2. Rules for the provision of communication services are approved by the Government of the Russian Federation.
The rules for the provision of communication services govern the relationship between users of communication services and telecom operators when concluding and executing a contract for the provision of communication services, as well as the procedure and grounds for suspending the provision of communication services under the contract and terminating such an agreement, features of the provision of communication services, the rights and obligations of telecom operators and users communication services, the form and procedure for payment for the rendered communication services, the procedure for filing and considering complaints, claims of users of communication services, the responsibility of the parties.
3. In the event of a violation by a user of communications services of the requirements established by this Federal Law, the rules for the provision of communications services or an agreement on the provision of communications services, including violation of the terms of payment for the communications services rendered to him, determined by the terms of the agreement on the provision of communications services, the communications operator has the right to suspend provision of communication services until the violation is eliminated, with the exception of cases established by this Federal Law (as amended by the Federal Law of July 26, 2006 N 132-FZ - Collection of Legislation of the Russian Federation, 2006, N 31, Art. 3431).
If such a violation is not eliminated within six months from the date of receipt by the user of communications services from the communications operator of a notification in writing about the intention to suspend the provision of communication services, the telecom operator has the right to unilaterally terminate the contract for the provision of communication services, with the exception of cases established by this Federal Law , N 31, item 3431).
4. A subscriber to whom a subscriber number has been allocated on the basis of an agreement on the provision of communication services has the right to keep this subscriber number within the territory determined by the Government of the Russian Federation, subject to the termination of the current agreement on the provision of communication services, the repayment of debt on payment for communication services and the conclusion of a new contracts for the provision of communication services with another mobile radio operator telephone communication.
The amount of the subscriber's fee for using the saved subscriber number, established by the mobile radiotelephone operator when concluding a new contract for the provision of communication services, cannot exceed one hundred rubles.
(Clause 4 was introduced by Federal Law No. 253-FZ of December 25, 2012 - Collection of Legislation of the Russian Federation, 2012, No. 53, Article 7578, effective from December 1, 2013)
The main types of communication services purchased by customers within the framework of 223-FZ, the basics of legal regulation of the provision of communication services in the Russian Federation
Types of communication services and their legal regulation
the federal law dated 07.07.2003 No. 126-FZ "On Communications" - fixes general provisions provision of communication services on the territory of the Russian Federation, including the definition of communication services: these are the activities of receiving, processing, storing, transmitting, delivering telecommunication messages or postal items. Activities of legal entities and individual entrepreneurs By reimbursable communication services is carried out only on the basis of a license to carry out activities in the field of rendering communication services, which is issued by Roskomnadzor. You must request a license from your service provider as there may be Negative consequences for the customer: up to the recognition of the contract as invalid.
Decree of the Government of the Russian Federation of February 18, 2005 No. 87 “On Approval of the List of Communication Services Names Included in Licenses and Lists of Licensing Conditions” provides for the licensing of the following communication services:
This is a list of services that can be provided on the territory of the Russian Federation and are subject to licensing.
A direct consequence of the provision of communication services: in the territory of the Russian Federation, communication services are provided by communication operators to users on the basis of an agreement on the provision of communication services, concluded in accordance with civil law and the Rules for the provision of communication services. What should be highlighted from this requirement? It is necessary to conclude a contract, not to issue an invoice. From the point of view of 223-FZ, this is permissible, but the legislation "On Communications" is violated. In some cases, there are public contracts offers. The form of the contract is different, but the presence of the document is necessary. Next regulations are essential for the comfortable work of customers and suppliers.
- Decree of the Government of the Russian Federation of December 9, 2014 No. 1342 "On the procedure for the provision of telephone services" (together with the "Rules for the provision of telephone services"). Previously, services were divided by type, now uniform rules have been created.
- Decree of the Government of the Russian Federation of September 10, 2007 No. 575 “On Approval of the Rules for the Provision of Telematic Communication Services”. This is providing access to the Internet.
- Decree of the Government of the Russian Federation of January 23, 2006 N 32 "On approval of the Rules for the provision of communication services for data transmission." Differences from the Internet - data transfer is carried out not within the global Internet, but a local (corporate) network.
The choice of procurement methods for the provision of communication services
Purchasing from a single supplier. Is it always possible to make such purchases? Sometimes the Provisions refer to the procurement of communication services as non-competitive. But it's not. In what cases can the purchase of communication services be carried out from a single supplier? When the communication service belongs to the sphere of activity of subjects of natural monopolies!
