Federal Law on Procurement 223. On Procurement of Goods, Works, Services by Certain Types of Legal Entities

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Federal Law "On the procurement of goods, works, services by certain types of legal entities" dated July 18, 2011 N223-FZ, in contrast to the federal law "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" dated April 05, 2013 N44-FZ does not define a clear procedure for conducting purchases, but only establishes general principles and rules for their conduct.

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General provisions of federal law 223-FZ

This normative act is designed to ensure the unity of the economic space in the country, create conditions for meeting the needs of certain types of legal entities in goods, works, services, the effectiveness of the implementation of funds, stimulating the participation of legal entities and individuals, ensuring the transparency of the procurement procedure and publicity, minimizing corruption and other violations of laws.

The following categories should be described in the procurement regulation:

• procurement methods;
• a plan for the preparation and conduct of procurement activities;
• order and contracts;
• list of purchased works, goods and services.

This provision should be placed in(single information system).

The second important document during the procurement is the procurement plan, which is drawn up for a period of at least one year. The plan must also be placed in a single information system.

The plan should contain information about purchases and the timing of their implementation.

In addition to the above documents, the following information should be placed in the EIS:

• about purchases;
• purchase documentation.

The unified information system must contain the Procurement Regulations, the procurement plan, notices and procurement documentation. Non-posting or violation of the rules in posting information in the EIS threatens with fines.

Reporting

According to Article 4 223-FZ, each customer must report on purchases on a monthly basis. There are 4 types of monthly reports:

• about the total concluded contracts;
• contracts with a single supplier;
• about the total price of contracts with state secrets or agreements concluded by decision of the Government of the Russian Federation;
• on the total value of contracts with small and

Public Procurement Law(both 44-FZ and 223-FZ) regulates the conditions and procedure for concluding transactions for the purchase of marketable products, the performance of work or the provision of services, where one of the parties is a public authority or an organization with state participation in capital. However, studying all the details can take quite a lot of time and is far from always advisable, because sometimes a brief description of the content, which we offer in our article, is enough.

Legislation on public procurement 2017-2018 (main documents)

Public procurement is an auction-competitive form of placing orders for the provision of commercial products, the performance of work or the provision of services for state / municipal needs. At the same time, the conditions for concluding a transaction are stipulated in advance in the trade documentation. Such a system is designed to regulate contractual relations between government customers and suppliers.

The core of the regulatory framework governing public procurement issues is the following legislative acts:

1. Law "On the contract system ..." dated April 5, 2013 No. 44-FZ.
2. Law "On the procurement of goods ..." dated July 18, 2011 No. 223-FZ.

The main differences between these regulations are that:

1. Law 44 on public procurement considers only state organizations as a customer, while procurement law 223-FZ also includes enterprises with a state share in the authorized capital and some budgetary organizations as customers.
2. The public procurement law 44-FZ fully regulates the procurement procedure, while the law 223-FZ contains reference norms to the procurement regulation for each specific case (clauses 2, 3, article 3 of law No. 223-FZ).
3. Methods of public procurement by Law No. 44-FZ are exhaustively defined, while Law No. 223-FZ leaves this choice to the customer.

Let's take a closer look at each piece of legislation.

Scope of the Procurement Law 44-FZ

Federal Law 44 on Procurement is quite detailed and voluminous. This is due to the fact that it regulates relations in the field of public procurement at all stages of the procurement procedure - from planning to control. The scope of application of Law No. 44-FZ is reflected in detail in Article 1.

According to the rules of the Law on Public Procurement No. 44-FZ, transactions must be made if the customer acts as a customer (clause 3, part 1, article 1):

• state body or body of municipal authority;
• management body of the state non-budgetary fund;
• budgetary or state institution;
• corporations "Rosatom" and "Roskosmos";
• state or municipal unitary enterprise (with some exceptions).

