Read fz. 223 in the latest edition. On the procurement of goods, works, services by certain types of legal entities. Why public procurement laws are worth studying with comments
Article 1
1. The objectives of the regulation of this Federal Law are to ensure the unity of the economic space, create conditions for the timely and complete satisfaction of the needs of legal entities specified in Part 2 of this Article (hereinafter referred to as "customers") in goods, works, services with the necessary indicators of price, quality and reliability , efficient use of funds, expanding the opportunities for the participation of legal entities and individuals in the procurement of goods, works, services (hereinafter also referred to as procurement) for the needs of customers and stimulating such participation, developing fair competition, ensuring publicity and transparency of procurement, preventing corruption and other abuses.
2. Real the federal law establishes general principles procurement of goods, works, services and basic requirements for the procurement of goods, works, services:
1) state corporations, state companies, subjects of natural monopolies, organizations engaged in regulated activities in the field of electricity supply, gas supply, heat supply, water supply, sanitation, cleaning Wastewater, disposal (burial) of solid household waste, state unitary enterprises, municipal unitary enterprises, autonomous institutions, as well as business companies, in the authorized capital of which the share of participation Russian Federation, a constituent entity of the Russian Federation, a municipality in the aggregate exceeds fifty percent;
2) subsidiary business companies, in the authorized capital of which more than fifty percent of the shares in the aggregate belong to the legal entities specified in clause 1 of this part;
3) subsidiary economic companies, in the authorized capital of which more than fifty percent of the shares in the aggregate belong to the subsidiary economic companies specified in paragraph 2 of this part.
3. The procedure for determining the aggregate share of participation of the Russian Federation, a constituent entity of the Russian Federation, a municipality in the authorized capital of business companies, the aggregate share of participation of legal entities specified in paragraph 1 of part 2 of this article in the authorized capital of subsidiaries, the aggregate share of participation indicated in paragraph 2 of part 2 of this Article of subsidiaries in the authorized capital of their subsidiaries, as well as the procedure for notifying customers about a change in the total share of such participation, is approved by the federal executive body authorized by the Government of the Russian Federation, in agreement with the federal executive body responsible for developing state policy and legal regulation in the field of placing orders for the supply of goods, performance of work, provision of services for state and municipal needs.
4. This Federal Law does not regulate relations related to:
1) purchase and sale valuable papers and currency values;
2) the purchase by the customer of exchange goods on a commodity exchange in accordance with the legislation on commodity exchanges and exchange trading;
3) the implementation by the customer of placing orders for the supply of goods, performance of work, provision of services in accordance 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";
4) procurement in the field of military-technical cooperation;
5) procurement of goods, works, services in accordance with an international treaty of the Russian Federation, if such an agreement provides for a different procedure for determining suppliers (contractors, performers) of such goods, works, services;
6) selection by the customer of financial organizations for the provision of financial services in accordance with Article 18 of the Federal Law of July 26, 2006 N 135-FZ "On Protection of Competition";
7) selection by the customer of an audit organization to conduct a mandatory audit of the accounting (financial) statements of the customer in accordance with Article 5 of the Federal Law of December 30, 2008 N 307-FZ "On Auditing".
Article 2 Legal basis for the procurement of goods, works, services
1. When purchasing goods, works, services, customers are guided by the Constitution of the Russian Federation, the Civil Code of the Russian Federation, this Federal Law, other federal laws and other regulatory legal acts of the Russian Federation, as well as legal acts adopted in accordance with them and approved taking into account the provisions of part 3 of this article, regulating the procurement rules (hereinafter referred to as the procurement regulation).
2. 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, as well as other related securing the purchase position.
3. The Procurement Regulation is approved:
1) the supreme governing body of a state corporation or state company if the customer is a state corporation or state company;
2) the head of a unitary enterprise if the customer is a state unitary enterprise or a municipal unitary enterprise;
3) the supervisory board of an autonomous institution if the contracting authority is an autonomous institution;
4) the board of directors (supervisory board) of a business company if the customer is a joint-stock company, or a collegial executive body of such joint-stock company if the charter of a business company provides for the performance of the functions of the board of directors (supervisory board) by the general meeting of shareholders of the business company;
5) a general meeting of participants in the company if the customer is a limited liability company.
Article 3 Principles and main provisions of the procurement of goods, works, services
1. When purchasing goods, works, services, customers are guided by the following principles:
1) information openness of the procurement;
2) equality, fairness, absence of discrimination and unreasonable restrictions on competition in relation to procurement participants;
3) targeted and cost-effective spending of funds for the purchase of goods, works, services (taking into account, if necessary, the cost life cycle purchased products) and the implementation of measures aimed at reducing the costs of the customer;
4) the absence of restrictions on admission to participation in the procurement by establishing non-measurable requirements for procurement participants.
2. A notice of a tender or auction shall be posted in accordance with Part 5 of Article 4 of this Federal Law at least twenty days before the deadline for filing applications for participation in the tender or auction. The winner of the auction at the tender is the person who offered Better conditions execution of the contract in accordance with the criteria and procedure for evaluating and comparing bids that are established in the tender documentation on the basis of the procurement regulations, at the auction - the person who offered the lowest price of the contract or, if during the auction the price of the contract is reduced to zero and the auction is held for the right conclude a contract, the highest bidder contract.
