From July 1 of this year, procurement under 223-FZ will begin to take place according to new rules. The procedure for conducting tenders with the participation of natural monopolies, public law and state companies, state unitary enterprises and municipal unitary enterprises was changed by Law dated December 31, 2017 No. 505-FZ.

So, the main innovations in procurement legislation:

1. The term “non-competitive procurement” was introduced. This is any procurement, the methods of implementation of which are established by the procurement regulations and differ from the procedure for conducting competitive procurement.
   In turn, competitive procurement is a procurement that takes place while simultaneously complying with the following conditions:
   • Information about the procurement, together with a notice of its implementation and the attachment of the necessary documentation, is either posted in the public domain in the Unified Information System or sent to at least 2 potential participants with an invitation to participate;
   • The organizers of the auction guarantee competition to their participants;
   • When describing the auction item, its main technical and quality characteristics are indicated. At the same time, it is not allowed to present requirements to participants for the presence of certain trademarks and other means of individualization if their presence reduces the circle of potential bidders and does not affect their fulfillment of their obligations as a result of procurement procedures.


2. The methods of procurement are specified. These are competitions, auctions, requests for proposals or quotations, which can take place in open, closed or electronic form. At the same time, it was established that other procurement methods may be determined by the regulations on its implementation.


3. A “standard procurement regulation” has been introduced. It contains information that cannot be changed during the development of tender documentation. Namely:
   • Requirements for preparing and conducting tenders;
   • Methods of procurement procedures, procedure and features of their application;
   • The time allotted for concluding a contract based on the results of the auction.
   This provision is approved by a government agency vested with the powers of the founder of a budgetary, autonomous institution and performing its functions. As well as a government agency or organization that has the right to manage the property of a unitary enterprise on behalf of the Russian Federation. Within fifteen days from the date of approval, the standard procurement regulation is published in the Unified Information System.


4. The operating procedure of the electronic platform for competitive procurement, including with the participation of medium and small businesses, has been determined.


5. The criteria for classifying procurements as closed tenders have been clarified. These are procurements, information about which is a state secret or their closed status is established by the Government of the Russian Federation.


6. The list of legal relations to which 223-FZ does not apply has been expanded. These include purchases of works, goods, and services by a foreign company, provided that such a company participates in tenders for the purpose of conducting its activities in the territory of the country of registration.


7. The list of information that is not placed in the UIS has been added. It includes information about procurement, the subject of which is contracts for sale, lease or sublease, trust management of municipal or state property, and other agreements fixing the transfer of rights to use or own real estate.


8. The priority of procurement information posted in the Unified Information System is established over tender information contained in corporate information systems in the field of procurement, as well as in municipal and regional information systems.


9. Departmental control has been established over procurement by government agencies, the rights of the owner of the property of which belong to them.

It should be emphasized that control over all procurement is carried out by the antimonopoly agency in accordance with the provisions of the Law on Protection of Competition and 223-FZ. FAS Russia explains that any auction participant has the right to appeal the unlawful actions of their organizers.

So, for example, you can file a complaint with the FAS Russia in the following cases:

1. Violations of the norms of 223-FZ during the organization and conduct of tenders, as well as violations of procurement provisions;


2. Absence in the Unified Information System of all data on the procurement: regulations on it, changes made to it, documents, information on its results;


3. Presentation of requirements to bidders that contradict the terms of the tender documentation;


4. Conducting tenders without procurement regulations posted in the Unified Information System.

You can also appeal to the FAS Russia the procedure for posting information about auctions and the procedure for sending applications for participation in them. At the same time, both procurement participants and persons who are not participants can do this, provided that they file a complaint before the deadline for submitting applications for participation expires. There is no time limit for submitting complaints from bidders.

Complaints received by the antimonopoly authority are considered by the FAS Russia commission within the framework of the arguments set out in them. Based on the results, the commission decides whether the complaint is justified or not. If, when considering a complaint, the commission establishes other violations in the actions of the customer that are not indicated in the complaint, it makes a decision taking into account all the factual circumstances of the case. If necessary, issues orders to eliminate identified violations.

The peculiarity of Law 223-FZ is that it establishes only certain frameworks within which the customer is given freedom of choice. But while this is a benefit for experienced buyers, it raises many questions for beginners. In this material, we tried to present basic information about corporate procurement in an easy and accessible way.

Difference from 44-FZ

The strict law 44-FZ, according to which state and municipal customers are required to conduct procurement, creates much less choice. In contrast, work under 223-FZ assumes:

• that customers independently develop rules for conducting procurement procedures, which are prescribed in Procurement Regulations;
• that the person entrusted with procurement may be any specialist of the organization(no specialized education required);
• that tenders can be organized on any electronic trading platforms(there are more than 150 of them).

Who does Law 223-FZ apply to?

If we simplify the provisions of paragraph 2 of Article 1 of Law 223-FZ and present them in accessible language, then all customers can be divided into three groups:

Registration in ERUZ EIS

From January 1, 2019 to participate in tenders under 44-FZ, 223-FZ and 615-PP registration is required in the ERUZ register (Unified Register of Procurement Participants) on the EIS (Unified Information System) portal in the field of procurement zakupki.gov.ru.

We provide a service for registration in the ERUZ in the EIS:

1. State companies and corporations, subjects of natural monopolies. The share of state participation in such organizations is more than 50%.
2. Subsidiaries of the organizations specified in paragraph 1, in which the share of the state parent is more than 50%. And also the daughters of the subsidiaries themselves on the same conditions.
3. State and municipal unitary enterprises and budgetary institutions - regarding procurement on your own income or received grants, as well as in cases where they themselves are executors of contracts and involve third parties under the contract.

