Purchase of computer equipment. Details about "Purchase of computer equipment"

" № 11/2016

Compared to the administrative offenses established in the Code of Administrative Offenses of the Russian Federation regarding the legislation on the contract system, there are very few offenses under the Federal Law of July 18, 2011 No. 223-FZ, and the amount of fines is immeasurably less. What are these violations and what threatens if they are detected?

Although Law No. 223-FZ itself began to work in 2012, articles on administrative responsibility for offenses in its application appeared in the Code of Administrative Offenses of the Russian Federation only two and a half years later - Federal Law No. 122-FZ of 05.05.2014 included a new Art. 7.32.3 "Violation of the procedure for the procurement of goods, works, services by certain types of legal entities."

Budget institutions received the right to carry out their purchases under Law No. 223-FZ from 01/01/2014, when the Law on the contract system came into force. The latest law allowed budgetary institutions, along with autonomous and other organizations with state or municipal participation, to use Law No. 223-FZ for procurement, but only when spending certain types of funds. These include funds received by institutions of grants, extra-budgetary funds received from the provision of paid services (performing paid work), funds spent when the institution attracts other persons to supply goods, provide services or perform work at the expense of funds that the institution receives as a contract executor , including a state or municipal contract . And many budgetary institutions, in accordance with Law No. 223-FZ, have approved their local procurement regulations and are exercising this right in practice - most often when spending extrabudgetary funds.

The mandatory electronic procurement form has not been applied.

The implementation of the procurement of goods, works, services (GWS) in the case when such procurement must be carried out in electronic form, in a different (non-electronic) form, entails the imposition of an administrative fine on officials in the amount of 10 thousand to 30 thousand rubles, for legal entities - from 100 thousand to 300 thousand rubles.

If this violation is revealed for the third time, then the official faces a more severe punishment - a fine in the amount of 40 thousand to 50 thousand rubles. or disqualification for a period of six months to one year (part 2 of article 7.32.3 of the Code of Administrative Offenses of the Russian Federation).

The concept of “purchase in electronic form” has not yet been defined in the current legislation, but we point out that, according to the position of the Federal Antimonopoly Service, this is, at a minimum, such a purchase, which provides the opportunity for the procurement participant to submit an application in the form of an electronic document and the customer to post information about the ongoing procurement on the website , and as a maximum - the purchase carried out through the electronic trading platform.

For example, at the end of 2014, a certain army sports club purchased building cleaning services. In accordance with the approved rules, tenders for the purchase of such services should be held in electronic form. However, the customer in the procurement documentation actually provided only for the filing of an application on paper - the documentation contained a requirement to “firmware” the sheets of the application, the place for filing the application indicated a specific address up to the office number, etc. Therefore, the FAS recognized the existence of an administrative offense, and the court subsequently sided with the controlling organization.

Wrong purchase order applied.

Procurement of GWS in the event that such procurement must be carried out in the manner prescribed by the legislation of the Russian Federation on the contract system, otherwise entails the imposition of an administrative fine on officials in the amount of 20 thousand to 30 thousand rubles, on legal entities - from 50 thousand up to 100 thousand rubles. (part 3 of article 72.32.3 of the Code of Administrative Offenses of the Russian Federation). For example, if a budgetary institution conducts a purchase under Law No. 223-FZ at the expense of a subsidy provided to it for the fulfillment of a state or municipal task (this type of funds is not subject to spending in procurement under Law No. 223-FZ), then the considered violation.

The deadlines for the mandatory posting of information in the EIS have not been met.

Violation of the terms stipulated by the legislation of the Russian Federation on the procurement of GWS by certain types of legal entities for posting mandatory information on procurement in the unified information system (UIS) entails the imposition of an administrative fine on officials in the amount of 2,000 to 5,000 rubles; for legal entities - from 10 thousand to 30 thousand rubles. (part 4 of article 72.32.3 of the Code of Administrative Offenses of the Russian Federation).