3. The procurement regulations may provide for other (apart from a tender or auction) methods of procurement. In this case, the customer is obliged to establish in the procurement regulation the procedure for procurement by the indicated methods.
4. The Government of the Russian Federation has the right to establish a list of goods, works, services, the procurement of which is carried out in electronic form.
5. 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, or any individual or several individuals acting on the side of one procurement participant, including an individual entrepreneur or several individual entrepreneurs acting on the side of one procurement participant who meet the requirements established by the customer in accordance with the procurement regulations.
6. It is not allowed to make requirements to the procurement participants, to the purchased goods, works, services, as well as to the conditions for the execution of the contract, and to evaluate and compare applications for participation in the procurement according to the criteria and in the manner that are not specified in the procurement documentation. The requirements for procurement participants, for goods, works, services to be purchased, as well as for the conditions for the execution of the contract, the criteria and procedure for evaluating and comparing applications for participation in the procurement, established by the customer, apply equally to all procurement participants, to the goods they offer , works, services, to the terms of the performance of the contract.
7. When purchasing, the customer has the right to establish a requirement that there is no information about the participants in the procurement in the register of unscrupulous suppliers provided for in Article 5 of this Federal Law, and (or) in the register of unscrupulous suppliers provided for by Federal Law No. 94-FZ of July 21, 2005 "On placement orders for the supply of goods, performance of work, provision of services for state and municipal needs.
8. The Government of the Russian Federation has the right to establish the priority of goods Russian origin, works, services performed, rendered by Russian persons, in relation to goods originating from a foreign state, works, services performed, provided by foreign persons, taking into account the customs legislation of the Customs Union and international treaties of the Russian Federation, as well as the peculiarities of participation in the procurement of subjects small and medium business.
9. The procurement participant has the right to appeal in court the actions (inaction) of the customer in the procurement of goods, works, services.
10. The procurement participant has the right to appeal to the antimonopoly body in the manner established by the antimonopoly body, the actions (inaction) of the customer in the procurement of goods, works, services in the following cases:
1) non-posting on the official website in the information and telecommunications network "Internet" for posting information on placing orders for the supply of goods, performance of work, provision of services (www.zakupki.gov.ru) (hereinafter referred to as the official website) of the procurement regulations, changes, information on the procurement, which is subject to placement on such an official website in accordance with this Federal Law, or violations of the terms of such placement;
2) presenting a requirement to the procurement participants to submit documents that are not provided for by the procurement documentation;
3) purchases of goods, works, services by customers in the absence of a procurement regulation approved and posted on the official website and without applying the provisions 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.
Article 4 Procurement information support
1. The Procurement Provision, changes made to the said provision shall be subject to mandatory posting on the official website no later than within fifteen days from the date of approval.
2. The customer places on the official website a plan for the purchase of goods, works, services for a period of at least one year. The procedure for the formation of a plan for the procurement of goods, works, services, the procedure and terms for posting such a plan on the official website, the requirements for the form of such a plan are established by the Government of the Russian Federation.
3. Procurement plan for innovative products, high-tech products, medicines is placed by the customer on the official website for a period of five to seven years.
4. The criteria for classifying goods, works, services as innovative products and (or) high-tech products for the purposes of forming a plan for the purchase of such products are established by the federal executive authorities exercising the functions of legal regulation in the established field of activity.
5. When purchasing, information about the purchase is posted on the official website, including a notice of purchase, purchase documentation, a draft contract, which is an integral part of the notice of purchase and purchase documentation, changes made to such a notice and such documentation, clarifications of such documentation , protocols drawn up during the procurement, as well as other information, the placement of which on the official website is provided for by this Federal Law and the procurement regulations, except as provided for in parts 15 and 16 of this article. In the event that during the conclusion and execution of the contract, the volume, price of the purchased goods, works, services or the terms of the contract are changed in comparison with those specified in the protocol drawn up on the basis of the results of the procurement, no later than within ten days from the date of making changes to the contract on the official the site contains information about the change in the contract indicating the changed conditions.
6. Procurement regulations may provide for other additional information to be posted on the official website.
7. The customer is additionally entitled to post the information specified in this article on the customer's website in the information and telecommunications network "Internet".
8. A notice of procurement, including a notice of an open tender or an open auction, is an integral part of the procurement documentation. The information contained in the procurement notice must correspond to the information contained in the procurement documentation.
9. The notice of purchase must contain, among other things, the following information:
1) method of procurement (open tender, open auction or other method provided for by the procurement regulations);
2) name, location, postal address, e-mail address, contact telephone number of the customer;
3) the subject of the contract, indicating the quantity of goods supplied, the volume of work performed, services rendered;
4) place of delivery of goods, performance of work, provision of services;
6) the term, place and procedure for the provision of procurement documentation, the amount, procedure and terms for paying the fee charged by the customer for the provision of documentation, if such a fee is established by the customer, except for cases of providing documentation in the form of an electronic document;
7) the place and date of consideration of the proposals of the procurement participants and summarizing the results of the procurement.
