Purchase of electricity: step by step instructions. What should be guided by the State Unitary Enterprise when providing services for the transmission of electrical energy with an adjacent grid organization? Contract for the supply of electricity accounting for 223 fz

We are the state unitary enterprise in whose economic jurisdiction are Electricity of the net areas. We are a network organization with the main activity providing services for the transmission of electrical energy and are regulated by the Department for prices (both interconnection and boiler tariffs are established, we are boiler holders). 1. Should we trade contracts for the provision of services for the transmission of electrical energy with an adjacent grid organization when we act as a customer (i.e., make payment) under 44 FZ? 2. Should the same contracts be traded under 223 FZ? 3. Or should 35 Federal Laws and government regulations in the field of the electric energy market be guided, since these requirements do not coincide with the requirements of 223 Federal Laws, 44 Federal Laws, including the requirements for informing about planned purchases and selecting suppliers?

Answer

Oksana Balandina, chief editor of the State Order System

From July 1, 2018 to January 1, 2019, customers have a transition period - it is allowed to carry out both electronic and paper procedures. From 2019, competitions, auctions, quotes and requests for proposals on paper will be prohibited, with eight exceptions.
Read what purchases to make at the ETP, how to choose a site and get electronic signature, according to what rules to conclude contracts during the transition period and after.

In accordance with federal law dated July 3, 2016 No. 321-FZ “On Amendments to Certain Legislative Acts Russian Federation on the procurement of goods, works, services to meet state and municipal needs and the needs of certain types legal entities» starting from January 1, 2017, the provisions of the Federal Law of April 5, 2013 No. 44-FZ "On contract system in the field of procurement of goods, works, services to meet state and municipal needs” apply to state and municipal unitary enterprises, regardless of the types of activities they carry out.

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Therefore, if the customer is a territorial grid organization, then the purchase of EE at regulated tariffs can be concluded with sole supplier according to paragraph 1 of part 1 of Art. 93 of Law No. 44-FZ (services for the transmission of electrical energy, services for operational dispatch control in the electric power industry (part 1 of article 4 of Federal Law No. 147-FZ of August 17, 1995).

When purchasing on the wholesale market, it is also possible to conclude a contract with a single supplier under clause 1, part 1, art. 93 of Law No. 44-FZ (services for the transmission of electrical energy, services for operational dispatch control in the electric power industry (part 1 of article 4 of Federal Law No. 147-FZ of August 17, 1995). At the same time, for buyers - subjects wholesale market the cost of electricity purchased by them on the wholesale market in the territories of non-price zones in the amount of planned hourly consumption in order to compensate for the loss of electricity (with the exception of the volume of electricity attributable to the flow along the border with the price zone (price zones) of the wholesale market) will be determined in in accordance with the Rules of the wholesale electricity and capacity market based on the cost of electricity in the volume of planned hourly production (with the exception of the volumes of electricity attributable to the flow along the border with the price zone (price zones) of the wholesale market), the supply of which in the corresponding billing period is ensured consumption of electrical energy in the amount of planned hourly consumption and compensation for losses of electrical energy, as well as based on the corresponding volumes of planned hourly consumption and losses (clause 50 of the Fundamentals of Pricing in the field of regulated prices (tariffs) in the electric power industry, approved by Decree of the Government of the Russian Federation dated December 29, 2011 No. 1178).

Accordingly, such purchases should be taken into account in the procurement plan and the procurement schedule.

We believe that they should also be taken into account in the Information Disclosure Standards of a Grid Organization (Section II of the Standards approved by Decree of the Government of the Russian Federation No. 24 dated January 21, 2004).

How do state, municipal unitary enterprises make purchases?

Unitary enterprises from January 1, 2017 are excluded from customers under Law No. 223-FZ and become customers under Law No. 44-FZ.

Accordingly, all purchases are made on it, regardless of the source of financing, except for the cases specified in Law No. 223-FZ and Part 2 of Article 1 of Law No. 44-FZ.

In accordance with new edition clause 7 of article 3 of Law No. 44-FZ, the customer is a state or municipal customer or in accordance with parts 1 and 2.1 of article 15 of Law No. 44-FZ state-financed organization, state, municipal unitary enterprises engaged in procurement.

