Calculation of the economic effect of the rationalization proposal. Determination of the economic effect from the introduction of an invention, a new technological process

Ministry of Economic Development of the Russian Federation
CONTRACT DEVELOPMENT DEPARTMENT

The Department for the Development of the Contract System of the Ministry of Economic Development of Russia considered an appeal on the procedure for applying a number of provisions of the Federal Law of April 5, 2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law N 44- Federal Law) based on the results of the interregional conference for state and municipal customers of the Volga Federal District "Contract system in the field of procurement. Innovations and prospects for the development of procurement."

1. On the question of representatives of the Republic of Mordovia regarding what is the offer of an open tender participant in relation to the object of procurement (paragraph 2 of part 2 of article 51 of Law N 44-FZ) and how to attach this information to the protocol for the consideration and evaluation of applications for participation in the tender and protocol of consideration of a single application for participation in the tender.

In accordance with paragraphs 4 and 9 of Part 1 of Article 50 of Law N 44-FZ, tender documentation must contain requirements for content, including a description of the offer of an open tender participant; criteria for evaluating applications for participation in an open tender, established by the customer in accordance with part 1 of article 32 of Law No. 44-FZ.

In accordance with paragraph 2 of part 2 of Article 51 of Law N 44-FZ, an application for participation in an open tender (hereinafter referred to as a competitive bid) must contain a proposal from an open tender participant in relation to the procurement object.

According to part 5 of article 53 of Law N 44-FZ, the tender commission evaluates applications that have not been rejected in order to identify the winner of the tender based on the criteria specified in the tender documentation.

Previously, in accordance with paragraph 2 of part 3 of Article 25 of the Federal Law of July 21, 2005 N 94-FZ "On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs" (hereinafter - Law N 94-FZ) application for participation in the competition should contain a proposal on the functional characteristics (consumer properties) and quality characteristics of the goods, on the quality of work, services and other proposals on the conditions for the execution of the contract, including the proposal on the price of the contract.

The legal regulation of the composition of the competitive bid under Law N 44-FZ and Law N 94-FZ has not undergone fundamental changes, which makes it possible to correctly interpret the norms of Law N 44-FZ in a historical and logical relationship.

In view of the foregoing, the customer is obliged to establish in the tender documentation:

a) criteria for evaluating competitive bids, the magnitude of the significance of these criteria in accordance with Article 32 of Law N 44-FZ;

b) requirements for the description of the proposal of the tender participant - a form (sample) that is mandatory for the tender participant to fill out according to the criteria for evaluating tender applications established by the customer, in which this participant must indicate his proposal on the conditions for the execution of the contract;

c) indicators that make it possible to determine the compliance of the purchased goods, works, 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 ​​\u200b\u200bof indicators that cannot be changed ();

d) requirements for the description of the proposal of the tender participant - a form (sample) that is mandatory for the tender participant to fill out in relation to the procurement object in accordance with Article 33 of Law N 44-FZ, in which the procurement participant describes the procurement object, including indicating specific values ​​​​of indicators.

When developing tender documentation, customers must distinguish between such a criterion for evaluating bids as "qualitative, functional and environmental characteristics of the procurement object" (clause 3 of part 1 of article 32 of Law N 44-FZ) and "description of the qualitative, functional and environmental characteristics of the procurement object" as proposal of the tender participant in relation to the object of procurement, for example, specific values ​​​​of indicators.

In the first case, the bidder's failure to submit its proposal regarding the qualitative, functional and environmental characteristics of the procurement object is not a basis for rejecting the application, since this information is necessary for the tender committee only to evaluate the application. In the second case, non-submission (partial submission, submission of this information in violation of the requirements of the tender documentation) by the tender participant of the qualitative, functional and environmental characteristics of the procurement object is a mandatory basis for rejecting the application (part 3 of Article 53 of Law N 44-FZ).

The application, taking into account the above requirements of the tender documentation, must contain:

a) a form according to the criteria for evaluating bids established in the tender documentation, in which the tender participant indicated his proposal on the conditions for the execution of the contract, including the proposed price of the contract;

b) a form in relation to the procurement object, in which the procurement participant described the procurement object in accordance with the requirements of the tender documentation, including the specific values ​​of the indicators.

The information contained in the above forms is the offer of an open tender participant in relation to the object of procurement within the meaning of paragraph 2 of part 2 of article 51 of Law N 44-FZ.