10. The procurement documentation must contain the information specified in the procurement regulation, including:
1) quality requirements set by the customer, technical specifications goods, works, services, their safety, functional characteristics (consumer properties) of the goods, dimensions, packaging, shipment of goods, results of work and other requirements related to determining the conformity of the goods supplied, work performed, services provided to the needs of the customer;
2) requirements for the content, form, execution and composition of the application for participation in the procurement;
3) requirements for the description by the procurement participants of the supplied goods, which are the subject of procurement, its functional characteristics (consumer properties), its quantitative and qualitative characteristics, the requirements for the description by the procurement participants of the work performed, the service provided, which are the subject of procurement, their quantitative and qualitative characteristics ;
4) place, conditions and terms (periods) of delivery of goods, performance of work, provision of services;
5) information on the initial (maximum) contract price (lot price);
6) the form, terms and procedure for payment for goods, work, services;
7) the procedure for forming the price of the contract (price of the lot) (with or without taking into account the costs of transportation, insurance, payment of customs duties, taxes and other obligatory payments);
8) the procedure, place, start date and end date of the deadline for filing applications for participation in the procurement;
9) requirements for procurement participants and a list of documents submitted by procurement participants to confirm their compliance with the established requirements;
10) forms, procedure, start date and end date of the period for providing the procurement participants with clarifications of the provisions of the procurement documentation;
11) the place and date of consideration of the proposals of the procurement participants and summing up the results of the procurement;
12) criteria for evaluation and comparison of applications for participation in the procurement;
13) the procedure for evaluating and comparing applications for participation in the procurement.
11. Changes made to the procurement notice, procurement documentation, clarifications of the provisions of such documentation are posted by the customer on the official website no later than within three days from the date of the decision to make these changes, the provision of these clarifications. If the purchase is carried out by bidding and changes in the notice of purchase, the purchase documentation are made by the customer later than fifteen days before the deadline for filing applications for participation in the purchase, the deadline for filing applications for participation in such a purchase must be extended so that from the date of posting on the official website of the changes made to the procurement notice, procurement documentation until the deadline for filing applications for participation in the procurement, such a period was at least fifteen days.
12. The protocols drawn up during the procurement are posted by the customer on the official website no later than three days from the date of signing such protocols.
13. In the event that, during the maintenance of the official website by the federal executive body authorized to maintain the official website, technical or other problems occur that block access to the official website for more than one working day, information to be posted on the official website in accordance with this Federal the law and the procurement regulation, is placed by the customer on the customer's website with its subsequent placement on the official website within one working day from the date of elimination of technical or other problems blocking access to the official website, and is considered to be placed in the prescribed manner.
14. Placed on the official website and on the website of the customer in accordance with this Federal Law and the procurement regulations, information on procurement, procurement regulations, procurement plans should be available for review without charging a fee.
15. Procurement information constituting a state secret shall not be posted on the official website, provided that such information is contained in a procurement notice, procurement documentation or in a draft contract, as well as procurement information on which a decision of the Government of the Russian Federation was made in in accordance with paragraph 16 of this article. The customer has the right not to post on the official website information on the purchase of goods, works, services, the cost of which does not exceed one hundred thousand rubles. If the annual revenue of the customer for the reporting financial year is more than five billion rubles, the customer has the right not to post on the official website information on the purchase of goods, works, services, the cost of which does not exceed five hundred thousand rubles.
16. The Government of the Russian Federation has the right to determine:
1) a specific purchase, information about which does not constitute a state secret, but is not subject to placement on the official website;
2) lists and (or) groups of goods, works, services, information on the purchase of which does not constitute a state secret, but is not subject to placement on the official website.
17. The procedure for the preparation and adoption of acts of the Government of the Russian Federation in accordance with part 16 of this article is established by the Government of the Russian Federation.
18. Placement by customers on the official website of information on the purchase is carried out free of charge. The procedure for posting information on the procurement on the official website is established by the Government of the Russian Federation. The procedure for registering customers on the official website is established by the federal executive body authorized by the Government of the Russian Federation to maintain the official website.
19. The customer, no later than the 10th day of the month following the reporting month, places on the official website:
1) information on the number and total cost of contracts concluded by the customer as a result of the procurement of goods, works, services;
2) information on the number and total cost of contracts concluded by the customer as a result of procurement from a single supplier (executor, contractor);
3) information on the number and total cost of contracts concluded by the customer as a result of the procurement, information about which constitutes a state secret or in respect of which decisions of the Government of the Russian Federation have been made in accordance with part 16 of this article.
Article 5 Register of dishonest suppliers
1. The register of unscrupulous suppliers is maintained by the federal executive body authorized by the Government of the Russian Federation on the official website.
2. The register of unscrupulous suppliers includes information about procurement participants who evaded concluding contracts, 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.