Preparation for procurement activities

Before making purchases, the customer can go through preparatory stage. It consists of several steps:

1. Obtaining an electronic digital signature. To do this, you need to contact any certification center that issues a cap for trading.
2. Registration on the government procurement website zakupki.gov.ru.
3. Development and approval of the Procurement Regulations.
4. Drawing up a procurement plan and publishing it in the Unified Information System (on the government procurement website).
5. Getting to know your EIS personal account and setting it up.

As for, it needs to provide for the following:

1. Methods used by the customer to determine the supplier.
2. The order of procedures.
3. Everything about timing.
4. Supplier evaluation criteria.
5. The procedure for concluding, amending and terminating a contract.
6. Payment order.
7. Responsibility of the parties and the procedure for resolving disputes.

Publication of information in the EIS

Law 223-FZ requires the customer to place in the Unified Information System not only the Procurement Regulations, but also other documents:

• procurement plans,
• purchase notices,
• documentation, including a draft agreement,
• protocols that are drawn up during the procurement.

There is information that is in the EIS cannot be posted. This is the purchasing information:

• related to state secrets;
• included in the list from Government Order No. 2027-r.

In addition, the customer has the right not to publish procurement information in the Unified Information System if the contract price less than 100 thousand rubles. And if the revenue is more than 5 billion rubles per year, then you don’t have to place purchases with a price up to 500 thousand rubles. Since 2018, it has been permitted not to publish information about some other purchases related to property management and the placement of funds on deposits.

The most important thing for the customer

The main thing to remember is the need to place the Procurement Regulations in the Unified Information System. If this is not done, the customer will lose the right to purchase under 223-FZ. In this case, its procurement activities will be regulated by law 44-FZ.

Another important point - comply with all deadlines. They are:

• The procurement regulations, as well as its changes, must be placed in the Unified Information System within 15 days from the date of approval;
• permission to place a procurement notice is given 20 days before the closing date for applications;
• to post changes to the notice - 3 days;
• placement of procurement documentation is carried out along with the publication of the notice;
• clarifications that the customer gives in response to requests from participants are published no later than 3 days from the date of receipt of the request;
• protocols that are drawn up during the procurement must be posted within 3 days;
• permission to publish the signed agreement is given 3 days;
• changes made to the contract are posted no later than 10 days;
• - not later than 10th(over the past month);
• once a year - until February 1 year following the reporting year - the customer publishes a procurement report from SMEs.

Minimum deadlines have also been established for accepting applications from participants. They vary depending on the type of procedure and whether the supplier is an SME. We have presented these deadlines in the following table.

In the summer of 2011, Federal Law No. 223-FZ of July 18, 2011 “On the procurement of goods, works, and services by certain types of legal entities” was adopted (hereinafter - Federal Law No. 223), which comes into force on January 1, 2012. Therefore, individual legal entities were given five months to prepare for the new procurement rules. But time passes and 2012 will come very soon.

Federal Law No. 223 consists of only eight articles, but there are no fewer discussions about its provisions than when Federal Law No. 94-FZ of July 21, 2005 “On placing orders for the supply of goods, performance of work, and provision of services for state and municipal needs” was adopted. (hereinafter referred to as Federal Law No. 94). Regarding the provisions Federal Law No. 223 you can come across quite a lot of statements: some call it “clumsy”, others simply do not understand it.

Nevertheless, no matter how imperfect it was, it was still necessary to restore order in procurement carried out by individual legal entities.

Federal Law No. 223 aimed at improving the procurement activities of individual legal entities. Adoption Federal Law No. 223 contributes to ensuring openness and transparency in the placement of orders, expanding opportunities for the participation of individuals and legal entities in procurement carried out by individual legal entities, and developing fair competition.
In this article we will highlight main aspects of Federal Law No. 223, which individual legal entities should pay attention to.

Who is covered by Federal Law No. 223

IN Federal Law No. 223 a clear list of legal entities that are subject to the provisions of this law has been established.

Among such persons Federal Law No. 223 refers:

1. State corporations and state-owned companies;
2. Subjects of natural monopolies;
3. Organizations carrying out regulated activities in the field of electricity supply, gas supply, heat supply, water supply, sanitation, wastewater treatment, disposal (disposal) of solid household waste;
4. State unitary enterprises and municipal unitary enterprises;
5. Autonomous institutions;
6. Business companies in the authorized capital of which the share of participation of the Russian Federation, a constituent entity of the Russian Federation, or a municipal entity in the aggregate exceeds fifty percent;
7. Subsidiary business companies, in the authorized capital of which more than fifty percent of the shares in the aggregate belong to all of the above legal entities;
8. Subsidiary business companies, in the authorized capital of which more than fifty percent of the shares in the aggregate belong to the subsidiary business companies specified in clause 7.

As it was before

Previously, the procurement process of the above persons (hereinafter referred to as customers) was regulated by many different acts. Today for all these customers Federal Law No. 223 establishes uniform principles for the procurement of goods (works, services). Thus, as part of their procurement activities, customers must ensure:

• information openness of procurement;
• equality, fairness, absence of discrimination and unreasonable restriction of competition in relation to procurement participants;
• targeted and cost-effective spending of funds for the purchase of goods, works, services (taking into account, if necessary, the cost of the life cycle of the purchased products) and the implementation of measures aimed at reducing the customer’s costs;
• no restrictions on access to participation in procurement by establishing non-measurable requirements for procurement participants.

