44 fz more or less. Actual changes in the contract system for procurement participants

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?

Target federal law 44-FZ is not only to create an open and competitive environment for public procurement, but also to support certain categories of suppliers involved in these procurements.

According to the requirements of 44-FZ preferential terms 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 , the average number of SME employeesshould not exceed 100 people inclusive.

Third , 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 SONKO, then the contract includes required condition on payment by the Customer 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:

You follow the link;
In the window that opens, enter your TIN and registry number the purchase in which you won;
Click on the "Check" button;
Receive information on executed contracts;
Copy the received information to the site when signing the contract or prepare information mail(in free form) to be provided 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 persons with disabilities (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:

— average headcount persons with disabilities in relation to other employees - at least 50%;

- share wages 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, so 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.

Guide to the contract system:

A Guide to Procurement Disputes:

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

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

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

(see text in previous edition)

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

(see text in previous edition)

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

5) the procurement documentation must contain information on the place, start and end dates, procedure and schedule for the participants in the procurement to inspect a sample or mock-up of the goods for the supply of which the contract is concluded, if such documentation contains a requirement that the supplied goods comply with the sample or mock-up of the goods for delivery which the contract is concluded;

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

(see text in previous edition)

7) the delivered goods must be new goods (goods that were not in use, under repair, including which were not restored, which had no replacement of components, consumer properties were not restored), unless otherwise provided description of the procurement object;

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

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

(see text in previous edition)

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

4. Requirements for guaranteeing the quality of goods, work, services, as well as requirements for the warranty period and (or) the volume of guarantees for their quality, for warranty service of the goods (hereinafter referred to as warranty obligations), for the costs of operating the goods, for the mandatory installation and adjustment of the goods, to the training of persons involved in the use and maintenance of the goods, are established by the customer, if necessary. If the supplier of machinery and equipment is determined, the customer shall establish in the procurement documentation the requirements for the warranty period of the goods and (or) the volume of guarantees for their quality, for the warranty service of the goods, for the costs of servicing the goods during the warranty period, as well as for installation and adjustment goods, if it is provided for by the technical documentation for the goods. In the case of determining the supplier of new machinery and equipment, the customer establishes in the procurement documentation the requirements for providing a manufacturer's and (or) supplier's guarantee this product and for the duration of such warranty. The provision of such a guarantee is carried out together with this product.

(see text in previous edition)

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

6. Features of the description of procurement objects according to the state defense order may be established by Federal Law No. 275-FZ of December 29, 2012 "On the State Defense Order".

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

Among the suppliers in public procurement There are several exempt categories. 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 "Kits bed linen from cotton fabrics"

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:

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.
If carried out electronic request quotes, 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. starting price 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 supply. 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:

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.
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 written in without fail. It is necessary to indicate a fixed amount of the fine, determined based on 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.

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 object of the procurement, the customer must accurately describe the scope of work to be performed (paragraph 5 of the Review of Administrative Practice prepared by the Office of Placement Control state order FAS Russia, May 2016).

1.1. The customer has the right, with the necessary detail, to include in the procurement documentation such characteristics and requirements for the 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 the quality, technical characteristics (consumer properties), dimensions, packaging of goods, taking into account the specifics of its activities and in order to ensure the efficient use of budgetary funds, subject to the laws of the Russian Federation. Federation of provisions aimed at ensuring a competitive environment during bidding.

Accordingly, the customer has the right to include in the auction documentation such characteristics and requirements for the goods that meet his needs and are necessary to perform the relevant functions. In this case, the customer has the right to detail the subject of procurement to the 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 made Investigation Department during the trial in the courts of first and appeal instances, which were reasonably 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 N 3 Technical Part, consisting of the Terms of Reference and sections of the design documentation, the courts did not establish the presence in the documentation of an indication of a product - a 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 for the implementation of 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 of technologically and functionally related goods (works, services) is legal

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 Urban Planning Code of the Russian Federation, and with work on the development of a draft territory planning 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 of the Civil Code of the Russian Federation, providing for the possibility of concluding a mixed contract (a contract that contains elements various treaties prescribed 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 of budgetary funds 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 body about the non-compliance of the subject of procurement with the conditions established by the customer was the subject of consideration by the courts and was rightfully rejected, since technical features of a set of equipment for equipping a histological laboratory suggest that the process of supplying equipment includes the implementation of work on its installation, adjustment, commissioning and training of specialists, without which it is impossible to maintain the quality of the delivered product and its performance.