3. The list of information included in the register of unscrupulous suppliers, the procedure for customers to send information about unscrupulous procurement participants, suppliers (performers, contractors) to the federal executive body authorized to maintain the register of unscrupulous suppliers, the procedure for maintaining the register of unscrupulous suppliers, requirements for technological, software , linguistic, legal and organizational means to ensure the maintenance of the register of unscrupulous suppliers are established by the Government of the Russian Federation.
4. The information contained in the register of unscrupulous suppliers should be available for review on the official website without charging a fee.
5. The information contained in the register of unscrupulous suppliers, after two years from the date of their entry into the register of unscrupulous suppliers, shall be excluded from this register.
6. The inclusion of information about the procurement participant who evaded the conclusion of the contract, about the supplier (executor, contractor) with whom the contract was terminated due to a material breach of the contract, in the register of unscrupulous suppliers or the content of such information in the register of unscrupulous suppliers may be appealed by an interested person judicially.
Article 6 Monitoring compliance with the requirements of this Federal Law
Control over compliance with the requirements of this Federal Law shall be carried out in accordance with the procedure established by the legislation of the Russian Federation.
Article 7
For violation of the requirements of this Federal Law and other normative legal acts of the Russian Federation adopted in accordance with it, the guilty persons shall be liable in accordance with the legislation of the Russian Federation.
Article 8 The procedure for the entry into force of this Federal Law
1. This Federal Law shall enter into force on January 1, 2012, with the exception of Part 3 of Article 4 of this Federal Law.
3. Until July 1, 2012, unless a different period is provided for by a decision of the Government of the Russian Federation, the procurement regulations, changes to such regulations, procurement plans, other procurement information subject to placement in accordance with this Federal Law and the procurement regulation official website are placed on the customer's website. After July 1, 2012, unless a different period is provided for by a decision of the Government of the Russian Federation, the procurement regulation, changes to such provision, procurement plans, other procurement information subject to placement on the official website in accordance with this Federal Law and the procurement regulation are posted on the official website.
4. If, within three months from the date of entry into force of this Federal Law, the customer (except for the customers specified in Parts 5–8 of this Article) has not placed the approved procurement regulation in the manner established by this Federal Law, the customer, upon procurement is guided by the provisions 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" until the date of placement of the approved procurement regulation.
5. The customer, created after the date of entry into force of this Federal Law, approves the procurement regulation within three months from the date of its registration in the Unified State Register of Legal Entities. If, within the specified period, such a customer has not placed an approved procurement regulation in accordance with the requirements of this Federal Law, the customer shall be guided by the provisions of Federal Law No. 94-FZ of July 21, 2005 "On placing orders for the supply of goods, performance of , provision of services for state and municipal needs" until the day of placement in accordance with the requirements of this Federal Law of the approved procurement regulation.
6. In the event of a change in the total participation share of the Russian Federation, a constituent entity of the Russian Federation, a municipal formation in the authorized capital of business entities, the total participation share of legal entities specified in paragraph 1 of part 2 of Article 1 of this Federal Law in the authorized capital of subsidiaries, the aggregate share of these subsidiaries companies in the authorized capital of their subsidiaries, as a result of which the provisions of this Federal Law apply to relations arising in connection with the purchase of goods, works, services by the customer, the customer, within three months from the date of receipt of notification of a change in the aggregate share in accordance with Part 3 of Article 1 of this Federal Law places an approved procurement regulation in accordance with the requirements of this Federal Law. If such a customer does not place an approved procurement regulation within this period, the customer, when purchasing, is guided by the provisions of Federal Law No. needs" until the day of placement in accordance with the requirements of this Federal Law of the approved procurement regulation.
7. Organizations carrying out activities related to the scope of activities of natural monopolies, and (or) regulated activities in the field of electricity supply, gas supply, heat supply, water supply, water disposal and wastewater treatment, disposal (burial) of solid domestic waste, if the total revenue from these types of activities is not more than ten percent of the total revenue for 2011 from all types of activities carried out by such organizations, as well as subsidiaries, more than fifty percent of the authorized capital of which in the aggregate is owned by state corporations, state companies, subjects of natural monopolies, organizations engaged in regulated activities in the field of electricity, gas supply, heat supply, water supply, sanitation, wastewater treatment, disposal (burial) of solid household waste, state unitary enterprises, state 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 exceeds fifty percent, subsidiaries of these subsidiary business companies, in the authorized capital of which the share of these subsidiary business companies in the aggregate exceeds fifty percent, apply the provisions of this Federal Law with January 1, 2013.
8. Municipal unitary enterprises, autonomous institutions established by municipalities, business companies, in the authorized capital of which the share of participation of the municipality in the aggregate exceeds fifty percent, subsidiary economic companies, more than fifty percent of the authorized capital of which in the aggregate belongs to municipal unitary enterprises, business companies, in the authorized capital of which the share participation of the municipal formation in the aggregate exceeds fifty percent, the subsidiary economic companies of the said subsidiary economic societies, in the authorized capital of which the share of participation of the said subsidiary economic societies in the aggregate exceeds fifty percent, shall apply the provisions of this Federal Law from January 1, 2014, if more than early term not provided by the representative body of the municipality.