Please note that here we are talking about the deadlines established in Law No. 223-FZ itself, and not in the procurement regulation. For example, such a violation will occur if the customer has violated a certain period for placing protocols drawn up during procurement in the EIS - three days from the date of signing these protocols (part 12 of article 4 of Law No. 223-FZ).

The violation of the terms established by the legislation of the Russian Federation in the field of procurement of GWS by certain types of legal entities for posting in the EIS changes to legal acts regulating the rules for the purchase of GWS by the customer, approved taking into account the provisions of the legislation of the Russian Federation in the field of procurement of GWS by certain types of legal entities, is highlighted. Here we are talking specifically about the changes made to the procurement regulation - these changes must be posted in the EIS within 15 days from the date of approval (part 1 of article 4 of Law No. 223-FZ). The punishment here is a little tougher than in case of violation of the terms for posting other information in the EIS: for officials - an administrative fine in the amount of 5 thousand to 10 thousand rubles. and from 10 to 30 thousand rubles. - for legal entities (part 6 of article 72.32.3 of the Code of Administrative Offenses of the Russian Federation).

But if the placement of information provided for by the legislation of the Russian Federation was not carried out at all, then the punishment is even more severe: for officials - a fine in the amount of 30 thousand to 50 thousand rubles, for legal entities - from 100 thousand to 300 thousand. rub. (part 5 of article 72.32.3 of the Code of Administrative Offenses of the Russian Federation).

Practical example: a joint-stock company posted a procurement plan for 2015 in the EIS on 12/03/2015, violating the deadline by almost a year. The Federal Antimonopoly Service found this to be part of an administrative violation, but despite such a large delay, it imposed on the customer as a fine in the minimum amount of 10 thousand rubles. Another example - the customer delayed for five days the placement in the EIS of a monthly report on concluded contracts. In this case, the FAS imposed a fine on a specific official of the customer who committed the violation, but also in the minimum amount - 2 thousand rubles.

Violated the requirements for the content of the notice of purchase and (or) documentation.

Failure to comply with the requirements stipulated by the legislation of the Russian Federation for the content of notices on the purchase of GWS and (or) procurement documentation entails the imposition of an administrative fine on officials in the amount of 2 thousand to 3 thousand rubles, on legal entities - from 5 thousand to 10 thousand. rub. (part 7 of article 7.32.3 of the Code of Administrative Offenses of the Russian Federation).

For example, when conducting an open tender for the construction of an administrative and business center, the customer in the procurement documentation established that, among other things, the evaluation of applications is carried out according to the criterion “quality of work and qualifications of the tender participant”, but did not determine the specific indicators on the basis of which the criterion is evaluated, and scoring algorithm in the range between the minimum and maximum number of points. The FAS considered the described action to be a violation of the law, according to which the procurement documentation must contain the procedure for evaluating and comparing applications for participation in the procurement, and made a decision to impose a fine of 2 thousand rubles on the customer's official. It should be noted that in this case, the grounds for applying the minimum amount of the fine specified in the FAS resolution are that the customer's official has not previously been brought to administrative responsibility for committing such an offense.

The customer made unreasonable demands.

Submission of requirements to the procurement participants, to the purchased GWS and (or) to the terms of the contract, or evaluation and (or) comparison of applications for participation in the procurement according to the criteria and in the manner that are not specified in the procurement documentation, entails the imposition of an administrative fine on officials in in the amount of 2 thousand to 3 thousand rubles; for legal entities - from 5 thousand to 10 thousand rubles. (part 8 of article 72.32.3 of the Code of Administrative Offenses of the Russian Federation).

Practical example: the customer held an auction for the purchase of a set of works, including the supply of equipment for the reconstruction of engineering networks of a material warehouse. One of the requirements for the participant, according to the procurement documentation, was that he had a quality management system for activities on the subject of the auction, and the confirmation of the presence should be “the provision of a valid certificate of conformity of the quality management system to the ISO standard (with annexes, if any, as well as with the attachment of documents, confirming the passage of the annual inspection control, if the passage of the control is mandatory), or an order, order, other organizational and administrative act confirming the introduction at the enterprise of its own quality management system, with the application of a regulation on quality or another document containing a description of the system.