In accordance with Article 4 of the Federal Law of August 17, 1995 N 147-FZ "On Natural Monopolies", the scope of activity of subjects of natural monopolies includes: services of public telecommunications and public postal services.
The question arises: what is included in this concept?
The services of public telecommunications in accordance with Decree of the Government of the Russian Federation of October 24, 2005 No. 637 include:
- provision of a long-distance telephone connection to a subscriber (user) of a fixed telephone network for the transmission of voice information, facsimile messages and data;
- providing access to the local telephone network, regardless of the type of subscriber line (wire line or radio line) of the fixed telephone network.
- providing a local telephone connection to a subscriber (user) of a fixed telephone network for the transmission of voice information, facsimile messages and data (except payphones).
- provision to the subscriber for permanent use of a subscriber line, regardless of its type.
- provision of an intrazonal telephone connection to a subscriber (user) of a fixed telephone network for the transmission of voice information, facsimile messages and data. To make a decision, we check whether the telecom operator is in the register of subjects of natural monopolies.
If these services are provided by a supplier that is included in the Register of Natural Monopoly Entities, then the contract can be concluded. For example, Rostelecom, MGTS. They can become the only suppliers, the law does not prohibit this.
Only these communication services are non-competitive. Thus, attributing any other communication services to the basis for concluding an agreement with sole supplier and prescribing this in the Procurement Regulations can be considered as a restriction of competition. For example, the provision of mobile telephone services, access to the Internet, local telephone communications do not belong to the communication services of subjects of natural monopolies, therefore, their provision is possible only on a competitive basis.
But how to prescribe it in order to comply with the interests of all parties?
Decision and order dated September 17, 2014 in case No. K05-96/14 on stopping the violation of the antimonopoly law, issued by the Office of the Federal Antimonopoly Service for St. Petersburg on the complaint of MTS OJSC. Decree Arbitration Court of the North-Western District dated 03.12.2015 No. F07-1332/2015 in case No. A56-83413/2014, the decision and order of the antimonopoly body was canceled due to the fact that MTS OJSC had no grounds for filing a complaint with the antimonopoly body in in accordance with Article 17 of the Competition Law on the content of the Procurement Regulations approved by the customer, and the antimonopoly authority had no grounds for considering such a complaint. Therefore, the FAS could not consider such a complaint. There are various court decisions that contradict each other. If there is a phrase in the Regulation that limits the purchase from a single supplier, this indicates the possibility of complaints against the customer.
It is important to remember that there are competitive and non-competitive services, and to build your work with this in mind.
Practice shows that often contracts for the provision of communication services are concluded by customers before the entry into force of 223-FZ and provide for automatic prolongation. This situation is possible, but the following must be considered:
Prolongation of the contract is a new purchase under Law N 223-FZ! This obliges the customer to place in a single information system information on the automatic prolongation of contracts concluded before the entry into force of Law N 223-FZ (January 1, 2012).
The Ministry of Economic Development substantiates this approach by the position of the Supreme Arbitration Court of the Russian Federation. The court pointed out: the automatic extension of the contract means that a new contract is in force between the parties, the terms of which are identical to the terms of the original one. A new purchase can also be considered a prolongation of the contract concluded after the entry into force of 223-FZ. All norms and rules of 223-FZ apply to the purchase. But you need a sufficient basis in the Regulations, which will allow you to prolong the contract with a single supplier. From a legal point of view, an act of prolongation is possible, but from a formal point of view, this is a new contract and a new purchase. Prior to the publication of this Letter, it was said that contracts could be concluded for 5-10-15 years. If it is impractical to conclude a new one, then the situation must be reflected in the Regulations as an independent basis.
Information about it must be entered in the register of contracts. Letter of the Ministry of Economic Development of Russia dated March 29, 2016 N D28i-775.
MNP rules
There is a moment related to mobile (mobile) communications. It's portability mobile numbers when switching from one operator to another on the basis of a valid contract, which passes into a new contract. The fee for one room cannot exceed 100 rubles. Such a mechanism is already in place when switching from one operator to another. What does it give the customer? In this area, increased competitive fight between operators.
Often, in justification of the possibility of concluding contracts for the provision of mobile communication services with the EP, customers often point to the inappropriateness (impossibility) of changing (replacing) subscriber numbers. A similar requirement is found in the procurement documentation.
However, in accordance with Part 4 of Article 44 of the Law “On Communications”, a subscriber who has been allocated a subscriber number on the basis of an agreement on the provision of communication services has the right to keep this subscriber number, subject to the termination of the current agreement on the provision of communication services, repayment of debt on payment for communication services and conclusion of a new contract for the provision of communication services with another mobile radiotelephone operator.
