Sale at 44 fl. Actual changes in the contract system for procurement participants. Register of dishonest suppliers

• On 07.09.2018
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• 44-FZ, EIS, Request for Quotations, Request for Proposals, Competition, NMTsK, SMP, Electronic Auction, ETP

There are several preferential categories among suppliers in public procurement. They need to be given certain benefits. Consider who they are intended for and how the customer should act.

Preferential categories of participants in public procurement

The contract system was created not only to make budget spending more transparent, but also to provide participants with equal access to procurement. This promotes fair competition. At the same time, preferences are provided for certain groups. The state order has three categories of beneficiaries:

• small businesses and socially oriented non-profit organizations ( SMP and SONO);
• organizations of the disabled OI);
• correctional facilities ( UIS).

The rules for assigning participants to each category and links to regulations are presented in the following diagram.

Registration in ERUZ EIS

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

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

SMP and SONO

Organizations of the disabled

Correctional institutions

Article 30 44-FZ

Article 29 44-FZ,
Decree No. 341 dated 04/15/14

Article 28 44-FZ,
Decree No. 649 dated 14.07.14

SMP: Small business entities that meet the criteria of the law of July 24, 2007 No. 209-FZ.
Main criteria:

• revenue without VAT up to 800 million rubles;
• average number of employees up to 100 people;
• the share of commercial companies (not SMEs) in the authorized capital - no more than 49%

SONO: Organizations in the forms provided for by law No. 7-FZ of January 12, 1996 (except for state corporations, state companies, political parties). They carry out the activities listed in Article 31.1 of Law No. 7-FZ.

All-Russian public organizations of the disabled (OI), their unions:

• 80% of members are disabled;

Organizations whose capital is 100% made up of contributions from the IO:

• the average number of disabled people in relation to others - at least 50%;
• the share of salaries of disabled people in the wage fund is at least 25%.

Organizations from the list contained in the Government Decree No. 89 dated February 1, 2000.

The following table provides basic information on benefits, their scope and method of provision.

Table. Benefits for SMEs and SONOs, IP Institutions, Organizations of the Disabled

How preferences are granted to preferential categories

Benefits for OI and UIS

The specified categories of benefits are provided if the object of procurement is included in the list from the relevant resolution (No. 341 and No. 649, respectively). The customer is determined with the object of procurement and is checked against these decisions. If the product is included in one of them, it is necessary to establish benefits for the corresponding category of participants.

Benefits for penitentiary institutions and organizations of persons with disabilities are as follows: the contract will be concluded at a price 15% higher than that indicated in the application of such a participant. From the wording of the law, it may seem that the advantage may be less than 15%, but this interpretation is erroneous. It is understood that the advantage is 15%, but the contract can be concluded at a price not higher than NMTsK (letter of the Ministry of Economic Development of October 15, 2014 No. D28i-2197).

The lists of resolutions indicate codes according to the OKPD2 classifier. It has a certain structure (shown below in the example of class 13 "Textiles and textile products"). The benefits extend to all lower levels of the code structure.

Structure of OKPD2

13 Class "Textiles and textile products"
	13.9 Subclass "Other textile articles"
		13.92 Group "Finished textile articles (except clothing)"
			13.92.1 Prepared household textile articles
				13.92.12 View "Bed linen"
					13.92.12.110 Category "Bed linen made of cotton fabrics"
						13.92.12.114 Subcategory "Cotton bedding sets"

For example, a customer is in need of electric portable lamps. This procurement object corresponds to the code OKPD2 27.40.21.110. We check with Resolution No. 341 and see that the code is included in it 27.40.2 "Lights and lighting devices". The purchase object required by the customer is included in the structure of this code. Accordingly, it is necessary to establish in the procurement an advantage for organizations of persons with disabilities.

Important! If you need to purchase different items, make sure that they are all included in the list. Only then should you include them in one purchase. If you need to buy goods in addition to the list, follow different procedures.

The advantage must be established in the planning documents and duplicated in the procurement documentation, the draft contract. It should also be indicated that the contract cannot be concluded at a price higher than the NMTsK. The following is an excerpt from the auction documentation containing the preference clause for preferential categories:

Benefits provided for institutions and enterprises of the penitentiary system, organizations of the disabled
Advantage to institutions and enterprises of the penitentiary system Set by the customer in accordance with section ________ of the electronic auction documentation in the amount of up to 15% of the price offered by the institution or enterprise of the penitentiary system recognized as the winner, but not more than the initial (maximum) contract price
Benefits to disabled people's organizations It is set by the customer in accordance with section ________ of the electronic auction documentation in the amount of 15% of the price offered by the organization of disabled people, recognized as the winner, but not more than the initial (maximum) price of the contract	Set at 15% of the contract price, but not more than the initial (maximum) contract price / Not set

How participants confirm their belonging to a particular category

To qualify for the benefit, the competitor must be in the UIS or OG category. This must be documented. The method of confirmation depends on the method by which the purchase is made:

1. If this is an electronic auction, request for proposals in electronic form, then the participant must submit documents(their copies), which will confirm the right to receive the relevant benefits.
2. If an electronic request for quotation is made, the participant provides declaration in electronic form, which is formed with the help of ETP.

Actions of the customer when the beneficiary wins

The winner belongs to UIS. His application must include a claim for benefits. If it is, the advantage must be given.

The winner belongs to the OG. In his application must be a statement of compliance with the category. Before signing the contract, he must send the customer a request for an advantage. If a claim is made, the price of the contract must be set according to the advantage.

Attention! If the winner evaded the conclusion of the contract, and the participant following him belongs to preferential categories, then the advantage should also be given to him.

Contract price

Let's use an example to show how to calculate the contract price if the beneficiary won. Let the subject of the purchase be included in the list from Decree No. 341, which means that preference is given to organizations of the disabled. Initial price of the contract - 300 000 rubles. The application of a subject of the OI category with a price 270 000 rubles. The benefit is 15%.

Calculate the price of the contract. The following formula is applied:

Estimated Price = OG Price * 15% + OG Price

The calculation is: 270,000 * 15% + 270,000 = 310,500 rubles.

The calculated price, taking into account the advantage provided, is higher than the initial (maximum). Thus, the contract with the organization of the disabled will be concluded at a price of 300,000 rubles, that is, according to the NMCC.

Benefits for SMP and SONO

Customers are required to purchase from small and non-profit enterprises at least 15% of the total annual purchases (GPO). First of all, you need to correctly determine this volume. If you make a mistake in the calculations or do not meet this limit, you can get a fine of 50,000 rubles.