In accordance with Part 12 of Article 53 of Law N 44-FZ, this information must be attached to the protocol for the consideration and evaluation of applications for participation in the tender and the protocol for the consideration of a single application for participation in the competition.

2. The question of the representatives of the Udmurt Republic on the procedure for applying Decree of the Government of the Russian Federation of April 15, 2014 N 341 "On providing benefits to organizations of the disabled in determining the supplier (contractor, performer) in relation to the contract price they offer" (hereinafter - Resolution N 341), in if only part of the goods purchased by the customer within the framework of one procurement procedure falls into the List of goods, works, services, the purchase of which provides benefits to organizations of the disabled, approved by Resolution N 341 (hereinafter - the List).

According to part 3 of article 29 of Law N 44-FZ, when determining suppliers (contractors, performers), except for the case when purchases are made from a single supplier (contractor, performer), the customer is obliged to provide benefits to organizations of persons with disabilities in relation to their proposed contract price in the amount of up to fifteen percent in accordance with the lists of goods, works, services approved by the Government of the Russian Federation.

Obviously, in order to implement the procedure for providing benefits to organizations of persons with disabilities, it is necessary that the procurement object formed by the customer within the framework of one procurement procedure consists only of goods included in the List. Otherwise, benefits would be provided to organizations of persons with disabilities in relation to goods not included in the List, which does not comply with Article 29 of Law N 44-FZ.

Thus, if the customer has included in the procurement object the goods included in the List, and the goods not included in the List, then the customer is not entitled in the notices of procurement to establish advantages for organizations of persons with disabilities in relation to the contract price they offer.

At the same time, in order to properly implement Article 29 of Law N 44-FZ and ensure state support measures for organizations of people with disabilities, customers are required to form procurement objects, separating the goods included in the List into separate procurement procedures or lots, and establish advantages for organizations of people with disabilities in notices of procurement. with respect to their proposed contract price.

If the customer has included in the procurement object the goods included in the List and the goods not included in the List, then such actions of the customer violate the rights of organizations of persons with disabilities, lead to an unreasonable restriction on the number of procurement participants, which is contrary to the principle of ensuring competition (part 2 of Article 8 of the Law N 44-FZ).

3. The question of representatives of the Udmurt Republic on the procedure for applying paragraph 3 of part 3 of article 66 of Law N 44-FZ when conducting an electronic auction for the right to conclude a contract for construction, reconstruction and overhaul in terms of filling out the first part of the application for participation in the electronic auction by the participant of the electronic auction electronic auction (hereinafter referred to as the auction bid).

According to 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, the first part of the auction bid must contain the consent of the participant in such an auction to perform the work or provide the service on the terms stipulated by the documentation of such an auction, as well as the specified information about the goods .

Thus, when concluding a contract for the performance of work or the provision of a service, for the performance or provision of which goods are used, the customer is obliged to establish indicators in the auction documentation that make it possible to determine the compliance of the goods used as part of the performance of work 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 ​​\u200b\u200bof indicators that cannot be changed (Part 2 of Article 33 of Law N 44-FZ).

Established by the auction documentation for the performance of work for which the goods are used, the requirement for the procurement participant to provide only the consent of the participant in such an auction to perform work without information about the goods used does not comply with paragraph 3 of part 3 of Article 66 of Law N 44-FZ.

In doing so, the following should also be noted.

Firstly, the requirement established by clause 3 of part 3 of article 66 of Law N 44-FZ to indicate information about the product used to perform work during an electronic auction does not mean that the customer is obliged to set the values ​​​​of indicators in relation to all building materials used in the performance of work and equipment. Such indicators can be set only in relation to the equipment that the customer considers necessary during this purchase, taking into account the requirements of the project documentation.

Secondly, work on the construction, reconstruction and overhaul of capital construction facilities, if the initial (maximum) price of the contract when making purchases to meet state needs exceeds 150 million rubles, to meet municipal needs exceeds 50 million rubles, in accordance with the order of the Government of the Russian Federation dated October 31, 2013 N 2019-r "On the list of goods, works, services, in the event of the procurement of which the customer is obliged to conduct an auction in electronic form (electronic auction)" taking into account the letter of the Ministry of Economic Development of Russia dated February 21, 2014 N D28i -190 can be purchased not only through an electronic auction, but also through an open tender. When holding an open tender, Law N 44-FZ allows the customer to independently establish requirements for the description of the procurement object by tender participants, including not establishing requirements for the description of goods used to perform work, which avoids a situation with deviation of the parameters of the capital construction object from the approved project documentation ( ).