9. From January 1, 2013 to January 1, 2015, purchase plans for innovative products, high-tech products, medicines are posted by customers on the official website for a three-year period.
President of Russian Federation
The changes that were made to the text of 223-FZ on procurement in the latest edition of 2020 are associated with a change in the planning period. Federal Law No. 263-FZ dated August 2, 2019 amended Part 3.1 of Art. 4 223-FZ and introduced the rule that the procurement plan is approved for 3 years. These amendments come into force on November 1, 2019.
From 07/31/2019, the latest version of Federal Law 223 on public procurement 2020 contains provisions that the money that was donated or donated, or inherited by the customer by will, is spent according to the procurement law. The main thing is to change the situation. It was allowed to correct it until 10/01/2019.
We collected in the table the changes that are only planned to be made to 223-FZ. They will come into effect in 2020.
What is a Procurement Law for?
Law 223-FZ on holding auctions by certain types of legal entities entered into force on 01.01.2012. It fixes the main provisions for conducting procurement procedures by a certain category of organizations. Purposes for which it was adopted:
- development of competition in the commodity market;
- rational use of funds;
- ensuring openness and transparency of trading;
- prevention of corruption and other abuses.
Learning the basics
Federal Law No. 223 FZ, as amended in 2020 and comments for dummies, establishes principles, including:
- Information accessibility of trading. This principle is general legal and is ensured by posting information on the Internet. On the official website for 223 Federal Law Procurement gov.ru published information about ongoing tenders. Among the sites on which bidding is carried out, we single out Fabrikant and B2B-center, and from the specialized ones - the trading floor according to 223 FZ Sberbank UTP and the Russian Railways trading floor.
- Equality, fairness and lack of restriction of competition in relation to tenderers. The organizer of the procedure ensures equal rights and opportunities for participants, excludes a selective approach in the selection of the winner.
- Efficient use of funds and reduction of customer costs. It means that customers strive to rationally spend money. But this is not about reducing prices, but about reducing overall costs.
- No restrictions for participants. It is forbidden to set non-measurable requirements. Avoid conditions (participant financial resources, production capacity) that are ambiguous or do not fully apply to participants.
Who is the customer
According to the law 223 FZ, customers include (article 3.1):
- state corporations, state companies and business entities, in the authorized capital of which the share of Russia exceeds 50%;
- other legal entities (subjects of natural monopolies, their subsidiaries and other legal entities) in case of sale investment projects with a total value of at least 10 billion rubles, which is supported by the state;
- budgetary institutions, state and municipal unitary enterprises (subject to the conditions listed in Article 1);
- federal state unitary enterprises (their list is approved by the Government).
Features of the auction
The first feature of orders under the current version of 223 FZ is Procurement Regulations. This document regulates the procurement activities of the customer and is approved on the basis of a model provision. It is published on the EIS website. The regulation includes the procedure for preparing and conducting procedures (including methods of orders) and the conditions for their application, the procedure for concluding and executing contracts, and others. important rules, such as those related to collateral. Approved by different authorities depending on the type of legal entity. For a state corporation or company - the supreme governing body, and for the state unitary enterprise, municipal unitary enterprise - their leaders.
The second feature is the complete information openness of trading. The law obliges to publish information in the EIS (procurement plan, notice, documentation and changes). It is allowed to publish information about the auction on the customer's website.
Federal Law No. 223 allows procedures to be carried out electronically. If they are held among small businesses, the customer is obliged to conduct them electronically. The customer prescribes in the regulation how the auction, tender, request for quotations and request for proposals are conducted without fail. The rest of the procedures are determined by him.
According to 223-FZ, the most reliable method to ensure the execution of a government contract is the use of bank guarantees. Being a kind of obligation, and not a settlement system between a client and a financial institution, guarantees act as an instrument. Its work is based on the fact that in case of non-fulfillment of obligations stipulated by the contract, the bank is a guarantor responsible for the financial part of the contract.
In accordance with Law No. 223-FZ, procurement from a single supplier should be understood as a method of making purchases by sending an application to a single supplier. This form of bidding is a method of non-competitive determination of a candidate for concluding a state contract, and in practice there may be significant corruption risks in relation to such a procedure. Therefore, the current legislation imposes significant restrictions on the possibility of using such purchases.
One of the most important issues for suppliers planning to become participants in the procurement under 223 Federal Law and organizations acting as a customer is the responsibility that they will incur in case of failure to fulfill their obligations and the penalties provided for under 223 Federal Laws provided for violations of the procurement rules in within the framework of this law.
In the practice of business turnover, it is customary to establish the following ways to ensure the execution of a contract: transferring a security deposit to a special account of the customer, as well as providing a bank guarantee. The current version of Law 223-FZ does not require the mandatory establishment of security for a contract concluded on a tender basis. However, this condition may be applied at the discretion of the customer.