2.2. The 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 disputed decision and order of the antimonopoly authority to be illegal, the construction department applied to 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 the case under consideration, the subject of tenders is the performance of works on the construction of facilities (schools and preschool), as well as the supply of equipment and furniture for equipping the catering unit, laundry, installation of a shady canopy, benches, trash cans, carpet dryers, swings, sandboxes, slides, garbage containers.

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

The administration in the auction documentation and the draft municipal contract indicated 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 consolidation into one lot of the construction installation work and the supply of equipment and furniture does not violate clause 1 of part 1 of article 33, clause 1 of part 1 of article 64 of Federal Law N 44-FZ and does not entail a restriction on the number of procurement participants.

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 body on the illegality of combining into one lot the goods that are the subject of the specified electronic auctions, due to the possibility of supply 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, 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 impossible to unequivocally regard the exercise of the right given by law by the customer, as well as the subsequent actual involvement of subcontractors by the sole participant in the tender (as indicated by the prosecutor), as confirmation of the absence of technological and functional connection between the objects of procurement of goods, works, services included in one lot, it 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 the goods with the parameters proposed by the customer can be supplied by an indefinite number of suppliers, which is also confirmed by the cases commercial offers other persons.

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 on the basis of market analysis (using the method of comparable market prices) The institution sent inquiries to organizations that supply 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 just 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 authority, the courts unlawfully failed to take into account that the inclusion in the auction documentation of such an indicator as "storage without limiting the light regime" leads to a limitation in the number of participants in the auction, since only one drug with the trade name Tienam has such a quality in terms of the indicator storage at a temperature not exceeding 25 ° C from 7 registered manufacturers of a medicinal product with an international non-proprietary name Imipenem + Cilastatin. At the same time, there is no need to establish such an indicator, since the institution, having a license to carry out medical activities, is obliged to store medicines in accordance with the storage conditions established by the Rules for the storage of medicines, approved by order of the Ministry of Health and social development 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, sole manufacturer 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 Weichai, 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) 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.

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 of the contract system in the field of procurement of the Administration of the city of Omsk as a customer and authorized body for holding tenders for the development working documentation on the construction of a school and the performance of work on the construction of a preschool institution in the city of Omsk, violations of part 2 of article 8, paragraph 1 of part 1 of article 33, paragraph 1 of part 1 of article 50, part 2 of article 56, part 5 of article 24 of the Law on Procurement, expressed in unreasonable purchases in the form of tenders with limited participation and combining into one item the purchase of construction works and the supply of equipment, in connection with this, orders were issued to eliminate the violations committed by canceling the results of the tenders.

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 .

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

As correctly 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 procurement in this case was a complex of construction and installation and commissioning for the construction of a kindergarten, which required the supply of equipment.

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 resolution State Committee of the Russian Federation on construction and housing and communal services dated 05.03.2004 N 15/1.

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 kindergarten building for 200 places with a technical floor, a basement, a technical underground, with total area 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 currently 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 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 a software product, which limited the number 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 the current legislation in the field of procurement allows the customer to independently form his order, based on his needs, that is, when describing of the goods, the customer has the right to indicate the quality parameters for the object of procurement, 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 delivery medicinal product 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 state register 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 specifications governing building 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 set detailed instructions on 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. Reference in the terms of reference of the documentation to "GOST 10541-78. Interstate standard. Motor oils for universal and for automobile carburetor engines. Specifications" (approved and put into effect by the Decree of the State Standard of the USSR dated 04.08.1978 N 2103), cannot be recognized as an appropriate description of the procurement object, since the specified GOST provides for various technical requirements for different type engine oils, which were not specified in relation to the object of procurement 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 professional association insurers - the Russian Union of Motor 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 absent in the customer's documentation, therefore the quotation participant - OJSC - calculated the amount of the insurance premium using the KBM coefficient based on the data of the automated information system, and the rest of the participants - without applying the 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 the price of the contract led to the clear receipt of a price advantage by the JSC over other participants based on the results of consideration and evaluation of quotation bids, while for specific vehicles the amount insurance premium, determined in the order