4. The question of representatives of the Ulyanovsk region on the legality of refusing admission to an electronic auction participant, if this participant did not indicate specific indicators of the goods in the first part of the auction application, instead the participant indicated the range of values ​​provided for by GOST or SNiP.

According to clause 3 of part 3 of article 66 of Law N 44-FZ, the auction participant is obliged to indicate in the first part of the application specific indicators corresponding to the values ​​established by the documentation for such an auction. The absence of specific indicators in the application, including in the form of duplication of norms of technical regulations, standards, etc., is the basis for refusing admission to participation in the auction to the relevant participant (part 4 of article 67 of Law N 44-FZ). The auction commission does not have the authority to admit to participation in the auction a participant whose application does not fully or partially comply with the requirements of Law N 44-FZ and the auction documentation.

At the same time, it should be noted that the assessment of the legality of admission to bidding cannot be made without a preliminary assessment and study of specific documentation about the auction.

Customers should also in the instructions for filling out the application (clause 2 of part 1 of article 64 of Law N 44-FZ) directly indicate the inadmissibility of specifying in the application a range of values ​​from technical regulations, standards, etc. instead of specific indicators.

5. The question of the representatives of the Republic of Tatarstan on the legitimacy of rejecting the application for participation in the request for quotations (hereinafter referred to as the application) in the absence of a copy of the license in the application.

According to paragraph 1 of part 1 of article 31 of Law N 44-FZ, when making a purchase, the customer establishes the following single requirement for the participants in the purchase: compliance with the requirements established in accordance with the legislation of the Russian Federation for persons supplying goods, performing work, providing 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 Law No. 44-FZ, the notice of a request for quotation 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, a copy of the license is not included in the application (Part 3 of Article 78 of Law No. 44-FZ). According to part 4 of article 78 of Law N 44-FZ, it is not allowed to require a participant in the request for quotations to provide other documents and information, with the exception of information and documents provided for by part 3 of article 78 of Law N 44-FZ. Part 7 of Article 78 of Law No. 44-FZ also does not provide for the rejection of an application for failure to submit a copy of the license as part of the application by the participant in the request for quotations.

Thus, the customer is not entitled to establish in the notice of the request for quotations a requirement for procurement participants to submit a copy of the license as part of the application by the participant in the request for quotations. The quotation commission is also not entitled to reject the application for the failure of the participant in the request for quotations to submit a copy of the license as part of the application.

At the same time, the procurement commission checks the compliance of procurement participants with the requirements specified in clause 1 of part 1 of article 31 of Law No. 44-FZ (part 8 of article 31 of Law No. 44-FZ). At the same time, according to Part 9 of Article 31 of Law N 44-FZ, 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 procurement commission finds that the procurement participant does not meet the requirements specified in part 1 of article 31 of Law N 44-FZ.

Thus, the quotation commission and the customer, in the absence of a copy of the license as part of the application, have the right to check its actual availability in other ways, including by sending requests to the licensing authorities, studying license registers on the official websites of the licensing authorities.

If the quotation commission or the customer reveals that a participant, including the winner of the request for quotation, does not comply with the requirement for a license established in the notice of the request for quotation, then such participant must be suspended from participation in the request for quotations or the customer must refuse to conclude a contract with such participant in the manner prescribed by parts 9 and 11 of Article 31 of Law N 44-FZ.

It should also be noted that, according to Part 15 of Article 95 of Law N 44-FZ, the customer is obliged to make a decision on unilateral refusal to perform the contract if, during the execution of the contract, it is established that the supplier (contractor, performer) does not meet the requirements for purchase participants.

6. The question of representatives of the Republic of Tatarstan on the legitimacy of the requirement to provide a license in the notice of the request for proposals, as well as the legitimacy of removing the participant in the request for proposals in the absence of a copy of the license in the application.

In accordance with paragraph 1 of part 1 of article 31 and paragraph 2 of part 4 of article 83 of Law N 44-FZ, if, in accordance with the legislation of the Russian Federation, the object of procurement relates to licensed activities, the customer in the notice of the request for proposals and the documentation on the request proposals is obliged to establish a requirement for the participant of the request for proposals to have an appropriate license.

