Current changes in the contract system for procurement participants. Current changes in the contract system for procurement participants Preferential categories of government procurement participants

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Can the government customer formulate the parameters of the goods to be supplied in such a way that in the end only one manufacturer can supply such goods? It would seem that the negative answer is obvious, because 44-FZ, which has been in force for almost a year, is based on the principle of ensuring competition. However, several arbitration courts immediately decided otherwise.

1. Is there only one manufacturer? No problem. Suppliers are different.

The state customer carried out electronic auction for the supply of food products for pregnant women and nursing mothers. One of the auction participants challenged the results of the auction, pointing out that only milk formula from one Dutch company fit the parameters presented by the defendant.

When considering the claim, the courts of three instances had to answer the question: can the state customer formulate such parameters of the goods proposed for delivery that correspond to the goods of only one manufacturer. According to the plaintiff, such actions are unacceptable - they lead to a limitation in the number of potential auction participants. “The department significantly narrowed the parameters of goods that could be supplied based on the results of the auction, which led to an unreasonable limitation on the number of possible procurement participants and created an advantage for the winner,” the losing auction participant stated as an argument.

In turn, the courts unanimously considered such actions of the state customer to be lawful. They indicated that "compliance technical specifications, defined by the customer in the technical specifications, of the products of only one manufacturer is not an unconditional basis indicating a restriction of competition.” The goods with the parameters proposed by the customer, according to the courts, “can be supplied by an indefinite number of suppliers.”

The logic of the courts is simple. It doesn’t matter that there is only one manufacturer - different suppliers can supply the goods purchased from him. However, it is unlikely that this is exactly the interpretation that the creators expected. contract system in the field of public procurement.

By the way, the fact that the plaintiff (the losing bidder in the auction) was not the manufacturer of the goods purchased by the defendant acted as another argument for the courts. “The plaintiff is not limited in the choice of counterparties from whom he can purchase goods, including according to the characteristics proposed by the defendant,” the courts noted (decision of the Court of Justice of the Kirov Region dated May 13, 2014, resolution 2 of the Arbitration Court dated July 21, 2014, resolution of the Court of Justice of the Volga- Vyatka District dated November 20, 2014 in case No. A28-2624/2014).

2. When formulating an application, you should not focus on the number of manufacturers.

Courts in other regions have also reached the same conclusions as in the case discussed above. At the same time, new, to put it mildly, controversial, arguments appear.

Thus, the regional OFAS received complaints regarding two electronic auctions for the purchase of baby food. The arguments of the complaint are the same - the parameters of the purchased goods correspond to the goods of a single manufacturer. The antimonopoly agency supported the arguments of the complaint and saw in the actions of the state customer a limitation on the number of participants in the auction. At the same time, the regional OFAS referred to the letter of the FAS Russia dated December 26, 2012 No. AK/44401/12. In this letter, the FAS pointed out the inadmissibility of establishing in procurement documentation requirements that can only be met by one manufacturer of dry milk formula.

The AS of the Republic of Sakha (Yakutia) did not agree with the antimonopoly authority (case No. A58-5173/2014). According to the court, the auction was held specifically for the supply of goods, and not for their production (manufacturing), therefore, the number of potential suppliers is unlimited. “Since the subject of an open auction is “supply” and not “production/manufacturing”, the fact that dry fermented milk mixture ... is the only product on the market that meets the requirements established by the auction documentation cannot in itself be considered as a restriction of competition, since how a product with parameters established by the customer can be offered for delivery by an unlimited number of suppliers...”, the court of first instance indicated in its decision dated 07.11.14.

A similar case was considered by the Administrative Court of the Republic of Bashkortostan (decision dated October 10, 2014 in case No. A07-9320/2014, currently appealed to the 18th Arbitration Court). As in Yakutia, the regional OFAS recognized the complaint of the participant in the electronic auction as justified. According to the department, the customer did not justify the establishment of specific parameters for the content of substances in the protein mixture (protein content of 40 g, fat 20 g and carbohydrates 30 g), although the corresponding GOST R 53861-2010 establishes a range of values ​​for each component (protein - from 40 to 75 g, fats – from 5 to 20 g, carbohydrates – from 10 to 30 g). Moreover, the protein mixture of only one manufacturer was suitable for the specific parameters of substance content established by the state customer.

The arbitration court, in turn, invalidated the decision of the Federal Antimonopoly Service, finding no violations of the legislation on the contract system. “Arguments that ... specific indicators for products limit competition, since they relate only to one type of product produced in the territory Russian Federation products... cannot be charged as a violation of antimonopoly legislation, since Federal Law No. 44-FZ does not provide for the obligation of the customer, when determining requirements for the procurement object, to be guided by the number of market participants, manufacturers (suppliers, performers),” the court said.

The decisions of the courts of first instance have not yet entered into force. Perhaps the judges of higher courts will approach the decision of the case differently than their colleagues in the Volga-Vyatka District. After all, an unreasonable limitation on the number of manufacturers of purchased goods, even with an unlimited number of suppliers, does not contribute to the development of competition and does not meet the goals of the legislation on the contract system in the field of public procurement.

• Encyclopedia of judicial practice. Rules for describing the procurement object (Article 33 of the Law “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”)
• 1. General requirements for the description of the object in the procurement documentation
• 1.1. The customer has the right, with the detail he requires, to include in the procurement documentation such characteristics and requirements for the product that meet his needs, and is not obliged to justify such needs
• 1.2. Customer requirements must be unambiguous and identical in all parts of the procurement documentation
• 1.3. When describing the procurement object, the possibility of limiting the number of procurement participants should be excluded
• 1.4. The description of the procurement object must be made in such a way as not only not to limit the number of procurement participants, but also to increase the chances of purchasing exactly the product that is needed
• 1.5. The description of the procurement object must be unambiguous
• 2. Formation of the subject of the contract
• 2.1. Inclusion of technologically and functionally related goods (works, services) into one lot is legal
• 2.2. The heterogeneity, heterogeneity and non-interconnection, according to OKVED codes, of the types of work included in the subject of the contract, does not in itself mean the absence of a functional connection between them
• 2.3. The possibility of supplying goods (performing work, providing services) by different persons does not indicate the unlawful combination of contract objects into one lot and restriction of competition
• 2.4. If only the products of a certain manufacturer meet the requirements specified by the customer, this is not a restriction of competition if it is possible to purchase such products from a counterparty
• 2.5. The inability of persons interested in concluding a contract to supply goods that meet the customer’s needs does not indicate a limitation by the customer on the number of bidders
• 2.6. Combining into one lot functionally related and united by the final goal of construction work and the supply of equipment is legal
• 2.7. Combining construction work and supply of equipment into one lot during turnkey construction may be considered unlawful if individual stages of turnkey construction are not provided for by the purchase
• 2.8. Combining the supply of computer equipment and the software necessary for its operation into one lot is legal
• 2.9. If the initial (maximum) price of the contract exceeds the maximum value established by the Government of the Russian Federation, combining into one lot a unique and only drug with a drug produced by several manufacturers is unlawful
• 3. Description of the procurement object
• 3.1. The presence of GOST does not exclude the right of the customer independently and taking into account his needs to determine specific characteristics for the goods offered for delivery within the parameters established by GOST
• 3.2. The establishment by the customer of additional indicator values ​​compared to GOST requires justification for the need to use such an indicator
• 3.3. The formulation of the requirements for the procurement object, given by reference to GOST, is illegal
• 3.4. The units of measurement specified by the customer in the procurement documentation must correspond to those specified in the relevant GOST
• 3.5. If the customer does not indicate units of measurement in the procurement documentation, the procurement participant must be guided by the units of measurement specified in the relevant GOST
• 3.6. The customer has the right to establish in the procurement documentation units of measurement different from those specified in GOST for voluntary use
• 3.7. When concluding a contract for the provision of services under compulsory motor liability insurance, the customer is obliged to independently indicate in the procurement documentation information about the Bonus-Malus coefficient
• 3.8. The lack of properly formulated requirements for the procurement object in the procurement documentation may cause an unreasonable reduction in the number of procurement participants
• 3.9. Indication by the customer of a trade name in the purchase description excludes the need to describe the parameters, functional, technical and qualitative characteristics of such a product, if the specified parameters and characteristics are unique to it
• 3.10. The absence of an indication of “or equivalent” in the purchase description may be considered justified in the case where the customer needs to ensure the interaction of the purchased goods with those already purchased
• 3.11. Indication by the customer of a trade name means that the participant must proceed from the compliance of the equivalent not only with the characteristics set out in the procurement documentation, but also with the characteristics of the product whose name is indicated in the notice
• 3.12. An obvious technical error in the procurement documentation regarding the indication of the subject of procurement does not indicate uncertainty about the procurement object
• 3.13. When purchasing medicines, it is allowed to establish a requirement for the remaining shelf life in percentage, if this does not lead to restriction of competition and is due to the needs of the customer
• 3.14. When purchasing equipment, an indication of the possibility of its delivery with components, the description of the parameters of which is accompanied by the words “no more”, “no less”, etc., may be considered unlawful if for these components the manufacturers of such equipment have established unchanged parameters
• 3.15. If, when purchasing construction work, design and estimate documentation was developed on the basis of a standard design, the presence of a corresponding indication in the procurement description is not necessary

Encyclopedia judicial practice
Rules for describing the procurement object
(Article 33 of the Law “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”)

1. General requirements for the description of the object in the procurement documentation

Note

Opinion of the FAS Russia:

When describing the procurement object, the customer must accurately describe the scope of work to be performed (clause 5 of the Review of Administrative Practices prepared by the Department for Control of Public Procurement of the FAS Russia, May 2016).

1.1. The customer has the right, with the detail he requires, to include in the procurement documentation such characteristics and requirements for the product that meet his needs, and is not obliged to justify such needs

Attention

FAS Russia indicates that when approving procurement documentation, the customer does not have the right to establish requirements for the technical characteristics of a product that are suitable only for one product (clause 1 of the Review of Administrative Practices prepared by the Department for Control of Public Order Placement of the FAS Russia, July 2015)

Depending on its needs, the customer in the auction documentation must establish requirements, in particular, for quality, technical characteristics (consumer properties), sizes, packaging of goods, taking into account the specifics of its activities and in order to ensure the effective use of budget funds, in compliance with the legislation of the Russian Federation Federation provisions aimed at ensuring a competitive environment during bidding.

Accordingly, the customer has the right to include in the auction documentation such characteristics and requirements for the product that meet his needs and are necessary to perform the relevant functions. In this case, the customer has the right to detail the subject of procurement to the required extent.

In addition, the law does not provide restrictions on the inclusion in the auction documentation of requirements for the goods that are significant for the customer; There is also no provision for the customer’s obligation to justify his needs when establishing requirements for the supplied goods. Moreover, indication in the documentation of the specific characteristics of the supplied goods is provided for by procurement legislation. The customer's discretion is limited only by the requirement that competition is not restricted.

The courts correctly stated that from the systematic interpretation of the above rules it follows that today the legislation in the field of procurement allows the customer to independently formulate his order, based on the latter’s needs. In particular, when describing a product, the customer has the right to indicate quality parameters for the procurement object, which are decisive for him, but do not limit the number of potential procurement participants; he is not deprived of the opportunity to more accurately and clearly indicate the requirements for the purchased product.

Based on an analysis of these norms [parts 1-3 of Federal Law No. 44-FZ], the courts reasonably indicated that the customer has the right to include in the documentation for an electronic auction such characteristics of the goods that meet his needs. In this case, the customer has the right to detail the subject of the electronic auction to the required extent. Federal Law No. 44-FZ does not provide for restrictions on the inclusion in the documentation of an electronic auction of requirements for goods that are significant for the customer; There is also no provision for the customer’s obligation to justify his needs when establishing requirements for goods.

Establishment in auction documentation established requirements for the medicinal product taking into account its needs and based on the specifics of the type of activity being carried out. The task of procurement legislation is, first of all, to identify, as a result of bidding, the person whose execution of the contract will most closely meet the goals of effective use of sources of financing and the customer’s needs for goods necessary for the implementation of its activities. The law does not provide restrictions on the inclusion in the documentation of an electronic auction of requirements for goods that are significant for the customer and meet his needs. The provisions of the Law also do not oblige the customer, when determining the characteristics of the supplied goods in the documentation, to establish such characteristics that would correspond to all existing types, types, models of goods. The institution, having established the necessary requirements for the product, acted in accordance with Law No. 44-FZ.