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 of the norms and rules and other requirements for equipment and medical products, a requirement was made for the period of quality assurance of the supplied goods, were considered by the courts and reasonably recognized as untenable and not indicative of the customer's compliance with the requirements of Article 33 of the 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

The FAS Russia believes that when describing the object of procurement, the customer has the right to indicate specific trademarks only with the obligatory indication of the possibility of supplying goods with equivalent characteristics (clause 2 of the Review of Administrative Practice prepared by the Department for Controlling the Placement of State Orders of the FAS 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 standers, according to the Registration Certificate and its annex, differs from the standers that were to be supplied as part of the auction, such structural elements as a headrest, belts, table, knee supports, side supports trunks, are additional components of the Gazelle uprighters (walker supports), which are not included in the standard delivery package, came to the correct conclusion that, in fact, according to the requirements of the auction documentation, it was established that the Gazelle support-walkers were to be supplied 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, having evaluated the notice of the auction, the auction documentation, protocol, the application of the auction participant, the statement of the management on the approval of the conclusion of the contract with sole supplier, came to the conclusion that there was a technical typo in paragraph 1.1 of the draft contract submitted to the antimonopoly authority, regarding the indication of the subject of purchase - 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 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, 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

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

The current version of the document you are interested in is available only in the commercial version of the GARANT system. You can purchase a document for 75 rubles or get full access to the GARANT system for free for 3 days.

If you are a user of the online version of the GARANT system, you can open this document right now or request hotline in system.

Memo to small businesses: the most frequently asked questions on the application of the Federal Law of 04/05/2013 No. 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs"

When conducting an electronic auction, is the customer entitled to require the quantity of goods to be indicated in the application? // FAS position

Does the customer have the right to require the bidder to describe the chemical composition of which the goods will be made, for example, describe the chemical composition of the steel from which the door body is made? / FAS position

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

How to correctly fill out an application in accordance with the documentation of an auction or an open tender? Which indicators need to be specified specifically, and which indicators should be left in the range or unchanged?

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

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

with such information

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

The right of the customer not to establish the requirement to secure the performance of the contract in the notice of procurement and (or) the draft contract (Decree of the Government of the Russian Federation of March 11, 2016 N 182).

19. Decree Government of the Russian Federation dated March 14, 2016 N 191 "On approval of the Rules for changing, by agreement of the parties, the term of the contract, and (or) the price of the contract, and (or) the price of a unit of goods, work, services, and (or) the quantity of goods, the volume of work, services stipulated by contracts that expire in 2016").

law

paragraph 1

subparagraph "b"

paragraph 1 of article 451

paragraph one of this paragraph.

paragraph one of paragraph 5

paragraph 1

C new \u003d (C - C p) x ICC + C p,

paragraph 13 of these Rules.

subparagraph "a" of paragraph 3

paragraph 6 paragraph 15 of these Rules.

paragraph 14

C unit new \u003d ((K - C p / C ed) x C ed x ICC + C p) / K,

C p

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

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

paragraph 14

C new = C unit. new x K new,

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

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

C new \u003d C + C 16 x (ID 16n - ID 16) / ID 16,

C - the initial price of the contract;

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

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

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

paragraph 17

When conducting an electronic auction, is the customer entitled to require the quantity of goods to be indicated in the application? // FAS position

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

At the same time, the Law on the contract system does not contain a requirement to indicate the quantity of goods in the bid.

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

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

Does the customer have the right to require the bidder to describe the chemical composition of which the goods will be made, for example, describe the chemical composition of the steel from which the door body is made? / FAS position

Taking into account that the Law on the Contract System does not oblige the bidder to have goods in stock that are subject to description in accordance with the requirements of the documentation, the establishment in the procurement documentation of requirements for the description by bidders of chemical indicators of goods limits the ability of bidders to provide an appropriate offer as part of applications for participation in competition, auction.

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

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

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

Thus, when specifying the requirements for compliance with GOST in the tender documentation, auction documentation, the customer should be able to compare GOST and goods, the description of which must be guided by such GOST.

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

How to correctly fill out an application in accordance with the documentation of an auction or an open tender? Which indicators need to be specified specifically, and which indicators should be left in the range or unchanged?