The formula for calculating the SHOZ:

When the SLOZ is calculated, you need to take from him 15% - this will be the minimum purchase from the NSR and SONO. However, when planning purchases, you need take this percentage with a margin, because some of them may not take place. In this case, the customer runs the risk of not collecting the 15% volume and getting a fine.

Establishing an advantage in purchasing

Small Business Advantage Worth Installing in those purchases, the objects of which they are able to deliver. So, it is not necessary to announce a purchase for the SMP and SONO if the object is, for example, medical services or fuel. Since companies that supply such goods and services are rarely classified as small enterprises.

When the objects of purchase from the SMP are selected, it is necessary to reflect this in the planning documents, procurement documentation and the contract. There are two important points to note:

1. Payment. If the contract is concluded with SMP or SONO, then no more than 15 working days should pass from the moment of signing the acceptance documents to the day of payment.
2. Penalties. Penalties are charged for late payment. In all other cases, the facts of non-performance or improper performance of the contract are punishable by fines. These conditions must be spelled out without fail. Need to specify fixed amount a fine determined on the basis of the value of the contract, as well as the entire penalty line. For small businesses, the sizes are:
   • with a contract price of up to 3 million rubles, the amount of the fine is 3%;
   • with a contract price of 3 to 10 million rubles - 2%;
   • with a contract price of 10 to 20 million rubles - 1%.

An example of the wording of a provision regarding a fine is shown in the following image.

An example of the wording of penalties

What else does the customer need to know?

Don't forget to check the winning bidder if it was announced for SMP and SONO. The application must contain a declaration of its belonging to this category. But it does not hurt to check the information with the relevant register on the website of the Federal Tax Service.

Getting the right amount of purchases from small companies is not always easy. To simplify the task, it is advisable involve SMP and SONO as subcontractors. The procurement documentation should establish requirements for a supplier, who is not himself a small business, to hire SMP and SONO as co-contractors. At the same time, it is necessary to establish the exact amount of attraction in terms of value and register it in the draft contract.

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

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

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

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

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

2. Preferences for NSR and SONKO under 44-FZ

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

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

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

Secondly , average population SMP workersshould not exceed 100 people inclusive.

Thirdly , revenue without VAT or book value of assetsshould not exceed 800 million rubles (Note: Income limits are determined by Decree of the Government of the Russian Federation No. 265 dated April 4, 2016).

We figured out the subjects of small business, we move on ...

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

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

• social service, social support and protection of citizens;
• provision of legal assistance on a gratuitous or preferential basis to citizens and non-profit organizations and legal education of the population, activities to protect the rights and freedoms of man and citizen;
• measures for medical rehabilitation and social rehabilitation, social and labor reintegration of persons engaged in illegal consumption of narcotic drugs or psychotropic substances;
• etc. (total 18 activities).

Now let's look at the benefits that 44-FZ establishes for these categories of participants.

Purchasing volume

Customers are obliged to purchase from SMP and SONCO in the amountnot less than 15% total annual purchases (GPO). At the same time, such purchasesshould not exceed 20 million rubles (part 1 of article 30 of 44-FZ).

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

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

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

SMP and SONCO on subcontract

Customer during the purchaseRIGHT to install in the notice, a requirement for a supplier who is not an SMP or SONCO to involve subcontractors, co-executors from among the SMP, SONCO in the execution of the contract (part 5 of article 30 of 44-FZ).

Reduced payment terms under the contract

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

The size of the OIC is calculated from the offered price

In the event that a contract is concluded based on the results of a purchase among SMPs and SONCOs, the amount (abbreviated as OIC), including that provided taking into account, is set from the price at which the contract is concluded, but cannot be less than the amount (part 6 of article 96 44 -FZ). In all other purchases, the size of the OIC is set from the NMCC, and not from the proposed price of the winner.

OIC can not be provided

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

What does it mean? This means that if a participant (SMP, SONKO) has 3 executed contracts under 44-FZ over the past 3 years, for which fines and penalties have not been charged, then he can provide information about these contracts to the Customer and not provide contract performance security. The main thing is that the total price of these three contracts should not be less than the NMTsK of the purchase in which he won.

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

The verification steps are very simple:

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

Reduced fines

The amount of the penalty for non-fulfillment or improper fulfillment by the supplier (determined based on the results of the procurement among SMP and SONCO) of obligations under the contract is establishedin the amount of 1% of the price of the contract (stage), but not more than 5 thousand rubles and not less than 1 thousand rubles (Clause 4 of Decree of the Government of the Russian Federation No. 1042 dated August 30, 2017 No.).

When conducting purchases on a general basis, the fines are much higher (See clause 3 of the RF GD No. 1042 dated August 30, 2017):

3. Preferences for organizations of the disabled under 44-FZ

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

The list of such goods (works, services) is established by Decree of the Government of the Russian Federation of April 15, 2014 No. 341 “On providing benefits to organizations of disabled people when determining a supplier (contractor, performer) in relation to the contract price they offer, the sum of unit prices of goods, work, services” (together with the Rules for Providing Benefits to Organizations of Disabled Persons in Determining a Supplier (Contractor, Performer) in Relation to the Price of the Contract Offered by Them, the Sum of Unit Prices of Goods, Works, Services).

Organizations of the disabled - all-Russian public organizations of the disabled (including those created as unions of public organizations of the disabled) and organizations whose authorized (share) capital consists entirely of contributions from all-Russian public organizations of the disabled (Article 29 44-FZ).

Criteria for classifying organizations as organizations of persons with disabilities

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

Organizations, the authorized (reserve) capital of which is 100% of the contributions of the OI:

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

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

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

Suppose that the Customer is purchasing goods from the list of RF PP No. 341 dated April 15, 2014, and the documentation establishes a 15% advantage for organizations of the disabled. The initial maximum contract price is 100,000 rubles.

Participant No. 1 (non-OG) offered a price - 85,000 rubles. And Participant No. 2 (OI) in his application indicated the price - 80,000 rubles. Participant No. 2 won because he indicated the price lower. But since the Customer established a 15% preference for organizations of the disabled, Participant No. 2 can exercise his right and send a request to the Customer to increase the price he offered by 15%. Thus, the contract with Participant No. 2 will be concluded at a price of 80,000 + 15% = 92,000 rubles.

The only rule in this case is that the price at which the contract will be concluded with the winner does not exceed the NMTsK established in the documentation. In our case, this rule is observed, because NMTsK - 100,000 rubles, and the contract, taking into account the preference of 15%, was concluded for 92,000 rubles.