At the same time, the provisions of Law No. 44-FZ do not apply in cases (part 2 of article 1):

1. Execution of a transaction to receive the services of international financial institutions established in accordance with international agreements to which Russia is a party.
2. Conducting procurement in the process of ensuring the safety of witnesses, victims, judges, etc. (within the framework of the laws “On state protection of victims ...” dated 08.20.2004 No. 119-FZ and “On state protection of judges ...” dated 04.20.1995 No. 45-FZ) .
3. Acquisition of precious metals and precious stones to replenish the State Fund of Russia, including state funds of the constituent entities of the Russian Federation.
4. Providing or appointing a free lawyer to citizens.
5. Procurement by election commissions during elections, referendums (with a few exceptions, in accordance with paragraphs 6, 7 and 9 of part 2 of article 1).
6. In preparation for the 2018 FIFA World Cup and the 2017 Confederations Cup, in accordance with the requirements of paragraph 8 of part 2 of Art. one.

Summary of federal law 44 on public procurement

Law No. 44-FZ consists of 8 chapters, including 114 articles (120, counting with additions). Briefly, the content of the normative act in question can be divided into 2 parts:

Part 1

1. Chapter 1 is devoted to general provisions, is an introductory part of the law, which, among other things, determines the scope of the document, the basic concepts, the principles of the contract system, and the objectives of procurement. So, the law refers to the principles of the contract procurement system (Articles 6-12):

• openness and transparency in the field of information;
• ensuring competition;
• customer professionalism;
• unity of the contract system;
• other.

In addition, Chapter 1 regulates the nuances of procurement by certain legal entities (Article 15), which, in essence, is a distinction between their application of this law and Law No. 223-FZ.

1. Chapter 2 is devoted to planning in the field of procurement. For these purposes, the law determines the procedure for the formation of plans and schedules, making changes to them and the procedure for familiarizing interested parties with these documents.
2. Chapter 3 deals with procurement. This is the main part of the law, consists of 7 paragraphs, the provisions of which regulate:
   • general principles of procurement;
   • the procedure for determining the party to the transaction through tenders, auctions, requests for quotations and requests for proposals;
   • closed ways to determine the supplier;
   • order of purchases from a single supplier;
   • procedures for the execution, enforcement, modification and termination of the contract.

Part 2

The second part of the law is represented by chapters on control and supervisory procedures, the procedure for appealing against the actions of certain participants, as well as the specifics of certain types of procurement.

1. Chapter 4 defines the procedure for monitoring and auditing in the field of procurement.
2. Chapter 5 regulates the procurement control procedure, including:
   • establishing a list of regulatory bodies;
   • determination of the forms of control;
   • the procedure for exercising control;
   • rules for maintaining registers of contracts of the customer and unreliable suppliers.
3. Chapter 6 establishes a procedure for appealing against incorrect actions of procurement participants, including the procedure for filing / considering complaints and liability for violation of procurement legislation.
4. Chapter 7 discusses the features of the implementation of certain types of procurement.
5. Chapter 8 defines the final provisions, including:
   • the procedure for the development, formation and implementation of a unified information system for procurement;
   • transitional provisions for the period from 2014 to 2017;
   • entry into force of the law.

When does the procurement law 223-FZ apply?

The 223rd Law on Public Procurement since 2016 had a wider scope than the version currently in force. In accordance with the amendments made by the Law “On Amendments to Certain Legislative Acts…” dated 03.07.2016 No. 321-FZ, which entered into force on 01.01.2017, the unconditional procurement by state and municipal unitary enterprises was removed from the regulatory area of ​​the regulatory document in question.

Thus, the provisions of the law on public procurement No. 223-FZ are applied if the following entities with a state stake in their authorized capital exceeding 50% act as customers:

• state corporations, natural monopolies, public companies, autonomous institutions, business entities with more than 50% participation of public authorities;
• organizations carrying out regulated activities in the field of resource supply (water supply, electricity supply, etc.);
• subsidiaries with state participation in the capital of more than 50%;
• subsidiaries, more than 50% of the authorized capital of which is owned by subsidiaries with state participation in the capital of more than 50%.