According to part 2.1 of article 15 of Law No. 44-FZ, state, municipal unitary enterprises carry out purchases in accordance with the requirements of this federal law, with the exception of purchases made during the year in accordance with legal act, provided for by Part 3 of Article 2 of the Law of July 18, 2011 No. 223-FZ “On the Procurement of Goods, Works, Services certain types legal entities”, adopted by state, municipal unitary enterprises and placed before the beginning of the year in a single information system:

At the expense of grants transferred free of charge and irrevocably by citizens and legal entities, including foreign citizens and foreign legal entities, as well as by international organizations that have acquired the right to provide grants on the territory of the Russian Federation in the manner established by the legislation of the Russian Federation, subsidies (grants), provided on a competitive basis from the relevant budgets of the budgetary system of the Russian Federation, unless otherwise provided by the conditions determined by the grantors;
As a contractor under the contract in the event that other persons are involved on the basis of the contract in the course of the execution of this contract for the supply of goods, performance of work or provision of services necessary for the fulfillment of the obligations of this enterprise under the contract, with the exception of cases when the enterprise fulfills the contract concluded in accordance with paragraph 2 Part 1 of Article 93 of Law No. 44-FZ.

Thus, the provisions of Law No. 44-FZ single out only two grounds (according to the source of financing and the status of the customer) for procurement under Law No. 223-FZ, and in other cases, including regardless of the source of financing, procurement must be carried out under Law No. 44-FZ.

An exception

Under Law No. 44-FZ, only such purchases by SUE and MUP, which enterprises carry out at the expense of grants, as well as purchases to involve third parties in the execution of a contract, under which unitary enterprise is a performer.

Why change was invented

As the Government of the Russian Federation expects, the transfer of state unitary enterprises and municipal unitary enterprises to Law No. 44-FZ will help to spend budgetary funds more efficiently and more carefully control customers. After all, Law No. 223-FZ, according to the rules of which SUE and MUP are currently working, allows using different names of procurement methods to mask the purchase from a single supplier. In contrast, Law No. 44-FZ establishes more stringent procurement requirements.

What should be done

Let's list what will change for SUE and MUP during the transition to Law No. 44-FZ:

Appoint a contract manager or contract service. Remember that their qualifications must be confirmed by a special document. For example, a diploma of advanced training in the course "Procurement Management" in the amount of at least 108 hours;
Draw up a procurement schedule and approve it before the beginning of 2017;
Include mandatory purchases from SMP in the schedule;
Draw up a procurement plan according to the rules established for customers working under Law No. 44-FZ. Do not forget about the justification of purchases, which should be made by all customers under the contract system;
Conduct rationing of all purchased products: what and for what purposes the company buys;
Switch to procurement methods designed for the contract system. The main methods will be open competition and electronic auction. Part of the goods will have to be bought strictly only through an electronic auction according to the auction list;
Limit your purchases from a single supplier. Purchasing from a single supplier will be possible in strictly defined situations and to a very limited extent on the basis of Article 93 of Law No. 44-FZ;
Establish restrictions on products prohibited from purchases from foreign companies(For example, software, drugs, certain types of medical devices, certain types of products, engineering goods).

The Antimonopoly Service carefully monitors the area of procurement. After all, competition is important for business development. Today it is important to comply with the provisions of Federal Law 223, which are now often misinterpreted. In 2016, it is important to carry out all purchases according to the approved plan, which creates additional obstacles. For many legal entities, it is important to find a single supplier with whom it will be easy to cooperate. Let's figure out in what situations a purchase without competition can be used.

What procurement methods are provided for by article two of 223-FZ

This law is the basis of all procurement activities in Russia. According to it, the customer is obliged to indicate in the provision created by him, according to which the purchase will be carried out, its method. The law does not prohibit:

contests;
auctions.

The ban on other forms in Federal Law 223 is not indicated, therefore, it can be interpreted in such a way that it is possible to conclude contracts for direct deliveries without considering the offers of competitors. It is only important to prescribe in detail the conditions of procurement activities in the regulation.

What is Direct Buying

Purchasing equipment and other necessary items from a single supplier is often referred to as direct purchasing. In it, both the seller and the buyer can act as the initiative party. For example, if you know which company will deliver the goods to you quickly and efficiently, then you can send it an offer to conclude a contract. On the other hand, Federal Law 223 does not prohibit accepting an offer if the initiative comes from a single supplier. In this case, it is not necessary to consider the conditions of competitors.

If you have chosen direct purchase, then you should follow the following rules of Federal Law 223:

It is not necessary to register in the unified information system transactions for the purchase of goods or services, the total value of which is less than one hundred thousand rubles.
For large companies, whose annual profit is more than 5 billion rubles, it is allowed not to submit information when conducting transactions for a total amount of up to 500 thousand.