What Federal Law No. 223 does not regulate

It is important to note that relations related to the purchase and sale of securities and currency values, the purchase by the customer of exchange-traded goods on a commodity exchange, procurement in the field of military-technical cooperation, the purchase of goods, works, services in accordance with the international treaty of the Russian Federation, the placement of orders by the customer for the supply of goods, performance of work, provision of services in accordance with Federal Law No. 94, as well as the customer’s selection of financial organizations for the provision of financial services and the customer’s selection of an audit organization to conduct a mandatory audit of accounting (financial) statements, Federal Law No. 223 are not regulated (Part 4 of Article 1 of Federal Law No. 223).

Who can take part in the procurement

All suppliers participating in the procurement of the above customers Federal Law No. 223 identified as procurement participants.
According to Part 5 of Art. 3 Federal Law No. 223 a procurement participant can be:

• any legal entity or several legal entities acting on the side of one procurement participant, regardless of the organizational and legal form, form of ownership, location and place of origin of capital;
• any individual or several individuals acting on the side of one procurement participant;
• an individual entrepreneur or several individual entrepreneurs acting on the side of one procurement participant.

As indicated Federal Law No. 223, all the above participants must meet the requirements set by the customer.

Methods that Federal Law No. 223 allows to be used when purchasing goods, works, and services

It is noteworthy that Federal Law No. 223 as possible methods of placing an order, indicates only open competition and auction center (parts 2 and 3 of article 3 of Federal Law No. 223). At the same time, there is no mention of the possibility of purchasing using the help anywhere, but there is a clause according to which the Government of the Russian Federation has the right to establish a list of goods, works, services, the purchase of which is carried out in electronic form ( Part 4 Art. 3 Federal Law No. 223). Most likely, we should wait for the release of an additional regulatory act.

The legislator left customers the right to use other procurement methods (in addition to a tender or auction), but on the condition that the method of procurement and the procedure for its implementation by the customer will be specified in Procurement Regulations.

Procurement Regulations

Federal Law No. 223 indicates that customers, when purchasing goods (works, services), must be guided by a number of regulatory documents. These include: Constitution of the Russian Federation, Civil Code of the Russian Federation, Federal Law No. 223, as well as other federal laws and other regulatory legal acts of the Russian Federation. In addition, the legislator talks about one more document that the customer must follow. This document is called Procurement Regulations. In this case, customers are obliged to independently develop and approve it ( Part 3 Art. 2 Federal Law No. 223).

According to Part 2 of Art. 2 Federal Law No. 223 Procurement Regulations should become a key document regulating the customer’s procurement activities and 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, as well as other provisions related to ensuring procurement.

Based on the analysis of Part 4 of Article 8 Federal Law No. 223, it follows that the customer is given a period of three months from the date of entry into force for the development and placement of the Procurement Regulations Federal Law No. 223. However, if the customer does not develop and place Procurement Regulations, then he has the right when purchasing goods, works, services be guided by the provisions of Federal Law No. 94, but only until the approved Procurement Regulations.

In addition to development Procurement Regulations It is the customer's responsibility to compose and post plan for the procurement of goods, works, services for a period of at least one year. The procedure for the formation and timing of placement of such a plan must be approved by the Government of the Russian Federation. It has also been established that from January 1, 2015, plans for the purchase of innovative products, high-tech products and medicines will be placed by the customer for a period of five to seven years.

Generation of procurement documents

IN Federal Law No. 223 there is no detailed description of procurement procedures, as provided for by the provisions of Federal Law No. 94. It is understood that the main issues of procurement with their full regulation must be independently identified and described in detail in Procurement Regulations.

By design Federal Law No. 223 customers, just as when working with Federal Law No. 94, must generate a procurement notice, documentation, a draft contract, which is an integral part of the procurement notice and procurement documentation, as well as protocols drawn up during the procurement. At the same time, in Federal Law No. 223 it is determined what the notice and procurement documentation should contain, as well as the procedure for making changes to the notice and procurement documentation (Parts 9, 10, 11 of Article 4 of Federal Law No. 223). There are deadlines for providing clarifications of the provisions of the documentation (Part 11, Article 4 of Federal Law No. 223).

Where should procurement information be posted and within what time frame?

Procurement regulations, plans, procurement notice, procurement documentation, draft contract, changes made to the notice and documentation, explanations of documentation, protocols drawn up during the procurement, as well as other information about the procurement must be posted on the official website www.zakupki. gov.ru. At the same time, the legislator left the opportunity for customers to duplicate procurement information on the customer’s website. The procedure for posting procurement information on the official website www.zakupki.gov.ru must be established by the Government of the Russian Federation. Wherein part 3 art. 8 Federal Law No. 223 determined that until July 1, 2012 Procurement Regulations, changes made to the Regulations, procurement plans, as well as other information about the procurement can be posted on the customer’s website. After July 1, 2012, all of the above information must be posted on the official website www.zakupki.gov.ru.

But before posting information, customers must register on the website www.zakupki.gov.ru. However Federal Law No. 223 does not regulate this procedure and indicates that the procedure for registering customers on the official website www.zakupki.gov.ru will be determined by the federal executive body authorized by the Government of the Russian Federation to maintain the official website.
The customer has the right not to post on the official website information about the purchase of goods, works, services, the amount of which:

• does not exceed one hundred thousand rubles;
• does not exceed five hundred thousand rubles, but provided that the customer’s annual revenue for the reporting financial year is more than five billion rubles.

If the customer organization is created after the effective date Federal Law No. 223, then the customer must, within three months from the date of registration of this organization in the unified state register of legal entities, approve and post the Procurement Regulations on the official website www.zakupki.gov.ru.