In addition, according to the rules of Law No. 223-FZ, budgetary institutions, state unitary enterprises and municipal unitary enterprises can make purchases if:

1. They adopted a provision on procurement in accordance with the requirements of Art. 2 of Law No. 223-FZ.
2. Purchases are made:

• through grants;
• through subsidies from the budgets;
• on the part of budgetary organizations, state unitary enterprises and municipal unitary enterprises, as contractors under a contract with the involvement of other persons on the basis of an agreement for the execution of a concluded contract;
• State Unitary Enterprises, Municipal Unitary Enterprises are pharmacy organizations;
• from funds from other income-generating activities (for budgetary organizations).

Summary of the Procurement Law 223-FZ

In comparison with Law No. 44-FZ, Law No. 223-FZ is more compact. It consists of only 11 articles, each of which, however, is quite voluminous.

The norms of the law 223-FZ define:

• goals of regulation and relations regulated by the document;
• legal basis for procurement;
• principles and main points in the procurement;
• information support for procurement, including provisions on registers of contracts and unreliable suppliers;
• control measures during procurement;
• liability for violation of procurement laws.

Why are public procurement laws worth studying with comments?

As can be seen from the brief content of the documents under consideration, Law 223-FZ is in many respects similar in structure to Law No. 44-FZ. That is why it is very important to correctly distinguish between these regulations when conducting procurement in specific circumstances. A significant help in this matter can be the study of public procurement laws 44-FZ and 223-FZ with comments to them, which are generously offered both on paper and in electronic form on the Internet.

Thus, the brief content of these laws can only be of an auxiliary nature, helping to form only a general idea of ​​them. In actual application, it will be necessary not only to scrupulously study the acts, but also to turn to the help of legal commentaries and practice.

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

Difference from 44-FZ

The strict Law 44-FZ, under which state and municipal customers are required to conduct purchases, gives rise to much less choice. In contrast, work on 223-FZ involves:

• that customers independently develop rules for conducting procurement procedures, which are prescribed in Procurement Regulations;
• that the person entrusted with the procurement may be any specialist in the organization(professional education is not required);
• that bidding can be arranged on any electronic trading platforms(there are more than 150 of them).

Who is subject to the law 223-FZ

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

Registration in ERUZ EIS

From January 1 2020 years to participate in auctions under 44-FZ, 223-FZ and 615-PP registration required in the ERUZ 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 - over 50%.
2. Subsidiaries of the organizations referred to in paragraph 1, in which the share of the state parent is over 50%. As well as the daughters of the subsidiaries themselves on the same terms.
3. State and municipal unitary enterprises and budgetary institutions - in terms of procurement on 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 public procurement website zakupki.gov.ru.
3. Development and approval of Procurement Regulations.
4. Drawing up a procurement plan and publishing it in the EIS (on the public procurement website).
5. Acquaintance with the personal account of the EIS and its settings.

As for, then it must provide for the following:

1. Methods used by the customer to determine the supplier.
2. The order of the 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 EIS not only the Procurement Regulations, but also other documents:

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

There is information that in the EIS can't be posted. This is the purchasing information:

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

In addition, the customer has the right not to publish procurement information in the EIS if the price of the contract less than 100 thousand rubles. And if the revenue is more than 5 billion rubles a year, then you can not place purchases with a price up to 500 thousand rubles. Since 2018, it has been allowed not to publish information about some other purchases related to real estate management and the placement of funds on deposits and deposits.

The most important thing for the customer

The main thing to remember is - the need to post the Procurement Regulations in the EIS. If this is not done, then 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 Regulation, as well as its changes, must be placed in the EIS within 15 days from the date of approval;
• for placing a notice of purchase is given 20 days before the closing date for applications;
• to post changes to the notice - 3 days;
• placement of procurement documentation together with the publication of the notice;
• clarifications that the customer gives to the participants' requests 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;
• for the publication of the signed agreement is given 3 days;
• amendments to the contract are posted no later than 10 days;
• - not later than 10th(for the past month);
• once a year - before February 1 year following the reporting year - the customer places a procurement report from SMEs.