With regard to a number of organizations from 01.01.2012, in accordance with the law 223-FZ, the obligation to select suppliers on the basis of a tender is established. The key difference between this Law and Law No. 44-FZ is the possibility for the customer to choose the forms of procurement, as well as the determination of the supplier not only by the criterion of the lowest cost, but also on the basis of other non-monetary parameters (quality of goods and services supplied, business reputation, composition of personnel, technical equipment, etc.).
Let's see what you need to know about securing an application for participation in auctions, competitions and tenders under 223-FZ. The organization of various auctions, tenders for government orders and competitions pursues several goals at once, namely, the most efficient distribution of budget funds, ensuring accessibility to government (and not only orders) a large number organizations and individuals and in order to form a transparent procurement market.
Federal Framework Law 223 allows contracting authorities to choose the types of competitive and non-competitive procedures they need to make purchases. One of the most famous and popular procurement methods is the request for price quotations.
Request for proposals under Federal Law No. 223 is one of the most common procurement methods used by large organizations. When requesting proposals from suppliers, the customer informs them in advance about his need for a particular product, and also invites potential contractors to compete for participation in the purchase. The contract is signed with the supplier that best meets the requirements of the purchaser.
There is 44-FZ, which regulates public procurement, and there is 223-FZ, which regulates the purchase of goods and services by companies with a state stake. Today, purchases under 223-FZ are several times higher than purchases under 44-FZ.
Customers under 223-FZ:
Law 223-FZ regulates absolutely all purchases of its subjects, regardless of the source of income. There are exceptions: the purchase and sale of securities, currency values, precious metals etc. (clause 4, article 1 of Law 223-FZ). 223-FZ does not regulate these purchases, they go beyond its scope. And budgetary institutions have their own characteristics.
Oleg Birulya, tender expert, comments: “Public institutions are organizations that operate within the framework of 44-FZ. According to 44-FZ, they spend state money. But these organizations have such financial resources that come in the form of additional earnings. For example, in the form of grants. Or from renting space - these are their extra-budgetary funds. There is one more case: when a budget institution is itself an executor under a contract. In these cases, budgetary institutions can apply 223-FZ instead of 44-FZ. But there are peculiarities: in the current year, a state employee can work according to 223-FZ only if he created a procurement regulation and placed it before the beginning of the year. If the provision is created and not posted before the beginning of the year, a state employee is not entitled to carry out procurement activities within the framework of 223-FZ.
This rule is common to all subjects of 223-FZ. If the procurement regulation is not accepted and not posted on time, they fall under 44-FZ. That is, the question is not whether I want or do not want to live according to 223-FZ, but whether I want to live according to 223 or 44? 44-FZ is applied by default.
Suppliers under 223-FZ. How to find orders
Any legal entity, individual, including an individual entrepreneur (IP) can be a procurement participant. Do you recognize? We have already talked about this, above in the article.
On the official website (Procurement Portal) there is a register of provisions on the procurement of customers who work according to 223-FZ. Purchase information is also posted here. For small businesses (SMEs), a list of goods, works and services that customers are required to purchase under 223-FZ from small and medium-sized enterprises has been published on the official resource.
Document flow in the procurement system according to 223-FZ
Customer documentation (obliged to develop and publish):
We recommend the video recording of the webinar "", if you are a customer and you need to understand how to develop a procurement regulation, make changes to it, what information to enter in the register of contracts under 223-FZ, how to draw up a procurement plan and other documentation for 223-FZ. You will also learn how and when to post information about the purchase on the Official Website.
There is also a Register of contracts under 223-FZ (Decree of the Government of the Russian Federation dated October 31, 2014 No. 1132 “On approval of the procedure for maintaining the register of contracts concluded by customers as a result of procurement”) - common for customers of “All Russia”, the register is maintained by the Treasury. There is a similar register in public procurement under 44-FZ. A supplier who can read will find much interesting and useful information about the activities of the customer.
Procurement Regulations under 223-FZ
By itself, the Federal Law of July 18, 2011 No. 223-FZ contains only eight articles. By by and large work under 223-FZ is regulated by the Regulation on Procurement, which the customer creates himself and in the future conducts his activities according to this provision.
Procurement Regulations - the procurement activity of the customer begins with this document, for him this is his own “law”. And for suppliers who want to take part in the procurement of this customer, it is also a law.
Customer actions:
The procurement regulations are also created by budgetary organizations that work jointly under 44-FZ and 223-FZ.
The customer has the right to adjust the procurement regulations as many times as he likes. When making changes on the official website, the customer must publish 2 documents:
If the customer does not apply either the procurement regulation or the norms of 44-FZ, there will be a fine (part 3 of article 7.32.3 of the Code of Administrative Offenses):
In this video advice, Oksana Shipunova, a specialist in the field of procurement under 223-FZ, talks about administrative responsibility if the requirements for the formation of a procurement regulation and its placement on the official website are not met, and if the provision was not applied during the purchase.
You will hear interesting comments about the practice of applying Part 3 of Art. 7.32.3 of the Code of Administrative Offenses of the Russian Federation, on the position of the FAS. For example, according to the FAS, even one purchase without a provision is a reason to transfer the materials to the prosecutor. This will entail an unscheduled inspection, in which fines will be issued for all such identified cases of procurement not according to the rules:
Participant Application
There is no clear list of requirements for the application, the customer has the right to form the requirements himself.
