In a letter dated November 22, 2017 No. 24-01-09 / 78284, the Ministry of Finance said what would happen if the customer violates the requirements for justifying the NMCC when the purchase is included in the schedule. You can read the text of the letter below.
Letter dated November 22, 2017 No. 24-01-09/78284
NMTsK or the price of the contract when purchasing from a single supplier must be justified at the stage of including the purchase in the schedule. This requirement is provided for by the 44th law. Justification of the contract price can be dispensed with only in relation to special purchases(clauses 4.5, 26, 33, part 1, article 93 of the 44th law), according to which their annual amount must be justified. Such an exception is expressly provided for by the procurement justification rules established by Decree 555 of the Government.
In the absence of justification or its inconsistency established requirements, the guilty employee of the customer may be held liable under Art. 7.29.3 of the Code of Administrative Offenses of the Russian Federation. According to part 1 of this article, the fine for the committed violation can range from 20 to 50 thousand rubles.
The Department of Budget Policy in the field of the contract system, having considered the appeal on the issue of holding an official of the customer accountable on the basis of Article 7.29.3 of the Code Russian Federation about administrative offenses, says the following.
In accordance with paragraph 1 of part 3 of Article 18 federal law dated 04/05/2013 N 44-FZ "On contract system in the field of procurement of goods, works, services to meet state and municipal needs” (hereinafter referred to as the Law on the Contract System), when drawing up the schedule, the initial (maximum) contract price, the contract price shall be subject to justification in the manner established by Article 22 of the said Federal Law.
The rules for substantiating the procurement of goods, works and services to meet state and municipal needs were approved by Decree of the Government of the Russian Federation of 06/05/2015 N 555 (hereinafter - Rules N 555).
The provisions of Part 1 of Article 7.29.3 of the Code of Administrative Offenses of the Russian Federation provide for administrative liability for the inclusion in the procurement plan or the procurement schedule of an object or objects of procurement that do not meet the objectives of procurement or established by the legislation of the Russian Federation and other regulatory legal acts of the Russian Federation on the contract system in the field of procurement requirements for goods, works, services and (or) standard costs purchased by the customer, or the inclusion in the procurement schedule of the initial (maximum) price of the contract, including the one concluded with sole supplier(contractor, performer), in respect of which there is no justification or does not meet the requirements established by the legislation of the Russian Federation and other regulatory legal acts of the Russian Federation on the contract system in the field of procurement.
Thus, the authorized officials customers who have included in the procurement schedule the initial (maximum) price of the contract, including those concluded with a single supplier (contractor, performer), in respect of which there is no justification or does not comply with the requirements of legislation in the field of the contract system, are subject to administrative liability in accordance with part 1 of article 7.29.3 of the Code of Administrative Offenses of the Russian Federation.
At the same time, paragraph 6 of Regulation No. 555 provides that in relation to procurement carried out in accordance with paragraphs 4, 5, 26 and 33 of part 1 of Article 93 of the Law on the contract system, the annual volume of these purchases is subject to justification.
Director of the Budget Department
policy in the field of the contract system
Details 11.05.2017 10:59
If the purchase is not included in the schedule or the data on the previously planned purchase is out of date, the document needs to be amended. Let's figure out how to do it according to all the rules
Estimate the amount of change
It may be necessary to make changes not in one, but in several columns of the schedule, as well as adjust the information in other documents: the procurement plan, the rationale for it, the rationale for the schedule.
For example, a request for quotations is planned based on Part 2 of Art. 72 of Law N 44-FZ with an initial maximum contract price (NMTsK) of 500 thousand rubles. without performance of the contract. Due to the increase in the cost of goods, it was decided to increase the NMTsK to 600 thousand rubles. In addition to changing the column with NMCK, in this case you need to:
- correct the amount of planned payments;
- replace the method of determining the supplier, tk. NMTsK to request quotations on the specified basis cannot exceed 500 thousand rubles;
- establish the amount of security for the application and performance of the contract, if such security is provided for a new method of procurement.