If the total share of participation of the Russian Federation, a constituent entity of the Russian Federation, or a municipal entity in the authorized capital of business entities has changed, the total share of participation of legal entities specified in clause 1 of part 2 of Art. 1 Federal Law No. 223 in the authorized capital of subsidiary business companies, the total share of these subsidiary business companies in the authorized capital of their subsidiary business companies, as a result of which these companies are subject to Federal Law No. 223(regarding relations arising in connection with the procurement of goods, works, services), the Procurement Regulations are posted on the official website www.zakupki.gov.ru within three months from the date of receipt of notification of a change in the total share.

It is noteworthy that in Federal Law No. 223 there are no sanctions in case the customer does not comply with the above deadlines for placement Procurement Regulations on the official site. On the contrary, the legislator provides customers with an additional way out of the situation, indicating that if the customer does not comply with the deadlines for posting the Procurement Regulations (three months), then he must be guided by the provisions of Federal Law No. 94 during the procurement until he has approved and posted the Regulations about procurement ( Art. 8 Federal Law No. 223).

New register of unscrupulous suppliers

Based on the analysis of provisions Federal Law No. 223, expected that in Russia we will have two registers of unscrupulous suppliers ( part 7 art. 3 Federal Law No. 223). To the already existing register maintained by the FAS of Russia for state and municipal customers working under Federal Law No. 94, another register of unscrupulous suppliers will be added for the persons specified in Part 2 of Art. 1 Federal Law No. 223.

The grounds for including participants in such a register are essentially identical to the procedure regulated by Federal Law No. 94. The register of unscrupulous suppliers includes information about procurement participants who have evaded concluding contracts, as well as about suppliers (executors, contractors) with whom contracts are concluded by decision ships were terminated due to a significant violation of their contracts ( Art. 5 Federal Law No. 223). Information contained in the register of unscrupulous suppliers is also excluded from this register after two years from the date of their entry into the register.

Wherein Federal Law No. 223 gives customers the right to establish a requirement that the procurement participant must not be in the new register of unscrupulous suppliers and (or) in the register of unscrupulous suppliers provided for by Federal Law No. 94.

Appealing the customer's actions

Federal Law No. 223 provides for three cases in which a procurement participant has the right to appeal the actions (inaction) of the customer to the antimonopoly authority:

• if the customer has not posted it on the official website www.zakupki.gov.ru Procurement Regulations, changes made to the Regulations, as well as other procurement information to be posted on the official website, and also if the customer violates the deadlines for such posting;
• if the customer requires procurement participants to submit documents not provided for in the procurement documentation;
• if the customer purchases goods, works, services in the absence of something approved and posted on the official website www.zakupki.gov.ru Procurement Regulations and without applying the provisions of Federal Law No. 94.

In this case, the procurement participant has the right when purchasing goods, works, and services.

In conclusion, we note that it is difficult to determine the purpose of this law: whether it is for the benefit of state corporations, natural monopolies and other entities, or to expect even greater problems from it.

On the one side, Federal Law No. 223 extremely liberal: it turns out that if you don’t want to develop a Procurement Regulation, work according to Federal Law No. 94, and there is no responsibility. Almost all Federal Law No. 223 built on general phrases that, with a skillful approach, can be used to please yourself. So, for example, with procurement methods that the customer himself can, at his discretion, establish in Procurement Regulations. Each customer will put their own content into them, which may complicate the participation of potential suppliers in procurement. That is, how the entire procurement process will be structured depends entirely on the customer himself.

On the other hand, precisely because of the general phrases contained in Federal Law No. 223, questions arise regarding the procurement process.

First of all, in Federal Law No. 223 There are absolutely no approximate parameters by which the customer can be guided when choosing a method for placing an order. Customers are also concerned about the question: will the competition and auction be subject to the provisions of Federal Law No. 94? By what criteria should customers evaluate applications from participants? If a competition is held, will it be possible to rely on Decree of the Government of the Russian Federation of September 10, 2009 No. 722? The procedure for appealing the actions (inactions) of the customer is also unclear. Yes, Federal Law No. 223 speaks of such a possibility, but will the provisions of Chapter 8 of Federal Law No. 94 apply to purchases carried out by state corporations, state-owned companies, natural monopolies, etc.?

Of course, the concerns of customers can be understood, but, on the other hand, Federal Law No. 223 gives customers freedom. He does not put them in a strict framework, so if the customer wants to purchase according to a competition regulated by Federal Law No. 94, and evaluate applications in accordance with the Decree of the Government of the Russian Federation of September 10, 2009 No. 722, then he simply describes this in detail in Procurement Regulations with the addition, perhaps, of something new, our own. The main thing is that there is no discrimination against participants; the requirements for them are reasonable and do not limit competition.

One thing is clear, that in addition to Federal Law No. 223 other normative and legal acts will necessarily be adopted, specifying individual provisions of this law.

And one last thing. Some customers will still be able to breathe a little sigh of relief, since not everyone must apply this law from January 1, 2012. For some customers, there is a so-called “delay” in the application period Federal Law No. 223.