There are also minimum deadlines for accepting applications from participants. They vary depending on the type of procedure and whether the provider is a SME. These terms are presented in the following table.

44 FZ, 223 FZ - two laws that regulate most of the public procurement. On 07/01/2018, several Government Decrees came into force at once, which greatly changed not only the procurement laws themselves, but also the differences between them. This article will be useful to those who are just versed in the public procurement process and are trying to understand how public procurement under 44-FZ differs from requests under 223-FZ.

What is regulated

To begin with, we will analyze for whom both laws are written. So to speak, the rules of public procurement under 44 FZ and 223 FZ for dummies.

As before, Law No. 44 establishes the rules for the acquisition of various benefits by state customers. This area is called "Contract system".

223-FZ, in turn, contains norms for state corporations, natural monopolies, etc. If earlier it was of a framework nature, now its new edition clarifies many points that cannot be ignored.

Let's now answer the question: 44 and 223 FZ - what is the difference?

Table of differences

It is a difficult task to describe the content of two federal laws in a few words. But we will try. You already know in which cases both Federal Laws are used. Now let's consider what is the fundamental difference between 223 FZ and 44 FZ, the table divides the differences into stages of the procedure. So to speak, we compare in stages.

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, five months were given to individual legal entities 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 - Federal Law No. 94). Regarding the provisions Federal Law No. 223 you can find 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 put things in order in the purchases carried out by individual legal entities.

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

Who is subject to Federal Law No. 223

AT Federal Law No. 223 a clear list of legal entities to which the provisions of this law apply.

Among such persons Federal Law No. 223 relates:

1. State Corporations and State 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 (burial) 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, the subject of the Russian Federation, the municipality 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 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 paragraph 7.

As it was before

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

• information openness of the 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 purchased products) and the implementation of measures aimed at reducing customer costs;
• no restrictions on admission to participation in the procurement by establishing non-measurable requirements for procurement participants.

What is not regulated by Federal Law No. 223

It is important to note that the relations associated with the purchase and sale of securities and currency values, the purchase by the customer of exchange goods on the commodity exchange, the purchase 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, the performance of work, the provision of services in accordance with Federal Law No. 94, as well as the selection by the customer of financial organizations for the provision of financial services and the selection by the customer of an audit organization for a mandatory audit of accounting (financial) statements, Federal Law No. 223 are not regulated (part 4 of article 1 of the Federal Law No. 223).

Who can participate in the purchase

All suppliers involved 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 The procurement participant may be:

• any legal entity or several legal entities acting on the side of one procurement participant, regardless of the 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 of the above participants must meet the requirements set by the customer.

Methods that Federal Law No. 223 allows to use when purchasing goods, works, services

It is noteworthy that Federal Law No. 223 as possible ways of placing an order indicates only an open tender and auction center (parts 2 and 3 of article 3 of the Federal Law No. 223). At the same time, there is no mention of the possibility of making purchases using the help, 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 FZ No. 223). Most likely, we should wait for the release of an additional regulatory legal act.

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

Procurement Regulation

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 speaks of another document that the customer should be guided by. This document is called Procurement Regulation. At the same time, customers are obliged to independently develop and approve it ( Part 3 Art. 2 FZ No. 223).

According to part 2 of Art. 2 FZ No. 223 Procurement Regulation should become the key document regulating the procurement activities of the customer, and contain purchase 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 procurement security.

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 Regulation, 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 Regulation.

In addition to development Purchasing regulations It is the customer's responsibility to compile and place plan for the procurement of goods, works, services for a period of at least one year. The procedure for the formation and timing of the placement of such a plan must be approved by the Government of the Russian Federation. It was also 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.