If Participant No. 2 (OI) won with a price of 90,000 rubles and used his right to receive an advantage of 15%, then the contract would be concluded with him for 100,000 rubles, and not for 103,500 rubles (90,000 + 15% ).

4. Preferences of the penal system under 44-FZ

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

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

Institutions and enterprises of the penitentiary system - organizations from the list contained in Decree of the Government of the Russian Federation No. 89 dated February 1, 2000 (as amended on November 22, 2018) “On approval of the list of types of enterprises, institutions and organizations included in the penitentiary system”.

Such institutions include: logistics and military supply bases, construction departments, educational institutions and so on.

The principle of operation of the 15% preference for penitentiary institutions is the same as in the above example for organizations of persons with disabilities. The difference lies only in the list of goods (works, services), which is established for the penal system by RF PP No. 89 dated February 1, 2000.

And finally, there is another general preference for organizations of the disabled and institutions of the penal system. Its essence is as follows.

If the procurement is carried out in accordance with Articles 28 and 29 of the 44-FZ, the procurement participant is an institution or enterprise of the penal system or an organization of the disabled and the NMCC ismore than 20 million rubles , the size of the application securitycannot exceed 2% NMCC (part 17 of article 44 of 44-FZ).

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

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

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

Government procurement is a large market for suppliers. In 2018, public procurements totaling more than 8 trillion rubles were published in the Unified Procurement Information System, of which more than 1 trillion rubles. given to small businesses.

Public procurement is regulated by federal law No. 44 “On the contract system”. It spells out all the rules for conducting the procurement procedure: from its planning, placement in the EIS to the fulfillment of all obligations under the contract.

Who can participate in public procurement

In procurement under 44-FZ, customers are state and municipal bodies and institutions, budget organizations. A public procurement participant can be any legal or individual including individual entrepreneurs.

Organizations, individual entrepreneurs or individuals who:

• Are in the process of liquidation, at the stage of bankruptcy or bankruptcy proceedings.
• Have a debt of more than 25% of the book value of assets.
• Have a criminal record for economic crimes under Art. 289, 290, 291, 291.1 of the Criminal Code of the Russian Federation.
• Brought to administrative responsibility under Art. 19.28 of the Code of Administrative Offenses of the Russian Federation (giving a bribe) within two years prior to the filing of the application.
• Have a conflict of interest with the customer or other procurement participant (close family ties).
• They are an offshore company.
• They are included in the register of unscrupulous suppliers.
• Subject to restrictions on participation in procurement established by the Government of the Russian Federation.

The participant must confirm that he can participate in public procurement and does not apply to any of the requirements above, on each electronic trading platform (ETP) where he participates in procurement.

Additional requirements for public procurement participants

Customers may present additional requirements for the qualifications of participants, their experience, business reputation, financial resources and equipment. Such requirements are established if the purchase concerns the reconstruction of a cultural heritage object, the construction of a capital construction object, the repair of roads and other works from the list of the Government of the Russian Federation No. 99. The participant must confirm compliance with the requirements before submitting a purchase application by attaching documents in his personal account on the federal ETP.

The customer may require that the procurement participant meet the requirements for the performance of certain activities - have the appropriate license to carry out work, membership in self-regulatory organizations etc.

The participant must have a patent, license agreement or other confirmation of the rights to the results of intellectual activity. This requirement is mandatory if, under the contract, the customer receives the rights to the results of intellectual activity. Requirements are not established if, under the contract, the supplier creates or performs a work of literature or art, finances the distribution or screening of a national film.

Preferences for participants

Some participants in public procurement are provided with benefits or priority when considering applications. For example, government customers are required to carry out 15% of the total volume of purchases among small businesses (SMEs) and socially oriented non-profit organizations (SONCOs).

In addition to SMP and SONCO, preferences in public procurement are provided to:

• institutions and enterprises of the penitentiary system,
• organizations of the disabled
• suppliers of goods from the EAEU countries (Russia, Belarus, Kazakhstan, Armenia, Kyrgyzstan).

Procurement types

Government customers can purchase goods, work or services in 7 ways:

• open competition
• limited entry competition
• two-stage competition
• electronic auction
• request for proposals
• request for quotations
• purchase from a single supplier (carried out in cases limited by law).

Depending on the type of purchase, the winner is determined in one of two ways:

1. At the minimum price offered during the purchase - auction, request for quotations.
2. According to the best combination of price and terms of the contract, proposed in bids or final proposals - in tenders and requests for proposals.

	What it takes to win	How to participate
Auction	lowest price	Submit an error-free bid, reduce the price at an online auction.
Competition		Send an application specifying the price, characteristics of the goods and other conditions for the execution of the contract with documents confirming them.
Quote request	lowest price	Send an application in which you agree to the terms of the contract, describe the goods and offer a price.
Request for proposals	The best combination of price and execution conditions	Send an application specifying the price, characteristics of the goods and other conditions for the execution of the contract with documents confirming them. Conditions can be improved once after opening all applications.

Also, customers under 44-FZ can hold closed tenders and auctions to purchase goods related to state secrets and ensuring the country's security, services for the State Fund of Precious Metals and Stones, bailiffs and judges. Information about such purchases is not published in the public domain, and the customer sends invitations to potential suppliers to participate.

Where public procurement is carried out

All purchases under 44-FZ are carried out in electronic form. They are held on eight federal electronic trading platforms (ETP): EETP, RTS-tender, Sberbank-AST, ZakazRF, NEP, Russian auction house, ETP GPB, TEK-Torg.

To participate in auctions under 44-FZ, you need to register with the EIS. It gives access to public procurement at eight federal ETPs, as well as to purchases for overhaul under 615-PP and tenders under 223-FZ for small and medium-sized businesses. Registration in the EIS is free and valid for three years.

Since the procurement is carried out in electronic form, an enhanced qualified signature is required to participate in them. You will need it to register in the EIS, send an application, participate in the auction and sign a contract.

Ensuring the application, contract and warranty obligations

When submitting a purchase order under 44-FZ, the participant must provide the application security. So he will confirm his intention to participate in the tender. The amount of the bid security depends on the size of the initial maximum contract price (IMCC):

• if the NMTsK is from 0 to 20 million rubles, then the application security is from 0.5 to 1% of the NMTsK
• if the NMCC is more than 20 million rubles, then the security is from 0.5 to 5% of the NMCC.