Duration of application of Law No. 223	Entity	Provided that....
	Natural monopolies and organizations carrying out regulated activities in the field of electricity supply, gas supply, heat supply, water supply, water disposal and wastewater treatment, recycling (disposal) of solid household waste	the total revenue from these types of activities is no more than ten percent of the total revenue for 2011 from all types of activities
	Subsidiary business companies	more than 50% of the authorized capital belongs to state corporations, state-owned companies, natural monopolies, organizations engaged in regulated activities, state unitary enterprises, state autonomous institutions, business companies in which the state's share of participation is more than 50%, subsidiaries of these subsidiaries of business companies with a participation share of more than 50 %.
	Municipal unitary enterprises and autonomous institutions created by municipalities
	Business companies in the authorized capital of which the share of participation of the municipal entity is more than 50%	an early deadline is not provided for by the representative body of the municipality
	Subsidiary business companies, in which more than 50% belongs to municipal unitary enterprises and business companies, in which more than 50% belongs to the municipal entity	an early deadline is not provided for by the representative body of the municipality
	Subsidiary business companies of the above-mentioned subsidiary business companies, the share of which is more than 50%	an early deadline is not provided for by the representative body of the municipality
In all other cases - from 01/01/2012.

Mezina Alla Alexandrovna
Specialist of the Unified Center for Consultations on Government Procurement,
legal consultant at the Orientir legal center

December 21, 2011

Do you have any questions about procurement in accordance with Federal Law No. 223 or how to develop Procurement Regulations? You can talk to ECHC specialists about this topic.

Procurement according to the rules of Federal Law N 223-FZ “On the procurement of goods, works, services by certain types of legal entities” (Safokhina E.S.)

Article posted date: 04/15/2016

A number of organizations in the Russian Federation carry out tenders according to the rules of the Federal Law of July 18, 2011 N 223-FZ “On the procurement of goods, works, services by certain types of legal entities” (hereinafter referred to as Law N 223-FZ). Thus, on the website zakupki.gov.ru you can find information about bidding not only under Law No. 44-FZ, but also under Law No. 223-FZ.

Let's consider the features of procurement in accordance with Law N 223-FZ, as well as the differences between this method and procurement carried out in accordance with Law N 44-FZ.

Law N 223-FZ applies to the following categories of customers:

State corporations;

State companies;

Subjects of natural monopolies;

Organizations carrying out regulated activities in the field of electricity supply, gas supply, heat supply, water supply, sewerage, wastewater treatment, processing, disposal, neutralization and disposal of municipal solid waste;

State unitary enterprises;

Municipal unitary enterprises;

Autonomous institutions;

Business companies in the authorized capital of which the share of participation of the Russian Federation, a constituent entity of the Russian Federation, or a municipal entity in the aggregate exceeds 50%;

Subsidiary business companies, in the authorized capital of which more than 50% of shares in the aggregate belong to the above-mentioned legal entities;

Subsidiary business companies, in the authorized capital of which more than 50% of the shares in the aggregate belong to the above-mentioned subsidiary business companies;

Budget institutions.

It should be noted that budgetary institutions make purchases using subsidies for the implementation of government tasks according to the rules of Law No. 44-FZ. However, according to Part 2 of Art. 15 of Law N 44-FZ, budgetary institutions can use a “double” procurement regime: purchases carried out using funds received from income-generating activities can be carried out in accordance with Law N 223-FZ.

So, Law N 223-FZ establishes general principles for organizing procurement. One of its main requirements is that the customer must accept and post on the website zakupki.gov.ru the procurement regulations approved for the organization in the prescribed manner (hereinafter referred to as the Regulations). Regulations are the main document that regulates the procurement procedure: it 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, as well as other related security procurement provisions.

Considering the huge role of this document, even before submitting an application, you need to study the Regulations of the customer in whose bidding the supplier wants to participate.

There are no uniform requirements for the development of the Regulations. Each organization compiles it independently, taking into account the specifics of its activities. At the same time, according to Part 3 of Art. 2 of Law N 223-FZ, the head of a given organization does not always approve it himself. Some customers draw up Regulations similar to the norms of Law N 44-FZ, while others use all the possibilities provided by Law N 223-FZ.

In the procurement system under Law N 223-FZ, several features can be distinguished in comparison with Law N 44-FZ.

In accordance with Art. 447 of the Civil Code of the Russian Federation, the main procedures are auction and competition. Their exclusion from the Regulations is unacceptable. In addition to these procedures, the customer has the right to make purchases by any other means: request for quotations, request for proposals, competitive negotiations, etc.

Notice of a competition or auction is posted no less than twenty days before the closing date for filing applications for participation in the competition or auction. This basic rule is expressly stated in Law No. 223-FZ.

According to Law N 44-FZ (Article 33), the description of the procurement object should not include requirements or instructions regarding trademarks, service marks, trade names, patents, utility models, industrial designs, the name of the place of origin of the goods or the name of the manufacturer. When making purchases according to the rules of Law N 223-FZ, the customer has the right to purchase a specific specific product indicating its brand and model. Such purchases are not a violation if they are not subject to antitrust laws.

Law N 223-FZ has its own List of goods, works and services, the purchase of which is carried out in electronic form. This List was approved by Decree of the Government of the Russian Federation of June 21, 2012 N 616 “On approval of the List of goods, works and services, the purchase of which is carried out in electronic form.” It applies to any method of procurement other than an auction. At the same time, Law No. 223-FZ does not contain other requirements for conducting procedures in electronic form. Thus, the Law does not prohibit electronic procurement using the customer’s own software and hardware.

The Regulations may expand the list of grounds for purchasing from a single supplier. The legislator allows two cases of purchasing from a single supplier: a small purchase amount and a purchase under certain circumstances. Based on the meaning of paragraph 15 of Art. 4 of Law N 223-FZ “small purchase” - this purchase is for an amount not exceeding 100 thousand rubles. (or 500 thousand rubles, if the customer’s annual revenue is more than 5 million rubles). The customer may include in certain circumstances those provisions that are important to the organization. For example, the purchase of vehicle maintenance services or insurance services, etc. Thus, the customer has the right to significantly expand the list of grounds for purchasing from a single supplier compared to Art. 93 Law No. 44-FZ.

