2016, but in 2017, then exceptions for procurement under 223-FZ can be used only from 2018.

Audit

Letter of the Ministry of Economic Development dated June 15, 2016 No. D28i-1487

307-FZ contains an exhaustive list of organizations that must use the norms of 44-FZ when conducting a mandatory audit. Other organizations, when making purchases for the provision of mandatory audit services of accounting (financial) statements, must apply the provisions of 223-FZ.

When conducting a procurement to select an organization to conduct a mandatory audit of accounting (financial statements), only the procedural norms of 44-FZ should be applied, which regulate the procedure for conducting an open tender.

At the same time, the customer does not create a contract service specifically for such a purchase (does not appoint a contract manager), does not place a separate schedule and procurement plan, as well as information in the register of contracts under 44-FZ.

Procurement Regulations

Alteration:

Letter of the Ministry of Economic Development dated June 29, 2016 No. D28i-1625

When making changes to the Regulations, the procurement organizer must place two files in the Unified Information System: an electronic form of not only the amended Regulations, but also a document containing a list of such amendments made to the said legal act of the customer.

Planning

OKPD 2 and changes to the plan

Letter of the Ministry of Economic Development dated June 28, 2016 No. D28i-1766

When drawing up a procurement plan, the customer has the right to establish the level of detail of the OKPD 2 and OKVED 2 codes, taking into account the formation of the range of purchased goods, works and services at the time of planning (the UIS provides for the possibility in full). The customer has the right to indicate several codes according to OKPD 2 and OKVED 2 if the contract provides for the supply of various goods (provision of services, performance of work)

Since 2016, within the framework of 223-FZ, the OKPD 2 and OKVED 2 classifiers have been mandatory. The level of detail of the codes when planning purchases is determined by customers independently. Customers should pay attention to Resolution 616, which contains both an enlarged OKPD 2 classifier code and a code with further detail. By using an enlarged code, in some cases, procurement organizers may be able to avoid conducting procedures electronically.

Letter of the Ministry of Economic Development dated June 16, 2016 No. D28i-1628
Letter of the Ministry of Economic Development dated May 17, 2016 No. D28i-1364

A change of more than 10% in the cost of goods, works and services planned for purchase leads to the impossibility of making purchases in accordance with the planned amount of funds.

Letter of the Ministry of Economic Development dated March 25, 2016 No. D28i-685

If the organizer of the procurement procedure conducts a “pooled” purchase for several customers who are subsidiaries of the organizer of the procedure, then, in the opinion of the Department, the procurement plans of each of the companies should reflect its “share”, taking into account the price per unit of production accepted for calculating the NMC purchase prices.

Letter of the Ministry of Economic Development dated April 26, 2016 No. D28i-1049

The customer should make an adjustment to the line of the procurement plan in accordance with which the procurement notice was placed, and such a procurement procedure was declared invalid if, in accordance with the Procurement Regulations of such a customer, a new competitive procurement or a new procurement from a single supplier is provided for .

Letter of the Ministry of Economic Development dated June 23, 2016 No. D28i-1567

Norm 223-FZ on posting a procurement plan is imperative and obliges customers to publish in the Unified Information System a plan for goods, works and services for a period of at least 1 year. At the same time, the procurement plan may not reflect information on procurement if the cost of goods (work, services) does not exceed 100 thousand rubles, and if the customer’s annual revenue for the reporting financial year is more than 5 billion rubles. - information about the purchase, the cost of which does not exceed 500 thousand rubles.

Foreign exchange rates:

Letter of the Ministry of Economic Development dated March 11, 2016 No. D28i-641

When generating a procurement plan in the UIS, the system does not provide for automatic calculation and inclusion of procurement prices, which are indicated in the plan in foreign currency. When reflecting the total volume for the year in the procurement plan, the user must adjust the figure in rubles manually, that is, the amount of the purchase in foreign currency translated into rubles must be added to the amount with the total volume. It is advisable to determine the calculation at the official exchange rate of the relevant currency on the date of publication of the procurement plan, unless a different rate or another date for its determination is established by law or by agreement of the parties, then adjust the specified figure until the day of publication of the procurement notice in the Unified Information System. It is advisable to calculate the amounts in the report on the total value of contracts at the official exchange rate of the corresponding currency on the date of conclusion of the contract in foreign currency, since the report displays the amount of concluded contracts in the reporting period and the conversion of currency into rubles must be carried out on the date of conclusion of the contract.