Security can be provided in cash or a bank guarantee. It will be returned to all participants after the winner is determined.

The winner of the purchase, when signing the contract, must provide security for the performance of the contract. So he confirms that he will fulfill his obligations under the contract. The size of the contract security is from 10 to 30% of the NMCC. You can provide it with money to the customer's account or with a bank guarantee. The customer will fully return the security if the supplier fulfills all obligations under the contract.

Also, the state customer may require the provision of warranty obligations. If such a requirement is established in the procurement, the customer can sign the acceptance certificate only after providing the security. The size of the security for guarantee obligations is no more than 10% of the NMTsK.

Reducing the initial price of the contract by 25%

If the contract with the winner is concluded at a price that is 25% or more lower than the NMTsK, then anti-dumping measures are applied to the winner:

1. In purchases from the NMTsK more than 15 million rubles. the winner must provide the contract security increased by 1.5 times.
2. In purchases from NMTsK less than 15 million rubles. the winner can provide either one and a half security of the contract, or confirm his good faith and provide security in the usual amount (indicated in the documentation). Good faith is confirmed by three contracts for the last 3 years, which were executed without penalty. At the same time, the price of one of the contracts must be at least 20% of the NMTsK current purchase.

In addition, if the NMTsK is reduced by 25% or more, the winner will not receive an advance payment if it was provided for in the purchase.

Register of dishonest suppliers

If a company is included in the Register of Unfair Suppliers (RNP), then it will not be able to participate in purchases under 44-FZ and other purchases if the customer establishes a corresponding requirement.

Reasons why the winner of the purchase can get into the RNP under 44-FZ:

• If he won the purchase (or became the only admitted participant in the purchase) and refused to conclude an agreement with the customer.
• The company won the purchase, but signed the contract later than the required time.
• The winner did not provide contract security, provided it late or with an error.
• If the contract is terminated by a court decision, because the winner has seriously violated the obligations under the contract.
• The customer decided to terminate the contract unilaterally.

At the same time, if the contract is terminated by agreement of the parties, then the company will not be included in the RNP. Inclusion in the RNP can be challenged in court.

Law 44-FZ explains in detail the rules of work for participants in public procurement, regulates the parameters when choosing a winner, obliges the customer to conclude a contract with the winner and pay for the goods on time. Therefore, it is suitable for beginners. But it must be remembered that violation of the requirements of 44-FZ at any stage of the procurement entails fines for the customer, and the participant is threatened with entering the organization into the register of unscrupulous suppliers.

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

Encyclopedia judicial practice
Procurement object description rules
(Article 33 of the Law "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs")

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

Note

Opinion of the FAS Russia:

When describing the procurement object, the customer must accurately describe the scope of work to be performed (clause 5 of the Review of Administrative Practice prepared by the Department for Control over the Placement of State Orders of the Federal Antimonopoly Service of Russia, May 2016).

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

Attention

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

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

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

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

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

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

The institution in the auction documentation established the requirements for the medicinal product, taking into account its needs and based on the specifics of the type of activity being carried out. The task of procurement legislation is, first of all, to identify, as a result of bidding, a person whose performance of the contract will best meet the objectives of the effective use of funding sources and the customer's needs for the goods necessary for the implementation of its activities. The law does not provide for restrictions on the inclusion in the documentation of an electronic auction of requirements for goods that are significant for the customer and meet his needs. The provisions of the Law also do not oblige the customer, when determining the characteristics of the delivered goods in the documentation, to establish such characteristics that would correspond to all existing types, types, models of goods. The institution, having established the requirements for the goods it needed, acted in accordance with Law N 44-FZ.

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

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

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

This argument was previously raised by the Investigation Department during the trial in the courts of first and appeal instances, which were justifiably rejected.

Information about the goods provided in the first part of the application must contain specific indicators that do not allow for ambiguous interpretation, which must correspond to the values ​​​​established by the auction documentation (paragraph "b" of part 3 of article 66 of Law N 44-FZ). Double indication of one object of procurement with different indicators, incorrect indication of units of measurement of indicators and non-existent characteristics of the materials used leads to the impossibility of correctly filling out the first parts of the bids by auction participants, and, as a result, to the rejection of bids for participation in the auction (part 4 of article 67 of Law N 44 -FZ).

The auction commission came to the conclusion that the procurement participant - LLC, in the information on building materials and products that will be used in the performance of work, does not indicate all the names and indicators of building materials, products provided for by the Technical Part, namely, the pipe 133Ch4 is not indicated. 0.

Checking the validity of the grounds for refusing to allow the company to participate in an electronic auction, after analyzing the information contained in the auction documentation, which includes Section No. 3 Technical part, consisting of the Terms of Reference and sections of the project documentation, the courts did not establish the presence in the documentation of an indication of the product - pipe 133Ch4.0. Therefore, they came to a reasonable conclusion that the commission had no grounds for recognizing the company's application as not complying with the requirements of the documentation.

The administration's reference to the fact that the scope of work involves the presence of a pipe 133Ch4.0, which the procurement participant had to indicate in the first part of the application for participation in the auction, in the absence of an indication of such a product in the auction documentation, was rightfully rejected by the courts as not corresponding to the circumstances of the case and contrary to part 2 of article 33 of the Law on the contract system.

The presence in the scheme "Plan TK-10 (new)" of information T1, T2-133Ch4.0, is not legitimately recognized by the courts as a circumstance that allows us to conclude that the customer in the auction documentation clearly and precisely formulates the requirement that the participants in placing an order indicate this product as a separate product and its characteristics.

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

This wording assumes the possibility of the procurement participant offering the value of the indicator B 7.5 and higher.

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

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

The courts reasonably did not accept the arguments of the company that the indication of the minimum and maximum values ​​of the indicators of the goods complies with the requirements of Law N 44-FZ. The customer has the right to indicate in the auction documentation either fixed characteristics of the goods required for delivery, or its minimum and maximum indicators. At the same time, the requirements of the customer must be clear and unambiguous, and these indicators in all parts of the auction documentation must be the same.

Paragraphs 15, 24, 159 and 163 of the Bill of Quantities of Works and Materials give an expanded description of the purchased object in comparison with the parameters of GOST 31108-2003 and 6787-2001, which contradicts paragraph 5 of section 3 of the Documentation, which provides for the use of only building materials (cement and ceramic tiles ) corresponding to GOST 31108-2003 and GOST 6787-2001.

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

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

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

During the procurement, the customer is entitled to independently determine the object of procurement based on his needs, but without specifying the requirements for the goods (works, services), potentially limiting the number of procurement participants.