The supplier should carefully review the documentation, study the requirements for the application submitted by the customer, and already in accordance with these requirements draw up his application.
The customer has the right to establish requirements for procurement participants:
Procurement Regulations under 223-FZ: what should it contain?
223-FZ: electronic signature
The customer cannot work at all without electronic signature(EP). Because you need to publish documents and place purchases in a single information system. The supplier can find and read the Procurement Regulations, other documents, and, in fact, any purchases, but without an electronic signature, he will not be able to take part in them if the purchases are carried out electronically.
Order Electronic signature. It is accepted at more than 150 sites: according to 223-FZ, at all state sites, at commercial sites.
Everyone knows about the electronic signature in public procurement. With EP according to 223-FZ, everything is both simpler and more complicated at the same time. Easier, because there are no strict requirements for an electronic signature certificate (as in public procurement, where the requirements of 63-FZ and 44-FZ converge, and where there are different signatures for customers and suppliers). To participate in purchases under 223-FZ and to organize such purchases, you just need a qualified certificate. It is more difficult, because there are no strict requirements for an electronic signature certificate, and each customer, generally speaking, has the right to create his own electronic platform, develop his own requirements for participants in electronic procurement. Including the requirements for a certificate with which you can go to this site. And each site where purchases are made under 223-FZ also has the right to its opinion on certificates.
Therefore, when contacting a certification center for the purchase of an electronic signature certificate, be sure to inform the manager on which sites you are going to work. And then, having bought a certificate for a specific site, find out where else your certificate will be accepted. Perhaps at the same time you will find new purchases.
Online course ". Additional professional training program developed based on the requirements professional standard"Purchasing Specialist" Advanced training (72 hours)
- State corporations, state companies, subjects of natural monopolies,<…>, as well as business entities, in the authorized capital of which the share of participation of the Russian Federation, the constituent entity of the Russian Federation, the municipality is more than 50%. Simply put, if the state owns more than 50% of an organization, this organization operates within the framework of 223-FZ. Notice, not 49% or even 50%, but over 50%.
- Subsidiary business companies, in the authorized capital of which more than 50% belongs to the very organizations in which more than 50% belongs to the state. In practice, they are simply referred to as "daughters".
- Subsidiary business companies of subsidiaries of business companies<…>. And these are already “granddaughters”.
- Budget institutions:
- through grants, subsidies;
- as a contractor under the contract in the event that other persons are involved on the basis of the contract during the execution of this contract for the supply of GWS;
- at the expense of funds received in the course of carrying out other income-generating activities (for details about customers under 223-FZ, see clause 2, article 1 of Law 223-FZ).
- Procurement Regulations.
- Procurement plan.
- Purchase notice.
- Procurement documentation ( technical task, requirements for the content, form, execution and composition of the application, instructions for filling out the application by procurement participants, etc.).
- Develop and approve Procurement Regulations. It must necessarily describe in detail: methods of procurement, the procedure for preparing and conducting procurement, the procedure for concluding and executing contracts, as well as a list of GWS purchased from small businesses.
- Publish Procurement Regulations on www.zakupki.gov.ru.
- a new version of the procurement regulation;
- a document containing a list of changes made.
- for legal entities - 50,000 - 100,000 rubles;
- for officials - 20,000 - 30,000 rubles. Officials are any persons who perform the function of organizing and conducting the procurement procedure. And the customer himself must determine for himself which specific staff units and officials will be responsible for this or that composition of the Code of Administrative Offenses. By and large, these are persons who approve the procurement documentation or members of the procurement commission.
- lack of information about the procurement participants in the RNP under 223-FZ;
- lack of information about the procurement participants in the RNP under 44-FZ.
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One of the main goals of the formation of 223-FZ is to establish procurement rules for state-owned companies, as well as provide them with truly effective goods, works and services.
There are a number of state-owned institutions in Russia. They work mainly at the expense of budgetary funds, therefore they do not belong to commercial ones. For them, 44-FZ is provided, which also regulates purchases.
Another category of companies has a significant share of state participation. They are commercial organizations and belong to state-owned companies. Part of the income of such companies derived from profits goes to the procurement of goods, works and services. In this case, they are guided by 223-FZ.
The main objectives of regulation 223-FZ:
Obtaining the desired goods, works and services for the customer;
Effective planning of financial opportunities;
More opportunities for individuals and legal entities to participate in procurement;
Development of fair competition;
Open process monitoring;
Put obstacles to corruption schemes.
Purchases under 223-FZ
For the first time, Federal Law 223 entered into force on January 1, 2012. The content of the law is fixed in 8 articles, located on several pages. With the application of the principles of operation of the law in practice, new situations appear that require additional clarification.
That is why it is necessary to correct not only the points of the law, but also to introduce additional regulations. The latest amendments to 223-FZ were published on January 1, 2017.
Many customers have learned quite well to navigate the articles and provisions provided for by this law.