Letter of the Ministry of Economic Development dated February 10, 2015 No. D28i-132

The customer has the right to independently determine the procurement stage at which the foreign exchange rate is fixed in the Procurement Regulations. In particular, the customer has the right to provide in its legal act the possibility of purchasing goods, works and services from a single supplier (performer, contractor). At the same time, if the foreign currency exchange rate fixed in accordance with the Procurement Regulations, when converted into Russian rubles, does not exceed 500 thousand rubles, then the customer has the right not to place such information in the Unified Information System.

Procurement

Letter of the Ministry of Economic Development dated June 20, 2016 No. D28i-1634
Letter of the Ministry of Economic Development dated April 26, 2016 No. D28i-1069
Letter of the Ministry of Economic Development dated January 29, 2016 No. D28i-270
Letter of the Ministry of Economic Development dated March 28, 2016 No. D28i-763
Letter of the Ministry of Economic Development dated June 23, 2016 No. D28i-1568
Letter of the Ministry of Economic Development dated December 17, 2015 No. D28i-3718

The establishment by the customer in the procurement documentation of a requirement to provide security for an application for participation only by depositing funds into the bank account of the organizer of the procurement procedure when conducting a procurement in electronic form is legal.

Application of tax return

Letter from the Ministry of Finance and the Federal Tax Service dated March 16, 2015 No. ED-4-2/4124

It is at the stage of selecting suppliers that it is necessary to check their legal status and business reputation, thereby exercising due diligence. The presence of an extract from the Unified State Register of Legal Entities in relation to a person confirms only the fact of his state registration in the prescribed manner and cannot automatically be sufficient or the only confirmation of the taxpayer’s due diligence when choosing a supplier (performer, contractor). Taxpayers often turn to tax authorities with a request to confirm the fulfillment of tax obligations by counterparties. However, even if they provide tax reporting, its reliability, as well as the reality of their financial and economic activities, can be confirmed only after an on-site tax audit.

Deadlines for posting information

Letter of the MED dated February 29, 2016 No. D28i-474

If the protocol was signed on Thursday, the period allotted to the customer for posting it in the Unified Information System ends on Sunday (within 3 calendar days).

Letter of the Ministry of Economic Development dated April 8, 2016 No. D28i-896

According to Art. 193 of the Civil Code of the Russian Federation, if the last day of the period falls on a non-working day, the end of the period is considered to be the next working day following it. Thus, when placing information and documents under 223-FZ in the UIS, the customer must be guided by the procedure for calculating deadlines in accordance with 223-FZ and the Civil Code of the Russian Federation.

Procedure for assessing applications: with VAT without VAT

Letter of the Ministry of Economic Development dated April 28, 2016 No. D28i-1114
Letter of the Ministry of Economic Development dated May 26, 2016 No. D28i-1372

When comparing and evaluating applications during a procurement, the customer has the right to determine in the Regulations and establish in the documentation:

Rule for comparing price offers of participants excluding VAT

The rule for comparing price offers of participants, taking into account all taxes, fees, and other expenses in accordance with the legislation of the Russian Federation.

Letter of the Ministry of Economic Development dated November 15, 2015 No. D28i-3356

If the documentation indicates that price proposals are assessed taking into account all taxes and fees, then submitted applications must comply with this.

Letter of the Ministry of Economic Development dated November 30, 2015 No. D28i-3499

In cases where the results of the analysis do not allow us to clearly say that the customer has the right to apply a VAT tax deduction, or if the VAT tax deduction is applied to part of the purchased products, then it is possible to use the prices of participants’ bids, taking into account all taxes, as a single basis for comparing price offers. fees and other expenses in accordance with the legislation of the Russian Federation.

Purchase within one lot

Letter of the Ministry of Economic Development dated April 29, 2016 No. D28i-1142
Letter of the Ministry of Economic Development dated June 20, 2016 No. D28i-1544

Combining goods, works, and services with different functional characteristics into one procurement entails limiting competition due to a reduction in the number of business entities that can take part in the procurement. It is unlawful to combine work on the preparation of design documentation and construction and installation work into one lot if this entails limiting competition and the number of procurement participants. These types of work are presented in different product markets, each of which has a circle of potential participants ready to carry them out.