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

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

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

The courts reasonably considered that, by virtue of Article 33 of Federal Law No. 44-FZ, customers purchasing according to the rules of this law, when describing the object of procurement, should thus determine the requirements for the purchased goods, works, services, in order, on the one hand, to increase the chances of the purchase of goods with exactly the characteristics that it needs, and on the other hand, not to limit the number of participants in the purchase.

The reason for refusing admission to participation in an open auction of the entrepreneur's application was its inconsistency with the auction documentation, since the information contained in the application allowed for an ambiguous interpretation regarding the material from which the work should be performed (isospan D and hydrostekloizol; galvanized corrugated board and metal tiles are homogeneous materials) .

Recognizing the disputed acts of the antimonopoly body as in line with the current legislation, the courts, having analyzed the documentation for the auction, proceeded from the fact that the documentation provides for the possibility of replacing the material, and in carrying out the work, it is possible to use not only corrugated board, but also metal tiles, isospan D, hydrostekloizol, as indicated by the entrepreneur in the application.

Under such circumstances, the courts came to the conclusion that the auction commission, when deciding to reject the application filed by the entrepreneur, violated the requirements of parts 1, 3 of article 67 of the Law on the contract system, and therefore recognized the decision of the antimonopoly authority of 12.01.2015 in case No. 690/14 in the contested part.

The ambiguity and uncertainty in the content of the instructions for filling out the application, which allows for both the procurement participant and the members of the auction commission the possibility of a double understanding of the characteristics of the materials offered for the performance of work and, in general, information about the procurement object, leads to limited access to participation in the auction, which does not can be recognized as an objective description of the procurement object, in connection with which, when describing the indicated indicators of goods, the customer violated the provisions of paragraphs 1 and 2 of part 1 of Article 33 of Law N 44-FZ.

2. Formation of the subject of the contract

2.1. Inclusion in one lot technologically and functionally related products(works, services) legally

Guided by the provisions of articles 15 of article 8, paragraph 1 of part 1 of article 33, paragraph 1 of part 1 of article 50 of the Law

The Court of Appeal reasonably concluded that engineering work could be combined with design work by virtue of section 5.2. article 48 of the Town Planning Code of the Russian Federation, and with the development of a territory planning project due to their technological and functional interconnection, which corresponds to part 3 of article 17 of the Federal Law of July 26, 2006 N 135-FZ "On Protection of Competition" and paragraph 3 of article 421 Civil Code Russian Federation, which provides for the possibility of concluding a mixed contract (a contract that contains elements of various contracts provided for by law or other legal acts). To the relations of the parties under a mixed contract, the rules on contracts, the elements of which are contained in the mixed contract, are applied in the relevant parts, unless otherwise follows from the agreement of the parties or the essence of the mixed contract.

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

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

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

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

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

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

Under such circumstances, the contested non-normative act of the Office was rightfully declared illegal by the courts as inconsistent with the requirements of the Federal Law of 04/05/2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs".

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

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

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

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

The antimonopoly body made a decision, which recognized as justified the argument of the complaint regarding the unlawful inclusion in the tender documentation of equipment for the catering unit, laundry, with the exception of the equipment specified in paragraphs 66, 67, 69, 70, 71 of the local estimate calculation, the actions of the customer and the authorized body were recognized as violating requirements of Part 2 of Article 8, Clause 1 of Part 1 of Article 33 and Clause 1 of Part 1 of Article 50 of the Federal Law of 04/05/2013 44-FZ "On the contract system in the field of procurement of goods, works and services to meet state and municipal needs", an order was issued , according to which the applicant and the authorized body are ordered to cancel the competition with limited participation within the period up to _.

Considering the challenged decision and order of the antimonopoly body to be illegal, the Construction Department applied to the Arbitration Court with this application.

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

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

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

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

Administration in auction documentation and project municipal contract pointed out the possibility of attracting subcontractors to perform work that the contractor cannot perform on its own.

Under such circumstances, the arbitration court of first instance came to the correct conclusion that in this case, the combination in one lot of construction and installation works and the supply of equipment and furniture does not violate clause 1 of part 1 of article 33, clause 1 of part 1 of article 64 of Federal Law No. 44-FZ and does not entail limiting the number of participants in the procurement.

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

The argument of the antimonopoly authority on the illegality of combining into one lot the goods that are the subject of these electronic auctions, due to the possibility of delivery software and computer technology by different persons was lawfully rejected by the courts, since due to the absence of a legislative ban on combining goods (works, services) into one lot, the possibility of delivering goods by different persons cannot in itself be evidence of the illegality of electronic auction documentation.

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

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

The legislation regulating the legal relations under consideration does not provide for a prohibition for the customer to include in the tender documentation a condition on the possibility of attracting subcontractors to perform work, which took place in the present case. But it is unambiguous to regard the implementation of the right given by law by the customer, as well as the subsequent actual involvement sole member competition of subcontractors (as indicated by the prosecutor), as confirmation of the lack of technological and functional connection between the objects of procurement of goods, works, services included in one lot, is impossible.

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

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

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

Therefore, in this case, the rights of the Company are not violated.

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

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

The courts have found, and this does not contradict the case file, that the inclusion of certain parameters in the auction documentation baby food did not create an advantage over others for one participants in the order placement and did not lead to a limit on the number of participants in the order placement.

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

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

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

According to the antimonopoly body, the courts unlawfully failed to take into account that the inclusion in the auction documentation of such an indicator as "storage without restriction light regime", leads to a limitation in the number of participants in the auction, since only one drug with the trade name Tienam has this quality in terms of storage at a temperature not exceeding 25 ° C out of 7 registered manufacturers of the drug with the international non-proprietary name Imipenem + Cilastatin. At the same time, there is no the need to establish such an indicator, since the institution, having a license to implement medical activities, is obliged to store medicinal products in accordance with the storage conditions established by the Storage Rules medicines, approved by the order of the Ministry of Health and Social Development of the Russian Federation of August 23, 2010 N 706n "On Approval of the Rules for the Storage of Medicines".

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

The definition in the auction documentation of the requirements for the medicinal product required by the institution, taking into account the specifics of its use in treatment, cannot be considered as a restriction on access to participation in the auction. As can be seen from the case file, five participants submitted applications for participation in the auction. The courts also found that the medicinal product, the supply of which was the subject of the auction, is freely circulated on the pharmaceutical market, the supply of the drug can be carried out by persons who have a valid license to carry out pharmaceutical activities or manufacture medicines. In this regard, any economic entity, provided that it receives required license has the ability to supply the medicinal product required by the customer.