The Decree of the Government of the Russian Federation of November 28, 2013 N 1085 “On approval of the Rules for evaluating applications, final proposals of participants in the procurement of goods, works, services to meet state and municipal needs” establishes the maximum values ​​for the significance of the criteria for evaluating applications for participation in the competition according to the rules of Law N 44-FZ. According to this Resolution, the main criteria are cost. Law N 223-FZ does not regulate the procedure for evaluating applications and thus gives customers the freedom to set their own rules. In particular, the customer may not take cost criteria into account at all when evaluating applications.

When purchasing, the customer has the right to establish a requirement that there is no information about procurement participants in the registers of unscrupulous suppliers. Such registers are maintained both in accordance with Law N 223-FZ and in accordance with Law N 44-FZ. In the notice, the customer can indicate both registers or one of them.

According to the Letter of the Ministry of Economic Development of the Russian Federation dated October 2, 2015 N D28i-2884 “On clarifications related to the application of the Federal Law of April 5, 2013 N 44-FZ”, the amount stipulated by the contract concluded in accordance with Law N 44- Federal Law must be paid to the winner of the purchase in the amount established by the contract, regardless of whether the contractor uses a simplified taxation system or whether the contractor pays VAT.

At the same time, according to the Regulations of a specific customer, it may be stipulated that the initial contract price is formed excluding VAT, and, as a result, the supplier’s proposals are submitted excluding VAT. And when concluding a contract, the price may be adjusted depending on the tax regime of the winner.

Law N 223-FZ provides that, based on the results of the procurement, the customer can enter into contracts with several suppliers, thereby dividing the planned volume of technical specifications “umbrella procurement”.

So, on the one hand, Law N 223-FZ provides great opportunities for the customer to make purchases. However, on the other hand, FAS is increasingly recording cases of violation by the customer of its own Regulations. The procurement regulations are mandatory for execution by both the customer and the supplier.

After the publication of the article “In the New Year with a New Procurement Procedure,” dedicated to the Federal Law of July 18, 2011 N 223-FZ “On the procurement of goods, works, services by certain types of legal entities” (hereinafter referred to as Law N 223-FZ), many readers specialists began to ask questions about the application of Law N 223-FZ.

The most popular questions are answered by leading experts of the Center for Tax and Legal Consulting of the IRBiS Group of Companies, Ekaterina Lebedeva and Olesya Loktionova.

1. To which organizations and from what date does Law No. 223-FZ apply?

According to Art. 8 of Law N 223-FZ, the deadlines upon which the provisions of this Law become mandatory for the legal entities provided for therein vary depending on the type of these legal entities.

So, from January 1, 2013 The provisions of Law N 223-FZ are applied by the following organizations specified in Part 7 of Art. 8: - enterprises carrying out activities related to the sphere of activity of natural monopolies, and (or) regulated activities in the field of electricity, gas, heat, water supply, water disposal and wastewater treatment, recycling (disposal) of solid household waste, which the total revenue from these types of activities is no more than 10% of the total revenue for 2011 from all types of activities carried out by such organizations;

- subsidiary business companies, more than 50% of the authorized capital of which collectively belongs to state corporations, state companies, subjects of natural monopolies, organizations, state unitary enterprises, state autonomous institutions, business companies, in the authorized capital of which the share of participation of the Russian Federation, a subject of the Russian Federation exceeds 50% , to the subsidiary business companies of these subsidiary business companies, in the authorized capital of which the share of these subsidiary business companies in the aggregate exceeds 50%.

From January 1, 2014(unless an earlier deadline is provided by the representative body of the municipality) the provisions of Law No. 223-FZ apply (Part 8 of Article 8): - municipal unitary enterprises;

- autonomous institutions created by municipalities;

- business companies in the authorized capital of which the share of participation of the municipal entity in the aggregate exceeds 50%;

- subsidiary business companies, more than 50% of the authorized capital of which in the aggregate belongs to municipal unitary enterprises, business companies, in the authorized capital of which the share of participation of the municipal entity in the aggregate exceeds 50%;

- subsidiary business companies of the said subsidiary business companies, in the authorized capital of which the share of participation of the said subsidiary business companies in the aggregate exceeds 50%.

All other legal entities must be guided by the provisions of Law N 223-FZ, starting from January 1, 2012. Such organizations include: - state corporations;

- state companies;

- state unitary enterprises;

- state autonomous institutions.

2. What documents must organizations develop in order to comply with the provisions of Law N 223-FZ?

First of all, organizations must develop and approve procurement regulations. This important document regulates the customer’s procurement activities and contains procurement requirements, including the procedure for preparing and conducting procurement procedures (procurement methods) and the conditions for their application, as well as the procedure for concluding and executing contracts.

In addition, by analogy with 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 also referred to as Law N 94-FZ), customers must also develop procurement notice, a package of documentation accompanying procurement activities (for each procurement method), a draft contract, which is an integral part of the procurement notice and procurement documentation, protocols drawn up during the procurement. The content of the notice and procurement documentation must comply with the requirements of Part. 9-11 art. 4 of Law No. 223.

Organizations will be guided by these documents when making purchases, and therefore it is very important that they comply with the current legislation of the Russian Federation and take into account the interests of the customer.

3. What procurement methods can be used?

Law N 223-FZ provides for two main methods of procurement: auction and competition. It is also possible to carry out procurement in electronic form, in this case the list of such goods, works and services is established by the Government of the Russian Federation (Part 4 of Article 3 of Law No. 223-FZ).