One of the procurement participants presented a valid certificate of conformity of the quality management system to the ISO standard for the performance of works on the subject of the auction, but the customer refused him admission to participate in the auction on the grounds that the submitted certificate did not contain information about the supply of equipment, which is part of the work purchased through an auction. Thus, according to the customer, the procurement participant presented a valid certificate of conformity of the quality management system to the ISO standard for the performance of work, but did not present a valid certificate of conformity of the quality management system to the ISO standard for the supply (implementation) of equipment. However, the FAS considered that there was a requirement for the procurement participant that was not specified in the procurement documentation, because it did not contain an indication of the need to provide a valid certificate of compliance of the quality management system with the ISO standard for the supply (sale) of equipment, but simply said about “works on the subject of the auction. The decision of the FAS is the imposition of an administrative fine in the amount of 5 thousand rubles on the customer as a legal entity.

Who punishes and who is responsible.

As has already been shown in the examples given, FAS officials are authorized to identify violations and draw up appropriate protocols. In addition, please note that for these offenses, not only the heads of customers, but also persons performing the functions of organizing and conducting procurement, including members of the procurement commission (Article 2.4 of the Code of Administrative Offenses of the Russian Federation) are considered responsible officials.

The customer did not inform the regulatory authorities.

A separate article of the Code of Administrative Offenses of the Russian Federation provides for administrative liability for failure to provide information or submission of knowingly false information to a body authorized to exercise control over the procurement of GWS by certain types of legal entities (Article 19.7.2-1 of the Code of Administrative Offenses of the Russian Federation). This information refers to information about unscrupulous procurement participants and suppliers (performers, contractors), and the FAS is the relevant authorized body.

Recall that in order to maintain a register of unscrupulous suppliers, customers must send to the Federal Antimonopoly Service information about procurement participants who avoided concluding a contract, as well as about suppliers (executors, contractors) with whom contracts were terminated by a court decision due to a material breach of contracts by them. This offense entails the imposition of an administrative fine on officials in the amount of 10 thousand to 15 thousand rubles, on legal entities - from 30 thousand to 50 thousand rubles. As in the previous case, an official here is a person who performs the functions of organizing and conducting procurement20. Again, the FAS itself is authorized to identify violations and draw up administrative protocols.

Penalties for violation of the provisions of Law No. 223-FZ.

In conclusion, we point out that the administrative fine must be paid in full by the person brought to administrative responsibility (both official and legal), no later than 60 days from the date the decision on the imposition of an administrative fine comes into force (part 1 of article 32.2 Code of Administrative Offenses of the Russian Federation). Failure to pay an administrative fine within the prescribed period is also an administrative offense and entails a fine in the amount of twice the amount of the unpaid fine, or administrative arrest for up to 15 days, or compulsory work - up to 50 hours (part 1 of article 20.25 of the Code of Administrative Offenses of the Russian Federation).

Part 1 Art. 7.32.3 of the Code of Administrative Offenses of the Russian Federation, Decree of the Government of the Russian Federation of June 21, 2012 No. 616 “On approval of the list of goods, works and services, the procurement of which is carried out in electronic form” (hereinafter referred to as Decree No. 616).

Item 2 section. VII Standard for the implementation of procurement activities of certain types of legal entities, approved. FAS RF – fas.gov.ru/analytical-materials/analytical-materials_31212.html. This document contains proposals for optimizing and unifying the procurement activities of certain types of legal entities, which can be used when approving the procurement regulations.

Part 1 Art. 7.32.3 of the Code of Administrative Offenses of the Russian Federation, Decree No. 616.

Resolution of the Ninth Arbitration Court of Appeal dated July 4, 2016 No. 09AP-25393/2016 in case No. A40-234288/15.