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

According to LLC, the inclusion by the customer in the terms of reference of the requirements for the shape of the tablet and the method of its division was aimed at purchasing a medicinal product manufactured under the trade name Glemaz, the only manufacturer of which is Kimika Montpellier S.A. Argentina.

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

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

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

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

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

2.5. The inability of persons interested in concluding a contract to supply goods that meet the needs of the customer does not indicate a limitation by the customer of the number of bidders

After examining and evaluating the evidence presented in the case file in accordance with the rules established in Article 71 of the Arbitration Procedure Code of the Russian Federation, the courts found that in this case, as part of the formation of the order, the Institution was guided by the existing need; the documentation by the customer indicates several types of technical conditions, in accordance with which various manufacturers manufacture the declared materials and goods, and the proposal by the participants in the procurement of materials and goods manufactured in accordance with any of the listed specifications would correspond to the Terms of Reference; the antimonopoly body has not proved that the requirements formulated by the customer for the object of procurement led to a limitation in the number of participants in the auction; the inability of any persons interested in concluding a contract to supply goods that meet the needs of the customer does not indicate a violation by the customer of the rights of these persons, as well as a limitation by the customer of the number of bidders.

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

The inability of any persons interested in concluding a contract to supply goods that meet the needs of the customer does not indicate a violation by the customer of the rights of these persons, as well as a limitation by the customer of the number of bidders.

2.6. Combining into one lot functionally related and united by the final goal construction works and supply of equipment legally

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

Disagreeing with the said decision and order, the department filed this application with the court.

Reversing the decision of the court of first instance in part, the court of appeal considered that in this case, combining purchases into one lot does not violate the norms of part 2 of article 8, paragraph 1 of part 1 of article 33, paragraph 1 of part 1 of article 50 of the Procurement Law and does not entail restriction the number of bidders.

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

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

As correctly stated by the Court of Appeal, the combination of works on the construction of facilities and the supply of equipment in this case meets the needs of the customer, allows you to concentrate the functions of managing all stages of the creation process finished products one organizational structure, carry out this process in a continuous manner, reducing time costs, and rationally spend budgetary funds.

The antimonopoly authority believes that combining in one lot the construction of a facility and the supply of equipment that is technologically and functionally not related to the performance of construction and installation works leads to an unreasonable restriction on the number of procurement participants.

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

The Court of Appeal justifiably indicated that the combination of works on the construction of facilities and the supply of equipment in this case meets the needs of the customer, will ensure their high-quality implementation, and the efficient and rational use of budgetary funds.

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

Delivery and installation of this equipment is provided for by the project documentation. The possibility of including in the estimated cost of construction the cost of the cost of purchasing equipment and the cost of work on its installation is established by paragraph 3.14 of the Methodology for determining the cost of construction products on the territory of the Russian Federation, approved by the Decree of the State Committee of the Russian Federation for Construction and Housing and Communal Complex dated 05.03.2004 N 15 / one.

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

2.7. Combining construction work and supply of equipment in one lot during turnkey construction may be considered illegal if separate stages of turnkey construction are not provided for by the purchase

From the materials of the case, the courts established that the object of the disputed procurement was named as "Performance of work on the construction of the facility" Kindergarten for 200 places in the nursery...". At the same time, the following scope of work was announced: "turnkey construction" of a two-story building of a kindergarten for 200 places with a technical floor, a basement, a technical underground, with a total area of ​​at least 5400 sq. m, with the performance of all the work provided for by the documentation of the electronic auction, including: interior and exterior decoration; laying of internal engineering and technical systems (heating, electricity, water supply, sewerage, ventilation, fire alarm and fire warning, burglar alarm); construction of external networks of electric lighting, water supply, sewerage, heat supply; installation of technological equipment; landscaping, landscaping, installation of small game forms".

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

Checking the arguments of the persons participating in the case, the Court of Appeal proceeded from the requirements of clause 1.2 of the Regulations on the organization of the construction of turnkey facilities, approved by Decree of the USSR Gosstroy of November 10, 1989 N 147 (hereinafter referred to as the Regulations on the organization of turnkey construction) and in this the moment of the current one, from which it follows that the turnkey construction method provides for the construction of facilities prepared for operation or the provision of services, based on the concentration of management functions for all stages of the investment process in one organizational structure and is carried out as a single continuous complex process of creating a finished construction products (design - execution of construction and installation works, including the completion of construction sites with technological and engineering equipment - commissioning).

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

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

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

Bringing full name to administrative responsibility for hours. 4.1 Article. 7.30 of the Code of Administrative Offenses of the Russian Federation, the official proceeded from the fact that the state customer - the Ministry of Informatization and Communications of the Republic of Tatarstan, in violation of the requirements of clause 1, part 1, art. 33 of the Federal Law of April 05, 2013 N44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs", the notice of an electronic auction establishes a condition on the need to supply computers and software product, which limited the number of procurement participants and violated the requirements of the current legislation on the contract system.

Revoking the rulings official in relation to the full name and terminating the proceedings, the judge of the district court [lawfully] proceeded from the fact that in his actions there is no composition of an administrative offense, under Part. 4.1 of Art. 7.30 Administrative Code of the Russian Federation.

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

It should also be noted that the antimonopoly authority did not take into account the fact that the presence of installed software on the supplied computer equipment is technically related to the supply of computer equipment due to the fact that its use without the necessary software is impractical.

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

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

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

In this case, as rightly noted by the courts, the antimonopoly authority did not take into account the fact that the presence of installed software on the supplied computer equipment is technologically related to the supply of computer equipment due to the fact that the use of computer equipment without the necessary software is inappropriate.

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

In accordance with the register of medicines in the Russian Federation, two drugs with INN Ipratropium Bromide + Fenoterol in the form of a solution for inhalation are registered: Berodual, manufactured by Boehringer Ingelheim Pharma GmbH and Co. KG, Germany, as well as Ipraterol-nativ, produced by Nativa Limited Liability Company, Russian Federation.

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

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

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

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

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

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

The courts concluded that the requirements of the law for the content of the auction documentation were met, since this documentation indicates the obligation of the procurement participant to comply with the requirements of GOSTs. At the same time, the courts reasonably proceeded from the fact that the State Standards of the Russian Federation always contain a list normative documents, a list of related GOSTs and SNiPs, the documentation of which is also used in a certain GOST and the customer did not require the procurement participants to indicate the specific number of a particular GOST if it was not indicated in the documentation, but asked that the product (material), in principle, comply GOST, which regulates a certain type of product (material).