The current legislation in the field of procurement allows the customer to independently formulate his order, based on the latter’s needs. In particular, when describing a product, the customer has the right to indicate quality parameters for the procurement object, which are decisive for him, but do not limit the number of potential procurement participants; he is not deprived of the opportunity to more accurately and clearly indicate the requirements for the purchased product, including, in this situation, its composition.

The customer, when forming these requirements for the characteristics of the product (evaporation filters), determined his needs taking into account the specifics of his activity and the need to purchase cavafilters of a special design, non-removable, made from the material he required and having a set of technical characteristics required by the customer.

The investigation department [the customer] does not dispute the presence of errors in the tender documentation, but points out that an accurate description of the technical characteristics of the product was given in the design and estimate documentation drawn up by the LLC, which was posted on the official website on the Internet as part of the tender documentation. The procurement participants, according to the applicant, were required only in the first parts of the applications to agree to perform the work and supply the goods. Consequently, as the Investigative Committee of the Russian Federation for the Novgorod Region believes, the mistakes made do not indicate a violation by the customer of the provisions of Article 33 of Law No. 44-FZ.

This argument was previously made by the Investigation Department during the trial in the courts of first and appellate instances, which was rightly rejected.

Information about the goods provided in the first part of the application must contain specific indicators that do not allow for ambiguous interpretation, which must correspond to the values ​​​​established by the auction documentation (clause “b” of part 3 of Article 66 of Law No. 44-FZ). Double indication of one procurement object with different indicators, incorrect indication of units of measurement of indicators and non-existent characteristics of the materials used leads to the impossibility of correctly filling out the first parts of applications by auction participants, and, as a consequence, to the rejection of applications for participation in the auction (Part 4 of Article 67 of Law No. 44 -FZ).

The auction commission came to the conclusion that the procurement participant, LLC, did not indicate all the names and indicators of building materials and products provided for in the Technical Part in the information about building materials and products that will be used in the work, namely, pipe 133Ch4 was not indicated. 0.

By checking the validity of the grounds for refusing the company’s admission to participate in the electronic auction, having analyzed the information contained in the auction documentation, which includes section No. 3 Technical part, consisting of Terms of Reference and sections project documentation, the courts did not establish the presence in the documentation of an indication of the product - pipe 133Ch4.0. Therefore, we came to the reasonable conclusion that the commission had no grounds for recognizing the company’s application as not meeting the documentation requirements.

The administration’s reference to the fact that the scope of work presupposes the presence of pipe 133Х4.0, which the procurement participant should have indicated in the first part of the application for participation in the auction, in the absence of actual indication of such a product in the auction documentation, was rightfully rejected by the courts as not corresponding to the circumstances of the case and contrary to Part 2 of Article 33 of the Law on the Contract System.

The presence in the scheme "Plan TK-10 (new)" of information T1, T2-133Ch4.0 was not rightfully recognized by the courts as a circumstance allowing one to conclude that the customer accurately and clearly formulated in the auction documentation the requirement for participants to indicate the order placement of this product as a separate product and its characteristics.

For the position “Heavy concrete, class B 7.5 (M 100),” the customer established the requirement: “In terms of compressive strength, the class of concrete must be no lower than B 7.5.”

This formulation assumes the possibility of a procurement participant offering a value of indicator B of 7.5 or higher.

At the same time, in the same position in the “name of product” column, the customer installed a product with a fixed indicator - “Heavy concrete, class B 7.5 (M100)”.

Thus, in the documentation, the customer has established conflicting information about the characteristics of the same and the same supplied goods, which entails a violation of the rights of potential auction participants and creates conditions for abuse by members of the auction commission when choosing the auction winner.

The courts justifiably did not accept the company’s arguments that the indication of the minimum and maximum values ​​of product indicators complies with the requirements of Law No. 44-FZ. The customer has the right to indicate in the auction documentation either the fixed characteristics of the goods required for delivery, or its minimum and maximum indicators. At the same time, the customer’s requirements must be clear and unambiguous, and these indicators must be the same in all parts of the auction documentation.

Paragraphs 15, 24, 159 and 163 of the Statement of Quantities of Work and Materials provide an expanded description of the purchased object in comparison with the parameters of GOST 31108-2003 and 6787-2001, which contradicts paragraph 5 of Section 3 of the Documentation, which provides for the use of only building materials (cement and ceramic tiles ), corresponding to GOST 31108-2003 and GOST 6787-2001.

Refusing to satisfy the applicant's request to declare the said decision illegal, the courts of the first and appellate instances proceeded from the fact that paragraph 1 of part 1 of Article 33 of Law No. 44-FZ stipulates that the description of the procurement object must be objective.

Having provided in the auction documentation the requirements for the cement used during the work, as well as for the ceramic tiles used for flooring with references to specific GOST standards that establish unambiguous and strict quality criteria for the required goods, the customer informed the procurement participants about the requirements for the goods necessary for execution of work. At the same time, the organizer of the competition, in any case, had to provide uniform and understandable requirements for the competition documentation for the participants, the most clear criteria for selecting the winner, ensuring the comparability of the proposals submitted by the participants.

1.3. When describing the procurement object, the possibility of limiting the number of procurement participants should be excluded

When conducting a procurement, the customer has the right to independently determine the procurement object based on his needs, but without specifying the requirements for the product (work, services), potentially limiting the number of procurement participants.

When placing a purchase, the customer has the right to independently determine the subject of the tender and the conditions for the supply of goods, performance of work, provision of services, taking into account compliance with prohibitions on requirements for goods, information, work and services, potentially limiting the number of participants in the placement of the purchase.

1.4. The description of the procurement object must be made in such a way as not only not to limit the number of procurement participants, but also to increase the chances of purchasing exactly the product that is needed

By virtue of the direct instructions of the law, the customer in the description of the procurement object indicates the functional, technical and quality characteristics, operational characteristics of the procurement object (if necessary), which meet its needs and are necessary to perform the relevant state or municipal functions. Within the meaning of Article 33 of Federal Law N 44-FZ, customers purchasing according to the rules of this law, when describing the procurement object, must thus determine the requirements for the purchased goods, works, services in order, on the one hand, to increase the chances of purchasing goods with exactly such characteristics that he needs, and on the other hand, do not limit the number of procurement participants. The basic rule for describing the procurement object is that the description of the procurement object must be objective.

The courts rightly considered that, by virtue of Article 33 of Federal Law No. 44-FZ, customers purchasing according to the rules of this law, when describing the procurement object, must thus determine the requirements for the purchased goods, works, services in order, on the one hand, to increase the chances of purchasing a product with exactly the characteristics it needs, and on the other hand, not limiting the number of procurement participants.

The basis for the refusal to admit the entrepreneur’s application to participate in an open auction was its inconsistency with the auction documentation, since the information contained in the application allowed for ambiguous interpretation regarding the material from which the work should be performed (isospan D and hydrostekloizol; galvanized corrugated sheeting and metal tiles are homogeneous materials) .

Recognizing the contested acts of the antimonopoly authority to comply with the current legislation, the courts, having analyzed the documentation for the auction, proceeded from the fact that the documentation provides for the possibility of replacing the material, and when carrying out the work, you can use not only corrugated sheets, but also metal tiles, isospan D, hydroglass insulation, as indicated by the entrepreneur in the application.

Under such circumstances, the courts came to the conclusion that the auction commission, when making a decision to reject an application submitted by an entrepreneur, violated the requirements of parts 1, 3 of Article 67 of the Law on the Contract System, and therefore recognized as legal the decision of the antimonopoly authority dated January 12, 2015 in case N 690/14 in the impugned part.

Ambiguity and uncertainty in the content of the instructions for filling out the application, allowing both the procurement participant and the members of the auction commission the possibility of a double understanding of the characteristics of the materials proposed for the work and, in general, information about the procurement object, leads to limited access to participation in the auction, which does not may be recognized as an objective description of the procurement object, and therefore, when describing the specified indicators of goods, the customer violated the provisions of paragraphs 1 and 2 of part 1 of Article 33 of Law No. 44-FZ.

2. Formation of the subject of the contract

2.1. Inclusion of technologically and functionally related goods (works, services) into one lot is legal

Guided by the provisions of Article 15 of Article 8, paragraph 1 of part 1 of Article 33, paragraph 1 of part 1 of Article 50 of the Law

The Court of Appeal reasonably concluded that engineering survey work could be combined with design work by virtue of Part 5.2. Article 48 of the Town Planning Code of the Russian Federation, and with work on the development of a territory planning project due to their technological and functional relationship, which corresponds to Part 3 of Article 17 of the Federal Law of July 26, 2006 N 135-FZ “On the Protection of Competition” and paragraph 3 of Article 421 Civil Code of the Russian Federation, providing for the possibility of concluding a mixed agreement (an agreement that contains elements of various agreements provided for by law or other legal acts). The relations of the parties under a mixed contract are applied in the relevant parts to the rules on contracts, the elements of which are contained in the mixed contract, unless otherwise follows from the agreement of the parties or the essence of the mixed contract.

Since the Ministry placed the procurement in the form of work on the development of a territory planning project and work on the development of design documentation for a linear facility (construction of a highway), such an association complies with current legislation and does not violate the customer’s obligations established by paragraph 1 of part 6 of Article 48 of the Town Planning Code of the Russian Federation, taking into account the mixed the nature of the contract concluded as a result of the procurement.

Taking into account the functional and technological relationship of these types of work, their combination is aimed at efficient spending of budget funds, since dividing these works into two purchases increases the period design work(first, the procurement of work to develop a planning project is carried out and after the execution of the contract, within the framework of this procurement it is necessary to plan and carry out the procurement of work to design the road construction) and leads to a situation where, at the stage of developing project documentation for road construction, shortcomings in the territory planning project or results are identified engineering surveys that must be corrected by the contractor who performed these works (who may object to the very fact of performing work with deficiencies, as well as their nature, and also evade their elimination, which significantly delays the process of eliminating deficiencies and affects the quality of the work).

Under such circumstances, the conclusion of the appellate court that the terms of the tender documentation do not violate the requirements of the law and are aimed at the efficient use of budget funds is correct.

According to clause 3.1 of the auction documentation, the name of the procurement object: provision of cleaning services for the territory of Veliky Novgorod. The description of the procurement object is given in the technical specifications (Appendix No. 1 to the draft contract), according to which the services for cleaning the territory of Veliky Novgorod include: summer cleaning of the territory, winter cleaning of the territory, maintenance of garbage bins and benches installed in the citywide territories of Veliky Novgorod , maintenance of a site for temporary storage of estimates and snow.

As follows from the case materials, the antimonopoly authority in the appealed act indicated that the actions of the Institution to include in the subject of the electronic auction the entire range of works on cleaning the territory of Veliky Novgorod and establishing the maximum amount of application security led to an unreasonable limitation on the number of procurement participants.

Having examined and assessed the evidence presented by the persons participating in the case in accordance with the rules of Article 65 and the Arbitration Procedure Code of the Russian Federation, the courts of two instances found that the cleaning services declared in the subject of the auction for the territory of Veliky Novgorod have a functional and technological relationship with each other, allowing for the efficient and rational use of budget funds , which is significant for the customer.

Under such circumstances, the contested non-normative act of the Department was rightfully recognized as illegal by the courts as not meeting the requirements of Federal Law dated 04/05/2013 N 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

The courts correctly concluded that the equipment purchased by the department is technologically and functionally interconnected, is aimed at equipping a histological laboratory and is used in the process of a single cycle of histological examination.

The argument of the antimonopoly authority about the non-compliance of the subject of procurement with the conditions established by the customer was the subject of consideration by the courts and was rightfully rejected, since technical features a set of equipment for equipping a histology laboratory assume that the process of supplying equipment includes the implementation of work on its installation, adjustment, commissioning and training of specialists, without which it is impossible to maintain the quality of the delivered product and its performance.

2.2. The heterogeneity, heterogeneity and non-interconnection, according to OKVED codes, of the types of work included in the subject of the contract, does not in itself mean the absence of a functional connection between them

According to the prosecutor who initiated the case of an administrative offense (and the district court judge who made the contested decision agreed with him), the work on developing multimedia content and the Center’s Internet site with the work on the production, delivery, installation, transfer and installation of stands and exhibits of the Center are technological works and functionally unrelated to each other, therefore illegally included in one lot.