Coordinate with the manager
To change the schedule, you need to get the consent of the head of the organization or another authorized person. There is no established form of consent. Employee contract service or the contract manager may use an order or application where he must justify the changes.
To do this, use the grounds that are given: for federal customers - in clause 8 of Rules N 553; for regional and municipal customers - in clause 10 of Requirements N 554.
The document must specify the information that should be included in the schedule and other procurement planning documents.
Make changes
Changes must be made to the current electronic version of the schedule using the functionality of a single information system(EIS) or the "Electronic Budget" system. After that, within three working days new edition the schedule must be placed in the EIS.
Order of change electronic version the schedule is described in detail in the user manual "Formation and placement of procurement plans and procurement schedule plans" on the EIS website and in the user manual "Purchase Planning" of the Electronic Budget system on the website of the Federal Treasury.
Open documents from an article in your ConsultantPlus system.
Let's talk about situations when customers need to change their plans and schedules. Including due to the fact that they were able to save on purchases.
When to change the procurement plan
The norms of Part 6 of Article 17 of Law 44-FZ require, in certain cases, to amend the procurement plan. Also, this issue is regulated by Government Decrees No. 552 dated June 5, 2015, and No. 1043 dated November 21, 2013.
So, the law established the following grounds. Procurement plans are changed if:
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 registry ( Single register 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:
- they need to be changed due to the fact that the objectives of the procurement and the requirements for objects have changed;
- they must be brought into line with the amended legislation;
- This is required by the implementation of laws and by-laws of the federal, regional and municipal levels accepted or released after the formation of the procurement plan;
- it is required by the results of the mandatory public discussion of the procurement;
- when making a purchase, savings were formed;
- in other cases, which are established by the procedure for maintaining the procurement plan.
When to change the schedule
Changes to the schedule are made on the basis of Part 13 of Article 21 of Law 44-FZ, as well as Decrees of the Government of the Russian Federation of 05.06.2015 No. 553, of 05.06.2015 No. 554.
These legal regulations require changes to the schedule to be made in the following cases:
- In the process of preparing the purchase, the needs in terms of the volume and cost of objects have changed, and as a result, it is impossible to make a purchase.
- The terms or frequency of purchases, the date of the beginning and end of the auction, the method of determining the supplier, the amount of the advance payment, the terms of payment have changed.
- Purchase cancelled.
- The customer generated savings in the current financial year.
- The supervisory authority has issued a procurement order.
- Based on the results of the public discussion, the customer made a decision that will change the purchase.
- Unforeseen circumstances and other cases that emerged after the preparation of the schedule.
Saving
As you can see, it is necessary to change plans and schedules both because of legislative changes and because of changes in circumstances that affect procurement activities customer. And one of them is cost savings. Let's take an example of when and how it is necessary to change planning documents on this basis.
Situation 1. The customer needs office furniture and announces an electronic auction. With the funds that will be saved during the auction, he plans to purchase another piece of furniture with the same OKPD-2. In this case, the customer only needs to make changes to the schedule. The procurement plan remains the same, since a new purchase will be made within one of its positions. As for the schedule, a new position is introduced into it, and the information in the “Planned payments” column is also specified.
Situation 2. Almost everything is the same, only with the money saved the customer is going to purchase a completely different product, which he did not plan to purchase at all. In this case, the new position is entered into both the procurement plan and the schedule. In the schedule, the planned payments are changed for the corresponding line. In the procurement plan, changes are made to the amount of financial support. Further, new positions are entered into the schedule in accordance with the terms of the concluded contract.
We remind you that if a new line is introduced into the plan and schedule, the necessary adjustments must be made to the justification for the purchase.
Another question is whether it is necessary to change in the planning documents those positions for which the customer received savings? The Ministry of Economic Development, in its letter dated November 29, 2016 No. D28i-3256, indicated that if other purchases are made at the expense of these funds, they should be included in a new line in the procurement plan and schedule. At the same time, the NMCC of purchases for which savings were obtained should remain unchanged.