At the same time, unlike the request for quotations, the composition of applications for participation in the request for proposals on the basis of paragraph 3 of part 6 of article 83 of Law N 44-FZ is established independently by the customer in the documentation on the request for proposals.

Thus, if the customer has established a requirement for participants in the request for proposals to have a license, then the customer has the right to establish a requirement for the composition of applications for participation in the request for proposals in terms of providing a copy of the license by the participant. If the above requirement is established, and the procurement participant has not submitted a copy of the license as part of the application, then such participant must be removed (part 10 of article 83 of Law N 44-FZ).

7. The question of representatives of the Republic of Tatarstan on whether purchases made before 01/01/2014 from a single supplier (contractor, performer), payment for which is provided for in 2014, are taken into account when calculating the volume from small businesses, socially oriented non-profit organizations (hereinafter - SMP and SONO).

According to part 1.1 of article 30 of Law N 44-FZ, when determining the volume of purchases from SMP and SONO, the calculation of the total annual volume of purchases does not include purchases from a single supplier (contractor, performer) in accordance with part 1 of article 93 of Law N 44-FZ.

According to part 30 of article 112 of Law N 44-FZ, when determining the specified volume of purchases, the calculation of the total annual volume of purchases does not include purchases, notices of the implementation of which are posted before the date of entry into force of Law N 44-FZ.

The indicated norms of Law N 44-FZ, excluding from the scope of purchases from SMP and SONO purchases from a single supplier (contractor, performer), as well as purchases, notifications of which were posted before the date of entry into force of Law N 44-FZ, allow us to conclude that that purchases made before 01/01/2014 from a single supplier (contractor, performer), payment for which is provided for in 2014, are not taken into account when determining the volume of purchases from SMP and SONO.

8. The question of representatives of the Republic of Tatarstan on the procedure for concluding a contract based on the results of a failed auction in accordance with the requirements of Article 70 of Law N 44-FZ.

If the electronic auction is declared invalid on the grounds provided for in part 16 of article 66 (at the end of the bid submission period only one bid was submitted), part 8 of article 67 (the auction commission decided to recognize only one procurement participant who submitted the application as its participant), part 20 of article 68 (within ten minutes after the start of such an auction, none of its participants submitted an offer on the price of the contract), part 13 of article 69 of Law N 44-FZ (the auction commission decided on compliance with the requirements established by the documentation for an electronic auction , only one second part of the application), a contract with a participant in such an auction who submitted the specified application is concluded in accordance with clause 25 of part 1 of Article 93 of Law N 44-FZ in the manner established by Article 70 of Law N 44-FZ ().

At the same time, according to clause 25 of part 1 of article 93 of Law N 44-FZ, such a contract can be concluded only if there is a positive approval of the authorized control body in the field of procurement. The customer's request for approval of the conclusion of a contract with a single supplier (contractor, performer) is sent to the control body in the field of procurement no later than within ten days from the date of placement in the unified information system of the relevant protocols containing information on the recognition of the definition of the supplier (contractor, performer). ) failed. A contract with a single supplier (contractor, performer) is concluded within a period of not more than twenty days from the date the customer receives such approval.

According to part 2 of article 70 of Law N 44-FZ, within five days from the date of placement in the unified information system (hereinafter - UIS) of the protocol specified in part 8 of article 69 of Law N 44-FZ, the customer places in the UIS without his signature a draft contract. Within five days from the date of placement by the customer in the EIS of the draft contract, the winner of the electronic auction places the draft contract in the EIS, as well as a document confirming the provision of security for the performance of the contract.

The provisions of the norms of Article 70 and paragraph 25 of Article 93 of the Law N 44-FZ in the systemic unity of the norms allow us to conclude that the customer must first comply with the requirements of paragraph 25 of part 1 of Article 93 of the Law N 44-FZ, having received a positive approval from the supervisory authority in the field of procurement, and only if there is such an agreement, start the procedure for concluding a contract, provided for in Article 70 of Law N 44-FZ. Otherwise, the customer, having placed, in the absence of positive approval, the draft contract in the EIS for signing by the auction participant, will actually offer this person to sign a draft contract that has not been approved by the authorized control body in the field of procurement, which does not correspond to the meaning of Law N 44-FZ and violates the rights of participants procurement, misleading them and obliging them to prematurely bear the financial costs of obtaining a contract performance security.