Part 2 Art. 15 of the Law on the contract system.

Clause 14 of the Regulations on the placement of information on procurement in the unified information system, approved. Decree of the Government of the Russian Federation of September 10, 2012 No. 908.

Decree of the Federal Antimonopoly Service of the Russian Federation dated December 30, 2015 in case No. AK1108-15.

Decree of the Federal Antimonopoly Service of the Russian Federation dated August 20, 2015 in case No. AK340-15.

Parts 9, 10 Art. 4 of Law No. 223-FZ.

Clause 13, part 1, art. 4 of Law No. 223-FZ.

Decree of the Federal Antimonopoly Service of the Russian Federation dated May 19, 2016 in case No. 223FZ-167/15/AK455-16.

Decree of the Federal Antimonopoly Service of the Russian Federation dated June 9, 2016 in case No. 223FZ-226/15/AK515-16.

Article 23.83 and paragraph 62.1 of part 2 of Art. 28.3 of the Code of Administrative Offenses of the Russian Federation, Decree of the Government of the Russian Federation of April 7, 2004 No. 189 “Issues of the Federal Antimonopoly Service”.

Article 5 of Law No. 223-FZ, Decree of the Government of the Russian Federation of November 22, 2012 No. 1211 “On maintaining a register of unscrupulous suppliers, provided for by the Federal Law “On the procurement of goods, works, services by certain types of legal entities”.

For violation of 223 FZ, and other normative legal acts of the Russian Federation adopted in accordance with it, the perpetrators are liable in accordance with the legislation of the Russian Federation. As a rule, this threatens to pay a fine, because. the culprit bears administrative responsibility.

Which one is spelled out in the Code of Administrative Offenses. The average penalty for non-compliance with the requirements of the law for officials is 15-30 thousand rubles, and for legal entities - a couple of zeros more.

In general, all violations in the activities of customers can be divided into several groups:

violation of the terms and place of publication of the regulation on the application;

hiding information about the purchase;

artificial restriction of competition (incorrectly drawn up terms of reference, unlawful rejection of applications for participation, etc.);

incorrect form of procurement of certain categories of goods.

Table of fines under 223-FZ in 2017 for violations

Full information on liability for violation of Federal Law 223 can be found in the Code of Administrative Offenses of the Russian Federation, namely in Art. 7.32.3; Art. 19.5; Art. 19.7.2-1; Art. 23.83.

Our experts will help you file a complaint with the FAS to protect your interests in the auction.

The authors of the amendments to the federal law on fines have established a sufficiently high level of liability to encourage participants and customers of public procurement to comply with the requirements of the law. The amendments are aimed at preventing violations of the Federal Law and the implementation of instructions from regulatory authorities (FAS).

Penalties under 223-FZ - the pros and cons of the system

The tightening of control over violations of 223-FZ and the punishment for them is an ambiguous phenomenon. On the one hand, this motivates customers and contractors not to break the rules, and on the other hand, it increases the workload of the FAS at times. Why is that bad?

Imagine this situation: the customer publishes a notice of purchase 1-2 days later than the deadline. According to the amendments to 223 FZ, he faces a fine of 3,000 rubles. The case is sent to the FAS, although the delay could well have been caused by a malfunction in the EIS (unified information system). The result is that the service is overloaded with petty matters that do not affect anyone's interests and do not pose any danger to the participants.

Already today, the FAS considers thousands of cases annually, and if cases involving fines of 2-3 thousand rubles are added to them, the service will be overloaded. As a result, the investigation of more important cases that actually affect corruption in the country will drag on for years. Another serious risk is bureaucratic.

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Are there any measures in relation to the executors of contracts under 223-FZ in case of unfair performance of obligations by them (penalties, fines, forfeits)? Is the application of these measures mandatory or is it at the discretion of the customer? If there is an obligation to take measures, what by-laws govern this?