It is worth mentioning a number of exceptions, for example, within the framework of turnkey procurement, when goods and works are functionally connected. However, according to the above Letter, the purchase of mixed lots is excluded.

Letter of the Ministry of Economic Development dated February 10, 2016 No. D28i-229

The establishment of unclear requirements by the customer in the technical specifications may lead to unfair competition and lead to the formation of a precedent for the procurement organizer.

Purchasing from affiliates

Letter of the Ministry of Economic Development dated January 22, 2016 No. D28i-87

Abuse by the customer of the right to purchase from its affiliates without conducting competitive procedures may lead to unfair competition and lead to the formation of a precedent for the organizer of the procurement procedure. However, purchasing from affiliates is not prohibited.

Calculation of the NMC of a bank deposit agreement

The purchase of bank deposits under 223-FZ is carried out both by competitors and by non-competitive methods. As a rule, customers give preference to the latter. The following letters from the Ministry of Economic Development (one of which completely copies the text of the second) indicate how to calculate the NMC of the contract when purchasing such services

Letter of the Ministry of Economic Development dated January 28, 2016 No. D28i-141
Letter of the Ministry of Economic Development dated August 10, 2015 No. D28i-2320

The procedure for forming the contract price is established by the customer independently.

So, for example, a customer needs to attract a deposit of 1 million rubles. To determine the NMC of the contract it is necessary:

Determine the average value of deposit rates offered by various banks. Let's assume that three banks offer rates of 16%, 13% and 12% per annum. The average value of these offers is 13.6%.
Convert the resulting average deposit rate (13.6%) into rubles.

Thus, if the customer needs to attract a deposit of 1 million rubles, the NMC of the contract will be 136,000 rubles, which, in turn, must be indicated in the line “contract price” in the register of concluded contracts in the Unified Information System.

Business trips

Letter of the Ministry of Economic Development dated April 8, 2016 No. D28i-870

In accordance with Article 168 of the Labor Code of the Russian Federation, the employer is obliged to compensate the employee:

travel expenses
living expenses
additional expenses associated with living outside your permanent place of residence (daily allowance).
other expenses incurred by the employee with the permission or knowledge of the employer.

Cash reimbursement of travel expenses to employees is not a purchase and is not reflected in the plan. If the customer considers it necessary to conclude an agreement for the provision of services related to sending an employee on a business trip, then this is considered a purchase and information about it is displayed in the Unified Information System. Reimbursing employees in cash for expenses incurred to pay for GWS in the interests of the organization or providing employees with funds for the purchase of GWS in the interests of the organization on account is a procurement within the meaning of 223-FZ.

Procurement protocols

Letter of the Ministry of Economic Development dated July 6, 2016 No. D28i-1672

There are the following types of information presentation, including protocols:

information contained in documents compiled using the tools provided by the EIS hardware and software complex
information contained in the file in a format that allows it to be saved on users’ technical equipment and allows, after saving, the ability to search and copy an arbitrary fragment of text
file with a graphic image of the original document

During procurement, the customer must place in the UIS a protocol generated through the UIS functionality and (or) an electronic form of the protocol, as well as its graphical form.

Files in the following formats: bmp, jpg, jpeg, gif, tif, tiff, docx, doc, rtf, txt, pdf, xls, xlsx, rar, zip.

Duration of the contract

Letter of the Ministry of Economic Development dated March 14, 2016 No. D28i-654

The establishment in the Regulations of the period for concluding a contract based on the results of the procurement, which does not take into account the administrative control procedures on the part of the antimonopoly authority, actually excludes the use of operational measures provided for in Art. 18.1 No. 135-FZ, and deprives filing a complaint of any legal meaning, and is therefore directed against the rights of procurement participants. Thus, the customer needs to establish in the Regulations a period for concluding contracts with the winners of auctions conducted in the form of a competition or auction, taking into account norms No. 135-FZ.

In its decisions, the antimonopoly service states that the contract should be concluded no earlier than 10 days later (in accordance with the regulations for the consideration of complaints). Otherwise, participants will not have time to file a complaint against the actions (inactions) of the customer. Currently, 223-FZ does not provide for a period for concluding an agreement, however, in the relevant changes that are being prepared to make to this legal regulation, they plan to stipulate a period for concluding a contract from 7 to 20 days. It should be noted that according to 44-FZ, for such procurement procedures as request for quotations and request for proposals, the period for concluding a contract is from 7 to 20 days, and the appeal period is within 10 days (as in 223-FZ). If the deadline for concluding an agreement in the Regulations is stated earlier than 10 days, the customer should think about possible changes to its legal act.