The antimonopoly authority made a decision that recognized the complaint as justified in terms of the unlawful inclusion in the tender documentation of equipment for the catering department, laundry, with the exception of the equipment specified in paragraphs 66, 67, 69, 70, 71 of the local estimate; the actions of the customer and the authorized body were recognized as violating requirements of Part 2 of Article 8, Clause 1 of Part 1 of Article 33 and Clause 1 of Part 1 of Article 50 of the Federal Law of 04/05/2013 44-FZ "On the contract system in the field of procurement of goods, works and services to meet state and municipal needs", an order was issued , in accordance with which the applicant and the authorized body are ordered to cancel the competition with limited participation within a period of _.

Considering the contested decision and order of the antimonopoly authority to be illegal, the construction department filed this application with the arbitration court.

The lower courts, taking into account the circumstances established in the case and the legal relations of the parties, as well as the laws to be applied in this case, came to the conclusion that the stated requirements were satisfied. At the same time, the courts proceeded from the fact that the controversial equipment, namely: a refrigerated temperature cabinet, an electric boiler, a planetary mixer, a vegetable cutter, a juicer, a medium-temperature monoblock, a carpentry workbench, a potato peeler, a tabletop electric sharpener, a meat grinder, etc., can be purchased by anyone Building company regardless of its specialization at prices prevailing on the market, and precisely entity, carrying out construction work, can purchase equipment that is technologically more efficient and suitable for installation at the site under construction.

In the case under consideration, the subject of the competitions is the implementation of work on the construction of facilities (schools and preschool), as well as the supply of equipment and furniture for equipping the catering unit, laundry, installation of a shady canopy, benches, bins, carpet dryers, swings, sandboxes, slides, garbage containers.

Since the construction of these facilities and the supply (installation) of equipment can be carried out by different persons, the antimonopoly authority considered that combining them into one lot entails limiting the number of participants in the competition.

Meanwhile, potentially any goods (work, services) combined into one lot can be supplied (performed, provided) by different persons. Due to the absence of a legislative prohibition on combining goods (work, services) into one lot, the possibility of supplying goods by different persons cannot in itself be evidence of restriction of competition.

The administration, in the auction documentation and the draft municipal contract, indicated the possibility of attracting subcontractors to perform work that the contractor cannot perform on its own.

Under such circumstances, the arbitration court of the first instance came to the correct conclusion that in this case, combining into one lot the execution of construction and installation works and the supply of equipment and furniture does not violate paragraph 1 of part 1 of Article 33, paragraph 1 of part 1 of Article 64 of Federal Law N 44-FZ and does not entail a limitation on the number of procurement participants.

The courts reasonably came to the conclusion that the requirements for the supplied goods contained in part 4 “Technical specifications” of the electronic auction documentation are necessary and significant to ensure the activities of the Ministry of Information and Communications of the Republic of Tatarstan. The documentation on electronic auctions fully complies with the requirements of the legislation of the Russian Federation in the field of procurement, and the actions of the customer do not contradict the provisions of Article 33

Argument of the antimonopoly authority about the illegality of combining into one lot the goods that are the subject of these electronic auctions, due to the possibility of delivery software And computer equipment by different persons was rightfully rejected by the courts, since due to the absence of a legislative prohibition on combining goods (work, services) into one lot, the possibility of delivery of goods by different persons cannot in itself be evidence of the illegality of documentation on electronic auctions.

The subject of the considered electronic auctions was the right to conclude a state contract for the supply and installation of equipment, and not for the manufacture of the subject of purchase, therefore any legal entity can act as a procurement participant. individual, individual entrepreneur, including a person who is not the manufacturer of the goods required for delivery, who is ready to supply goods that meet the requirements of the electronic auction documentation and meet the needs of the customer.

The absence of any persons interested in concluding a contract with the opportunity to supply goods that meet the customer’s needs does not indicate a violation by the customer of the rights of these persons, nor does the customer limit the number of procurement participants.

The legislation regulating the legal relations under consideration does not prohibit the customer from including in the tender documentation a condition on the possibility of attracting subcontractors to perform the work, which was the case in this case. But it is impossible to unequivocally regard the exercise of the right given by law by the customer, as well as the subsequent actual involvement of subcontracting organizations by the sole participant in the competition (as indicated by the prosecutor), as confirmation of the absence of a technological and functional connection between the objects of procurement of goods, works, and services included in one lot.

2.4. If only the products of a certain manufacturer meet the requirements specified by the customer, this is not a restriction of competition if it is possible to purchase such products from a counterparty

As follows from the case materials, the plaintiff’s demand is due to the decision of the Department’s commission to reject the Company’s application due to the non-compliance of the product offered by the applicant with the customer’s requirements for the composition of dry milk formulas for therapeutic and prophylactic nutrition of children. LLC believes that only Malyutka porridge from the Dutch company Nutricia fits the parameters presented by the defendant.

There is no evidence in the case materials indicating a restriction of competition, since a product with the parameters proposed by the customer can be supplied by an indefinite number of suppliers, which is confirmed by those in the case commercial offers other persons.

Consequently, in this case the rights of the Company were not violated.

As follows from the case materials, the plaintiff’s demand is due to the decision of the Department’s commission to reject the Company’s application due to the non-compliance of the product offered by the applicant with the customer’s requirements for the composition of dry milk formulas for therapeutic and prophylactic nutrition of children. LLC believes that only the Nutrilon GA2 mixture from the Dutch company Nutricia fits the parameters presented by the defendant.

LLC is not the manufacturer of the goods requested by the defendant, but acts as a supplier-seller purchasing goods for the buyer, and is not limited in the choice of counterparties from whom he can purchase goods, including according to the characteristics proposed by the defendant.

The courts found, and this does not contradict the case materials, that the inclusion of certain baby food parameters in the auction documentation did not create an advantage for some order participants over others and did not lead to a limitation in the number of order participants.

Article 71 of the Arbitration Procedural Code of the Russian Federation, the courts found that in this case, as part of the formation of the order, the Institution was guided existing need; the antimonopoly authority did not prove that the requirements formulated by the customer for the procurement object led to a limitation in the number of participants in the auction, and did not refute the Institution’s assertion that the gloves it needed were produced not only by RusMed-Upak LLC, but also by the company Nitritex (m) SDN . Bhd.", Malaysia.

When justifying the initial maximum contract price based on market analysis (using the method of comparable market prices), the Institution sent inquiries to organizations supplying medical gloves. Commercial offers were received from Neya LLC, Veles LLC, ATEKS GROUP LLC for the supply of gloves mentioned in the request, including paragraph 19 of Part III “Technical Part” of the auction documentation. Thus, sterile neoprene powder-free examination gloves can be supplied on the territory of the Russian Federation by various business entities, and not just by manufacturers or their official dealers, who did not participate in the controversial auction at all.

Thus, the courts came to a reasonable conclusion that the description of the procurement object used by the Institution corresponds to paragraph 1 of part 1 of Article 33, paragraph 1 of part 1 of Article 64 of Federal Law No. 44-FZ.

According to the antimonopoly authority, the courts wrongfully did not take into account that the inclusion in the auction documentation of such an indicator as “storage without light restrictions” leads to a limitation on the number of participants in the auction, since only one drug with a trade name has this quality - Tienam according to the indicator storage at a temperature not exceeding 25 degrees C from 7 registered manufacturers of the drug with the international nonproprietary name Imipenem + Cilastatin. At the same time, there is no need to establish such an indicator, since the institution, having a license to carry out medical activities, is obliged to carry out storage medicines in accordance with the storage conditions established by the Rules for the storage of medicines, approved by order of the Ministry of Health and social development Russian Federation dated August 23, 2010 N 706n “On approval of rules for storing medicines.”

The argument of the applicant of the cassation appeal that the courts, pointing out that the customer had established the requirements for the quality of the goods that he needed, did not take into account another necessary aspect - not to limit the number of procurement participants with such requirements, does not correspond to the actual circumstances of the case and the conclusions of the courts, which rightfully indicated that the presence of a single manufacturer of a medicinal product does not lead to a limitation on the number of procurement participants, since the subject of the electronic auction was the supply of a medicinal product registered and approved for use in the Russian Federation, and not its manufacture. At the same time, the courts took into account the presence in the case materials of two applications numbered 4 and 5, ready to supply the required drug.

Determination in the auction documentation of the requirements for a medicinal product necessary for an institution, taking into account the specifics of its use in treatment, cannot be considered as a restriction of access to participation in the auction. As can be seen from the case materials, five participants submitted applications to participate in the auction. The courts also found that the drug, the supply of which was the subject of an auction, is freely circulated on the pharmaceutical market; the supply of the drug can be carried out by persons who have a valid license to carry out pharmaceutical activities or produce medicines. In this regard, any business entity, subject to obtaining the necessary license, has the opportunity to supply the medicinal product required by the customer.

The applicant did not provide evidence indicating that the circulation of the drug with the required values ​​in the relevant market is impossible or difficult, and the establishment of requirements necessary for the customer actually limits the number of potential procurement participants or creates an advantage for some procurement participants over others.

According to the LLC, the customer’s inclusion in the technical specifications of the requirements for the shape of the tablet and the method of dividing it was aimed at purchasing a medicinal product manufactured under the trade name Glemaz, the only manufacturer of which is Kimica Montpellier S.A. Argentina.

The arguments of the OFAS Russia for the Tula region that any of the auction participants had the opportunity to purchase medicines from the manufacturer - "Kimika Montpellier S.A." Argentina for the purpose of supplying them for the customer’s needs are also not documented, and therefore the contested decision in this part is not motivated.

From the case materials it follows that section 5 “Technical specifications” of the auction documentation establishes the requirements for the functional, technical and quality characteristics, operational characteristics of the subject of purchase (diesel reverse gear units DRRA26K) or its equivalent.

At the same time, the customer, in section 5 of the Technical Specifications, intended for the purchase of marine diesel reverse gear units DRRA-26K or their equivalent, therefore, the supply of goods equivalent to the stated characteristics and requirements of the customer was allowed.

From the letters from the Weichai company presented in the case materials, it follows that this company supplied marine diesel reverse-gear units of the 170 series (8170, 6170) in the Russian Federation in 2014. Russian organizations. No exclusive agreement has been concluded with any of the companies for the supply of these marine diesel reverse gear units, and therefore sales of these units are carried out without any restrictions. At the same time, the Weichai company noted that the 170 series units are supplied by many companies, some of the largest customers are: OJSC, LLC 1, LLC 2.

Evidence that the company did not have a real opportunity to create or purchase goods that met the requirements and characteristics established for the procurement object in the Terms of Reference was not presented in the case materials.

2.5. The inability of persons interested in concluding a contract to supply goods that meet the customer’s needs does not indicate a limitation by the customer on the number of bidders

Having examined and assessed the evidence presented in the case materials according to the rules established in Article 71 of the Arbitration Procedural Code of the Russian Federation, the courts found that in this case, as part of the formation of the order, the Institution was guided by the existing need; the customer’s documentation specifies several types technical specifications, in accordance with which various manufacturers produce the declared materials and goods, and the proposal by participants for the purchase of materials and goods produced in accordance with any of the listed specifications would comply with the Terms of Reference; the antimonopoly authority did not prove that the requirements formulated by the customer for the procurement object led to a limitation on the number of participants in the auction; The failure of any persons interested in concluding a contract to supply goods that meet the customer’s needs does not indicate a violation by the customer of the rights of these persons, nor does the customer limit the number of bidders.

The institution's auction documentation does not limit the ordering participants to offer for delivery an equivalent, that is, another product that has similar or improved technical and functional characteristics that meet the customer's needs.

The failure of any persons interested in concluding a contract to supply goods that meet the customer's needs does not indicate a violation by the customer of the rights of these persons, nor does the customer limit the number of bidders.

2.6. Combining into one lot functionally related and united by the final goal construction work and supplies of equipment legally

As established by the courts of first and appellate instances, the contested decision of the antimonopoly authority in the actions of the department and department of the contract system in the field of procurement of the Omsk City Administration as the customer and authorized body for holding competitions for the development working documentation for the construction of a school and the execution of work on the construction of a preschool institution in Omsk, violations of Part 2 of Article 8, Clause 1 of Part 1 of Article 33, Clause 1 of Part 1 of Article 50, Part 2 of Article 56, Part 5 of Article 24 of the Procurement Law were established, expressed in unreasonable procurement in the form of competitions with limited participation and combining the procurement of construction work and supply of equipment into one subject, in connection with this, orders were issued to eliminate the violations by canceling the results of the competitions.

Having disagreed with the said decision and order, the department filed this application with the court.

Reversing the decision of the court of first instance in part, the appellate court found that in this case, combining procurement into one lot does not violate the norms of Part 2 of Article 8, Clause 1 of Part 1 of Article 33, Clause 1 of Part 1 of Article 50 of the Procurement Law and does not entail restrictions number of procurement participants.