In public procurement, there is no basis for procurement from a single supplier. There is competition.
Features of the preparation of technical specifications for communication services
Many customers under 223-FZ already know that some provisions of the law have changed. Now the requirements for the terms of reference are as follows: you need to refer to technical regulations and regulations. From July 1, 2016, Clause 1 of Part 10 of Article 4 of the Federal Law of July 18, 2011 N 223-FZ "On the Procurement of Goods, Works, Services by Certain Types of Legal Entities" was amended.
requirements for safety, quality, technical specifications, functional characteristics (consumer properties) goods, work, services, to the dimensions, packaging, shipment of goods, to the results of work, established by the customer and provided for technical regulations 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 compliance of the supplied goods, work performed, services provided with the needs of the customer. If the customer in the procurement documentation does not use the requirements established in accordance with the legislation of the Russian Federation on technical regulation, the legislation of the Russian Federation on standardization for safety, quality, technical characteristics, functional characteristics (consumer properties) of goods, works, services, dimensions, packaging, shipment of goods, to the results of work, the procurement documentation must contain a justification for the need to use other requirements related to determining the conformity of the supplied goods, work performed, services provided to the needs of the customer;
There are also GOSTs for the main types of communication, which were published in different years. They should also be followed.
The provision of Part 3 of Article 17 of the Law “On Protection of Competition” “.. it is prohibited to restrict competition between bidders, bidders, bidders by including in the lots of goods, works, services that are technologically and functionally not related to goods, works, services , deliveries, performance, provision of which are the subject of bidding, request for quotations, request for proposals. Examples: - combining various communication services into one lot (one purchase) Decision of the Federal Antimonopoly Service of Russia dated 09.12.2014 No. K-1817/14. The customer unlawfully combined into one object of procurement the services of long-distance, international, intrazonal communication, local telephone connections, providing access to the Internet, providing city telephone numbers for use, since legal entities providers of such services are subject to various requirements for the availability of licenses for certain types of activities in the field of rendering communication services.
Example:
Requirements for maintaining valid ip-addresses, numbering resource, domain names Decision of the Volgograd OFAS Russia dated 18.03.2015 No. 5-2/50-15. The procurement documentation specifies a requirement to provide routing through an organized connection of the used and registered IP network (ASSIGNED PA) 95.53.248.128/225. The 95.53.248.128/255 Routing Through Organized Connectivity Assigned and Used IP Network (ASSIGNEDPA) requirement benefits the bidder that owns the IP network. The commission of the Vologda OFAS Russia recognized that this requirement is actually impossible for another procurement participant, including the complainant.
Example:
Requirements for maintaining valid ip-addresses, numbering resource, domain names. Decision of the Tatar OFAS Russia in case No. 04-04/20263 The documentation establishes that the contractor provides new IP addresses, while the criteria include maintaining the previously allocated range, which is estimated at a maximum of 45 points. In addition, it is not clear how the participant should save the previously allocated range; who owns the addresses. Thus, there are contradictions in the documentation of the customer, which can lead to a restriction of competition. The complaint was found to be justified.
Example:
Requirements to preserve valid ip-addresses, numbering resource, domain names Decision of the Federal Antimonopoly Service of Russia dated 12/13/2012 in case No. K-2428/12. Documentation on the auction for the provision of services for the provision of local, intrazonal, intercity, international telephone communications, setting the following requirements: communication services must be provided using 20 numbers in the ABC = 495 code of Moscow in the E1 digital stream (30 connecting lines); the customer's numbering in the ABC=495 code from 987-03-80 to 987-03-89 must be retained. In view of the foregoing, the commission of the FAS Russia came to the conclusion that the requirement to maintain the telephone numbering in the ABC=495 code from 987-00-00 to 987-10-09, assigned under the previous contract for the provision of communication services, limits the number of order participants up to one participant, to which this numbering resource belongs, and is unenforceable for any other participant in the order placement, including the complainant.
Example:
Requirements to preserve valid ip-addresses, numbering resource, domain names There is an excellent practice when establishing requirements for preserving the numbering resource is considered reasonable, since it meets the needs of the customer Decision of the Voronezh OFAS Russia dated 03.03.2015 in case No. Decision of the Khabarovsk OFAS Russia dated September 10, 2015 No. 7-1/334; Decision of the Novosibirsk OFAS Russia dated November 12, 2014 No. 08-01-428.