Cumulative annual volume

Letter of the Ministry of Economic Development dated March 15, 2016 No. D28i-661

When calculating the total annual volume of contracts concluded by customers, including with SMEs, purchases of energy resources are not taken into account:

natural energy carrier: hydrosphere water, hot water, steam, atmospheric air, biomass, organic fuel (oil, gas, coal, etc.)
produced energy carrier: compressed air, steam from boiler plants and steam generators, hot water, acetylene, products from the processing of organic fuel and biomass.

Purchase of coolant (steam, water for transfer of thermal energy) = purchase of energy resources.

Letter of the Ministry of Economic Development dated February 12, 2016 No. D28i-290

When calculating the total annual value of contracts concluded by the customer with SMEs, purchases of credits and loans are not taken into account.

Letter of the Ministry of Economic Development dated June 29, 2016 No. D28i-1633

When calculating the total annual value of contracts concluded by customers, including with SMEs, purchases of financial services, including insurance services, are not taken into account. The purchase of insurance agent services does not apply to financial services (insurance services)

Involving a SME under a subcontract agreement

Letter of the MED dated February 29, 2016 No. D28i-496

The supplier (performer, contractor) - a SME has the right to involve subcontractors in the execution of the contract, including from among the SMEs, if this does not contradict the Procurement Regulations of such a customer and the concluded civil law contract.

When calculating the total annual value of contracts concluded as a result of purchases from SMEs in the amount of 18%, it is possible to take into account purchases, information about which (notification, documentation, etc.) is not published in the Unified Information System.

Letter of the Ministry of Economic Development dated April 1, 2016 No. D28i-881
Letter of the Ministry of Finance dated March 20, 2016 No. 02-02-02\ 15487

The obligation of the supplier (contractor, performer) to provide information about the subcontractor arises only if the customer in the contract establishes a requirement to involve subcontractors (co-contractors) from among SMEs in its execution.

Letter of the Ministry of Economic Development dated May 15, 2015 No. D28-1216

The register of contracts includes information on contracts with subcontractors from among SMEs.

Letter of the Ministry of Economic Development dated July 9, 2015 No. D28i-2074

The customer is obliged to indicate information about contracts concluded with MS entities, or in the absence of such information, the information is indicated by the digital value “0”.

Letter of the Ministry of Economic Development dated October 28, 2015 No. D28i-3254

When making a purchase, the customer must determine the NMC of the contract, taking into account or excluding VAT. The issue of accounting for VAT in calculating the total value of contracts concluded by customers based on the results of the purchase of goods, works, services, including the results of purchases only from SMEs, should be determined taking into account the customer’s procurement documentation.

Agreement conditions

Execution of the contract

Letter of the Ministry of Economic Development dated May 25, 2016 No. D28i-1371

The procedure for preparing and conducting procurement procedures, as well as the conditions for their application, including the amount of advance payments, is established by the customer independently by adopting the Procurement Regulations. The customer has the right to provide in the Regulations and documentation a condition for payment under the contract at a time and in full after full fulfillment of its obligations by the contractor (supplier, performer)

Contract extension

Letter of the MED dated February 29, 2016 No. D28i-497

Extending the term of a contract without conducting a repeat procurement procedure does not contradict the requirements of 223-FZ if:

the right to prolong the contract is provided

the essential terms of the contract do not change (except for the volume, price of purchased goods, works, services and terms of execution of the contract)

Similar position:

Letter of the Ministry of Economic Development dated November 23, 2015 No. D28i-3357

The contract concluded based on the results of the procurement provides for the right to prolong such a contract and, in the case of prolongation, the essential terms of the contract do not change (except for the volume, price of purchased goods, works, services and terms of execution of the contract), then extend the term of the contract without conducting a repeat procurement the procedure does not contradict the requirements of 223-FZ.

Agreements concluded before 223-FZ (contradictory position in the next 2 letters)

Letter of the Ministry of Economic Development dated August 14, 2015 No. D28i-2350

Agreements concluded before the entry into force of 223-FZ are valid until the parties fully fulfill their obligations. At the same time, when making changes to them in terms of amendments to the subject of the contract (increasing the volume of supplies, work, services) or the terms of execution of the contract, the parties are required to be guided by 223-FZ.