Article 71 of the Arbitration Procedure Code of the Russian Federation, evidence presented by the parties, the court of appeal came to a reasonable conclusion that the supply of the disputed equipment and furniture is technologically and functionally related to the construction of a school and preschool institution, since the final purpose of the purchase was the construction of facilities prepared for operation or provision of services .

clause 3.14 of the Methodology for determining the cost of construction products on the territory of the Russian Federation, approved by the resolution

As correctly stated by the court of appeal, the combination of works on the construction of facilities and the supply of equipment in the case under consideration meets the needs of the customer and allows for the concentration of management functions at all stages of the creation process finished products one organizational structure, carry out this process in a continuous manner, reducing time costs, and rationally spend budget funds.

The antimonopoly authority believes that combining into one lot the construction of a facility and the supply of equipment that is technologically and functionally unrelated to the execution of construction and installation works leads to an unreasonable limitation on the number of procurement participants.

Having examined and assessed in accordance with Article 71 of the Arbitration Procedure Code of the Russian Federation the content of project documentation and terms of reference, the appellate court came to a reasonable conclusion that the subject of the purchase in the case under consideration was a complex of construction, installation and commissioning works for the construction of a kindergarten, to ensure the implementation of which the supply of equipment was required.

The appellate court rightfully stated that the combination of works on the construction of facilities and the supply of equipment in the case under consideration meets the needs of the customer, will ensure their high-quality implementation, and effectively and efficiently use budget funds.

Having examined and assessed the evidence presented by the parties in accordance with Article 71 of the Arbitration Procedure Code of the Russian Federation, the arbitration courts came to a reasonable conclusion that the supply of the disputed equipment is functionally related to the construction of a preschool institution, since the final purpose of the purchase was the construction of a facility prepared for operation or provision of services.

The supply and installation of this equipment is provided for in the design documentation. The possibility of including in the estimated cost of construction the cost of purchasing equipment and the cost of work on its installation is established by clause 3.14 of the Methodology for determining the cost of construction products on the territory of the Russian Federation, approved by Resolution of the State Committee of the Russian Federation for Construction and Housing and Communal Sector dated March 5, 2004 N 15/ 1.

In the case under consideration, the combination of works on the construction of facilities and the supply of equipment meets the needs of the customer, allows us to concentrate the management functions of all stages of the process of creating finished products in one organizational structure, carry out this process in a continuous manner, reducing time costs, and rationally spend budget funds.

2.7. Combining construction work and supply of equipment into one lot during turnkey construction may be considered unlawful if individual stages of turnkey construction are not provided for by the purchase

From the case materials, the courts established that the object of the controversial procurement was named as “Execution of work on the construction of the facility” Kindergarten for 200 places in a kindergarten...". At the same time, the following scope of work is stated: "turnkey construction of a two-story kindergarten building for 200 places with a technical floor, a basement, a technical underground, with total area not less than 5400 sq. m, with the implementation of all work provided for in the electronic auction documentation, including: interior and exterior decoration; installation of internal engineering and technical systems (heating, electricity, water supply, sewerage, ventilation, fire alarm and fire alarm, security alarm); construction of external networks of electric lighting, water supply, sewerage, heat supply; installation technological equipment; landscaping, landscaping, installation of small play forms.”

According to the terms of reference for the controversial purchase, the winner of the auction for the construction of the facility "Kindergarten for 200 places in a kindergarten..." must, in addition to the actual construction work, supply and install the following "technological equipment": a sewing machine, a piano, a vegetable cutter, bactericidal irradiator, juicer for vegetables and fruits, potato peeler, household refrigerator, dry-heat cabinet, TV, ironing rink, washing machine, drying machine, grinding and drilling and sharpening machines, electric frying pan, electric industrial stove, vegetable cutter, electric meat grinder, bread slicer , oven, personal computer.

In checking the arguments of the persons participating in the case, the appeal court proceeded from the requirements of paragraph 1.2 of the Regulations on the organization of construction of turnkey projects, approved by Decree of the USSR State Construction Committee dated November 10, 1989 N 147 (hereinafter referred to as the Regulations on the organization of turnkey construction) and to this day current moment, from which it follows that the turnkey construction method provides for the construction of facilities prepared for operation or provision of services, based on the concentration of management functions at all stages of the investment process in one organizational structure and is carried out as a single continuous integrated process of creating a finished construction products (design - construction and installation work, including supplying construction sites with technological and engineering equipment - commissioning).

clause 1 of part 1 of article 33 of the Law on the contract system in the field of procurement.

In resolving the dispute, the courts proceeded from the fact that the presence of installed software on the supplied computer equipment is technologically related to the supply of computer equipment due to the fact that the use of computer equipment without the necessary software is impractical, the requirements for the supplied goods contained in part 4 “Technical specifications” of the documentation on the electronic auction are necessary and significant for ensuring the activities of the Ministry of Information and Communications of the Republic of Tatarstan, the documentation on electronic auctions fully complies with the requirements of the legislation of the Russian Federation in the field of procurement, and the actions of the customer do not contradict the provisions of Article 33 of the Law on the contract system in the field of procurement.

Articles 15, Federal Law of July 26, 2006 N 135-FZ “On the Protection of Competition”, Arbitration Procedural Code of the Russian Federation, the courts came to the conclusion that the inclusion of technological and functionally related goods (works, services) in one lot does not violate the norms of Article 8, paragraph 1 of part 1 of Article 33, paragraph 1 of part 1 of Article 50 of the Law on the contract system in the field of procurement and does not entail a limitation on the number of procurement participants, documentation on electronic auctions complies with the requirements of the legislation of the Russian Federation, the actions of the customer do not contradict the provisions of the Procurement Law , which was the basis for declaring the contested provisions of decisions and orders invalid.

By bringing the full name to administrative liability under Part 4.1 of Art. 7.30 of the Code of Administrative Offenses of the Russian Federation, the official proceeded from the fact that the state customer - the Ministry of Informatization and Communications of the Republic of Tatarstan, in violation of the requirements of clause 1, part 1, art. 33 of the Federal Law of April 5, 2013 N44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs", the notice of an electronic auction established a condition on the need to supply computers and a software product, which limited the number procurement participants and violated the requirements of the current legislation on the contract system.

In canceling the official’s decision regarding the full name and terminating the proceedings in the case, the district court judge [rightfully] proceeded from the fact that his actions lacked substance administrative offense, provided for in Part 4.1 of Art. 7.30 Code of Administrative Offenses of the Russian Federation.

A systematic interpretation of the above norms [parts 1, 2 of Article 33 of Federal Law N44-FZ] and consideration of them in conjunction, allows us to conclude that the current legislation in the field of procurement allows the customer to independently formulate his order, based on his needs, that is, when describing of goods, the customer has the right to indicate quality parameters for the procurement object, which are decisive for him, but without limiting the number of potential procurement participants.

It should also be noted that the antimonopoly authority did not take into account the fact that the presence of installed software on the supplied computer equipment is technically related to the supply of computer equipment due to the fact that its use without the necessary software is impractical.

The antimonopoly authority came to the conclusion that the customer, having established conditions in the description of the procurement object regarding the need to supply computers and a software product, limited the number of procurement participants and violated the requirements of paragraph 1 of part 1 of Article 33 of the Law on the contract system in the field of procurement.

From the case materials it follows that the subject of the above auction is the supply of computers.

In the description of the object of purchase by the customer, the following terms of delivery of the goods are indicated: “Software for the possibility of collective work if the client part of this software is available on managed computers.”

In this case, as rightfully noted by the courts, the antimonopoly authority did not take into account the fact that the presence of installed software on the supplied computer equipment is technologically related to the supply of computer equipment due to the fact that the use of computer equipment without the necessary software is impractical.

2.9. If the initial (maximum) contract price exceeds limit value, established by the Government of the Russian Federation, combining into one lot a unique and only drug with a drug produced by several manufacturers is illegal

In accordance with the register of medicines, two drugs with the INN Ipratropium Bromide + Fenoterol in the form of an inhalation solution are registered on the territory of the Russian Federation: Berodual, manufactured by Boehringer Ingelheim Pharma GmbH and Co. KG, Germany, as well as Ipraterol-native, produced by a company with limited liability"Nativa", Russian Federation.

At the same time, the drug with the INN Ipratropium Bromide + Fenoterol in the form of an aerosol for inhalation has one trade name - Berodual and this drug is produced only by Boehringer Ingelheim Pharma GmbH and Co. KG, Germany.

Therefore, the courts found that the customer, in violation of part 6 of article 33 of the Law on the Contract System, paragraph 2 of the Government Resolution, included in one lot the supply of a medicinal product with the INN Ipratropium Bromide + Fenoterol in various forms release: aerosol for inhalation, as well as solution for inhalation. Provided that one trade name is registered in the inhalation aerosol release form - Berodual, and also that the initial (maximum) contract price exceeds the maximum value established by the Government of the Russian Federation - 1000 rubles.

In addition, the inclusion in one lot of medicines with the INN Ipratropium Bromide + Fenoterol in the form of an aerosol for inhalation, as well as a solution for inhalation, will not allow organizations that have the ability to supply only the drug Ipraterol-native, for example, produced by a limited company responsibility of "Nativa", the Russian Federation, including the manufacturer of the specified drug. Combining a unique and only drug into one lot with a drug produced by several manufacturers leads to abuse on the part of the customer.

As established by the courts, along with other medicines, the customer purchases the drug Temozolomide, a lyophilisate for the preparation of a solution for infusion of 100 ml.

As follows from the state register of medicines, this drug has no analogues in terms of release form and dosage and is produced only by one manufacturer, Schering Play Labo, Belgium.

Thus, as rightfully indicated by the courts, when developing documentation for the auction, the customer combined into one lot medicines with international nonproprietary names that have no analogues registered in the Russian Federation in terms of release form and dosage and are produced by a single manufacturer. In this case, the initial (maximum) price exceeds the limit value of the initial (maximum) price established by Decree of the Government of the Russian Federation of October 17, 2013 N 929.

The courts concluded that the legal requirements for the content of the auction documentation were met, since this documentation indicated the obligation of the procurement participant to comply with the requirements of GOSTs. At the same time, the courts reasonably proceeded from the fact that the State Standards of the Russian Federation always contain a list of regulatory documents, a list of related GOSTs and SNiPs, the documentation of which is also used in a certain GOST and the customer did not require procurement participants to indicate the specific number of a particular GOST, if the indication it is not in the documentation, but asked that the product (material), in principle, comply with GOST, regulating a certain type of product (material).

The courts found that when drawing up requirements for the technical and functional characteristics (consumer) properties of goods (materials), the ministry was guided by the requirements specified in Article 33 of Law No. 44-FZ, and used (in particular, when describing the contested positions) exclusively technical regulations and standards (GOST) and technical conditions regulating Construction Materials. The auction documentation establishes the indicators of the main materials that will be used when performing work in accordance with GOST requirements. The standards establish mandatory and recommended provisions that define specific parameters and characteristics of the repair work performed. The customer also established in the auction documentation detailed instructions by filling out an application to participate in the electronic auction. That is, based on the requirements of the auction documentation, procurement participants must indicate the indicators of materials in accordance with the requirements of GOST, namely: indicate within the limits specified in the auction documentation.

In addition, the courts concluded that the violations indicated by the department were not significant and were of a formal nature. The Department did not prove that these violations could mislead auction participants.

The courts rightly concluded that General requirements This GOST does not exclude the right of the consumer of such products to purchase them within these parameters, and, within these limits, to independently determine the specific characteristics for the product offered for delivery, taking into account the specific needs of the consumer.

Taking into account the above, as well as taking into account the specific circumstances of the case [purchase of dry protein composite mixtures in pursuance of the Instructions for the organization of therapeutic nutrition in medical institutions, approved by order of the Ministry of Health of Russia dated 05.08.2003 N 330], the court of cassation considers the conclusions of the courts to be legitimate on the customer’s right to establish, taking into account his needs, indicators of the nutritional and energy values ​​of dry protein composite mixtures not in the wide ranges established in GOST R 53861-2010, but taking into account the specifics of the type of activity being carried out, based on approved calculations for interchangeable products taking into account their chemical composition.

The cassation court agrees with the conclusions of the courts that in this case, these indicators for the content of proteins, fats, carbohydrates and energy value in the protein composite dry mixture are standard, since they are within the limits established by GOST R 53861-2010, therefore, their justification in the auction documentation is not required.