Answer

Oksana Balandina, chief editor of the State Order System

From July 1, 2018 to January 1, 2019, customers have a transition period - it is allowed to carry out both electronic and paper procedures. From 2019, competitions, auctions, quotes and requests for proposals on paper will be prohibited, with eight exceptions.
Read what purchases to make on the ETP, how to choose a site and get an electronic signature, what are the rules for concluding contracts during the transition period and after.

For customers making purchases under Law N 223-FZ, the collection of a penalty is a right, not an obligation.

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must in case of unfair fulfillment by the supplier of the obligations stipulated by the contract, to apply to such supplier a penalty in the form of forfeits (fines, penalties), then the application of the measures of responsibility indicated in the question to the supplier is not mandatory for the customer.

What actions should the customer take under Law No. 223-FZ if the contractor did not complete the work within the time period specified in the contract?

According to Part 1 of Art. 2 of Law No. 223-ZF, when purchasing goods, works, services, customers are guided by the Constitution of the Russian Federation, the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), Law No. 223-FZ, other federal laws and other regulatory legal acts of the Russian Federation, as well as adopted in accordance with them and approved subject to the provisions of h. 3 Article. 2 of Law No. 223-FZ by legal acts regulating the procurement rules (hereinafter referred to as the procurement regulation).

In accordance with Part 2 of Art. 2 of Law No. 223-FZ, the procurement regulation is a document that regulates the procurement activities of the customer and must contain procurement requirements, including the procedure for preparing and conducting procurement procedures (including procurement methods) and the conditions for their application, the procedure for concluding and executing contracts, and as well as other provisions related to procurement.

Thus, the procedure for the execution of contracts, including the procedure for the responsibility of the customer and supplier (contractor, performer) for non-fulfillment or improper fulfillment of obligations stipulated by the contract (including delays in obligations under the contract) under Law No. These legal relations are not directly regulated by Law No. 223-FZ.

Note that in accordance with paragraph 1 of Art. 329 of the Civil Code of the Russian Federation, the fulfillment of obligations may be secured by a penalty, a pledge, retention of the debtor's property, a surety, a bank guarantee, a deposit and other methods provided for by law or an agreement.

According to paragraph 1 of Art. 330 of the Civil Code of the Russian Federation, a penalty (fine, penalty interest) is a sum of money determined by law or an agreement, which the debtor is obliged to pay to the creditor in case of non-performance or improper performance of an obligation, in particular in case of delay in performance. Upon a demand for the payment of a penalty, the creditor is not obliged to prove the infliction of losses to him.

At the same time, according to the Ruling of the Supreme Court of the Russian Federation of August 9, 2002 No. 33-V02pr-7, a penalty is only one of the ways to ensure the fulfillment of obligations in accordance with Art. 329 of the Civil Code of the Russian Federation, moreover, additional, applicable only in cases provided for by law or contract. In other words, the penalty cannot be applied in all cases of violation of civil obligations. Also, the presence of the debtor's fault in itself cannot be a basis for collecting a penalty, since a penalty as one of the ways to ensure the fulfillment of obligations can be applied only in cases provided for by law or an agreement (Article 329, Article 330, Article 332 of the Civil Code of the Russian Federation).

Thus, for customers making purchases under Law N 223-FZ, the collection of a penalty is a right, not an obligation.

The procedure for the execution of contracts, including the procedure for the responsibility of the customer and supplier (contractor, performer) for non-fulfillment or improper fulfillment of obligations stipulated by the contract (including delays in obligations under the contract) under Law No. These legal relations are not directly regulated by Law No. 223-FZ.

That is, if the section on the procedure for the execution of contracts of the Procurement Regulations does not indicate that the customer must in case of unfair fulfillment by the supplier of the obligations stipulated by the contract, to apply to such supplier a penalty in the form of forfeits (fines, penalties), then the application of the measures of responsibility indicated in the question to the supplier is not mandatory for the customer.