Rationale NMCC is the process of determining by the customer the marginal cost of the purchase, above which he will not be able to conclude a contract with a potential supplier. We analyzed all the stages of justifying the initial maximum contract price under 44-FZ, examples, including justifying the initial (maximum) contract price, the price of a contract concluded with a single supplier (contractor, performer).
The restrictions that exist when choosing the procedure for determining the contractor directly depend on the value of the initial cost. For example, if the initial maximum cost under 44-FZ exceeds 500,000 rubles, the customer does not have the right to conduct request for quotations.
Also, the price affects the timing of the procedure. For example, for electronic auctions with an initial cost of more than 3 million rubles, the application deadline is at least 15 days from the date of placement of the notice in the EIS, and with a cost of less than 3 million rubles - at least 7 days.
On July 1, 2018, the rule on the timing of consideration of the first parts of applications for participation in electronic auction. So, if the purchase price is less than 3 million rubles. the term for making a decision on admission to trading may not exceed 1 business day.
At the same time, since July, the NCMC began to influence the obligation of state customers to establish securing applications. If the NMTsK does not exceed 1 million rubles, the state customer has the right (but not the obligation!) to require the participant to provide an offer (Article 44). The Ministry of Finance confirmed these conclusions in letter No. 24-06-08/70718 dated 02.10.2018.
In addition, the supplier needs to understand that determining the marginal cost of the purchase is an important stage of participation. Based on the information provided in the schedule and procurement documentation, it is possible to draw conclusions about the market situation among competitors and the chances of winning the tender.
NMCC at the planning stage
Calculation and justification of the NMTsK according to 44-FZ is carried out by the customer. Then he enters information about the price restriction of the purchase into schedule. The justification of the NMCC in the schedule for 2020 of all customers is in the register of the Unified Information System (EIS).
Information on the initial cost of the contract must correspond to the calculations in the documentation. Realities differ from plans, so often customers correct this information and, as a result, must change the cost estimate.
For calculation, the customer uses the form recommended by the Ministry of Economic Development. In it, he reflects the entire calculation process, details of supporting documents, indicates the date of summing up, and also captures other necessary information. You can download a sample NMCC justification form for 2020 according to 44-FZ from the link below.
Sample justification of the NMCC for a government contract with a single supplier
The bidding initiator is obliged to finally fix the maximum price of the planned contract in the schedule no later than ten days before the placement of the procurement documentation in the EIS.
Justification methods
Key Features of the Five Determination Procedures maximum cost set out in the law (Article 22 No. 44-FZ) and specified in Methodological recommendations of the Ministry of Economic Development.
On February 26, 2019, on the official website of draft regulations, the Ministry of Finance published a notice on the development of new Methodological Recommendations. The text of the draft order is not yet available.
The law on the contract system prioritizes the justification of the NMCC by the method of comparable market prices, example and detailed description this method you can read in the article "How to justify the NMCC by the method of comparable market prices".
We have also prepared articles about the other four methods, you can find them at the links below:
At the same time, the rationale for the method for determining the NMCC can be established by additional methodological recommendations. The authority to adopt such documents belongs to the supreme executive body subject of the Russian Federation. For example, Decree of the Government of Moscow No. 242-RP, Decree of the Government of the Sakhalin Region No. 117-r, etc.
Thus, the customer has the right to act within the framework of additional recommendations when making a purchase for the needs of a constituent entity of the Russian Federation.
You can visually see how the sample calculation of the initial maximum contract price looks like (example according to 44-FZ) by downloading the file from the link below.
An example of justifying the price of a contract under 44-FZ
Other calculation options
In a situation where it is impossible to apply established by law about the contract system and methodological recommendations calculation options, procurement is carried out and a justification is made for the impossibility of applying the calculation methods of the NMCC.