9. The question of the representatives of the Republic of Tatarstan on the procedure for applying the Order of the Ministry of Economic Development of the Russian Federation of March 25, 2014 N 155 "On the conditions for the admission of goods originating from foreign states for the purpose of procuring goods, works, services to meet state and municipal needs" ( hereinafter referred to as the Order), if only one auction bid is submitted for participation in the auction, or the auction commission decides that only one second part of the bid complies with the relevant auction documentation.

In accordance with clause 25 of part 1 of article 93 of Law N 44-FZ, the recognition of an electronic auction as invalid in accordance with parts 1-3.1 of article 71 of Law N 44-FZ is one of the types of procurement from a single supplier (contractor, performer).

According to paragraph 3 of the Order, when purchasing goods by holding a tender, auction or request for proposals, procurement participants whose applications for participation or final proposals contain proposals for the supply of goods of Russian, Belarusian and (or) Kazakhstani origin are granted preferences.

The cases described in your appeal are purchases from a single supplier (contractor, performer), to which the Order does not apply.

The Department for the Development of the Contract System of the Ministry of Economic Development of Russia expresses its gratitude to the participants of the interregional conference for state and municipal customers of the Volga Federal District "The contract system in the field of procurement. Innovations and prospects for the development of procurement" for their active participation in the discussion of Law No. 44-FZ and the questions raised in this appeal.

This appeal will be taken into account in the further improvement of the norms of Law N 44-FZ.

Department Director
development of the contract system
M.V. Chemerisov

Electronic text of the document
prepared by CJSC "Kodeks" and verified according to.

Legislation is constantly changing and you cannot be 100% sure that you did everything right when making a purchase. In the article, we have collected the most common customer mistakes that are encountered in practice and that you need to learn how to avoid.

Most often, mistakes are made in the formation of procurement documentation, in particular, when describing the procurement object. The outcome of the purchase depends on how well the procurement documentation is drawn up. Let's dwell on the most common mistakes customers make at the stage of documentation formation.

1. Excessive requirements in the description of the procurement object

Sometimes customers include unnecessary requirements in the procurement documentation. For example, they indicate characteristics that can only be verified in laboratory conditions - “crystallization onset temperature”, “viscosity index”, “density”, “sulfur content in%”.

In order to test the product, the procurement participant must first produce or buy it. At the same time, Law No. 44-FZ does not oblige the applicant for the contract to have the goods in stock at the time of the auction.

Therefore, the terms of reference should not include requirements for the chemical composition, components of the product, its production technology, and indicators whose values ​​can be determined from the test results (as a rule, an indication that this indicator is determined by testing is available in GOST).

Relevant clarifications are in the letter of the FAS Russia dated July 1, 2016 No. IA/44536/16. The position of the FAS Russia was supported by the decision of the Supreme Court of the Russian Federation dated February 9, 2017 No. AKPI16-1287.

Example: Decision of the FAS Russia dated 06/08/2018 in case No. 18/44/105/640 (purchase number in the EIS 0315100000318000106)

2. Lack of proper instructions for filling out the application

Law No. 44-FZ establishes the requirement that the procurement documentation contain instructions for filling out the application. At the same time, there are no direct requirements for the content of the instructions.

In this regard, some customers neglect the development of this section and limit themselves to the formal presence of instructions in the text of the documentation.

The position of the Federal Antimonopoly Service of Russia has already taken shape in this regard, which considers the improper instruction to be a violation of Law No. 44-FZ.

The provisions of the instructions must be clear and consistent. Thus, the instructions should contain, among other things, an indication of the sections of the documentation that contain the indicators in respect of which the participants submit their proposals, the procedure for filling them out.

The requirements for the instructions for filling out the application are set out by the FAS Russia in a letter dated 01.07.2016 No. IA/44536/16.

Example: Decision of the Federal Antimonopoly Service of Russia dated September 13, 2016 in case No. K-1462/16 (purchase number in the EIS 0158200002016000011)

3. Documentation that creates benefits for individual suppliers

This violation manifests itself in two main forms:

• establishing in the terms of reference the requirements for the supply of goods with certain characteristics, which are met by the goods of the “necessary” suppliers (these may be requirements for weight, packaging, dimensions, completeness);
• the use in the documentation of evaluation criteria that unreasonably create advantages for certain suppliers (successful experience in deliveries in the territory of one settlement, availability of equipment and material resources on the property right).