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

According to part 2 of article 33 of the Law on the contract system, the procurement documentation must contain indicators that make it possible to determine the compliance of the purchased goods, work, services with the requirements established by the customer. At the same time, the maximum and (or) minimum values of such indicators are indicated, as well as the values of indicators that cannot be changed.

At the same time, the Law on the contract system does not contain a prohibition on the use of other indicators for describing the procurement object.

Additionally, the FAS Russia informs that when describing the procurement object, the customer independently determines the indicators that make it possible to determine the compliance of the purchased goods, work, services with the requirements established by the customer.

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

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

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

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

From the foregoing, it follows that the tender documentation, the documentation on the electronic auction must contain proper instructions for filling out an application for participation in the procurement, which allows determining the procedure for filling out the application in terms of indicating the indicators of goods (work, services).

Failure by the customer to establish proper instructions in the auction documentation, tender documentation, as well as the establishment of an instruction that does not allow unequivocally determine the procedure for filling out the application is a violation of paragraph 4 of part 1 of Article 50, paragraph 2 of part 1 of Article 64 of the Law on the contract system and contains signs of an administrative offense under part 4.2 of article 7.30 of the Code of the Russian Federation on administrative offenses. In addition, the FAS Russia informs that the question of whether the instruction for filling out the application for participation in the procurement is appropriate or improper must be decided in each specific case, based on the provisions of the procurement documentation, the application of the procurement participant and all the circumstances of the case.

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

In accordance with part 3 of article 66 of the Law on the contract system, the first part of the application for participation in an electronic auction must contain, among other things, the name of the country of origin of the goods.

According to Article 58 of the Customs Code Customs Union(hereinafter referred to as the CC CU) establishes general provisions on the country of origin of goods. The country of origin of goods is the country in which the goods were completely produced or subjected to sufficient processing (processing) in accordance with the criteria established by the customs legislation of the Customs Union.

In accordance with Part 2 of Article 59 of the Customs Code of the Customs Union, documents confirming the country of origin of goods are a declaration of origin of goods or a certificate of origin of goods.

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

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

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

At the same time, in some cases, the legislation of the Russian Federation establishes the need to obtain a document confirming the compliance of the goods with the requirements established in accordance with the legislation of the Russian Federation. At the same time, such documents may contain, among other things, information about the country of origin of the goods.

In particular, in accordance with the Rules state registration medical devices approved by Decree of the Government of the Russian Federation dated December 27, 2012 No. 1416, information about the place of manufacture of the medical device is indicated in the registration certificate issued by the Federal Service for Surveillance in Healthcare.

Also, in the registration certificate of a medicinal product, which, in accordance with paragraph 26 of Article 4 of Federal Law No. 61-FZ of April 12, 2010 “On the Circulation of Medicines”, a document confirming the fact of state registration of a medicinal product, several countries of origin of the goods may be indicated.

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

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

Specific indicators of the goods used;

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

Name of the country of origin of the goods.

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

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

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

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

According to part 5 of article 37 of the Law on the contract system, the information provided for in part 3 of article 37 of the Law on the contract system is provided by the procurement participant when sending the signed draft contract to the customer. If such participant, recognized as the winner of the auction, fails to this requirement or recognition by the procurement commission of the information provided for by paragraph 3 of Article 37 of the Law on the Contract System as unreliable, a contract with such a participant is not concluded, and he is recognized as having evaded the conclusion of a contract.

According to part 6 of article 37 of the Law on the contract system, the security specified in parts 1 and 2 of article 37 of the Law on the contract system is provided by the procurement participant with whom the contract is concluded before it is concluded. A procurement participant who has not fulfilled this requirement is recognized as having evaded the conclusion of the contract.

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

At the same time, the FAS Russia draws attention to the fact that, according to part 4 of article 96 of the Law on the contract system, the contract is concluded after the procurement participant, with whom the contract is concluded, provides security for the performance of the contract in accordance with the Law on the contract system.

Thus, the observance by the procurement participant of the condition for providing information confirming the good faith of such a participant as of the date of filing the application in accordance with part 3 of article 37 of the Law on the contract system does not relieve the procurement participant with whom the contract is concluded from providing security for the performance of the contract in the amount established in notice of the procurement and procurement documentation, in accordance with the Law on the contract system.

The right of the customer not to establish the requirement to secure the performance of the contract in the notice of procurement and (or) the draft contract (Decree of the Government of the Russian Federation of March 11, 2016 N 182).