Letter of the Ministry of Economic Development dated August 24, 2015 No. D28i-2439

223-FZ does not establish that its effect extends to relations arising from previously concluded agreements. Thus, if an agreement concluded before the entry into force of 223-FZ provides for the possibility of making amendments, such amendments are possible without carrying out the procedures provided for by 223-FZ.

Refusal to conclude an agreement on non-trade procedures

Letter of the Ministry of Economic Development dated April 25, 2016 No. D28i-1013

If the Procurement Regulations stipulate that a request for quotations is a competitive procurement method that is not a tender, then this procedure does not impose on the organizer of the request for quotations the corresponding amount of civil obligations, including the mandatory conclusion of an agreement with the winner of the request for quotations or other participant. 223-FZ does not provide for the possibility of refusal to conclude a contract or termination of the procurement procedure by the customer at any time without liability to the participants. Part 1 art. 782 of the Civil Code of the Russian Federation provides that the customer has the right to refuse to fulfill a contract for the provision of services for a fee, subject to payment to the contractor for the expenses actually incurred by him.

Letter of the MED dated February 29, 2016 No. D28i-538

The draft agreement establishes the right of one of the parties to unilaterally refuse to perform the contract - the customer or the contractor has the right to refuse to perform it. If a procurement participant refuses to fulfill a contract with the procurement organizer in the form of a tender, in the absence of the right to unilaterally refuse to fulfill the contract, this may result in the inclusion of information about such a procurement participant in the RNP.

This position is confirmed:

Letter of the Ministry of Economic Development dated February 24, 2015 No. OG-D28-2482

The customer has the right to establish in the Procurement Regulations the condition and possibility of unilateral termination of the contract.

trade secret

Letter of the Ministry of Finance dated January 20, 2016 No. 02-02-14/1579

A copy of the concluded agreement is included in the register of agreements. Appendices to the contract are an integral part of it, since they may contain the essential terms of the contract (schedule for acceptance of goods supplied, work performed, services rendered, payment of obligations stipulated by the contract)

Letter of the Ministry of Finance dated April 1, 2016 No. 02-02-14/18544

1. Recognition of information as a trade secret does not apply to cases in which the information is not included in the register of contracts.

2. The customer is obliged to place in the register of contracts copies of contracts concluded on paper, created by scanning it and signed with an electronic signature.

Framework Agreement

Letter of the Ministry of Finance dated May 5, 2015 No. 02-02-08/25835

The customer ensures that a copy of the framework agreement and a copy of the invoice are included in the register of contracts (if information about the contract concluded by issuing an invoice is subject to inclusion in the register)

Placement order

Letter of the Ministry of Economic Development dated April 11, 2016 No. D28i-917

The customer is obliged to place in the Unified Information System all information and documents confirming the fulfillment of mutual obligations under the contract (acceptance and payment of results). The list of information (documents) is specified in the Order of the Ministry of Finance dated December 29, 2014 No. 173: acts, invoices, etc. If any information is not indicated in the list, then it refers to “other documents” (for example, a payment order).

Letter of the Ministry of Economic Development dated April 26, 2016 No. D28i-1058

Agreements whose value does not exceed 100 thousand rubles. (500 thousand rubles), must be included in the register if the contract is sent by the customer to the Federal Treasury.

Letter of the Ministry of Economic Development dated August 25, 2015 No. D28i-2433

The customer has the right not to place in the Unified Information System information about the purchase of goods, works and services, the cost of which does not exceed 100 thousand rubles. The customer has the right to independently decide on the need to include information about the purchase of up to 100 thousand rubles in the procurement plan.

Letter of the Ministry of Economic Development dated August 21, 2015 No. D28i-11190
Letter of the Ministry of Economic Development dated November 30, 2015 No. D28i-3477

The customer has the right not to enter into the register of contracts information about contracts whose price does not exceed 100 or 500 thousand rubles, regardless of whether information about such purchases is posted in the Unified Information System or not.

Stagedness

Letter of the Ministry of Economic Development dated March 4, 2016 No. D28i-548
Letter of the MED dated February 15, 2016 No. D28i-297

If the contract provides for the stages of delivery of goods, performance of work, provision of services, information and documents on the results of the execution of a separate stage of the contract must be included in the register of contracts.