Such requirements indicate a restriction of competition and unreasonable creation of advantages for individual procurement participants, which may serve as a basis for considering the customer's actions for compliance with the requirements of not only Law No. 44-FZ, but also the requirements of antimonopoly law (Article 17 of Law No. 135-FZ).

Example: Decision of the Tyumen OFAS Russia dated May 18, 2018 in case No. FKS18/156 (purchase number in the EIS 0167200003418002162).

4. The requirement to supply goods from a certain manufacturer without accompanying the word “or equivalent” and the absence of equivalence parameters

Sometimes in the purchase documentation, customers indicate the name of the manufacturer, the country of origin and the trade mark of the goods without the words “or equivalent”.

This is permissible only in those cases when the customer justifies the need to ensure the interaction of the purchased goods with the goods that they already use.

In other cases, the indication of the trademark of the goods without the words "or equivalent" is a direct violation of Law No. 44-FZ.

Also, the customer is obliged to set the equivalence parameters - the maximum and minimum values ​​of the indicators, as well as which indicators cannot be changed. By not setting the equivalence parameters, the customer violates Law No. 44-FZ.

Important! If it is not written by what parameters to determine equivalence, then any product can be considered an equivalent.

Example: Decision of the Federal Antimonopoly Service of Russia dated December 13, 2017 No. KGZ-424/17 (purchase number in the EIS 0548100000217000022).

5. Non-copyable documentation

The problem is that customers place documentation in the “*.pdf” format, drawings, files with the “*.exe” extension and in other formats that do not allow the procurement participant to search and copy the terms of reference.

The impossibility of copying the text forces the procurement participants to retype the text on their own, which leads to typos in the application and entails risks of not filling out the application on time.

The position of the Federal Antimonopoly Service of Russia is that documentation in a non-copyable/non-editable format violates Law No. 44-FZ, limits competition, and points to the “sharpening” of purchases for the “necessary” supplier.

On this occasion, there are letters from the FAS Russia dated November 16, 2016 No. IA / 79173/16 and the Ministry of Economy of Russia dated May 23, 2016 No. D28i-1299, dated February 22, 2017 No. D28i-1121.

Example: Decision of the Federal Antimonopoly Service of Russia dated August 2, 2017 in case No. K-986/17 (purchase number in the EIS 0158100017017000043).

6. Placement of design and estimate documentation not in full

Non-placement of design and estimate documentation in full is a violation. Customers sometimes motivate the unwillingness to post all design and estimate documentation by the desire not to confuse the procurement participants or by the lack of this, since only part of the work is performed within the estimate.

However, the placement of not all design and estimate documentation limits the possibility of preparing an application for participation in an electronic auction and entails a limitation in the number of procurement participants.

This position is shared by experts from the FAS Russia (letter No. АЦ/14427/16 of 09.03.2016), the Ministry of Economic Development of Russia (letter No. D28i-1623 of 20.04.2017). A similar position is contained in the Review of the Presidium of the Supreme Court of Russia dated June 28, 2017.

Example: Decision of the Federal Antimonopoly Service of Russia dated May 10, 2017 No. 432 (purchase number in the EIS 0119200000117001503).

Another series of common mistakes is related to the unreasonable rejection of participants' applications. Here you can stop at the following errors:

7. Rejection of the participant's application due to the absence of a trademark

Rejection of the application due to the lack of indication of the trademark is unlawful. Even if the customer believes that the goods must not have a trademark (for example, when purchasing computer equipment), he does not have the right to demand that the procurement participant indicate it.

Only the country of origin is obligatory for indication (when the customer applies the national regime).

The brand or trade name of the goods to the procurement participant must be indicated only if they are available.

If the procurement participant correctly completed the first part of the application, the rejection of such an application on the basis that the participant did not indicate the trademark violates the provisions of Law No. 44-FZ.

Example: Decision of the St. Petersburg OFAS Russia dated June 22, 2018 in case No. 44-3106/18 (purchase number in the EIS 0372200152418000003)

8. Rejection of the application of the participant, when there is an agreement to supply the goods, but its characteristics are not specified

The application is rejected by the commission of the customer if it contains consent, but it does not contain specific indicators of the goods.

However, if the customer indicated in the documentation a trademark, company name, country of origin of the goods, then in the first part of the application it is enough for the participant to provide only consent to the supply of goods.

Indication of specific product indicators is necessary if the participant offers for delivery a product that is equivalent to the product specified in this documentation, or if the customer does not establish requirements for product indicators and its trademark.