Thus, it is possible to purchase goods or services from a single supplier in most cases. In 2015, the share of such purchases among all transactions was about 51%. Customers did not place the following information in the EIS:

notice;
documentation
protocol.

In the remaining cases, the buyer had to disclose data:

the exact name of the position;
name of the customer organization (entered in the same way as in the Charter or other constituent documents);
TIN and registration number of the customer;
the date of the final approval of the regulation and the time of creation of this document;
registration reason code tax service(checkpoint);
procurement documents.

The list of information that needs to be transferred to the EIS is contained in 223-FZ. Many companies prefer to purchase goods and services from a single supplier for small amounts so that they do not have to enter their data into a general register.

Situations when it is possible to cooperate with a single supplier

Most often, direct purchase is carried out in the following cases:

A small total cost of the object of bargaining. In this case, it is inappropriate to hold auctions and competitions.
If required item or the service is provided by a single provider. However, it is important here that the monopoly be natural, otherwise the employees government agencies questions may arise.
A single supplier has exclusive rights to these products. These are the cases when the purchase is carried out from the manufacturer or developer.
Direct Buying can be used if you have previously been unable to close the deal in any other competitive way.
At emergency situations, accidents and natural disasters, the need for a product or service often becomes urgent. In this case, the law provides for the possibility of obtaining what is necessary from a single supplier, since there is no time for an auction or tender.

If you purchased goods for a minimum amount, then you can not include the transaction in the purchase plan, but you will have to reflect it in the reports for Rosstat. In addition, it is imperative to prepare a rationale for concluding an agreement with a supplier - an order or instruction.

According to Federal Law 223, direct purchases are included in a separate section in monthly reporting. Once every six months, the receipt of the necessary items of bargaining from a single supplier must be reported in the first form of the Rosstat report.

Violations of Federal Law 223

One of the most important violations of Federal Law 223 is the frequent receipt of goods and services from a single supplier, reflected in the procurement regulation. The customer in this case violates regulations, for which the purchase must be carried out using competitive bidding. Auctions and competitions run by a legal entity must be open to allow small businesses to participate. In particular, such a violation was revealed in the Ministry of Defense, which rarely resorted to open tenders as part of the implementation of the state order project.

If the purchase is related to energy resources, then in addition to Federal Law 223, Decree No. 109 must be borne in mind, which prescribes a competitive selection when concluding such transactions. Thus, it is impossible to get from a single supplier:

fuel;
raw materials;
materials;
electricity;
repair service.

This measure was taken for more efficient and targeted spending of funds. If you miss this moment, the regulatory body will fix the violation.

Frequent receipt of goods and services from a single supplier is also unacceptable for owners of natural monopolies. In this case, you must additionally be guided by Decree No. 1158, which recommends that the owners of such enterprises conduct purchases in accordance with the rules in force for bidding for state needs.

Purchase of companies with state participation must be carried out in accordance with the Directive of 16 October 2010. According to her, information about the auction should be published in in electronic format. This measure helps SOEs consider more options rather than focusing only on a single supplier.

Professionals in the field of public procurement recommend paying attention to the following points:

When making a transaction, remember that more attention will be drawn to it from the regulatory authorities. Nevertheless, this form of bargaining should not be abandoned. Such a purchase is attractive for the customer, since it is possible to conclude a contract as soon as possible.
In addition to 223-FZ, it is necessary to carefully study articles from 93 to 96 of Federal Law 43. They contain a list of goods that can actually be obtained from a single supplier. Additionally, you can view open auctions on government portals If the item you want is listed at the auction, then you should choose the same method of obtaining it. This will help you get rid of the additional attention of the auditors.
According to Federal Law 223, each customer establishes for himself the cases of receiving goods from a single supplier. If you want to sell a product or service to a company that adheres to this piece of legislation, you should carefully read the purchasing regulations it has created.
It is important for the supplier to fully fulfill its obligations under the contracts, in this case it is likely that the next purchase will not be competitive, but direct.

In order to properly purchase electricity from a single supplier according to 44-FZ, you need to study:

Law on the contract system No. 44 of 05.04.2013;
Federal Law 35 "On Electricity" dated March 26, 2003;
Federal Law No. 147 "On Natural Monopolies" dated August 17, 1995;
Decree of the Government of the Russian Federation of 04.05.2012 No. 442.

They regulate the process of purchasing electricity.