Letter of the Ministry of Economic Development dated February 12, 2016 No. OG-D28-1574

The customer enters information about the execution of the contract into the register of contracts within 10 days from the date of execution of the contract, that is, after the parties have fulfilled their obligations under the contract. The Procurement Regulations by the customer determine the rules for including in the register of contracts information and documents on the execution of the contract, including on its payment:

after each stage of contract execution
after execution of the contract

The corresponding position is reflected in:

Letter of the Ministry of Finance dated July 21, 2015 No. 02-04-11/41911

Customers independently determine the rules for entering into the register of contracts concluded by the customer based on the results of the procurement, information and execution documents:

after each fact of execution of the contract (after each acceptance of goods, works, services provided for by the contract)
after each payment under the contract or after execution of the contract (termination of obligations under it)

Duration of the contract

Letter of the Ministry of Economic Development dated March 29, 2016 No. D28i-915

When filling out information about the deadline for the execution of a contract in the register of contracts, the execution of the contract should be understood as the full fulfillment by the parties of their obligations, that is, acceptance and payment of the results.
The period of performance of the contract does not include the period of warranty obligations, since the warranty obligation is an independent security measure that has its own individual characteristics
If it is impossible to determine the exact date of execution of the contract, when filling out information about the execution period, the customer should indicate the end date of the period during which the contract will be executed.

Letter of the Ministry of Economic Development dated December 31, 2015 No. D28i-3894

When filling out information about the deadline for execution of a contract in the register of contracts, you should indicate the date of actual execution of the contract by both parties (if the deadline has not changed)

Letter of the Ministry of Economic Development dated July 21, 2015 No. D28i-2079

If it is impossible to determine the exact date of execution of the contract, when filling out the information, the customer should indicate the end date of the period during which the contract will be executed.

Extension of contracts

Letter of the Ministry of Economic Development dated February 29, 2016 No. D28i-478

Automatic annual renewal (prolongation) of the contract leads to a change in the duration of the contract and its price. Information about changes to the contract must be posted in the Unified Information System within the time period established by 223-FZ. Failure to post this information is a violation of this law. 223-FZ does not prohibit the customer from changing the price of the concluded contract, while the abuse of its extension may lead to an unreasonable restriction of competition in relation to other procurement participants, which will be a violation of 135-FZ.

Letter of the Ministry of Economic Development dated March 10, 2016 No. D28i-640

Extension of the contract leads to a change in the duration of the contract and the price of the contract. Failure to post this information is a violation of 223-FZ.

Information about an individual

Letter of the Ministry of Finance dated March 20, 2015 No. 02-02-09-11/15487

The register includes information regarding an individual - full name (if available), place of residence and TIN. Considering that in accordance with 152-FZ “On Personal Data”, entering the specified information into publicly available sources is permitted only with the written consent of the subject of personal data, customers are invited to include in the procurement documentation a requirement for participants who are individuals to provide the customer with the subject’s written consent to processing of personal data.

Reporting

Intelligence

Letter of the Ministry of Economic Development dated April 1, 2016 No. D28i-881
Letter of the Ministry of Economic Development dated April 11, 2016 No. D28i-932

Reporting on concluded contracts must include information on all purchases made by the customer in the reporting month, including information on purchases of goods, works and services worth up to 100 thousand rubles.

Letter of the MED dated February 10, 2016 No. D28i-250

223-FZ does not oblige persons subject to RF PP No. 1352 to place in the Unified Information System information on the annual volume of purchases that customers are required to make from SMEs.

Oral form

Letter of the Ministry of Economic Development dated June 15, 2016 No. D28i-1489

A civil contract can be concluded orally or in writing. A purchase should be considered a cash register receipt, sales receipt, payment receipt and other other document confirming payment for goods, work or services. The purchase date will be considered the date indicated in the payment document. Information on the quantity and total value of contracts includes information on all contracts, including by paying invoices, in cash, purchases paid with cash and sales receipts.

Electronic form

Letter of the Ministry of Economic Development dated April 25, 2016 No. D28i-1086
Letter of the Ministry of Economic Development dated March 10, 2016 No. D28i-633

Currently, 223-FZ (as well as RF PP 616) does not define the concept of “electronic procurement”. Conducting such a procurement, including filing applications, providing the customer with access to these applications, and comparing proposals from procurement participants on the contract price must take place through the hardware and software complex of the electronic platform while maintaining the confidentiality of information about procurement participants. Procurement in electronic form within the meaning of 223-FZ includes stages of procurement from publication of a notice to conclusion of a contract.