Letters of the Ministry of Economy of Russia dated March 17, 2016 No. D28i-666 and dated December 30, 2015 No. OG-D28-16596.

Example: Decision of the Federal Antimonopoly Service of Russia dated February 6, 2018 No. PGZ-001/18 (purchase number in the EIS 0373100056017000620)

9. Deviation for the presence in the RNP according to 223-FZ

Customers, not wanting to work with unreliable suppliers, establish in the procurement documentation the requirement that there is no information about the procurement participant in the Register of unscrupulous suppliers.

There are 2 registers in the EIS - according to Law No. 223-FZ and Law No. 44-FZ. Despite the similar purpose and common location, these are two different registries. And by virtue of a direct indication in Law No. 44-FZ, customers are not entitled to establish requirements for procurement participants about the absence of information in the Register under Law No. 223-FZ and reject a procurement participant on this basis.

Example: Decision of the Ryazan OFAS Russia dated May 18, 2017 in case No. 220-03-3/2017 (purchase number in the EIS 0859300019617000450)

10. Changes in the scope of delivery and terms of the contract

Customers sometimes use the right to increase the volume of goods supplied. Here errors arise regarding how much you can increase the given delivery volumes. An increase in the volume of delivery is possible at the stage of conclusion and execution of the contract.

An increase in the supply volumes at the stage of concluding a contract is permissible if there is an appropriate condition in the procurement documentation.

Important! Achieving an increase in the price of the contract is carried out only at the expense of the volume of supply. The price of goods per unit must remain unchanged, and the entire increase in the cost of the contract must not exceed its NMTsK.

As for the increase in the cost of the contract as part of its execution, it is also achieved solely by increasing the volume of supply, but not more than 10%. A condition of an additional agreement that increases the contract price by more than 10% is void.

At the same time, even if the volume of delivery has increased, the terms of delivery of the goods and the terms of payment for the goods are not subject to change.

The customer indicates in the auction documentation the detailed characteristics of the goods, allowing to specify their compliance with the stated needs. Indicators are determined, the values ​​of which are mandatory and unchanged due to their importance for the customer.

Bidders, in turn, when placing an order, indicate specific indicators of the goods according to 44 Federal Laws - an unambiguous identification of the goods, its consumer and functional qualities.

Specific indicators - volumetric requirements for the supplied or used goods - are drawn up in the form of tables placed in the first part of the application for participation in the auction.

Incorrect compilation of this particular section is the most common reason for rejecting an application as such. Refusals on the basis of “Incorrectly indicated specific indicators under 44 Federal Laws” are considered by the FAS based on complaints from potential participants in the auction.

What are the difficulties in making an application?

The legislation establishes strict rules for describing the requirements for goods when placing a state order. The contracting authority is obliged to give a clear definition of the goods, but is not entitled to set such requirements as to limit the number of possible bidders.

And yet, corrupt customers in the process of preparing auction documentation introduce "pitfalls" in the section of specific indicators. This allows them to significantly limit the circle of persons admitted to trading. Confusing and cumbersome requirements for goods are established, occupying hundreds of pages. An irreproachable indication of specific indicators under 44 Federal Laws for an auction participant in such conditions is very problematic and often impossible.

It is very difficult for an unprepared person to submit a correct, “fail-safe” application for participation in the tender. Only experienced professionals know how to do this without making embarrassing mistakes.

How to get admission to the tender

TK "Dopusk" offers a win-win algorithm for achieving an important goal - the timely receipt of a profitable government order:

• Contact us in a convenient way and indicate the number of the auction in which you want to participate.
• Discuss with the company's specialists all the nuances of the upcoming transaction.
• Sign a service agreement.
• Receive a professionally prepared application by e-mail.
• Check out the protocol for reviewing the first parts of applications that is positive for you, providing admission to the auction.
• win the tender.

Our specialists prepare dozens of applications every month for auctions of any complexity. At the same time, the practice of the Federal Antimonopoly Service under 44 Federal Laws is taken into account. Specific indicators and experience in working with the most voluminous documentation.

TK "Dopusk" cooperates with individual entrepreneurs and the largest holdings. We offer our clients professional support of electronic trading at all stages.