In accordance with Part 2.1 of Article 96 of the Federal Law "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs", the Government of the Russian Federation decides:

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

competitions, electronic auctions, requests for proposals are carried out, in which only small businesses, socially oriented non-profit organizations and in projects whose contracts do not provide for advance payments are participants in procurement;

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

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

the draft contract provides for the payment of advance payments in the amount of not more than 15 percent of the contract price when making a purchase to meet federal needs or in another amount established by the supreme executive bodies state power of the constituent entities of the Russian Federation, local administrations, when making purchases to meet the needs of the constituent entity of the Russian Federation, municipal needs, respectively, as well as the customer’s settlement with the supplier (contractor, performer) with payment in the amount of not more than 70 percent of the price of each delivery of goods (stage of work, provision of services) to meet federal needs or in another amount established by the highest executive bodies of state power of the constituent entities of the Russian Federation, local administrations, when making purchases to meet the needs of the constituent entity of the Russian Federation, municipal needs, respectively, and making a full settlement only after the customer has accepted all the supplies provided for in the contract goods, works performed, services rendered and full performance by the supplier (contractor, performer) of other obligations stipulated by the contract (except for warranty obligations).

Is it necessary to pay not only the price for the right to conclude a contract, but also the services rendered following the results of the auction if the auction is held by increasing the price for the right to conclude a contract?

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

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

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

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

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

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

Based on the foregoing, due to the fact that, according to the results of an electronic auction for the right to conclude a contract, only the right to conclude a contract is subject to payment, then a sum of money in the amount of the price offered by the winner of the auction for the right to conclude a contract is subject to payment to the customer’s account. At the same time, the provision of services specified in the notice, procurement documentation, is carried out free of charge.

Additionally, the FAS Russia draws attention to the fact that depositing funds in the amount of the price offered by the winner for the right to conclude a contract to the customer’s account does not release the winner of the electronic auction from providing security for the performance of the contract, taking into account the requirements provided for in Article 37 of the Law on the contract system.

Is it legal to reject an application for participation in the tender if the application includes a document confirming the submission of the application security, but at the time of consideration of applications cash not received by the customer?

According to paragraph 5 of part 2 of article 51 of the Law on the contract system, an application for participation in an open tender must contain documents confirming the submission of security for an application for participation in an open tender (payment order confirming the transfer of funds as security for an application for participation in an open tender with a bank note , or a copy of this payment order certified by the bank, or a bank guarantee included in the register of bank guarantees).

In accordance with part 3 of article 53 of the Law on the contract system, the tender commission rejects an application for participation in the tender if the tender participant who submitted it does not meet the requirements for the tender participant specified in the tender documentation, or such an application is recognized as not meeting the requirements specified in the tender documentation.

Thus, if the application does not contain a document confirming that the application for participation in an open tender has been secured, the customer is obliged to reject such an application.

At the same time, in accordance with part 5 of article 44 of the Law on the contract system, if the procurement participant, as part of the application, submits documents confirming the deposit of funds as security for the application for participation in determining the supplier (contractor, performer), and before the date of consideration and evaluation applications, funds have not been received to the account indicated by the customer in the procurement documentation and on which, in accordance with the legislation of the Russian Federation, transactions with funds received by the customer are recorded, such a participant is recognized as not providing security for the application.

Thus, if the procurement participant, as part of the application, submits documents confirming the deposit of funds as security for the application for participation in determining the supplier (contractor, performer), and before the date of consideration and evaluation of applications, the funds have not been credited to the customer’s account, the customer is obliged reject such an application of the participant of the competition.

On the application of the Law on the contract system on the issue of the possibility for the customer to establish in the tender documentation an assessment procedure in which, according to the indicator " Business reputation» Membership of the procurement participant in SRO / АЦ/54940/15 dated 08.10.2015 is subject to assessment

In accordance with paragraph 1 of part 1 of article 31 of the Law on the contract system, when making a purchase, the customer establishes uniform requirements for procurement participants, including compliance with the requirements established in accordance with the legislation of the Russian Federation for persons supplying goods, performing work, providing services, being the object of the purchase. Thus, if the legislation of the Russian Federation establishes a requirement for mandatory membership of an organization in an SRO that operates in the relevant field, the customer is obliged to establish in the procurement documentation the appropriate requirement for procurement participants in accordance with paragraph 1 of part 1 of article 31 of the Law on the contract system.