Questions from listeners

Will autonomous institutions be transferred under 44-FZ?

Currently this question is open. There is a bill on the transfer of autonomous institutions to 44-FZ. If approved, such organizations will, like budgetary institutions, purchase necessary goods, works, and services in accordance with the norms of 44-FZ, taking into account the three grounds allowing procurement under 223-FZ.

How to correctly place the new Procurement Regulations for 2017?

The position of the Ministry of Economic Development suggests that when changing the Regulations, it is necessary to post both the new Regulation itself and the list of changes made to it. When publishing a completely new Regulation, it is more logical not to publish changes (in fact, this is a new Regulation).

How will the transition of state unitary enterprises to 44-FZ take place?

From January 1, 2017, state unitary enterprises and municipal unitary enterprises will conduct procurement in accordance with the norms of 44-FZ. It does not matter at what expense the state unitary enterprise or municipal unitary enterprise purchases something (including at its own expense), procurement activities will still be regulated by 44-FZ. The customer is obliged, based on the total annual volume of purchases, to ensure the creation of a contract service (or appoint a contract manager (one or more)) in accordance with the provisions of 44-FZ. In this case, the customer must involve specialists in the contract service or as a contract manager, taking into account the requirements of the Professional Standard regarding a specialist in the field of procurement.

Is it necessary to place contracts in the Unified Information System up to 100 thousand rubles? (if there were several of them)?

No, not necessarily, this is the customer’s right.

Do you need to support SMEs when purchasing goods, works, services?

If customers are not covered by the provisions regarding support for SMEs, then there is no need to provide it. In this case, it is necessary to publish reports on purchases from such business entities, indicating “0” in the position.

How does sponsorship work within the framework of 223-FZ and 44-FZ?

If we are talking about a budgetary institution, then the purchase of sponsorship is in accordance with 44-FZ. Sponsorship cannot be classified as money from income-generating activities.

What is the right thing for a customer to do if the SME declaration does not comply with the established form?

Currently, in addition to the declaration, since August 1, 2016, there has been a unified register of small and medium-sized businesses maintained by the Federal Tax Service. In its current procurement activities, the customer must be guided by two documents: either a declaration or information from the said register. Formally, it is possible to check whether the participant who submitted the declaration meets the established criteria. If the information is present in the register, then customers should be careful about the rejection of his application, since the fact of being in the register is undeniable and regulatory authorities may support his position. If the submitted declaration of a participant does not comply with the established form and information about him is not in the register of small and medium-sized businesses, the application of such applicant can be rejected due to non-compliance with the established form. However, the practice of a particular region on this issue should be studied. The register of small and medium-sized businesses (from 01.08.2015) has priority over the declaration. It should be taken into account that not all organizations are included in the register in full. Therefore, if a participant submits a declaration in the prescribed form, but there is no information about him in the register, then such an applicant must formally be admitted.

What changes are planned to be made to 223-FZ?

Currently, this regulation already has relevant changes, but it is not yet clear when they will come into force. It is already known that municipal unitary enterprises and state unitary enterprises are switching to 44-FZ from 01/01/2017. As for the closed list of procurement methods, electronic procurement forms, and the deadline for concluding a contract, these innovations are only in the draft. It is necessary to take into account the fact that what is in the project does not always coincide in fact with what is later in the document. For example, state unitary enterprises and municipal unitary enterprises: the draft stated that these entities were transferred to 44-FZ only in relation to budgetary funds; as for their own funds, the customer could purchase what they needed at their discretion under 223-FZ. Another example, regarding the national regime since 2017, the resolution of which does not contain the list of goods, works and services that was previously in the draft document.

When making a bank deposit, no purchase occurs, since there are no expenditures of funds. Is it so?

Formally this is the case, but in practice the position is different.

How to report on the execution of a contract if stages are provided?

The customer must enter information into the register of contracts regarding the execution of the contract. If there are stages of acceptance, for example, goods are delivered according to requests, the customer will independently determine when exactly he will enter such information into the register: either after each stage of the contract, or immediately after the final execution of the contract.

How to deal with subsidies for autonomous institutions?