The Law on Procurement for Budgetary Organizations clearly defines the specific rules for conducting electronic auctions. Moreover, administrative liability, including substantial fines, is provided for officials who try to circumvent the established rules and help win a certain company. But it is not so easy to defeat the corruption machine deeply rooted in our state. And the first thing applicants stumble over in public procurement is the indication of specific indicators for 44 Federal Laws when filling out the first part of the application.

What are the difficulties?
The contract system provided for by Federal Law 44 is drawn up taking into account the fact that the customer clearly knows the values ​​​​of specific indicators of the product or service that he needs. Based on them, he makes an order with the designation of characteristics, or indicating their range values. Applicants must be provided with a sample of filling out the documentation.

The problem is that in order to reduce the number of companies applying for an order, financially interested officials do not always legitimately set requirements for a product or service with a description on hundreds of pages. And if the table containing an indication of specific indicators of goods 44 FZ is not filled out clearly enough, there are inaccuracies, the applicant is denied tenders.

An unlawful refusal, in which specific indicators are used according to 44 Federal Laws, will be definitely considered by the FAS. In practice, they often cancel the decisions of overly picky workers in the system and the firm is admitted to the competition. But in any case, litigation is extra time and money, so it’s better not to make mistakes when filling out an application.

Filling out a table with specific indicators
It is necessary to separate two cases when competitions are held, which are in the definition of the law. If the order refers, for example, to repairs as a service provided, then this table with indicators is not filled out. It is enough for the potential executor to agree to perform the work in accordance with these requirements. But in the case of the purchase of materials for repairs, these specific indicators cannot be neglected.

In theory, the customer studies the market, selects the range characteristics of the product that are minimally satisfactory in terms of quality, or repair requirements, and indicates them in the tender documentation. Contractors indicate in the table those actual data that are inherent in their products. By studying them, comparing the quality and the proposed price, expert estimates of the costs of subsequent maintenance and service life, a legitimate decision is made on the winner.
For example, the abstract material used in the repair, according to the requirements of the state order, must comply with the indicators and be:
- new;
– no damage or defects;
— have certificates of fire and hygienic safety required for this repair;
- be of a certain color and density;
- the theoretical flow rate should be ... (be within the range);
- fit into the range deviation in terms of drying speed and service life.

It is important to remember that if there are range values ​​in the fill pattern "<,>”, or the words: more, no more, etc., the applicant must put exactly his meaning, and not indicate that the proposed product fits into the framework. This is one of the common mistakes, sometimes purely mechanical, when filling out contract documentation using templates provided by the customer.

Additional points
If you have submitted a purchase request, or, for example, want to take part in the repair, this automatically means your consent to the supply of this product, or the performance of repair work. It is also understood that you can provide the required quantity of a product of specified characteristics with certain indicators in a contract order, or the volume of materials required for repairs. Additionally, this is not specified anywhere.

The customer does not have the right not to admit to the auction, motivating the refusal by the absence in the application of characteristics and indicators that he himself did not indicate as necessary, or expert conclusions. It won't be legal. That is, if there is no indication that the scaffolding he needs during repairs must necessarily be new, then a refusal on the basis that this indication is absent in the application will be a violation of the law, even if their novelty is self-evident. In such cases, you can safely contact the FAS.

Do not forget that for violation of the rules of the public procurement auction, or requirements that limit the number of applicants, unlawful refusal, members of the commission may be attracted under Part 2 of Art. 7.30 of the Code of Administrative Offenses and fined from 5 to 30 thousand rubles. They also know about it, and with a carefully and well-written application, you will put your offer up for auction without any problems.

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) 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;

(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 object of the purchase.

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 the availability of production facilities, technological equipment, labor, financial and other resources necessary for the production of goods, the supply of which is the subject of the contract, for performance of work or provision of services that are the subject of the contract, unless the possibility of establishing such requirements for the procurement participant is provided for by this Federal Law.

4. Requirements for the warranty period of goods, work, services and (or) the scope of providing guarantees of their quality, for warranty service of goods, for the costs of operating the goods, for the obligation to install and adjust the goods, for training persons involved in the use and maintenance of the goods, installed 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. If a supplier of new machinery and equipment is determined, the customer shall establish in the procurement documentation the requirements for providing a guarantee from the manufacturer and (or) supplier of this product and for the period of validity of such a guarantee. The provision of such a guarantee is carried out together with this product.

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 objects of procurement under the state defense order may be established by the Federal Law of December 29, 2012 N 275-FZ "On the state defense order".