At the same time, we would like to note that Law No. 223-FZ does not contain a closed list of procurement methods. So, according to Part 3 of Art. 3 of Law N 223-FZ in the procurement regulations other procurement methods may be provided. This could be, for example, a request for price proposals, competitive negotiations, procurement through participation in procedures organized by product sellers, etc.

The customer must establish in the procurement regulations the procedure for procurement in the specified ways, including the procedure for preparing and conducting procurement procedures and the conditions for their application, as well as the procedure for concluding contracts.

4. Who will control procurement activities?

Article 6 of Law No. 223-FZ provides that control over compliance with the requirements of this Law is carried out in the manner established by the legislation of the Russian Federation. According to Part 10 of Art. 3 of Law N 223-FZ and clause 1 of the Government of the Russian Federation of 02/20/2006 N 94 “On the federal executive body authorized to exercise control in the field of placing orders for the supply of goods, performance of work, provision of services for federal state needs” function of appealing the Customer's actions or inaction is entrusted to the Federal Antimonopoly Service.

5. How can an organization protect itself from unscrupulous suppliers?

Based on Part 7 of Art. 3 of Law N 223-FZ, the customer has the right to establish a requirement that there is no information about procurement participants in the register of unscrupulous suppliers provided for in Art. 5 of Law N 223-FZ and (or) in the register of unscrupulous suppliers provided for by Law N 94-FZ.

The register of unscrupulous suppliers is maintained by the FAS of Russia on the official website “www.zakupki.gov.ru” (Part 1, Article 5 of Law No. 223-FZ and Clause 5.3, Clause 5, Section II of the Regulations on the Federal Antimonopoly Service, approved by resolution Government of the Russian Federation dated June 30, 2004 N 331).

According to Part 2 of Art. 5 of Law N 223-FZ, the register of unscrupulous suppliers includes information about the performers: - who avoided concluding contracts;

- with whom contracts were terminated by a court decision due to a significant violation of the terms of these contracts.

The list of information included in the register of dishonest suppliers, the procedure for customers to send information to the FAS, the procedure for maintaining the register of dishonest suppliers, the requirements for technological, software, linguistic, legal and organizational means of ensuring the maintenance of the register are contained in the Regulations on maintaining the register of dishonest suppliers and on the requirements for technological , software, linguistic, legal and organizational means of ensuring the maintenance of a register of unscrupulous suppliers, approved. Decree of the Government of the Russian Federation dated May 15, 2007 N 292.

In accordance with Part 6 of Art. 5 of Law N 223-FZ inclusion of information about a procurement participant who has evaded concluding a contract, about a supplier (executor, contractor) with whom the contract was terminated due to a significant violation of the contract by him in the register of unscrupulous suppliers or the content of such information in the register of unscrupulous suppliers may be appealed by the interested party in court.

6. Will the conclusion of contracts by an intermediary (agent) on behalf of a customer (principal), subject to Law N 223-FZ, be considered a violation of Law N 223-FZ, on the basis of an agency agreement without tendering from 01/01/2012?

In accordance with Part 1 of Art. 2 of Law N 223-FZ when purchasing goods, works, services, customers specified in Part 2 of Art. 1 of Law N 223-FZ, are obliged to be guided directly by the norms of this law, other federal laws and other regulatory legal acts of the Russian Federation, as well as procurement regulations approved by the customers themselves.

Law N 223-FZ does not define the procurement procedure itself, but only instructs customers to develop and approve procurement regulations. It is this document that will regulate their procurement activities.

Accordingly, the customer has the right to determine in the procurement regulations the procedure for purchasing, including from a single counterparty, the services of an agent, who himself will not be obliged to follow the provisions of Law No. 223-FZ.

In the situation under consideration, the actions of the agent when concluding contracts on his behalf, but in the interests of the customer (Article 105 of the Civil Code of the Russian Federation) will not be subject to Law No. 223-FZ.

7. Does a legal entity subject to the regulation of Law N 223-FZ, from January 1, 2012 until the approval and placement of the procurement regulations in the prescribed manner, have the right to conduct procurement, guided by the existing procurement regulations?

Law N 223-FZ comes into force on January 1, 2012, with the exception of Part 3 of Art. 4, coming into force on January 1, 2015 (Parts 1, 2, Article 8 of Law No. 223-FZ).

Some categories of customers specified in Part. 5-8 tbsp. 8 of Law N 223-FZ, apply the provisions of this Law from later dates, but if your organization is not one of these, then according to the general rule (Part 4 of Article 8 of Law N 223-FZ), the customer must place an approved provision on procurement within three months from the date of entry into force of this Law.

Otherwise from April 1, 2012 until the date of publication of the approved procurement regulations the customer will have to be guided by the provisions of Law No. 94-FZ.

Thus, Law No. 223-FZ does not provide instructions that until April 1, 2012 the customer is obliged to be guided by any other documents. Law N 223-FZ requires customers to approve procurement provisions, but says nothing about the possibility of applying previously approved provisions.

In connection with the above, we believe that until April 1, 2012, the customer has the right to make purchases on the basis of the previously existing provision.

In addition, we believe that the approval of a new procurement regulation, which, in fact, may duplicate the existing one, is unnecessary. The customer must check it for compliance with Law N 223-FZ, indicate that it was adopted in accordance with the said law and place it on its website (Part 3 of Article 8 of Law N 223-FZ).

8. What liability does a legal entity face for violating the deadlines for posting procurement regulations, as well as when concluding contracts for the purchase of goods, works, services without holding appropriate tenders, auctions and other procedures?