It is impossible to purchase services for technological connection to power grids under paragraph 8 of part 1 of Art. 93 of Law No. 44-FZ. Such conclusions were made by the FAS in Letter No. АЦ/4119/15 dated 02/03/2015 and the Ministry of Economic Development in Letter No. Д28i-2130 dated 08.10.2014.

There are two types of suppliers supplying electricity:

guaranteeing;
energy saving organization.

The tasks of the guaranteeer are to purchase electricity and capacity in the wholesale and retail markets, conclude an agreement for its transmission with network company, maintaining settlement relations with the consumer of electrical energy.

Based on Art. 3 35-FZ, a supplier of last resort is a commercial legal entity that is obliged to conclude sales contracts with any consumer who applied to the organization in order to receive energy supply services.

The energy-saving organization sells, and also transfers the produced or purchased energy resource to other persons. Services for the sale of electricity are the main activity of the EO.

The list of guaranteeing electricity suppliers and areas of their activity is published on the FAS website.

Download the register of guaranteeing suppliers

How to identify a supplier

Since almost all consumers have been cooperating with one guaranteeing supplier for many years, it is not advisable to purchase electricity by competitive methods - the procedure takes a long time and can be declared invalid due to the lack of an appropriate number of applications (it is not profitable for many to participate in the auction).

That's why the best option conclusion of a contract for the supply of electrical energy will be the signing of a contract with a single contractor, in accordance with.

If the customer concludes with a supplier of last resort an energy supply contract or a contract for the purchase and sale of electrical energy, then it is provided for by the legislative right to conclude a contract based on the results of the purchase of electricity from a single supplier, clause 29 of Art. 93 44-FZ prescribes to do this in accordance with the procurement schedule. The amount should not exceed those established for the institution (part 2 of article 72 of the RF BC).

Contact supplier

To conclude a contract, determine which supplier of last resort the institution belongs to. Contact him with an application. Copies may need to be provided:

charter (regulations on the establishment);
documents on state registration (for example, extracts from the Unified State Register of Legal Entities);
agreements (orders) for the use of premises or extracts from the USRN;
a power of attorney or an order appointing a person who will sign the state contract;
documents for electricity meters.

It is not required to place a notice in the EIS, it is enough just to sign a contract. Within 5 working days days after the conclusion, publish the information in the EIS registry.

If non-residential premises have been transferred for gratuitous use or operational management and users of other premises in the same building already receive electricity from some supplier, then you can conclude a contract with him under paragraph 23 of part 1 of Art. 93 44-FZ. There is no need to publish a notice in the EIS. It is necessary to prepare and place a report on the impossibility and inappropriateness of other ways to determine the supplier and conclude a contract. Within 5 working days days after the conclusion of the contract, information about it must be placed in the register in the EIS.

When purchasing services for the transmission of electrical energy, the customer must be guided by the provisions of paragraph 1 of part 1 of Art. 93 because this species services belongs to the scope of functioning.

List of subjects of natural monopolies as of 04/01/2019

Make a rationale

In the purchase of electricity under 44-FZ from a single supplier, the main thing that the customer must do is to draw up a competent justification for concluding such a contract. The supporting document must include:

the purpose of the purchase;
the need for a procedure;
detailed description services;
essential terms of the contract;
advantages of the contractor chosen by the customer;
the reasons why it is impossible to purchase the service by competitive means;
standards from the current legislation;
the final conclusion about the need to conclude a contract with a certain contractor.

When concluding an energy supply contract with a supplier of last resort, the customer does not need to justify the expediency of the order in a non-competitive way.

How to calculate the initial maximum contract price

The calculation of the NMTsK is made in accordance with. The Central Committee for electricity is determined in accordance with paragraphs 3, 4 of Art. 23.1 35-FZ - based on state-regulated tariffs. Prices must be set within the limits of budgetary obligations allocated to the customer.

Electricity tariffs are constantly differentiated. On settlement price the customer is affected by the voltage level, the selected price category, as well as the maximum possible power for a particular consumer.

The customer organization can view the current tariffs on the official website of its guaranteeing supplier in the information section for legal entities in the subsections:

marginal level of prices for electric energy and capacity;
calculation of prices for electricity.

What is the procedure for publishing a notice

If in doubt whether a notice is needed, paragraph 29 of part 1 of Art. 93 44-FZ requires electricity to be supplied without this document.

But notices are published in the Unified Information System if the purchase of energy supply services is carried out under paragraph 1 of part 1 of Art. 93 44-FZ, that is, when ordering from natural monopolies and the central depository. When purchasing from a single supplier under clause 1, part 1, art. 93, the customer organization places a notice on the implementation of the order in the EIS no later than 5 days before the conclusion of the contract.