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

According to part 1 of article 32 of the Law on the contract system for evaluating bids, final offers of procurement participants, the customer in the procurement documentation establishes the following criteria:

1) contract price;

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

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

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

The procedure for evaluating bids, final proposals of procurement participants, including the limit values for the significance of each criterion, is established by Decree of the Government of the Russian Federation dated November 28, 2013 No. needs” (hereinafter referred to as the Rules).

According to paragraph 27 of the Rules, the indicators of the non-monetary assessment criterion “the qualifications of the procurement participants, including the availability of financial resources, equipment and other material resources that they own by right of ownership or on other legal grounds, work experience related to the subject of the contract, and business reputation, specialists and other employees of a certain skill level” can be:

a) qualification labor resources(leaders and key specialists) proposed for the performance of work, provision of services;

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

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

d) provision of the procurement participant with labor resources;

e) business reputation of the procurement participant.

At the same time, according to the FAS Russia, in the absence of legislative norms on the organization's mandatory membership in SROs, the provision by a procurement participant of an SRO certificate as confirmation of the “Goodwill” indicator does not indicate more high level qualifications of such a procurement participant, and also does not indicate that such a procurement participant will offer the best condition for the execution of the contract.

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

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

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

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

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

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

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

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

On the procedure for evaluating an application according to non-monetary criteria / АЦ/57532/15 dated 10/19/2015

According to clause 9 of part 1 of article 50, clause 7 of part 6 of article 83 of the Law on the contract system, the procurement documentation must contain the criteria for evaluating bids (offers) for participation in the procurement, the significance of these criteria, the procedure for considering and evaluating such bids (offers).

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

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

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

According to paragraph 3 of the Rules, “evaluation” is the process of identifying, according to the evaluation criteria and in the manner established in the procurement documentation, the best conditions for the execution of the contract specified in the bids (offers) of the procurement participants that were not rejected.

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

the subject of evaluation, which makes it possible to determine an exhaustive list of information to be evaluated by the commission of the customer for the implementation of procurement and, accordingly, to be submitted by procurement participants in their bids for obtaining an evaluation according to non-monetary criteria;
instructions for filling out the application, which allows you to determine what information is to be described and submitted by the participants in the procurement for evaluation by the commission of the customer for the implementation of procurement;
dependence (the formula for calculating the number of points provided for by the Rules, or the rating scale) between the number of points awarded and the information provided according to the criterion "qualitative, functional and environmental characteristics of the procurement object" (criterion indicators);
dependency (a formula for calculating the number of points provided for by the Rules, or an assessment scale that provides for a proportional scoring) between the number of points assigned and the information provided according to the criterion "qualification of procurement participants" (criterion indicators), given that in relation to the information provided according to the specified criterion, a quantitative assessment is possible.

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

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

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

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

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

The appendix contains an example of the procedure for evaluating bids, containing indicators of the non-monetary criterion for evaluating bids.

If the indicator “experience of a participant in the successful delivery of goods, performance of work, provision of services of a comparable nature and volume” of the criterion “qualification of procurement participants” is established in the procurement documentation, the customer shall disclose the content that determines the comparability of the experience of the procurement participants in the supply of goods, performance of work, provision of services with the subject of the ongoing procurement, including the unit of measurement of the volume.
When establishing the procedure for evaluating applications for participation in the procurement for construction work, the following should be followed.

In accordance with paragraph 11 of the Rules, in the event of a procurement, as a result of which a contract is concluded that provides for the performance of construction work, the customer is obliged to set the indicator "experience of the participant in the successful delivery of goods, performance of work, provision of services of a comparable nature and volume" of the criterion "qualification of procurement participants" , with the exception of the case provided for in paragraph 30 of the Rules. At the same time, the significance of the indicator should be at least 50 percent of the significance of all non-monetary assessment criteria.

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

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

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

In accordance with paragraph 1 of part 1 of article 31 of the Law on the contract system, when making a purchase, the customer establishes uniform requirements for procurement participants, as well as compliance with the requirements established in accordance with the legislation of the Russian Federation for persons supplying goods, performing work, rendering services that are the object of procurement . Such requirements include, in particular, the requirement for a procurement participant to have a license, if the relevant type of activity is subject to licensing in accordance with the legislation of the Russian Federation.