The general requirements of GOST do not exclude the customer’s right to purchase protein mixtures with indicators within the parameters established by GOST and, within these limits, to independently determine specific characteristics for the product proposed for delivery, taking into account the needs of the hospital.

The customer established the requirements for the product within the limits established in GOST, taking into account his needs and based on the specifics of the type of activity being carried out. In this case, these indicators for the content of proteins, fats, carbohydrates and energy value in the mixture are standard, since they are within the limits established by GOST, therefore additional justification for the customer’s use of the indicators established by him in the auction documentation is not required.

The task of procurement legislation is, first of all, to identify, as a result of bidding, the person whose execution of the contract will most closely meet the goals of effective use of sources of financing and the customer’s needs for goods necessary for the implementation of his activities. The customer, having established the necessary requirements for the composition of the product, acted in accordance with Law No. 44-FZ. The definition of indicators in the auction documentation within the framework established by GOST cannot be considered as a restriction of access to participation in the auction.

3.2. The establishment by the customer of additional indicator values ​​compared to GOST requires justification for the need to use such an indicator

The courts, having examined and evaluated the auction documentation, found that the customer, when describing the requirements for the product (light hatch), used the following characteristics: maximum value of the indicator: body diameter (D) - up to 760 mm, opening diameter (D1): up to 600 mm, height (H) -- no more than 70 mm, the maximum width of the hatch cover (B) should not exceed 630 mm; minimum value of the indicator: body diameter (D) - no less than 640 mm, opening diameter (D1) - no less than 550 mm, height (H) - no less than 60 mm; constant value of the GOST 3634-99 indicator with a drawing. As the courts have established and the persons involved in the case do not dispute, the indicator “maximum width of the manhole cover” is not established in GOST 3634-99. The auction documentation does not provide justification for the need to use this indicator.

Under such circumstances, the courts came to the correct conclusion that the customer, when describing the procurement object, indicating the value of an indicator that is not in GOST, in violation of Part 1 of Article 33 of Law No. 44-FZ, did not justify the need to use such an indicator.

3.3. The formulation of the requirements for the procurement object, given by reference to GOST, is illegal

In subclause 3.2.2 of clause 3 "Preparation of an application for participation in the auction in electronic form" Section 1.2 of Part I of the electronic auction documentation, the customer determined that if the technical part specifies the requirement for the product used to comply with GOST (another current regulatory act) with full details, the ordering participant is obliged to indicate all specific indicators of this product using not only the technical part of the auction documentation in electronic form, but also the corresponding GOST. Thus, as part of the first part of the application, the indication of a specific indicator, expressed in the relevant GOST by alternative values, is mandatory, and the absence of such an indication means that the participant does not express his full and unconditional agreement with the terms of the auction documentation.

Thus, the courts came to a reasonable conclusion that this paragraph of the electronic auction documentation does not correspond to paragraph 1 of part 1, part 2 of Article 33 of Federal Law N 44-FZ, since it allows the establishment of requirements for the procurement object without listing them in the electronic auction documentation auction, but by attaching regulatory (technical) documents (GOSTs) to the documentation and entrusting the auction participant with the function of independently selecting the necessary characteristics and indicators of the procurement object that correspond to these regulatory documents.

In the case considered, the customer formulated the requirements for the procurement object by referring to regulatory (technical) documents (GOST), which contradicts paragraph 1 of part 1, part 2 of Article 33 of Federal Law N 44-FZ, according to which the requirements for the procurement object must be specified in the documentation about the auction.

As a study of the documentation on the auction in electronic form (electronic auction) for the supply of Quicksilver 25W-40 boat motor oil or equivalent, approved by the full name, shows, it actually does not contain a description of the requirements for the product and its quality indicators. The reference in the technical specifications of the documentation to "GOST 10541-78. Interstate standard. Universal motor oils and for automobile carburetor engines. Technical conditions" (approved and put into effect by Decree of the USSR State Standard of 04.08.1978 N 2103), cannot be considered appropriate description of the procurement object, since the specified GOST provides for various technical requirements for different types motor oils, which were not specified in relation to the procurement object within the framework of the auction under consideration.

3.4. The units of measurement specified by the customer in the procurement documentation must correspond to those specified in the relevant GOST

OFAS found that, according to paragraph 122 of the table “Information on functional, technical and quality characteristics ah, operational characteristics of the procurement object" of subsection 11 section III The “technical part” of the auction documentation: the customer requires a brick of grade 100 for water absorption - not lower than F50. From paragraph 129 of the same section III “Technical Part” it follows that the customer requires 88-CA glue with a rubber bond strength of 56 to ST-3 steel 24 hours after gluing with a tear of at least 11.0 kgf/cm.

The courts made a reasonable conclusion that when specifying in the technical specifications for the positions “Guide profile PN-2” and “Metal profile rack PS-2”, the customer did not indicate the units of measurement for twisting of the profiles around the longitudinal axis, for the position “Sand for construction work” The customer does not provide units for measuring the chemical composition of sand.

, Part 1 of Article 50 of Law No. 44-FZ.

3.6. The customer has the right to establish in the procurement documentation units of measurement different from those specified in GOST for voluntary use

The appellate court established and the case materials confirm that Appendix No. 2 to the technical specifications on 9 pages describes in small print “requirements for the values ​​of indicators (characteristics) of a product, or the equivalence of a product offered for delivery, a product used to perform work, provide services, allowing determine compliance with the requirements established by the customer", which uses units of measurement for the value of product indicators (degrees Kelvin and mm/min) that differ from those given in GOST R 54169-2010 and GOST 13344-79.

From the case materials, it is clear that the violation of clause 1 of part 1 of Article 64 of Law No. 44-FZ imputed to the customer in the contested decision of the Administration was expressed, in the opinion of the antimonopoly authority, in a biased description of the procurement object and the use of non-standard values ​​of indicators and indicators when describing the technical and qualitative characteristics of the procurement object. designations (degrees Kelvin and mm/min).

At the same time, the Department did not take into account that GOST R 54169-2010 was approved by Rosstandart order No. 941-st dated December 21, 2010 for voluntary use, while based on Appendix No. 1 to the Regulations on units of quantities allowed for use in the Russian Federation , approved by Decree of the Government of the Russian Federation dated October 31, 2009 N 879, which establishes the units of quantities allowed for use in the Russian Federation, their names and designations, as well as the rules for their use and writing, Kelvin is classified as a basic unit international system units.

3.7. When concluding a contract for the provision of services under compulsory motor liability insurance, the customer is obliged to independently indicate in the procurement documentation information about the Bonus-Malus coefficient

In the opinion of the institution, its actions do not violate Part 2 of Article 33 of Law No. 44-FZ, since insurers can obtain information about the Bonus-Malus coefficient (hereinafter - BMC) independently by requesting professional association insurers - Russian Union of Auto Insurers (AIS RSA).

As stated above, in the case under consideration, the price of the contract (insurance premium) is calculated in accordance with Resolution No. 739 according to the established formula, taking into account the decreasing/increasing coefficient (KBM). The absence of the KBM coefficient in the customer’s documentation (in the Terms of Reference) did not allow the procurement participant to determine the amount of the insurance premium for each vehicle.

Thus, the customer did not indicate all the necessary components for determining the insurance premium in the procurement documentation, which is a violation of Part 2 of Article 33, paragraph 2 of Article 42 of Law No. 44-FZ.

There was no information about the presence or absence of insurance payments in the event of insured events that occurred during the validity period of previous MTPL contracts in the customer’s documentation, therefore the quotation participant - OJSC - calculated the amount of the insurance premium using the KBM coefficient based on data from the automated information system, and the remaining participants - without applying a reduction factor.

The preparation by the customer of the technical specifications without information for the use of the KBM and without indications of the possibility of its use when calculating the insurance premium and the contract price led to the obvious receipt by the OJSC of a price advantage over other participants based on the results of consideration and evaluation quotation bids, while for specific Vehicle the amount of the insurance premium determined in accordance with the procedure

Having examined and assessed the evidence presented in the case materials according to the rules established in Article 71 of the Arbitration Procedural Code of the Russian Federation, the courts came to the conclusion that the customer in paragraph 3 of the technical specifications of the auction documentation did not establish the functional and quality characteristics of the goods required for delivery.

The arguments of the Department of Health that the requirements for the product can be understood from the name and subject of purchase, the relationship between sections of the technical specifications, from the draft government contract, which, among other things, indicates that the supplied goods must meet the requirements of state standards, sanitary standards and rules and other requirements for equipment and medical products, a requirement was made for the quality guarantee period of the supplied goods, were considered by the courts and were reasonably found to be untenable and not indicating the customer’s compliance with the requirements of Article 33 of Federal Law N 44-FZ.

The courts came to the correct conclusion that in this case, the absence of relevant product requirements in the documentation makes it difficult for participants in the procurement to formulate proposals for the execution of the government contract and entails a limitation on the number of participants in the procurement.

The antimonopoly authority found that in Appendix No. 2 to the technical specifications of the auction documentation, the customer, when describing the requirements for goods, uses non-standard units of measurement for the values ​​of goods indicators.

The use of units of measurement other than those specified in GOSTs should not lead to changes in the quality characteristics of the product. In the case under consideration, the appellate court established and the Institution does not essentially dispute that when recalculating the units of measurement stated in the auction documentation (700°K = 417°C), the indicators do not coincide with the standards established state standards(600°C).

In addition, based on the provisions of GOST 13344-79, the cutting ability of the sanding paper is measured in mm3/min, while in paragraph 29 of Appendix No. 2 to the technical specifications, non-standard units of measurement of this indicator are used - mm2/min.

In such circumstances, the cassation court agrees with the conclusion of the courts that the customer did not properly inform the procurement participants about the requirements for goods used in the performance of work at the contract execution stage, which led to a limitation on the number of procurement participants, and therefore the appealed decision of the Federal Antimonopoly Service in terms of establishing violations by the Institution of clause 1 of part 1 of article 64 (clause 1 and clause 2 of part 1 of article 33) of Law No. 44-FZ are legal and justified.

3.9. Indication by the customer of a trade name in the purchase description excludes the need to describe the parameters, functional, technical and qualitative characteristics of such a product, if the specified parameters and characteristics are unique to it

Indication by the customer in the purchase description of the trade name “Gensupen syringe pen” eliminates the need to describe the functional, technical and quality characteristics of such a syringe pen. This medical product has unique, unique parameters and characteristics, which in turn are known to market participants. Thus, a description of the functional, technical and quality characteristics of Gensupen syringe pens in the auction documentation is unnecessary.

Attention

FAS Russia believes that when describing the procurement object, the customer has the right to indicate specific trademarks only with a mandatory indication of the possibility of supplying goods with equivalent characteristics (clause 2 of the Review of Administrative Practices prepared by the Department for Control of Public Order Placement of FAS Russia, October 2015).

3.10. The absence of an indication of “or equivalent” in the purchase description may be considered justified in the case where the customer needs to ensure the interaction of the purchased goods with those already purchased

Having established that the AS "Smeta" software product has already been used at 75 workplaces of the authorities executive power in order to create a unified centralized accounting department, which provided for the use of a software product at 92 workplaces, the courts came to the conclusion that the customer’s failure to include the words “or equivalent” in the electronic auction documentation was due to the objective need to ensure the interaction of the purchased goods (services) with those already used by the customer goods (services).

Taking into account the above and guided by the provisions of the Federal Law of July 26, 2006 N 135-FZ “On the Protection of Competition”, the Arbitration Procedural Code of the Russian Federation, the courts came to the conclusion that the customer’s choice of a specific automated system for the purpose of ensuring the interaction of purchased goods with goods already used by the customer, does not violate the provisions of paragraph 1 of part 1 of Article 33, paragraph 1 of part 1 of Article 64 of the Law on the Contract System, which was the basis for declaring the contested provisions of decisions and orders invalid.

3.11. Indication by the customer of a trade name means that the participant must proceed from the compliance of the equivalent not only with the characteristics set out in the procurement documentation, but also with the characteristics of the product whose name is indicated in the notice

The courts, having established that the basic configuration of the product - the Gazelle stander, according to the Registration Certificate and its appendix, differs from the stander that was to be supplied as part of the auction, such structural elements as a headrest, belts, table, knee rests, side supports torsos, are additional components of the verticalizers (support-walkers) Gazelle (Gazelle), are not included in the standard delivery package, we came to the correct conclusion that, in fact, the requirements of the auction documentation established that the Gazelle support-walkers were to be supplied not in their basic version, but in a more complete set, or equivalents that meet all the requirements of the auction documentation.

This conclusion of the courts has not been refuted by the plaintiff.