Please note that the purchase of goods (work, services), taking into account the requirements of Law N 223-FZ, should be carried out only by organizations listed in Part 2 of Art. 1 of the said law.

According to Part 2 of Art. 2 of Law N 223-FZ, the procurement regulations must regulate the procedure for preparing and conducting procurement procedures (including procurement methods) and the conditions for their application. Within the meaning of Part 5 of Art. 8 of Law No. 223-FZ, if the customer does not approve the procurement regulations before April 1, 2012, he will have to apply the provisions of Law No. 94-FZ.

Customers who switch to Law N 94-FZ are also subject to liability for violating the placement methods established by this law.

With regard to the responsibility of the customer, subject to the regulation of Law N 223-FZ, when concluding contracts for the purchase of goods, works, services without holding appropriate tenders, as well as in the absence of procurement regulations, the following must be indicated.

Any procurement participant has the right to appeal to the antimonopoly authority and in court the procurement of goods, works, services by the customer in the absence of a procurement regulation approved and posted on the official website and without applying the provisions of Law No. 94-FZ (Parts 9, 10 of Art. 3 of Law N 223-FZ).

It is important to know that in accordance with Part 5 of Art. 3 of Law N 223-FZ, a procurement participant is any individual or legal entity. In this regard, the acceptance by the customer of the procurement regulations will allow us to narrow the circle of potential participants in the order to persons who meet the requirements established by the customer in their regulations.

Please note that in accordance with Part. 5, 15, 16 tbsp. 4 of Law N 223-FZ, information about any purchase exceeding a certain amount (100,000 or 500,000 rubles depending on revenue) that is not related to state secrets and not defined by the Government of the Russian Federation as one about which information is not posted is subject to posting.

For violation of the requirements of Law No. 223-FZ and other regulatory legal acts of the Russian Federation adopted in accordance with it, the perpetrators are liable under the legislation of the Russian Federation (Article 7 of Law No. 223-FZ).

We note that so far administrative or other liability for procurement in a manner that does not comply with the procurement regulations approved by the organization has not been established by law, however, we believe that soon this liability will be provided for by amending the legislation of the Russian Federation by analogy with Law No. 94- Federal Law.

9. Does the customer have the right to conduct procurement in the period before approval and placement in the prescribed manner of the procurement regulations provided for by Law N 223-FZ?

Law N 223-FZ does not indicate a specific date from which customers are required to make purchases based on the procurement regulations. However, from a literal reading of the provisions of the Law, we can conclude that the purchase of goods, works, and services from January 1, 2012 must be carried out in accordance with the procurement provisions developed and approved by the customers themselves.

As we already wrote above, by virtue of Part 4 of Art. 8 of Law N 223-FZ, if by April 1, 2012 the customer does not post the approved procurement regulations on the website, then he will be obliged to carry out the purchase in the manner prescribed by Law N 94-FZ, until the day the approved procurement regulations are posted.

What should be followed when conducting procurement before April 1, 2012, if the regulations have not yet been approved and posted on the website, is not established by law.

Based on the foregoing, we can conclude that Law No. 223-FZ does not prohibit procurement in the absence of a procurement provision and without the application of Law No. 94-FZ before April 1, 2012. Accordingly, in the period from January 1, 2012 to the specified date, purchases in the absence of an approved procurement regulation may be carried out in the same manner. However, there is currently no official clarification on this matter.

10. In accordance with the provisions of Law N 223-FZ, the Federal State Unitary Enterprise is obliged to develop a procurement regulation by 04/01/2012. Is this procurement regulation drawn up in relation to the acquisition of goods (works, services) at the expense of one’s own funds or only in relation to the acquisition of goods (works, services) at the expense of budget financing?

Law N 223-FZ does not contain any instructions in this regard, but only establishes general principles for the procurement of goods, works, services and basic requirements for the procurement of goods, works, services by certain types of legal entities, including state unitary enterprises (clause 1 part 2 article 1 of Law N 223-FZ).

In accordance with Part 1 1, 2 tbsp. 2 of Law N 223-FZ, the procurement activities of the customer are regulated by the procurement regulations adopted in accordance with the regulations of the Russian Federation and approved in the manner established by the specified law.

Part 4 of Article 1 of Law N 223-FZ contains a number of areas of activity to which Law N 223-FZ does not apply, since they are regulated by other laws. However, the Law does not contain restrictions on the application of Law N 223-FZ, depending on the sources of procurement financing, as well as regarding the content of the procurement regulations.

Moreover, the Ministry of Economic Development of Russia, in its Letter dated September 2, 2011 N D28-317, explained that for the purposes of applying Law N 223-FZ, the purpose of the purchase does not matter.

Consequently, the procurement regulations approved by the state unitary enterprise must regulate any procurements other than those carried out in the areas specified in Part 4 of Art. 1 of Law No. 223-FZ.

In conclusion, I would like to note that Law N 223-FZ, in comparison with Law N 94-FZ, is more liberal, since it does not contain such strict restrictions: if desired, the customer can develop a procurement regulation and work in accordance with it, and in the absence of such a desire - do not develop anything and work according to Law No. 94-FZ.

On the other hand, it is precisely because of the general phrases contained in Law N 223-FZ that in practice customers have many questions regarding its application and organization of the procurement process.

The concerns of customers are understandable, however, it is important to remember that Law No. 223-FZ provides exclusively framework regulation of procurement procedures and provides customers with a high level of independence in making decisions on the procurement procedure.

Many organizations will most likely be guided by the norms of Law N 94-FZ, but customers have the opportunity to develop individual procedures that will be most convenient for them and will also be able to take into account the industry specifics of their activities.

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