In accordance with paragraph 1 of part 1 of article 73 of the Law on the contract system, the notice of the request for quotations must contain information on the requirements for participants in the request for quotations.

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

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

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

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

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

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

Thus, the quotation commission and the customer, in the absence of a copy of the document confirming the compliance of the procurement participant with the requirements established by the legislation of the Russian Federation, have the right to check its actual presence in other ways, including by sending requests to the relevant licensing authorities, examining the registers of licenses on official websites of licensing authorities.

If the quotation commission or the customer reveals a non-compliance of the procurement participant, including the winner of the request for quotations, with the requirement for a license established in the notice of the request for quotations, then such participant must be suspended from participation in the request for quotations or the customer must refuse to conclude a contract with such a participant in the manner prescribed by parts 9 and 11 of article 31 of the Law on the contract system.

Can a customer, when purchasing drugs, require a specific package of a drug or additional devices for administration?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Additionally, the FAS Russia informs that the rejection of an application for participation in an electronic auction on the basis of a discrepancy between the dosage form, the filling volume of the vial, the packaging of the medicinal product, the form and material of the packaging of the medicinal product or an additional device for the administration of the medicinal product proposed by the procurement participant, the requirements established by the documentation on auction, is a violation of part 5 of article 67 of the Law on the contract system.

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

18.The parties to the contract must try to resolve the dispute before going to court (Federal Law of March 2, 2016 N 47-FZ "On Amendments to the Arbitration Procedure Code of the Russian Federation")

1) in Article 4:

b) Part 5 shall be stated as follows:

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

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

The right to go to court will arise after 30 calendar days from the date when one of the parties sent a claim or demand (unless a different procedure is established by law or contract). We believe that the changes relate to both contracts concluded under the Law N 44-FZ, and contracts under the Law N 223-FZ.

19.Rules for changing, by agreement of the parties, the term of the contract, and (or) the price of the contract, and (or) the price of a unit of goods, work, services, and (or) the quantity of goods, the volume of work, services provided for by contracts, the term of which ends in 2016 (DecreeGovernment of the Russian Federation dated March 14, 2016 N 191 "On approval of the Rules for changing, by agreement of the parties, the term of the contract, and (or) the price of the contract, and (or) the price of a unit of goods, work, services, and (or) the quantity of goods, the volume of work, services stipulated by contracts that expire in 2016").

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

2. Changing the terms of the contracts provided for in paragraph 1 of these Rules is allowed within the limits of the volumes of financial security brought to the customers for the acceptance and (or) performance in 2016 of obligations under the contracts.

3. These Rules apply to contracts with a maturity of more than 6 months, the execution of which, due to circumstances beyond the control of the parties, is impossible without changing their conditions and the subject of which are:

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

b) construction, reconstruction, technical re-equipment of capital construction projects, including the purchase of equipment included in the estimate of construction, reconstruction, technical re-equipment, and (or) carrying out work to preserve cultural heritage objects (monuments of history and culture) of the peoples of the Russian Federation, with the exception of scientific - methodological guidance.

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

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

The customer is not entitled to make a decision to increase the price of the contract, the price of a unit of goods, work performed, services rendered without contacting the supplier (contractor, performer) specified in paragraph one of this clause.

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

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

b) from the need to achieve the results of activities of state (municipal) programs, federal targeted programs or non-program activities (functions, powers) of public authorities (bodies local government), as well as decisions taken in the prescribed manner on the provision of funds from the budgets of the budgetary system of the Russian Federation for the implementation of capital investments;

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

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

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

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

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

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

11. Changing the term of the contract is carried out by agreement of the parties within 2016.

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

C _new= (C - C _P) x ICC + C _P,

C - the initial price of the contract;

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

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

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

14. The decision of the customer to reduce the quantity of goods, the volume of work performed, the service provided may be taken in accordance with paragraph 6 of these Rules. At the same time, the price of a unit of goods, work, services may be increased in accordance with paragraph 15 of these Rules.

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

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

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

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

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

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

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

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

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

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

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

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

C - the initial price of the contract;

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

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

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

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

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

Two quantities are said to be proportional if the ratio of their values remains unchanged.