We present to your attention the long-awaited continuation of the article on ways to determine a supplier in public procurement. In the first part, we looked at what types of purchases there are under No. 44-FZ. It's time to talk about No. 223-FZ.
Methods for determining a supplier according to No. 223-FZ
As you know, No. 223-FZ is a less “strict” law than No. 44-FZ. Instead of establishing clear regulations for procurement procedures, he leaves a lot to the customer. Customers are required to form an internal document called the “Procurement Regulations”, in which they can themselves establish a procurement procedure that does not contradict the law.
Thus, according to No. 223-FZ, the supplier is determined by competitive and non-competitive methods .
Non-competitive procurement is, as you might guess from the name, procurement from a single supplier. Cases when the customer can use non-competitive procurement methods are determined independently in its Regulations.
Each customer's competitive procurement methods They may have the same names as in No. 44-FZ: competition, auction, request for quotations, request for proposals , but others may also appear. Procurement can be open or closed , and can be conducted electronically or in paper form . The Law also devotes special attention to procurement, the participants of which can only be small and medium-sized businesses .
The customer in his Regulations must determine which competitive procurement methods he will use and describe in detail the procedure for their implementation. The Law provides for some uniform requirements for the procedure for carrying out competitive procurement, which should be taken into account when establishing specific methods in the Regulations.
Full information about all open procedures is posted in the Unified Information System (UIS), anyone can take part in them.
Closed procedures are carried out in the following cases:
1) procurement with state secrets;
2) purchases within the framework of the state defense order related to the supply, repair, maintenance and disposal of weapons, as well as military or space equipment;
3) in other cases established by the Government of the Russian Federation.
Only a certain circle of participants capable of executing such specific contracts have access to closed procedures. The customer himself sends invitations to participants to take part in a closed procedure with the attachment of procurement documentation. Closed procedures can be carried out both in paper and electronic form on specialized electronic platforms.
The law provides general definitions for four main procurement methods.
An auction is a way to determine a supplier, in which the participant who agrees to fulfill the contract at a price lower than others wins. A distinctive feature of this type of procurement is the presence of a direct bidding procedure. Procurement participants in real time consistently submit proposals to reduce the initial maximum contract price (IMCP) until a winner is determined.
A competition is a way to determine a supplier, in which the winner is the participant who offers the best terms for the execution of the contract based on a combination of several criteria. The contract price of the winner of such a procedure may not be the lowest among other participants if he scored more points according to other criteria.
A request for quotations is a method of identifying a supplier in which the lowest bidder for a contract is the winner, but unlike an auction, there is no bidding process. Applications are submitted with a single price offer. Participants' price offers are reviewed and a winner is determined.
Request for proposals. The definition of this type of procurement in No. 223-FZ is essentially no different from the definition of a competition. The difference is that the minimum period for submitting applications for participation in the competition is 15 days, and the request for proposals can be completed in 7 working days. Often, when establishing in the Regulations the procedure for conducting a request for proposals, customers include a clause stating that conducting a request for proposals does not oblige the customer to conclude an agreement based on the results of such a procedure.
Competitive procurement, the participants of which can only be small and medium-sized businesses (SMEs).
For such purchases, No. 223-FZ establishes more stringent rules and leaves less freedom for the customer to invent their own features.
Procurement for SMEs is carried out only in electronic form and only in four main ways ( auction, competition, request for quotations, request for proposals ). Such purchases can only be carried out on electronic platforms that operate in accordance with the requirements described in No. 44-FZ and additional requirements established by the Government of the Russian Federation.
For a competition only for SMEs, the Law regulates the specific stages that such a procedure may contain, and establishes the rules that must be followed when including such stages.
For an auction and request for proposals only for SMEs, the Law regulates the rules for conducting the qualification selection of participants. The auction also has restrictions regarding the “auction step”.
To request quotes only for SMEs , the Law establishes specific requirements for the composition of an application for participation in such a procedure.
Thank you for your attention. This year we are planning a lot of new interesting and useful material. Stay with us!
New bans: how government procurement will change under 223-FZ
Innovations in the procurement law will significantly change the procedures under 223-FZ. All purchases will be divided into competitive and non-competitive. Priority will be given to the first ones, which will be carried out mainly in electronic form. The regulations give the customer new responsibilities. In particular, rules have been added on how to describe the item of purchase. The main trend is convergence with the stricter rules of the public procurement law 44-FZ.