However, with the advent of new versions of the law, some procurement participants have difficulties related to the fact that their companies belong to the list of organizations that can operate within its framework.
Since Federal Law No. 223 is a framework law, it sets out only general principles and objectives for regulating procurement activities. Due to the fact that the actions of the parties are not specifically defined, many questions arise, the answers to which even experts cannot always give.
223-FZ with the latest changes and comments of 2017
For the past 6 years, public procurement participants have been constantly waiting for new changes. The updated provisions of the law for 2017 came into force on December 28, 2016. Some ideas could not be implemented this year, so the terms of the law will be revised again, the publication of which is expected in 2018.
Note the main changes in 223-FZ for the period of 2017:
Previously, the customer, among a wide variety of goods, could buy what he likes. Now, in the documentation that the customer provides to the participants, a clause is clearly indicated requiring accurate information about the product, including the country of manufacture. According to the new rules, preference is given to goods of Russian origin.
But if the participant cannot provide this kind of information, this does not mean that he was rejected. Simply, his proposal will be considered a bid offering goods of foreign origin. The size of the preference for goods of Russian origin will be 15% of the contract price for this purchase.
An innovation in 223-FZ was new form punishment of customers for non-compliance with the volume of purchases from small and medium-sized businesses (SMEs). A government decree defines the procedure for the participation of SMEs in procurement, and also establishes a minimum volume of purchases from such entities.
If the customer did not fulfill his obligations in 2017, or did not provide information on this item on time, during the next calendar year, his purchases will be carried out only according to 44-FZ.
Advantages of 223-FZ
Over the years, both customers and suppliers have identified a number of advantages of working under 223-FZ:
The customer is not required to indicate the reason for purchasing the purchase;
Procurement planning is provided only for a year;
Justification of the initial (maximum) purchase price is not required;
Purchasing in a small volume, up to 100 thousand rubles.
The customer himself makes up a convenient procedure for himself;
Indication of trademarks without a mandatory equivalent.
Who can participate in the work on 223-FZ?
The law itself clearly indicates the list of state-owned companies, corporations and a number of other institutions that may be participants in procurement under 223-FZ.
These include:
Individuals, registered as Individual Entrepreneurs (IP);
Legal persons. In this case, the form of organization of entrepreneurial activity does not matter. In addition, the location and source of capital also means nothing;
The composition of individuals, legal entities, as well as individual entrepreneurs presented as a single participant.
Any participant who decides to provide their goods, works and services must be well acquainted with the procurement regulation, which was developed for customers under 223-FZ. Also, the customer has the right not to accept an application from a supplier rejected from participation in procurement under 44-FZ.
The largest customers:
State corporations include: "Deposit Insurance Agency", "Bank for Development and Foreign Economic Affairs (Vnesheconombank)", "Russian Corporation of Nanotechnologies", corporation for atomic energy"Rosatom", "Russian Technologies", as well as a corporation for the construction of Olympic facilities and the development of the city of Sochi as a mountain climatic resort.
The state-owned companies are: Rosneft, Transneft, Aeroflot, Sberbank, VTB, RusHydro, IDGC Holding, Alrosa.
Subjects of natural monopolies: Gazprom, Russian Railways, Russian Post.
Organizations providing certain types of services for the population: water supply, gas supply, heat supply, etc.
Procurement Regulations under 223-FZ
Development, approval and work on the procurement regulation, drawn up by the customer himself, is a guide to his own actions. The better the customer is oriented in all documents, the less artificial restrictions he will impose on his own actions.
There are cases when some organizations, especially scientific ones, are already given ready position on purchases, which they themselves are not entitled to change.
Requirements for the procurement regulation under 223-FZ:
Purchasing requirements.
Procurement methods must be detailed.
The procedure for preparing and conducting purchases.
The procedure for the conclusion and execution of the contract.
Deadlines, sequence, procedure for considering applications, commission work and other additional requirements.
After the procurement regulation has been approved, it is posted in the EIS on the official website of public procurement within 15 days. Over time, the customer may begin to make changes to the provision. He has the right to do this, but at the same time, without fail, it must be again placed in the public domain of the EIS with a list of changes. Those auctions that are already being held at the time of publication of the new procurement regulation operate under the old regulation.
The provision developed by the customer indicates the method of procurement. If this is an open auction, then the notice developed in accordance with this provision must be published 20 days before the closing date of the application.
For serious participants, this is sufficient time to prepare their application.
After consideration of all applications, a competition is held to determine the winner. It is the participant who offered favorable conditions for the execution of the contract.
Electronic auction under 223-FZ
Conducting an electronic auction is the most common procurement method, which is chosen by many customers. In the documentation prepared by the customer, there is a clause in the content of which the method of conducting the purchase is indicated.
As in the case of a tender, a notice of an auction is also published in the EIS.
After consideration of applications and bidding, the winner is the person who offered the lowest price, or the highest for the right to conclude an agreement.
What applies to other methods of procurement under 223-FZ
Procurement methods can be divided into: competitive and non-competitive. It is among non-competitive methods that the customer chooses other methods. Competitive methods include standard methods with bidding: auction and competition.