The inclusion of an indication of the trade name - Gazelle walker supports - means that a person intending to participate in the auction must proceed from the compliance of the equivalent not only with the technical and other characteristics set out in the technical specifications, but also with the characteristics of the product, the name of which is indicated in the notice.

3.12. An obvious technical error in the procurement documentation regarding the indication of the subject of procurement does not indicate uncertainty about the procurement object

According to the auction documentation, the object of purchase was thermohygrometers in the amount of 10 pieces. Appendix No. 1 to the auction documentation indicates the purpose of the device - measuring temperature and humidity, as well as its characteristics and the completeness of the goods. The courts, having assessed the notice of the auction, the auction documentation, the protocol, the application of the auction participant, the management’s statement on the approval of the conclusion of the contract with sole supplier, came to the conclusion that there was a technical typo in clause 1.1 of the draft contract submitted to the antimonopoly authority, regarding the indication of the subject of purchase - excise stamp detectors, since from the analysis of the auction documentation it follows that the customer held an auction for the supply of thermohygrometers, the requirements for functional, technical and quality characteristics relate directly to thermohygrometers. As follows from the company's application, it offered to supply thermohygrometers with the characteristics specified in the auction documentation. Under such circumstances, the courts came to the correct conclusion that there were no violations of Article 33 of Law No. 44-FZ.

A technical error made during the preparation of the draft contract in the presence of a notice of the auction, auction documentation, the company’s application and a protocol for summing up the results of the electronic auction does not indicate that the customer did not identify the goods that are required for delivery in the auction documentation. The presence of a technical error in the draft contract when applying for approval of a contract with a single supplier is not provided for by Law No. 44-FZ and Procedure No. 537 as a basis for refusing such approval.

3.13. When purchasing medicines, it is allowed to establish a requirement for the remaining shelf life in percentage, if this does not lead to restriction of competition and is due to the needs of the customer

The Court of Appeal rightfully rejected the argument that the shelf life of the product was incorrectly established, since the current legislation does not directly prohibit the establishment of the remaining shelf life as a percentage. Establishing a requirement for the remaining shelf life, expressed as a percentage, must be determined by the needs of the customer (consumers of the product) and cannot lead to an unreasonable limitation on the number of procurement participants.

3.14. When purchasing equipment, an indication of the possibility of its delivery with components, the description of the parameters of which is accompanied by the words “no more”, “no less”, etc., may be considered unlawful if for these components the manufacturers of such equipment have established unchanged parameters

As established by the antimonopoly authority and confirmed by the courts, in the terms of reference of the controversial electronic auction for the supply of server equipment, the following characteristics are indicated in the names of the components: “processor, type - at least 8 x86 architecture cores with a frequency frequency of at least 2.0 Hz*, cache 3 levels of at least 15 MB*, external interfaces, number of PCI Express 2* expansion slots.

Clause 31 of Section 2 of the Electronic Auction Information Card stipulates that if in the Technical Specifications the value of an indicator of a technical or functional parameter is accompanied by the words “no less”, “no more”, “no lower”, “up to”, but is marked with “*”, then this value is accurate and cannot be changed, and in the application the participant in the electronic auction indicates such indicators with the words “no less”, “no more”, “no less”, “up to”.

Since the disputed indicators with the sign “*” from equipment manufacturers have an exact meaning that is not disputed by the applicant of the complaint, the requirement to fill out the application using the words “no less”, “no more”, “no less”, “up to”, according to the correct judgment of the courts, contradicts the requirements of paragraph 1 of part 1, part 2 of Article 33 of the Law on the Contract System, since the meaning of the indicator with the named words literally implies the variability of the indicator itself, and not its immutability.

3.15. If, when purchasing construction work, design and estimate documentation was developed on the basis of a standard design, the presence of a corresponding indication in the procurement description is not necessary

As the courts correctly pointed out, the reference in some drawings of the auction documentation to the city of Kostroma or to another name of the object only indicates that the design organization used a standard project to carry out the relevant work, which does not contradict urban planning legislation.

The absence in the auction documentation of an indication that the design and estimate documentation was developed on the basis of standard modified design documentation does not indicate a violation by the customer of the rules for describing the procurement object established in paragraph 1 of part 1 of Article 33 of Federal Law No. 44-FZ.

The Department did not provide evidence in the case materials that certain items of the design and estimate documentation mislead procurement participants when preparing an application for participation in the procurement.

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Guide to the contract system:

A Guide to Procurement Disputes:

1. When describing the procurement object in the procurement documentation, the customer must be guided by the following rules:

1) the description of the procurement object shall indicate the functional, technical and quality characteristics, operational characteristics of the procurement object (if necessary). The description of the procurement object should not include requirements or instructions regarding trademarks, service marks, trade names, patents, utility models, industrial designs, the name of the country of origin of the goods, requirements for goods, information, works, services, provided that such requirements or the instructions entail a limitation on the number of procurement participants. It is allowed to use an indication of a trademark in the description of the procurement object, provided that such an indication is accompanied by the words “or equivalent”, or subject to the incompatibility of goods on which other trademarks are placed, and the need to ensure the interaction of such goods with goods used by the customer, or subject to the purchase of spare parts parts and consumables for machines and equipment used by the customer, in accordance with the technical documentation for the specified machines and equipment;

2) when compiling a description of the procurement object, use of indicators, requirements, symbols and terminology relating to technical characteristics, functional characteristics (consumer properties) of goods, work, services and quality characteristics of the procurement object, which are provided for by technical regulations adopted in accordance with the legislation of the Russian Federation on technical regulation, documents developed and applied in the national standardization system, adopted in accordance with the legislation of the Russian Federation on standardization, other requirements related to determining the conformity of the supplied goods, work performed, services provided to the needs of the customer. If the customer, when drawing up a description of the procurement object, does not use the indicators, requirements established in accordance with the legislation of the Russian Federation on technical regulation, the legislation of the Russian Federation on standardization, symbols and terminology, the procurement documentation must contain a justification for the need to use other indicators, requirements, symbols and terminology;

(see text in the previous edition)

3) description of the procurement object may include specifications, plans, drawings, sketches, photographs, results of work, testing, requirements, including with regard to testing, test methods, packaging in accordance with the requirements of the Civil Code of the Russian Federation, markings, labels , confirmation of conformity, processes and production methods in accordance with the requirements of technical regulations, documents developed and applied in the national standardization system, technical specifications, as well as in relation to symbols and terminology;

(see text in the previous edition)

4) the procurement documentation must contain an image of the supplied goods, allowing it to be identified and the preparation of an application, a final offer, if such documentation contains a requirement that the supplied goods correspond to the image of the goods for the supply of which the contract is concluded;

5) procurement documentation must contain information about the place, start and end dates, procedure and schedule for inspection by procurement participants of a sample or mock-up of the goods for the supply of which a contract is concluded, if such documentation contains a requirement that the supplied goods correspond to the sample or mock-up of the goods for delivery whom the contract is concluded;

6) the procurement documentation must contain an indication of the international nonproprietary names of medicines or, in the absence of such names, chemical, group names, if the object of purchase is medicines. When purchasing medicines included in the list of medicines, the purchase of which is carried out in accordance with their trade names, as well as when purchasing medicines in accordance with clause 7 of part 2 of Article 83, clause 3 of part 2 of Article 83.1 of this Federal Law, the customer has the right indicate the trade names of these medicines. The specified list and the procedure for its formation are approved by the Government of the Russian Federation. If the object of procurement is medicines, the subject of one contract (one lot) cannot be medicines with different international nonproprietary names or, in the absence of such names with chemical, group names, provided that the initial (maximum) contract price (lot price ) exceeds the limit value established by the Government of the Russian Federation, as well as medicines with international nonproprietary names (in the absence of such names with chemical, group names) and trade names. The provisions of this paragraph do not apply when determining the supplier of medicines with whom a government contract is concluded in accordance with Article 111.4 of this Federal Law;

(see text in the previous edition)

7) the delivered product must be a new product (a product that has not been used, has not been repaired, including one that has not been restored, whose components have not been replaced, or whose consumer properties have not been restored) unless otherwise provided description of the procurement object;

8) procurement documentation when purchasing construction, reconstruction works, major renovation, demolition of the facility capital construction must contain design documentation approved in the manner established by the legislation on urban planning activities, except for the case where the preparation of design documentation in accordance with the specified legislation is not required, as well as cases of procurement in accordance with parts 16 and 16.1 of Article 34 of this Federal Law, in case of which the subject of the contract is, among other things, the design of a capital construction facility. The inclusion of design documentation in the procurement documentation in accordance with this paragraph is the proper fulfillment of the requirements of paragraphs 1 of this part.

2. The procurement documentation, in accordance with the requirements specified in Part 1 of this article, must contain indicators that make it possible to determine the compliance of the purchased goods, works, services with the requirements established by the customer. In this case, the maximum and (or) minimum values ​​of such indicators are indicated, as well as the values ​​of indicators that cannot be changed.

(see text in the previous edition)

3. It is not allowed to include in the procurement documentation (including in the form of requirements for quality, technical characteristics of a product, work or service, requirements for the functional characteristics (consumer properties) of a product) requirements for the manufacturer of the product, for the procurement participant (including requirements qualifications of the procurement participant, including work experience), as well as requirements for business reputation procurement participant, requirements for his availability production capacity, technological equipment, labor, financial and other resources necessary for the production of goods, the supply of which is the subject of the contract, to perform work or provide services that are the subject of the contract, except in cases where the possibility of establishing such requirements for the procurement participant is provided for by this Federal law.

4. Requirements for guaranteeing the quality of goods, work, services, as well as requirements for the warranty period and (or) the scope of providing guarantees of their quality, to warranty service of the product (hereinafter referred to as warranty obligations), to the costs of operating the product, to the obligation to install and adjust the product, to the training of persons involved in the use and maintenance of the product, are established by the customer if necessary. If a supplier of machinery and equipment is determined, the customer establishes in the procurement documentation requirements for the warranty period of the goods and (or) the scope of guarantees for their quality, for warranty service of the goods, for the costs of servicing the goods during the warranty period, as well as for installation and commissioning goods, if this is provided for in the technical documentation for the goods. In the case of determining a supplier of new machinery and equipment, the customer establishes in the procurement documentation the requirements for the provision of a guarantee from the manufacturer and (or) supplier of this product and for the period of validity of such a guarantee. This warranty is provided with this product.

(see text in the previous edition)

5. Features of the description individual species procurement objects may be established by the Government of the Russian Federation.

6. Features of the description of procurement objects under the state defense order may be established by Federal Law of December 29, 2012 N 275-FZ “On the State Defense Order”.

One of the striking innovations of the Law on the Constitutional Court is the unified rules for describing the procurement object. Analyzing the first results of the current practice of describing procurement, the article concludes that not all participants in the contract system lawfully apply the provisions established in Art. 33 of Law No. 44-FZ rules for describing the procurement object.

From this article you will learn:

• rules for describing the procurement object;
• liability for violations in the procurement description;
• requirements for quality indicators and conformity of goods during procurement;
• requirements for technical characteristics of procurement objects;
• fine for failure to indicate the words “or equivalent” in the description of the procurement object along with the trademark.

Rules for describing the procurement object under 44-FZ

According to clause 1, part 1, art. 33 of the Law on the Contract System, the customer, when describing the procurement object in the documentation, must be guided by the following rules:

• the description of the procurement object must be objective;
• the description of the procurement object shall indicate the functional, technical and quality characteristics, operational characteristics of the procurement object (if necessary);
• The description of the procurement object should not include requirements or instructions regarding trademarks, service marks, trade names, patents, utility models, industrial designs, the name of the place of origin of the goods or the name of the manufacturer, as well as requirements for goods, information, works, services, provided that such requirements entail a limitation on the number of procurement participants, unless there is no other way that provides a more accurate and clear description of the characteristics of the procurement object;
• procurement documentation may contain an indication of trademarks if, when performing work or providing services, it is intended to use goods the supply of which is not the subject of the contract.
  In this case, a mandatory condition is to include in the description of the procurement object the words “ or equivalent

Let's consider five main violations by customers when describing procurement objects, identified by the FAS Russia.

Violation No. 1.

Product quality indicators have not been established

As mentioned above, by virtue of the provisions of Art. 33 of the Law on the Constitutional Court, the description of the procurement object must be objective. The description of the procurement object shall indicate the functional, technical and quality characteristics, operational characteristics of the procurement object (if necessary). However, not all customers meet this requirement.