When purchasing through subsidies, autonomous institutions must be guided by Art. 15 44-FZ, as well as the norms of 223-FZ. Regarding an autonomous institution (the question regarding sponsorship), the situation is somewhat different compared to a budget institution. If budgetary institutions purchase under 223-FZ only as specified in Art. 15 44-FZ, with autonomous institutions things are different: sponsorship cannot be purchased under 44-FZ, accordingly such procurement must be carried out under 223-FZ

How to purchase sponsorship under 223-FZ?

The Customer independently decides how exactly to carry out such a purchase in accordance with its Regulations. 223-FZ does not contain any restrictions on this issue.

During what period is the contract considered fulfilled?

The customer’s obligation under an agreement, for example, a contract, is acceptance of work and payment for it. At the moment when the work has been accepted and paid in full, the contract can be considered closed.

Is it necessary to post information about the extension of contracts that were concluded before the entry into force of 223-FZ?

In practice, such agreements (and information about them) are not posted in the Unified Information System. However, if an agreement placed within the framework of 223-FZ is extended, then the necessary changes about it must be made in the register of agreements (including those on extension).

Who should re-register in the EIS?

All customers working under 223-FZ and 44-FZ must undergo re-registration. However, at present this issue is interpreted differently in different regions by treasury authorities. Re-registration of customers in the UIS takes place in their personal account using the appropriate button. Due to the workload of the UIS, not all customers have yet received the “re-register” button in their personal account. You need to wait.

How are utility contracts extended?

The customer has the right to close the existing contract and, within the framework of 223-FZ, purchase such services from a single supplier every year. Another option is possible when the customer enters into a utility service agreement for several years. However, you should not forget about changing tariffs. Therefore, many customers try to purchase utilities once a year in accordance with the established tariff. However, there is no uniform practice on this issue (purchase of utilities and renewal of contracts).

An application for participation has been submitted, indicating 0% VAT. The customer does not want to enter into an agreement without reducing its cost by 18%. Is this legal?

If there were no reservations on this issue in the Regulations, as well as documentation, according to 223-FZ, the customer can do so. As a rule, the contract is concluded in accordance with what is specified directly in the application, unless otherwise provided.

What is the maximum duration of the contract under 223-FZ?

This regulation does not contain any time limits. The customer can enter into a contract for several years.

In accordance with Part 1 of Article 15

According to Part 2 of Article 15, Clause 6 of Part 3 of Article 2 of the Law

Law Part 2 Article 15 Law No. 44-FZ.

In all other cases, including procurement at the expense of budgetary and other funds simultaneously (mixed financing), budgetary institutions must be guided by the provisions of Law N 44-FZ.

The Ministry of Economic Development of Russia prepared a letter dated December 31, 2014 N D28i-2887 on the possibility of budgetary institutions to make purchases using budgetary and other funds simultaneously (mixed financing).

In accordance with Part 1 of Article 15 of the Federal Law of April 5, 2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter referred to as Law N 44-FZ), budgetary institutions carry out procurement through subsidies provided from the budgets of the budget system of the Russian Federation, and other funds in accordance with the requirements of Law No. 44-FZ.

According to Part 2 of Article 15 of Law N 44-FZ, if there is a legal act (procurement regulations, which is a document that regulates the procurement activities of the customer and must contain procurement requirements, including the procedure for preparing and conducting procurement procedures (including procurement methods) and conditions their application, the procedure for concluding and executing contracts, as well as other provisions related to ensuring procurement) (hereinafter referred to as the procurement regulations), adopted by a budgetary institution in accordance with paragraph 6 of part 3 of Article 2 of the Federal Law of July 18, 2011 N 223-FZ "On the procurement of goods, works, services by certain types of legal entities" (hereinafter - Law N 223-FZ) and posted before the beginning of the year in the unified information system in the field of procurement of goods, works, services to meet state and municipal needs, this institution has the right to carry out in the corresponding year, in compliance with the requirements specified by Law N 223-FZ and the procurement legal act:

Thus, budgetary institutions have the opportunity to exercise the right to make purchases in accordance with the provisions of Law N 223-FZ only in the cases established by part 2 of Article 15 of Law N 44-FZ.

In all other cases, including procurement at the expense of budgetary and other funds simultaneously (mixed financing), budgetary institutions must be guided by the provisions of Law N 44-FZ.

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