Questions from participants
This activity is now tightly regulated by Roskomnadzor in order to avoid mass mailings of SMS messages. The distribution takes place through a public network, these are mobile radiotelephone services. The question needs to be specified, since there is no separate license for mailing.
The Supplier asserts that its activities related to the provision of communication services are related to the activities of subjects of natural monopoly. The activity is carried out according to the regulated tariffs of the FAS Russia. Is this even possible? What documents can be requested from the supplier?
It is necessary that the supplier himself be included in the register of natural monopolies. And the state regulates the tariffs, which appear in Government Decree No. 637. There must be a link to the Register and an indication of the supplier in it. If he provides a service that relates to public telecommunications, then this is an agreement with him that he belongs to subjects of natural monopoly.
Internet services are provided by a provider, its name is not in the Register of Natural Monopolies. Do I need to work with him on point 1 and point 4?
Internet access is not included in public telecommunication services. Here you need to think about how to conclude an agreement with him. You can use a different clause of the Regulation or conduct a competitive purchase. The subscriber line is a wire that can be connected to the device, but the service itself is not related to this. You need to understand how to purchase a service based on the Procurement Regulations.
For this year, we signed an agreement up to 100,000 rubles with a single supplier. This money is no longer enough. Is it possible to make an additional agreement and conclude an agreement up to 100,000 rubles according to the standard Regulations of the Moscow Region?
Apparently, in this situation it is necessary to conclude a new contract, since model provision prohibits contracts up to 100,000 rubles.
The telephone operator is not on the list of monopolists. Is it necessary to justify the conclusion of a contract with a single supplier?
The service belongs to the sphere of activity of a natural monopoly. If this is a local telephone connection, here you can safely conclude an agreement as with the only supplier.
The contract for three numbers was signed with MTS in 2011. The Regulations prescribe communication services with a single provider. Each MTS payment is included every month as a separate agreement - is this correct or not? Less than 100,000 rubles are collected per year.
If the payment is the payment of an invoice that the operator provides you with. If there is no agreement that is reflected once, then the issuance and payment of an invoice means the conclusion of an agreement. This should be included in the monthly report.
Mobile telephone services are being purchased to transmit data from electricity meters. In the event of a change, operators will have to replace SIM cards at 5,000 substations. How to reflect the places of departures for replacing SIM cards, if they often do not have addresses?
Firstly, you can set the condition that communication services from the new operator will be transmitted taking into account old SIM cards. This requirement is fundamental for the customer, but complaints are possible. But there may be a situation that the operator will bear the costs of traveling to all objects. On the one hand, saving SIM cards will prerequisite. But on the other hand, there may be a restriction of competition. This issue needs to be studied in more detail.
If an agreement for long-distance communication is concluded with Rostelecom, then how to conclude an agreement for international communication with another carrier?
Government customers usually carry out a separate procedure. But technically it is very difficult to implement.
There is no guarantee in the contracts of any operator about the availability of communication anywhere in the world, since radio communication cannot be predicted. What are the GOSTs?
There are no standards currently developed in an official manner. Only Order No. 113 of the Ministry of Information and Communications. You can specify a link to documents that characterize the requirements for services.
Federal Law No. 44 was issued to regulate contractual relations in the field of public procurement of goods, works, services that are necessary to meet state and municipal needs.
Federal Law 44 for dummies regulates all legal contractual relations conducted at the state level. The bill was adopted in the State Duma on March 22, 2013, after 5 days it was approved by the Federation Council. The effective date of the law is April 5, 2013.
- (Art. 1-15) The general provisions of this law are described, ie. in what area it is applied, basic concepts, principles of concluding contracts and beyond;
- (Art. 16-23) This describes the rules for planning public procurement;
- (Art. 24-96) Describes according to what rules public procurement is carried out and what characteristics the supplier (participant, performer or contractor) must have. Article 34 can be studied in detail here;
- (Art. 97-98) Chapter 4 contains aspects of procurement monitoring and audit in the field of public procurement;
- (Art. 99-104) it is one of the important components of the Federal Law 44 for dummies, the articles in this chapter regulate control in the field of public procurement;
- (Art. 105-107) This part of the legislation contains information on dispute resolution;
- (Art. 108-111) Each article of this chapter is devoted to the peculiarities of concluding and executing a contract when certain types public procurement;
- (Art.-112-114) The last chapter contains the final information of Federal Law 44 for dummies.
In the above chapters state authorities amended on June 7, 2017. The legal force of Federal Law 44 for dummies came on June 18, 2017.