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According to the terms of the contract for the supply of goods, concluded in accordance with the procurement regulations and Federal Law of July 18, 2011 N 223-FZ, the customer had to pay within 10 days from the date of delivery, but did not fulfill his obligations. The contract contains only general provisions on liability for failure to fulfill obligations, referring to civil law.
Do the provisions on forfeit established by the Civil Code of the Russian Federation apply in this case?

After considering the issue, we came to the following conclusion:
In this situation, the provisions of the Civil Code of the Russian Federation apply to the relations of the parties. The seller (supplier) has the right to demand from the customer, in particular, payment of the debt with the penalty accrued on him, and if the contract does not provide for the penalty, with interest accrued on the overdue amount under the Civil Code of the Russian Federation.

Rationale for the conclusion:
dated 18.07.2011 N 223-FZ "On the procurement of goods, works, services by certain types of legal entities" (hereinafter - Law N 223-FZ) does not determine the content of contracts concluded in accordance with it and, in particular, unlike 05.04. 2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs", does not contain provisions on the mutual responsibility of the parties to contracts concluded by the customer. By virtue of Law N 223-FZ, when purchasing, customers are guided, among other things, by the Russian Federation. The provisions of this (both general and relating to specific types of contracts) apply to contracts concluded in accordance with N 223-FZ.
A penalty (fine, penalty interest) is a sum of money determined by law or contract, which the debtor is obliged to pay to the creditor in case of non-fulfillment or improper fulfillment of the obligation, in particular in case of delay in fulfillment (the Civil Code of the Russian Federation). If neither the law nor the agreement of the parties (agreement) provides for a penalty, there are no grounds to demand its payment. However, in this case, the general measures of liability provided for by law for breach of obligations may be applied to the debtor. In particular, according to the Civil Code of the Russian Federation, in the event that the buyer does not fulfill the obligation to pay for the transferred goods within the time period established by the contract and otherwise is not provided for by the Civil Code of the Russian Federation or the contract of sale, interest is payable on the overdue amount in accordance with the Civil Code of the Russian Federation from the day when according to the contract, the goods had to be paid for, before the day of payment for the goods by the buyer. These provisions are fully applicable to contracts concluded in accordance with N 223-FZ (see, for example, the Arbitration Court of the Far Eastern District of 04/05/2016 N F03-226 / 16, the Arbitration Court of the North-Western District of 01/21/2016 N F07 -2871/15).

Prepared answer:
Legal Consulting Service Expert GARANT
Chashina Tatiana

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Aleksandrov Alexey

The material was prepared on the basis of an individual written consultation provided as part of the Legal Consulting service.

Federal Law 223-FZ

FINES UNDER 223-FZ

On May 16, 2014, Federal Law No. 122-FZ “On Amendments to the Code of the Russian Federation on Administrative Offenses” came into force, providing for administrative liability for failure to comply with the norms of 223-FZ when carrying out procurement activities of customers falling under the 223-FZ. The law was developed by the Federal Antimonopoly Service.

Depending on the violation, the fine for officials will be from 2 to 50 thousand rubles, for legal entities - from 5 to 500 thousand rubles.

In addition, in the case of repeated purchases of non-electronic goods, works and services, the procurement of which must be carried out in electronic form, the official responsible for the procurement may be fined or disqualified for up to 1 year.

Officials subject to liability are understood as persons performing the functions of organizing and carrying out procurement, incl. members of the procurement committee.

CRIMINAL LIABILITY OF CUSTOMERS

In addition to the administrative, there is also criminal liability for crimes in the field of public procurement, including for organizations engaged in procurement in accordance with 223-FZ.

Such crimes can be qualified under the following articles of the Criminal Code of the Russian Federation:

• fraud (art. 159);
• misappropriation or waste (Article 160);
• extortion (art. 163);
• prevention, restriction or elimination of competition (art. 178);
• coercion to make a transaction or to refuse to make it (Article 179);
• abuse of power (art. 201);
• commercial bribery (art. 204);
• abuse of official powers (art. 285).