The courts found that when drawing up requirements for the technical and functional characteristics (consumer) properties of goods (materials), the Ministry was guided by the requirements specified in Article 33 of Law N 44-FZ, and used (in particular, when describing the disputed items) exclusively technical regulations, standards (GOST) and technical conditions governing Construction Materials. The auction documentation sets out indicators of the main materials that will be used in the performance of work in accordance with the requirements of GOST. The standards establish mandatory and recommended provisions that determine the specific parameters and characteristics of the repair work being performed. Also, the customer in the auction documentation has detailed instructions for filling out an application for participation in an electronic auction. That is, based on the requirements of the auction documentation, the procurement participants must indicate the indicators of materials in accordance with the requirements of GOST, namely: indicate within the limits specified in the auction documentation.

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

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

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

The court of cassation agrees with the conclusions of the courts that in this case, these indicators for the content of proteins, fats, carbohydrates and energy value in a dry protein composite mixture are standard, since they are within the limits established by GOST R 53861-2010, therefore, their substantiation in the auction documentation is not required.

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

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

The task of procurement legislation is, first of all, to identify, as a result of bidding, a person whose performance of the contract will best meet the goals of the effective use of funding sources and the needs of the customer in the goods necessary for the implementation of his activities. The customer, having established the requirements for the composition of the product that he needed, acted in accordance with Law N 44-FZ. The definition in the auction documentation of indicators within the framework established by GOST cannot be considered as a restriction on access to participation in the auction.

3.2. Establishment by the customer of additional values ​​of indicators compared to GOST needs to justify the need to use such an indicator

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

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

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

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

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

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

As the study of the auction documentation in electronic form (electronic auction) for the supply of Quicksilver 25W-40 outboard motor oil or equivalent approved by the FIO shows, it actually does not contain a description of the requirements for the product and its quality indicators. The reference in the terms of reference of the documentation to "GOST 10541-78. Interstate standard. Universal motor oils and for automobile carburetor engines. Specifications" (approved and put into effect by Decree of the State Standard of the USSR of 08.04.1978 N 2103), cannot be recognized as appropriate description of the procurement object, since the specified GOST provides for various technical requirements for different types of motor oils, which were not specified in relation to the procurement object within the framework of the auction in question.

3.4. The units of measurement specified by the customer in the procurement documentation must comply with those specified in the relevant GOST

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

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

, part 1 of article 50 of Law N 44-FZ.

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

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

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

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

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

In the opinion of the institution, there is no violation of Part 2 of Article 33 of Law N 44-FZ in its actions, since insurers can obtain information about the Bonus-Malus coefficient (hereinafter - KBM) on their own by requesting a professional association of insurers - the Russian Union of Auto Insurers (AIS RSA).

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

Thus, the customer did not indicate all the necessary components for determining the insurance premium in the procurement documentation, which is a violation of part 2 of article 33, paragraph 2 of article 42 of Law N 44-FZ.

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

The drawing up by the customer of the terms of reference without information for the application of the KBM and without indications of the possibility of its use in calculating the insurance premium and contract price led to the clear receipt of a price advantage by JSC over other participants based on the results of consideration and evaluation of quotation bids, while for specific Vehicle the amount of the insurance premium determined in accordance with the procedure

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

The arguments of the Health Department that the requirements for the product can be understood from the name and subject of the purchase, the relationship between the sections of the terms of reference, from the draft state contract, which, among other things, states that the goods supplied must comply with the requirements of state standards, sanitary rules and regulations and other requirements for equipment and products medical purpose, a requirement was made for the period of guaranteeing the quality of the goods supplied, were considered by the courts and reasonably recognized as insolvent and not indicative of the customer's compliance with the requirements of Article 33 of Federal Law N 44-FZ.

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

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

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

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

Under such circumstances, the Court of Cassation agrees with the conclusion of the courts that the customer did not properly inform the procurement participants about the requirements for the goods used in the performance of work at the contract execution stage, which led to a limitation in the number of procurement participants, and therefore the appealed decision of the FAS in terms of establishing violations by the Institution of paragraph 1 of part 1 of Article 64 (paragraph 1 and paragraph 2 of part 1 of Article 33) of Law N 44-FZ lawful and justified.

3.9. The indication by the customer in the description of the purchase of the trade name excludes the need to describe the parameters, functional, technical and qualitative characteristics of such goods, if these parameters and characteristics are unique to him

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

Attention

FAS Russia believes that when describing the procurement object, the customer has the right to indicate specific trademarks only with a mandatory indication of the possibility of supplying goods with equivalent characteristics (clause 2 of the Review of Administrative Practice prepared by the Department for Controlling the Placement of State Procurement of the Federal Antimonopoly Service of Russia, October 2015).

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

Having established that the AS "Estimate" software product has already been used at 75 workplaces of executive power in order to create a single centralized accounting department, which provided for the use of a software product at 92 workplaces, the courts came to the conclusion that the customer did not include the words "or equivalent" in the documentation on the electronic auction due to the objective need to ensure the interaction of the purchased goods (services) with those already used by the customer goods (services).

In view of the foregoing and guided by the provisions of the Federal Law of July 26, 2006 N 135-FZ "On Protection of Competition", the Arbitration Procedure Code of the Russian Federation, the courts concluded that the customer's choice of a particular automated system for the purpose of ensuring the interaction of the purchased goods with the goods already used by the customer, does not violate the provisions of paragraph 1 of part 1 of Article 33, paragraph 1 of part 1 of Article 64 of the Law on the contract system, which was the basis for recognizing the disputed provisions of decisions and orders as invalid.

3.11. The indication by the customer of the trade name means that the participant must proceed from the compliance of the equivalent not only with the characteristics set forth in the procurement documentation, but also with the characteristics of the product, the name of which is indicated in the notice

The courts, having established that the basic configuration of the product - Gazelle verticalizers, according to the Registration Certificate and its annex, differs from the verticalizers that were to be delivered as part of the auction, such structural elements as a headrest, belts, a table, knee supports, lateral torso supports, are additional components of the Gazelle uprighters (support-walkers), are not included in the standard delivery, came to the correct conclusion that, in fact, the requirements of the auction documentation, it was established that delivery was subject to Gazelle walker supports not in their basic version, but in a more complete set, or equivalents that meet all the requirements of the auction documentation.