Example

In clause 2.1.1 technical requirements the system block of the auction documentation for the processor states “not weaker than Intel Core i3-4130”;
In clause 2.4 of the technical requirements for a type 1 server in the auction documentation for the processor, it is stated “at least two processors of a type no worse than E5-2690v2”;
In clause 2.5 of the technical requirements for a type 2 server in the auction documentation for the processor, it is stated “at least one processor of a type not lower than Intel Xeon E3-1240v3.”

Thus, from these provisions it is impossible to determine the indicators of goods, meeting the customer's needs. At the same time, from the position of the FAS Russia, the actions of the customer, who did not properly establish the functional, technical and qualitative characteristics, operational characteristics of the procurement object, with the exception of cases of incompatibility of goods on which other trademarks are placed, violate clause 1, part 1 of Art. 33 of the Law on the Constitutional Court (decision and order of the FAS Russia dated April 22, 2014 in case No. K-657/14).

It is impossible not to take into account that, according to Part 2 of Art. 33 of the Law on the Constitutional Court, procurement documentation in accordance with the requirements specified in Part 1 of Art. 33 of the Law on the Constitutional Court, must contain indicators that make it possible to determine the compliance of the purchased goods, works, services with the requirements established by the customer. In this case, the maximum and (or) minimum values ​​of such indicators are indicated, as well as the values ​​of indicators that cannot be changed.

What does the FAS of Russia say?

Currently, some customers violate the above rule. For example, in accordance with the auction documentation, the customer established the following minimum and maximum values: “the total length of the fastening is not less than 150.1 mm and not more than 114.4 mm,” “the length is not less than 0.57 m and not 0.71 m.”

As follows from the decision and order of the Federal Antimonopoly Service of Russia dated March 28, 2014 in case No. K-381/14, when considering the complaint, the customer’s representative explained that a technical error was made in the specified paragraph of the auction documentation. At the same time, the FAS Russia concluded that in the auction documentation the customer, in violation of Part 2 of Art. 33 of the Law on the Constitutional Court does not establish indicators to determine the needs of the customer.

A similar conclusion about the absence of indicators in the procurement documentation that would allow determining the conformity of the goods (building materials) used during the work was made in the decision of the Federal Antimonopoly Service of Russia dated April 22, 2014 in case No. K-657/14. Thus, in accordance with clause 17 of the technical specifications of the auction documentation, the customer established, among other things, the following requirement for concrete used during work under the contract: “The minimum compressive strength at the age of 28 days must be more than 27.3 and less than 33.6 (more than 270 and less than 340).”

According to Part 2 of Art. 33 of the Law on the Constitutional Court in accordance with the requirements specified in Part 1 of Art. 33 of the Law on 44-FZ, must contain indicators that make it possible to determine the compliance of the purchased goods, work, and services with the requirements established by the customer. In this case, the maximum and (or) minimum values ​​of such indicators are indicated, as well as the values ​​of indicators that cannot be changed.

Thus, the customer has not defined indicators that allow determining the compliance of the concrete used during the work with the customer’s requirements, and also the unit of measurement for the indicator “compressive strength” has not been established, which is a violation of clause 1, part 1, art. 64 of the Law on the Constitutional Court.

How to describe the procurement object when there are no GOSTs, technical regulations, or technical conditions?

Violation No. 2.

Setting product performance requirements inappropriately

In accordance with clause 2, part 1, art. 33 of the Law on the Constitutional Court, when drawing up a description of the procurement object, it is allowed to use, if possible, standard indicators, requirements, symbols and terminology relating to the technical and qualitative characteristics of the procurement object, established in accordance with technical regulations, standards and other requirements provided for by the legislation of the Russian Federation on technical regulation. If the customer does not use such standard indicators, requirements, symbols and terminology when describing the procurement object, the procurement documentation must contain a justification for the need to use other indicators, requirements, symbols and terminology.

However, one of the customers in the instructions for filling out the first part of the application documentation for the auction presented a list of frequently encountered regulatory documents that should be taken into account when preparing the application for this auction: GOST 1709–75, 22245–90, 16442–80, 9548–74, 7399 –97, 14791–79, 6465–76, 3262–75, 10503–71, 30108–94, 23732–2011, 25328–82, 28013–98, 7931–76, 26869–86, 9128–2013, 23558–9 4 , 8267–93, 52128–2003, 24909–81, 53299–2009, 26602.5–2001, 24699–2002, 7827-74,9.014-78, 2228–81, 53301–2009, 30674–99, 1 8599–2001, 190 –78, 10178–85, 9179–77, 125–79, 12820–80, 22266–94, 22266–94, 30884–2003, 30108–94, 8420–74, 20259–80, 18477–79, 52605–200 6 , 14918–80, 52325–2005, 6527–68, 28196–89, 50597–93, 12.4.026–2001, 52875–2007, 17608–91, 51728–01, 5583–78, 3134–78, 158 60–84 , 949–73, 17811–78, 23567.10–93, 9410–78, 10036–75, 9467–75, 20448–90, 10923–93, 9097–82, 7805–70, 6631–74,..., GOST 23683–89, as well as other GOSTs that regulate the materials presented in the appendix to the technical specifications, if these GOSTs are related to the work being carried out. If the GOSTs presented in this list are outdated, then this GOST number should be used, but in the current edition (with a different index after the number).”

The above example of auction documentation provisions indicates that the customer has not properly established requirements for product conformity indicators, used in the performance of work, to the needs of the customer. In addition, from the position of FAS Russia, the customer has not established which GOST corresponds to the product, and therefore it is not possible for procurement participants to compare GOST with the product when filling out an application for participation in the auction.

Taking into account the above, the FAS Russia Commission considered that the instructions established by the customer for filling out an application for participation in the auction do not allow procurement participants to formulate an application for participation in the auction properly.

There are often justified complaints from procurement participants, indicating that the technical specifications indicate requirements for the performance of purchased goods that contradict GOST specified in the documentation.

Example

Clause 4 “Polyethylene film” of the technical specification establishes the following characteristics of the product: “The static coefficient of friction must be within the range of 0.5.” At the same time, according to GOST 10354–82, the requirement for compliance with which is specified in the auction documentation, the static friction coefficient is set in the range of 0.1–0.5. At the same time, from the standpoint of the FAS Russia, the requirement for the indicator “Static coefficient of friction”, established in clause 4 “Polyethylene film” of the technical specification, does not meet the requirements of GOST 10354–82, which does not allow filling out an application for participation in the auction (decision and order of the FAS Russia dated 06/04/2014 in case No. K-893/14).

As a result of an unscheduled inspection carried out by the FAS of Russia, it was revealed that Appendix No. 2 to the documentation on the auction for the purchase of finished metal products for the product “Three-tier battery storage rack”, including the following requirements:

• The rack must be made in the form of a metal structure and comply with GOST 16140–77.
• Material sheet steel, steel 3 GOST 19903–74, grade St3ps of ordinary quality, in accordance with GOST 14637–89, equal-flange angle: for shelves 32×32, for racks 45×45 GOST 8509–93.”

The customer also established the following requirement: “To protect the floors and ensure the stability of the racks, squares of at least 60×60 mm made of St3ps steel of ordinary quality, with a thickness of at least 2 mm, must be welded to the lower part of the legs.”

In accordance with GOST 14637–89, the standard applies to thick sheet hot rolled steel from carbon steel of ordinary quality, manufactured in widths of 500 mm or more, thicknesses from 4 to 160 mm inclusive.

Thus, the customer’s indication in the auction documentation of the requirement for the thickness of steel from which squares measuring at least 60×60 mm must be made, “at least 2 mm,” does not comply with GOST 14637–89, which misleads procurement participants and does not allows you to fill out an application for participation in the auction properly.

Specified customer actions violate clause 1, part 1, art. 64 of the Law on the Constitutional Court and contain signs of an administrative offense, liability for the commission of which is provided for in Part 4.2 of Art. 7.30 of the Code of Administrative Offenses of the Russian Federation (decision and order of the FAS Russia dated December 3, 2014 in case No. K-1779/14).

Violation No. 3.

Establishment of conflicting requirements in the description of the procurement object

As follows from the decision of the Federal Antimonopoly Service of Russia dated May 26, 2014 in case No. K-831/14, the actions of the customer, who established conflicting requirements for the provision of services in the tender documentation, violate clause 1, part 1, art. 50 of the Law on the Contract System and contain signs of an administrative offense provided for in Part 4.2 of Art. 7.30 Code of Administrative Offenses of the Russian Federation.

So, according to paragraphs. 1.1.2 and 1.2. Table 2 of Section IV “Description of the object of procurement of works (services)” (hereinafter referred to as Table 2) of the tender documentation as amended on 05/07/2014, the contractor must be agreed with the customer no later than three working days before the holding of seminars and meetings newsletters, program, handouts and documents and (or) materials for discussion of each seminar-meeting.

At the same time, for these types of services in Table 5 of Section IV “Description of the object of procurement of works (services)” (hereinafter - Table 5) of the tender documentation as amended on 05/07/2014, the customer must agree on the program of each seminar-meeting within five working days. Also, according to clause 2.1.1 of Table 2, the contractor must agree with the customer on the description of the system of tactical target installations for 2015; in Table 5, agreement is not required for these types of services. In accordance with paragraphs. 1.4.1 and 2.4.1 of Table 2, the contractor must agree with the customer on the forms of expert opinions and summary expert opinions; in Table 5, no approval is required for these types of services.

Consequently, the requirements established for the services provided in Table 2 contradict the requirements established in Table 5.

Similarly, when considering the applicant’s complaint about the customer’s unlawful actions in describing the M/FTD B737NG simulators with a full-size simulation of the flight deck of B737NG aircraft, the FAS Russia concluded that there were conflicting requirements in the description of the procurement object.

In the applicant’s opinion, since the procurement object is the supply of M/FTD B737NG simulators with a full-size simulation of the flight deck of B737NG aircraft, an objective description of this procurement object will be an indication of the correspondence of the elements of the simulators with the real design of the flight deck of B737NG aircraft.

Moreover, according to the requirements of the competition documentation, the simulator must include the following hardware, including “for B737NG FCU, MCDU (left and right), ECAM Control Panel, Switching Panel”, which refers to components Airbus 320 flight deck.

In accordance with the technical specifications of the competition documentation, the simulator must include the following hardware: “for the B737NG FCU, MCDU (left and right), thrust levers, ECAM Control Panel, Switching Panel, steering wheels and control pedals.”

At a meeting of the FAS Russia Commission, the applicant presented documents and information that the FCU (flight control unit) is a technical component of the aircraft structure, in this designation (name) is integral part Airbus 320 flight deck. In the cockpit of the aircraft and on the B737NG simulator, an MPC (Model Control Panel) element is located in place of the FCU - a control panel for aircraft modes. MCDU (left and right) (Multipurpose Control Display Unit) - multipurpose control display unit, also applies to the flight deck of the Airbus320 aircraft, in the flight deck of the aircraft and on the B737NG simulator in place CDU (Control Display Unit) - control and display unit, etc. .

Thus, the actions of the customer, who indicated conflicting requirements for the procurement object in the technical specifications of the tender documentation, do not comply with clause 1, part 1, art. 33 of the Law on the Contract System and violate paragraph 1 of Part 1 of Art. 50 of the Law on the Contract System and contain signs of an administrative offense provided for in Part 4.2 of Art. 7.30 of the Code of Administrative Offenses of the Russian Federation (decision of the Federal Antimonopoly Service of Russia dated October 28, 2014 in case No. K-1545/14).

Violation No. 4.

Failure to indicate specific requirements for the technical characteristics of procurement objects

It should be noted that striking examples failure to specify specific requirements for the technical characteristics of purchased goods is a practice.

For example, in ch. 5 § 5.1 “Requirements for the supplied equipment” Table 2 “Technical support parameters” in sub. 1.1 clause 1 of the auction documentation states: “screen resolution - no less than 1920×1080” without specifying the unit of measurement; Clause 2 states: “Dimensions (LxWxH) no more than 870×770×1050” without specifying the unit of measurement. Thus, the actions of the customer, who established a description of the procurement object without indicating the units of measurement, do not comply with the requirements of the Law on the Constitutional Court and violate clause 1, part 1, art. 64 of the Law on the Constitutional Court (decision of the Federal Antimonopoly Service of Russia dated October 29, 2014 in case No. K-1558/14).

In another case, clause 16.1 of the technical specifications of the auction documentation states: “Ventilation grille 600×300 aluminum - 4 pcs.” without specifying units of measurement. Clause 1087 of the technical specifications of the auction documentation states “Air valve size 821×440 - 1 piece.” without specifying units of measurement.