Formation of procurement documents

AT Federal Law No. 223 there is no detailed description of the 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, the customer must independently identify and describe in detail in Procurement Regulations.

by design Federal Law No. 223 customers, as well as when working with Federal Law No. 94, must form 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 amending the notice and procurement documentation (parts 9, 10, 11, article 4 of the Federal Law No. 223). Deadlines have been established for providing clarifications to the provisions of the documentation (part 11 of article 4 of the Federal Law No. 223).

Where to place information about the purchase and in what time frame

Procurement regulations, plans, notice of purchase, purchase documentation, draft contract, changes to the notice and documentation, explanations of documentation, protocols drawn up during the purchase, as well as other information about the purchase should be posted on the official website www.zakupki. gov.ru. At the same time, the legislator left the opportunity for customers to duplicate information about the purchase on the customer's website. The procedure for placing information on the procurement on the official website www.zakupki.gov.ru must be established by the Government of the Russian Federation. Wherein part 3 of Art. 8 FZ No. 223 determined that by July 1, 2012 Procurement Regulation, changes 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 the above information must be posted on the official website www.zakupki.gov.ru.

But before posting information, customers need to 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 on 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 on condition that the annual revenue of the customer for the reporting financial year is more than five billion rubles.

If the customer organization is established 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, a municipality in the authorized capital of business entities has changed, the total share of participation of legal entities specified in paragraph 1 of part 2 of Art. one Federal Law No. 223 in the authorized capital of subsidiaries, the total share of these subsidiaries in the authorized capital of their subsidiaries, 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 the notification of a change in the aggregate share.

It is noteworthy that in Federal Law No. 223 no sanctions have been established in case the customer does not comply with the above terms for placement Purchasing 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 when purchasing until he approves and publishes the Provision about the purchase ( Art. 8 FZ No. 223).

New Register of Unscrupulous Suppliers

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

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

Wherein Federal Law No. 223 gives the right to customers to establish a requirement according to which the procurement participant must be absent in the new register of unscrupulous suppliers and (or) in the register of unscrupulous suppliers provided for by Federal Law No. 94.

Appeal against the actions of the customer

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

• if the customer does not post on the official website www.zakupki.gov.ru Procurement Regulation, changes to the Regulations, as well as other information on the procurement to be posted on the official website, and also if the customer violates the terms of such placement;
• if the customer requires the procurement participants to submit documents that are not provided for in the procurement documentation;
• if the customer is purchasing goods, works, services in the absence of an approved and posted on the official website www.zakupki.gov.ru Purchasing regulations and without applying the provisions of Federal Law No. 94.

At the same time, the procurement participant has the right when purchasing goods, works, 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 others, or to expect even greater problems from it.

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 common phrases that, with a skillful approach, can be used to please yourself. So, for example, with the methods of procurement, which the customer himself can, at his own discretion, establish in Procurement Regulations. Each customer will put his own content into them, which can complicate the participation of potential suppliers in procurement. That is, how the entire procurement process will be built 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 at least any approximate parameters by which the customer can navigate when choosing a method for placing an order. Customers are also concerned about the question: will the provisions of Federal Law No. 94 apply to the competition and auction? What are the criteria for customers to evaluate the applications of participants, if a tender is held, can it be based on the 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 made by state corporations, state companies, natural monopolies, etc.?

Of course, the concern of customers can be understood, but, on the other hand, he himself Federal Law No. 223 gives customers freedom. He does not put them in a strict framework, so if the customer wants to conduct a procurement through a tender regulated by Federal Law No. 94 and evaluate applications in accordance with 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, of their own. The main thing is that there is no discrimination of the participants, the requirements for them are reasonable, not restricting competition.

It is clear that in addition to Federal Law No. 223 other normative-legal acts specifying certain provisions of this law will be necessarily adopted.

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

Mezina Alla Aleksandrovna
Specialist of the Unified Center for Public Procurement Consulting,
legal consultant UTC "Orientir"

December 21, 2011

Do you have questions about procurement in accordance with Federal Law No. 223 or how to develop a Procurement Regulation? You can on this topic to ECDP specialists.