Basic moments
To participate in public procurement, you need to know the provisions of Federal Law 44 for dummies. Requirements and instructions on how to work with Federal Law 44 for beginners (dummies):
- meet the criteria specified in the legislation of Russia, so that persons have the right to supply goods (services);
- the supplier's company is not at the stage of bankruptcy or liquidation;
- the activity of the supplier's company is not suspended at the legislative level, for example, according to the Code of Administrative Offenses of Russia;
- the supplier organization has no debt obligations for taxes and fees;
- a person acting as a potential supplier must not have a criminal record in the field of economic crimes;
- according to 44 Federal Law for dummies, there is no conflict of interest when concluding a contract;
- the supplier's company does not belong to offshore organizations.
Conditions for public procurement:
- All transactions for the purchase of goods (services) are concluded through a specially designed website;
- Customers indicate their data in the system (data are indicated in accordance with Federal Law 44 for dummies). Suppliers are required to be accredited on electronic trading platforms;
- All potential suppliers have the right to find orders suitable for them in the search engine on the public procurement website, then take part in the auction;
- According to 44 FZ for dummies, when the customer chooses the most profitable option for himself, he concludes a contract with the supplier. On the basis of the contract, the parties fulfill their obligations.
The difference between Federal Law 44 and Federal Law 223
The procurement system in both laws is the same, but according to Federal Law 44 there is a restriction for dummies - public procurement is carried out only from one supplier.
Requirements for customers in both laws are different.
According to Federal Law 44 for teapots, the following can act as customers:
- state budgetary institutions;
- municipal.
According to Federal Law 223 for teapots, the following can act as customers:
- enterprises where there is a state share of more than 50%;
- organizations involved in certain types activities - water supply, energy, etc.;
- monopoly organizations - gas, Russian Railways, etc.;
- budgetary organizations that carry out public procurement at the expense of extrabudgetary funds (for example, at the expense of grants).
Procurement under 44 FZ: where to start?
It is difficult to start the procedure of participation in public procurement. All the most important things you need to know from the 44 Federal Laws on public procurement:
- study Federal Law 44 for dummies;
- prepare a package of documents confirming the rights of the organization to participate in the auction;
- prepare a package of documents for a product (service) that meets the requirements of the customer;
- develop a system of activities that are carried out before the conclusion of the contract;
- appoint responsible persons for carrying out activities.
To conclude a contract, it is necessary to take into account the terms established by Federal Law 44.
Download the text of the law
According to 44 FZ for dummies, public procurement is divided into:
- contests;
- auctions (electronic placement of orders);
- quotes;
- public procurement from a single supplier.
To become a supplier, you must study Federal Law 44 for dummies. Download Federal Law "On contract system in the field of public procurement of goods, works, services to meet state and municipal needs”, you can .
How to purchase cellular communications for employees of the customer's institution, by tender or auction? It is more correct to do this at an electronic auction, request for quotations or from a single supplier. Let's explain why.
First, the subject matter of the procurement may be described in terms of "detailed and clear language". Secondly, the main, and often the only factor by which the winner of such an auction is determined is his financial proposal.
Goods, works, services included in both of these lists, in accordance with Part 2 of Art. 59 of Law No. 44-FZ, can also be rightfully purchased by the customer through such methods as a request for quotations or proposals, as well as through procurement from a single supplier, subject to the relevant requirements of this Federal Law.
The current version is auction list, which was approved by the order of the Government of the Russian Federation of March 21, 2016.
Here it is necessary to clarify that the customer conducts an open electronic auction instead of an open tender under 44-FZ when: a) he does not need to evaluate the received applications by other parameters than the price b) he cannot make a purchase from a single supplier in accordance with the law . At the same time, if the object of procurement falls under the need for a closed method of conducting the bidding procedure, an open electronic auction the customer cannot be carried out according to the Federal Law.
Back to the question of services cellular communication and the possibility of their purchase through an open tender under 44-FZ. If we carefully consider the current version of the list of the Government of the Russian Federation dated March 2016, we will find the OKPD2 code in it, which ideally corresponds to our question about cellular services. This is position number 61.20.11.000, which describes public mobile communications services, as well as the corresponding service, that is, providing access to such communications and user support from the operator.
Eventually in a legal way for the customer to make a purchase for the provision of cellular services by an operator, there will be either an electronic auction, or a request for quotations or proposals, or a purchase from a single supplier (if this does not contradict the requirements of this Federal Law), however, holding an open tender under the contract system is an acceptable way in this case is not.
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