On July 1, significant changes to Law No. 223-FZ came into force, which regulates procurement by state corporations, unitary enterprises and other commercial organizations with more than 50% state participation. The main innovation is that procurement will be divided into competitive and non-competitive. In competitive ones, the notice, as a rule, will be placed in the unified information system (UIS), and such purchases themselves will become electronic by default. An exception is if the customer specified a different procedure in the documentation. If only small and medium-sized businesses can take part in the procurement, then the electronic form becomes mandatory, the new law says. For the first time, he provided for the rules by which customers must prepare technical specifications, equated requests for quotes and proposals to bidding forms, and defined general requirements for them. The specifics of holding auctions and competitions are also regulated.
Electronic platforms: why no one is ready
The law established the procedure for conducting competitive procurement in electronic form. Entrepreneurs will have to undergo accreditation on new electronic platforms. To deposit funds as security, the supplier will have to open a special account in a bank authorized by the Government. According to Kalinina, purchases from small and medium-sized businesses will not begin on July 1, 2018, but only after new site operators begin to operate (tentatively in the fall). As Vedomosti reported, the Government extended the period for banks to conclude agreements with sites until January 1, 2021. Large customers also do not have time to prepare: at a round table in the Federation Council, they asked for a few more months to integrate their programs with the Unified Information System. Suppliers, in turn, need time to open special bank accounts, Kommersant wrote. Despite the delay, customers now need to take into account the upcoming changes, warns Kalinina.
At the end of April, Vedomosti reported that the government's draft requirements for special accounts could block small and medium-sized businesses from accessing procurement. As follows from the publication, the project provided that an entrepreneur could simultaneously open a special account in only one bank, which is tied to one site. But in the final text of the resolution, published on June 4, 2018, there is no such provision. “Special accounts can be opened in different banks,” reassures Kalinina.
Competitive procurement: new restrictions
In addition, customers are now prohibited from requiring bid security if the initial contract price in a competitive procurement is less than 5 million rubles. This will make life easier for small businesses, but, on the other hand, it will be easier for unscrupulous suppliers to engage in dumping and purchasing raids, estimates DS Law partner Maria Kalinina. The procedure for conducting competitive procurement provides for the rights and obligations of the parties. Participants may submit requests for clarification of documentation provisions. The customer is obliged to post a response in the Unified Information System within three working days. He can cancel a competitive procurement only when the deadline for submitting applications has not yet expired.
As for non-competitive procurement (from a single supplier), the customer must provide in the procurement regulations a closed list of cases where this is possible, as well as the method and procedure for their implementation. Such an exhaustive list, from which one cannot deviate, should help make procurement more competitive, hopes Anna Bolshakova from Art De Lex.
Previously, most procurement regulations contained an open list of cases of procurement from a single supplier. As a result, state-owned companies carried out a third of their purchases in this form. A closed list should improve the situation.
Art De Lex lawyer Anna Bolshakova
In addition, rules for describing goods, works or services in competitive procurement have appeared:
- it is necessary to indicate the functional characteristics (consumer properties) of the object, as well as technical, quality and, if necessary, operational characteristics;
- in most cases, it is impossible to indicate trademarks, brand names, country of manufacture, etc., since this unreasonably limits the number of procurement participants;
- If it is still necessary to name a trademark, it is necessary to provide for the possibility of an equivalent. The law specifies exceptions, for example, a spare part or consumable material is required for a machine and the manufacturer requires the original.
Instead of the initial (maximum) contract price, it will be possible to set the unit price and the maximum contract price. Another option is the formula for determining the contract price and its maximum value.
223-ФЗ+44-ФЗ=?
According to Kalinina, 223-FZ has ceased to be a framework law that defines only general principles and transfers most issues to the customer. Now the customer's freedom is significantly limited.
The main trend is the convergence of the rules of the 223rd and the more strict 44th laws. The new restrictions in 223-FZ are largely mechanically copied from the state procurement law 44-FZ, but it has a completely different subject of regulation.
Partner at DS Law Maria Kalinina
The trend is visible in the example of the new rules for describing procurement items. They have been written off from 44-FZ, but are not adapted to the specifics of corporate procurement, continues DS Law partner. But in general, she advocates limiting the rights of corporate customers: “Until now, it was a very uncompetitive market where it was common to fish in troubled waters.”
Suppliers must now prepare new procurement regulations that would meet all the requirements of the new edition of 223-FZ. “Our lawyers help joint stock companies, autonomous institutions and other corporate clients to meet the July 1 deadline,” Kalinina shared. – But not everyone does this. In this case, they will be spurred on by complaints from suppliers when the changes take effect.”
https://pravo.ru/story/203561/