At a meeting of the FAS Russia Commission, the customer’s representative said that in accordance with clause 1.8 of GOST 2.307–68 (ST SEV 1976–79, ST SEV 2180–80) “ one system design documentation. Drawing dimensions and maximum deviations” linear dimensions and their maximum deviations in drawings and specifications are called in millimeters, without indicating the unit of measurement.

At the same time, the auction documentation does not contain an indication of the corresponding regulatory document. Accordingly, the actions of the customer, who did not establish specific requirements for the technical characteristics of the goods, do not comply with clause 2, part 1, art. 33 of the Law on the Contract System and violate paragraph 1 of Part 1 of Art. 64 of the Law, which contains signs of an administrative offense provided for in Part 4.2 of Art. 7.30 of the Code of Administrative Offenses of the Russian Federation (decision of the Federal Antimonopoly Service of Russia dated 06/09/2014 in case No. K-915/14).

Violation No. 5.

Failure to indicate the words “or equivalent” in the description of the procurement object

According to clause 1, part 1, art. 33 of the Law on the Constitutional Court, procurement documentation may contain an indication of trademarks if, when performing work or providing services, it is intended to use goods the supply of which is not the subject of the contract.

In this case, a mandatory condition is to include the words “or equivalent” in the description of the procurement object, except for cases of incompatibility of goods on which other trademarks are placed, and the need to ensure the interaction of such goods with goods used by the customer, as well as cases of purchase of spare parts and consumables to machines and equipment used by the customer, in accordance with the technical documentation for said machines and equipment.

Thus, considering the applicant’s complaint against unlawful actions of the customer in terms of failure to indicate the words “or equivalent” to the trademark, FAS Russia recognized the customer’s actions as contrary to the legislation on the contract system.

According to clause 3 of the technical specifications of the auction documentation, the customer established a requirement for the supply of “Self-rescuer “Chance”-E” without specifying the words “or equivalent”. At a meeting of the FAS Russia Commission, the applicant presented a certificate for the trademark “Chance”, the copyright holder of which is LLC NPK Pozhkhimzashchita. At the same time, the customer did not provide evidence at the Commission meeting that the designation “Self-rescuer “Chance”-E” is not a trademark.

Thus, in accordance with the decision and order of the Federal Antimonopoly Service of Russia dated August 29, 2014 in case No. K-1279/14, the auction documentation contains an indication of the trademark “Self-rescuer “Chance”-E” without using the words “or equivalent”, which does not correspond to the 1 tsp. 1 tbsp. 33 of the Law on the Contract System, violates paragraph 1 of Part 1 of Art. 64 of the Law on the Contract System and contains elements of an administrative offense, liability for the commission of which is provided for in Part 4.2 of Art. 7.30 Code of Administrative Offenses of the Russian Federation.

A similar practice has developed due to the provisions of clause 1, part 1, art. 33 of the Law on the Constitutional Court and in contract procurement. For example, at a meeting of the FAS Russia Commission it was established that in Appendix No. 2 to the information card of the competition, the list of equipment and other material resources necessary to perform work under the contract contains the indication on a trademark without the words “or equivalent”:

• Grove GBT 35 truck crane or equivalent;
• Tower crane Mitsuber MCT 8FR or equivalent;
• Bulldozer KOMATSU D275AX-5 or equivalent

At the same time, from the position of the FAS Russia, the actions of the customer, who indicated a trademark in the tender documentation without the words “or equivalent”, do not comply with clause 1, part 1, art. 33 of the Law on the Constitutional Court and violate Part 3 of Art. 56 of the Law on the Constitutional Court (decision of the Federal Antimonopoly Service of Russia dated May 13, 2014 in case No. K-759/14).

Taking into account the current administrative practice, it is possible to do next output: when preparing procurement documentation for customers, authorized bodies should pay attention to Special attention for a description of the procurement object, taking into account the rules specified by the Law on the Constitutional Court. At the same time, when objectively describing the procurement object, one should not establish conflicting requirements, provided that the quality indicators of the purchased goods, works, and services are properly established, allowing the customer’s needs to be determined.

• On 09/07/2018
• 0 Comments
• 44-FZ, EIS, Request for quotations, Request for proposals, Competition, NMCC, SMP, Electronic auction, ETP

Among the suppliers in public procurement There are several preferential categories. They need to be given certain benefits. Let's consider who they are intended for and how the customer needs to act.

Preferential categories of government procurement participants

The contract system was created not only to make budget spending more transparent, but also to provide participants with equal access to procurement. This promotes fair competition. At the same time, preferences are provided for certain groups. The government order includes three categories of beneficiaries:

• small businesses and socially oriented non-profit organizations (SMP and SONO);
• organizations of disabled people ( OI);
• correctional system institutions ( UIS).

Rules for assigning participants to each category and links to regulations are presented in the following diagram.

Registration in ERUZ EIS

From January 1 2020 year to participate in tenders under 44-FZ, 223-FZ and 615-PP registration is required in the ERUZ register ( Single register procurement participants) on the EIS portal (Unified Information system) in the field of procurement zakupki.gov.ru.

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

SMP and SONO

Organizations of disabled people

Correctional institutions

Article 30 44-FZ

Article 29 44-FZ,
Resolution No. 341 of 04/15/14

Article 28 44-FZ,
Resolution No. 649 of 07/14/14

SMP: Small businesses that meet the criteria of the law of July 24, 2007 No. 209-FZ.
Main criteria:

• revenue excluding VAT up to 800 million rubles;
• average number of employees up to 100 people;
• share of commercial companies (not small and medium enterprises) in the authorized capital – no more than 49%

SONO: Organizations in the forms provided for by the law of January 12, 1996 No. 7-FZ (except for state corporations, state-owned companies, political parties). They carry out the activities listed in Article 31.1 of Law No. 7-FZ.

All-Russian public organizations of disabled people (OI), their unions:

• 80% of members are disabled;

Organizations whose capital consists 100% of contributions from the IO:

• the average number of disabled people in relation to others is at least 50%;
• the share of the salary of disabled people in the wage fund is at least 25%.

Organizations from the list contained in Government Decree No. 89 dated 01.02.2000.

The following table provides basic information on benefits, their scope and method of provision.

Table. Benefits for emergency medical services and public health organizations, IP institutions, organizations of disabled people

How are preferences provided to preferential categories?

Benefits for OI and UI

The specified categories are provided with benefits if the procurement object is included in the list from the relevant resolution (No. 341 and No. 649, respectively). The customer determines the object of purchase and checks with these regulations. If the product is included in one of them, it is necessary to establish benefits for the corresponding category of participants.

The advantages for penal institutions and organizations of disabled people are as follows: the contract will be concluded at a price 15% higher than that included in the application of such a participant. From the wording of the law it may seem that the advantage may be less than 15%, but this interpretation is erroneous. The advantage is assumed to be 15%, but the contract may be awarded at a price not higher than NMCC (letter of the Ministry of Economic Development 10.15.2014 No. D28i-2197).

The lists of resolutions indicate codes according to the OKPD2 classifier. It has a certain structure (shown below using the example of class 13 "Textiles and textile products"). The benefits extend to all lower levels of the code structure.

OKPD2 structure

Class 13 “Textiles and textile products”
	13.9 Subclass “Other textile products”
		13.92 Group “Finished textile products (except clothing)”
			13.92.1 Subgroup “Textile products ready for household use”
				13.92.12 View “Bed linen”
					13.92.12.110 Category “Bed linen made of cotton fabrics”
						13.92.12.114 Subcategory “Bedding sets made of cotton fabrics”

For example, a customer needs electric portable lamps. This procurement object corresponds to the code OKPD2 27.40.21.110. We check Resolution No. 341 and see that it includes a code 27.40.2 “Lamps and lighting devices.” The procurement object required by the customer is included in the structure of this code. Accordingly, it is necessary to establish an advantage in procurement for organizations of people with disabilities.

Important! If you need to purchase different items, make sure that they are all included in the list. Only then is it worth including them in one purchase. If you need to buy goods other than the list, follow different procedures.

The advantage must be established in planning documents and duplicated in procurement documentation and the draft contract. It should also be indicated that the contract cannot be concluded at a price higher than the NMCC. Below is an excerpt from the auction documentation containing a reservation about preference for preferential categories:

Benefits provided for institutions and enterprises of the penal system, organizations of disabled people
Advantage to institutions and enterprises of the penal system Set by the customer in accordance with section ________ of the electronic auction documentation in the amount of up to 15% of the price offered by the institution or enterprise of the penal system recognized as the winner, but not more than the initial (maximum) contract price
Advantage for organizations of disabled people Set by the customer in accordance with section ________ of the electronic auction documentation in the amount of 15% of the price offered by the organization of disabled people recognized as the winner, but not more than the initial (maximum) contract price	Set at 15% of the contract price, but not more than the initial (maximum) contract price / Not set

How participants confirm their membership in a specific category

To take advantage, the participant must belong to the UIS or OI category. This must be documented. The confirmation method depends on the method of purchase:

1. If this is an electronic auction, a request for proposals in electronic form, then the participant must submit documents(copies thereof), which will confirm the right to receive the corresponding benefits.
2. If an electronic request for quotations is carried out, the participant provides declaration in electronic form, which is formed using ETP tools.

Actions of the customer if the beneficiary wins

The winner belongs to the UIS. His application must include a requirement to provide benefits. If there is one, the advantage must be provided.

The winner belongs to the OG. His application must include a statement of category eligibility. Before signing a contract, he must send a request for benefit to the customer. If a claim is made, the contract price must be set taking into account the benefit.

Attention! If the winner avoided concluding a contract, and the participant following him belongs to preferential categories, then he should also be given an advantage.

Contract price

Let us show with an example how to calculate the contract price if the beneficiary wins. Let the subject of purchase be included in the list from Resolution No. 341, which means that an advantage is given to organizations of people with disabilities. Initial contract price - 300,000 rubles. The winner is the application of a subject of the OP category with a price 270,000 rubles. The size of the advantage is 15%.

Let's calculate the contract price. The following formula is used:

Settlement price = PO Price * 15% + PO Price

The calculation is: 270,000 * 15% + 270,000 = 310,500 rubles.

The estimated price, taking into account the provided advantage, is higher than the initial (maximum) price. Thus, a contract with the organization of disabled people will be concluded at a price of 300,000 rubles, that is, according to the NMCC.

Benefits for SMP and SONO

Customers are required to purchase from small and non-profit businesses at least 15% of the total annual procurement volume (AGP). First of all, you need to correctly determine this volume. If you make a mistake in the calculations or fail to maintain this limit, you can receive a fine of 50,000 rubles.

Formula for calculating SGOZ:

When the SGOZ is calculated, you need to take from it 15% - this will be the minimum purchase from SMP and SONO. However, when planning purchases, you need take this percentage with a reserve, after all, some of them may not take place. In this case, the customer risks not reaching the 15% volume and receiving a fine.

Setting a purchasing advantage

Small Business Advantage Worth Establishing in those procurements for which they are able to supply objects. Thus, you should not announce a purchase for SMP and SONO if the object is, for example, medical services or fuel. Because companies that provide such goods and services are rarely classified as small businesses.

When procurement objects from SMP are selected, this must be reflected in planning documents, procurement documentation and the contract. There are two important points that need to be noted:

1. Payment. If the contract is concluded with SMP or SONO, then no more than 15 working days should pass from the moment of signing the acceptance documents to the day of payment.
2. Fines. Penalties will be charged for late payments. In all other cases, facts of non-fulfillment or improper execution of the contract are punishable by fines. These conditions must be specified without fail. It is necessary to indicate a fixed amount of the fine, determined based on the value of the contract, as well as the entire fine line. For small businesses the sizes are:
   • if the contract price is up to 3 million rubles, the fine is 3%;
   • with a contract price from 3 to 10 million rubles - 2%;
   • with a contract price of 10 to 20 million rubles - 1%.

An example of the wording of the penalty clause is shown in the following image.

Example of wording on penalties

What else does the customer need to know?

Don’t forget to check the winning bidder if it was announced for SMP and SONO. The application must contain a declaration of its membership in this category. But it doesn’t hurt to check the information with the relevant register on the Federal Tax Service website.

Getting the required volume of purchases from small companies is not always easy. To simplify the task, it is advisable engage SMP and SONO as subcontractors. The procurement documentation must establish requirements for the supplier, who is not itself a small enterprise, to hire SMP and SONO as co-executors. In this case, it is necessary to establish the exact amount of attraction in value terms and write it down in the draft contract.