This conclusion of the courts is not refuted by the plaintiff.

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

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

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

A technical error made during the preparation of the draft contract in the presence of a notice of the auction, auction documentation, the company's application and the protocol for summing up the results of the electronic auction does not indicate that the customer did not specify the goods required for delivery in the auction documentation. The presence of a technical error in the draft contract when applying for approval of the conclusion of a contract with a single supplier is not provided for by Law N 44-FZ and Order N 537 as a basis for refusing such approval.

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

The Court of Appeal rightly rejected the argument about the incorrect determination of the shelf life of the goods, since the current legislation does not establish a direct prohibition on setting the remaining shelf life as a percentage. The establishment of the requirement for the remaining shelf life, expressed as a percentage, should be determined by the needs of the customer (consumers of the goods) and cannot lead to an unreasonable restriction on the number of procurement participants.

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

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

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

Since the disputed indicators with the "*" sign for equipment manufacturers have an exact meaning that the complainant does not dispute, the requirement to fill out an application using the words "at least", "no more", "not lower", "up to", according to correct judgment of the courts, contradicts the requirements of paragraph 1 of part 1, part 2 of article 33 of the Law on the contract system, since the value of the indicator with the named words literally implies the variance of the indicator itself, and not its immutability.

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

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

The absence in the auction documentation of an indication that the design and estimate documentation was developed on the basis of standard modified project documentation does not indicate a violation by the customer of the rules for describing the procurement object established in paragraph 1 of part 1 of Article 33 of Federal Law N 44-FZ.

Evidence that certain items of design and estimate documentation mislead procurement participants when preparing an application for participation in the procurement, the Office did not provide in the case file.

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Can the state customer formulate the parameters of the goods intended for delivery in such a way that, as a result, only one manufacturer can supply such goods? It would seem that the negative answer is obvious, because 44-FZ, which has been in force for almost a year, is based on the principle of ensuring competition. However, several arbitration courts decided otherwise.

1. Manufacturer one? No problem. Suppliers are different.

The state customer held an electronic auction for the supply of food for pregnant women and nursing mothers. One of the participants in the auction challenged the results of the auction, pointing out that the parameters presented by the defendant are suitable for milk formulas from only one Dutch company.

Considering the claim, the courts of three instances had to answer the question: can the state customer formulate such parameters of the goods intended for delivery, which correspond to the goods of only one manufacturer. According to the plaintiff, such actions are unacceptable - they lead to a limitation of the number of potential participants in the auction. "The Department has significantly narrowed the parameters of the goods that can be delivered based on the results of the auction, which led to an unreasonable restriction on the number of possible bidders and created an advantage for the winner," the losing bidder stated as an argument.

In turn, the courts unanimously considered such actions of the state customer lawful. They pointed out that "compliance with the technical characteristics specified by the customer in the terms of reference, products of only one manufacturer is not an unconditional basis, indicating a restriction of competition." The goods with the parameters proposed by the customer, according to the courts, "can be supplied by an indefinite number of suppliers."

The logic of the courts is simple. It does not matter that there is only one manufacturer - different suppliers can supply the goods purchased from him. However, it is unlikely that this interpretation was expected by the creators of the contract system in the field of public procurement.

By the way, the fact that the plaintiff (the losing bidder) was not the manufacturer of the goods purchased by the defendant was another argument for the courts. “The plaintiff is not limited in the choice of counterparties from whom he can purchase goods, including according to the characteristics proposed by the defendant,” the courts noted (decision of the Arbitration Court of the Kirov Region of 05/13/14, resolution 2 of the AAC of 07/21/14, resolution of the Arbitration Court of the Volga Vyatka District dated November 20, 2014 in case No. A28-2624 / 2014).

2. When formulating an application, one should not focus on the number of manufacturers.

Courts in other regions also come to the same conclusions as in the case considered above. At the same time, new, to put it mildly, controversial arguments appear.

Thus, the regional OFAS received complaints regarding two electronic auctions for the purchase of baby food. The arguments of the complaint are the same - the parameters of the purchased goods correspond to the goods of a single manufacturer. The antimonopoly department supported the arguments of the complaint and saw in the actions of the state customer a limitation on the number of participants in the auction. At the same time, the regional OFAS referred to the letter of the FAS Russia dated December 26, 2012 No. AK/44401/12. In this letter, the Federal Antimonopoly Service pointed out the inadmissibility of establishing requirements in the procurement documentation that only one manufacturer of powdered milk formulas can meet.

The Arbitration Court of the Republic of Sakha (Yakutia) did not agree with the antimonopoly authority (case No. A58-5173/2014). According to the court, the auction was held specifically for the supply of goods, and not for its production (manufacturing), therefore, the number of potential suppliers is unlimited. “Since the subject of an open auction is “supply” and not “production/manufacturing”, the fact that powdered fermented milk ... is the only product on the market that meets the requirements established by the auction documentation cannot in itself be considered as a restriction of competition, since how a product with parameters set by the customer can be offered for delivery by an unlimited number of suppliers…”, the court of first instance pointed out in its decision of 07.11.14.

A similar case was considered by the Arbitration Court of the Republic of Bashkortostan (decision dated 10.10.14 in case No. А07-9320/2014, currently appealed to 18 ААС). As in Yakutia, the regional OFAS recognized the complaint of the participant of the electronic auction as justified. According to the agency, the customer did not substantiate the establishment of specific parameters for the content of substances in the protein mixture (protein content in the amount of 40 g, fat 20 g and 30 g carbohydrates), although the corresponding GOST R 53861-2010 establishes a range of values ​​for each component (protein - from 40 to 75 g, fats - from 5 to 20 g, carbohydrates - from 10 to 30 g). Moreover, the protein mixture of only one manufacturer was suitable for the specific parameters of the content of substances established by the state customer.

The arbitration court, in turn, invalidated the decision of the OFAS, not seeing violations of the law on the contract system. “Arguments that ... that specific indicators for products limit competition, since they relate only to one type of products manufactured in the territory of the Russian Federation ... cannot be imputed as a violation of antimonopoly law, since Federal Law No. the procurement object to be guided by the number of market participants, manufacturers (suppliers, performers),” the court pointed out.

The decisions of the courts of first instance are not currently in force. Perhaps the judges of higher courts will approach the case differently than their colleagues in the Volga-Vyatka district. After all, an unreasonable limitation on the number of manufacturers of purchased goods, even with an unlimited number of suppliers, does not contribute to the development of competition and does not meet the goals of the legislation on the contract system in the field of public procurement.