If the energy supply contract contains information containing state secrets, then the notice is not published. That is, when concluding an agreement for the supply of electricity, clause 29, part 1, art. 93 44-FZ, paragraph 4, part 1, art. 93 44-FZ, as well as paragraph 23 of part 1 of Art. 93 44-FZ notice is not required to be posted.

Supply contract example

How the contract is concluded and payments are made

The result of the purchase of electricity under 44-FZ, clause 29, Art. 93 establishes the conclusion of a contract for the supply of electricity.

But if the price of the contract does not exceed 100,000 rubles, then the customer organization has the right to conclude a contract for the supply of energy supply or the sale and purchase of electrical energy according to general rule. Or according to paragraph 5 of part 1 of Art. 93 with a Central Committee not exceeding 400,000 rubles, observing the restrictions established by these paragraphs (Letter of the Ministry of Finance of Russia dated 06/21/2017 No. 24-05-07 / 38889).

An essential condition of the contract is the fact that the supplier of last resort transfers, and the customer, who is a consumer of electricity, accepts and then obligatorily pays for electricity in the amount and at the prices established by the terms of the contract.

An energy supply agreement is a subtype of sales and purchase contracts, therefore, in the contractual terms, there is an obligation for an uninterrupted supply of electricity from the contractor and about timely payment from the customer-consumer (Article 539 of the Civil Code of the Russian Federation).

Each contract must stipulate forfeits, penalties and fines imposed on the customer in case of improper performance of his obligations (part 5 of article 34 of 44-FZ). But in accordance with Part 15 of Art. 34 44-FZ, the customer organization has the right not to establish the requirements of Part 5 of Art. 34, since contracts with a single supplier under paragraphs 1 and 29 of Art. 93 can be drawn up and signed by the parties in any format provided for by the Civil Code of the Russian Federation for concluding transactions.

According to the norms of the Federal Law on the electric power industry, the penalties established by the terms of such contracts are 1/130 of the amount not paid to the contractor in the due period, for each day of delay. To calculate the amount of the fine, the rate effective on the date of actual payment is used.

Contracts for the supply of energy supply services must also include a clause on

Customers making purchases in accordance with the Federal Law of July 18, 2011 No. 223-FZ "On the Procurement of Goods, Works, Services by Certain Types of Legal Entities" (hereinafter - 223-FZ, the Law on Procurement), often face the following questions: how to purchase energy supply services and conclude relevant contracts, what to do with contracts that were concluded before the entry into force of 223-FZ, what conditions should be written in the contract and whether it can be extended, etc.

According to Art. 539 of the Civil Code of the Russian Federation, an energy supply organization that has concluded an agreement with a consumer (subscriber) undertakes to supply it with energy through the connected network, and the subscriber undertakes to pay for the received energy, as well as comply with the mode of its consumption provided for by the agreement, ensure the safety of operation of the energy networks under his control and the serviceability of those used them appliances and equipment related to energy consumption.

Energy saving is the implementation of organizational, legal, technical, technological, economic and other measures aimed at reducing the volume of energy resources used while maintaining the corresponding beneficial effect from their use, including the volume of products manufactured, work performed, services rendered (FZ No. 261 " On Energy Saving and Increasing Energy Efficiency and on Amendments to Certain Legislative Acts of the Russian Federation”)

Essential terms of the energy supply agreement

There is no clear consensus on what is considered the essential terms of an energy supply contract.

In accordance with civil law, one of the essential conditions of any civil law contract is the subject of the contract (in this case, it is different kinds energy, energy carriers, as well as water, oil products, oil).

A number of specialists also include the price, quantity and quality of energy, mode of consumption, provision of maintenance and safe operation networks, equipment, devices.

IN judicial practice There is an opinion that due to the fact that the energy supply agreement is one of the varieties of the sale and purchase agreement, the name of the product and its quantity should be considered essential conditions.

Art. 19 of the law "On energy saving and on improving energy efficiency ..."

1) on the amount of savings in energy resources, which must be ensured by the contractor as a result of the execution of the energy service agreement (contract);
2) on the validity period of the energy service agreement (contract), which must be no less than the period necessary to achieve the energy savings established by the energy service agreement (contract);
3) other mandatory terms of energy service agreements (contracts) established by the legislation of the Russian Federation.

1) on the obligation of the contractor to ensure, when performing the energy service agreement (contract), the regimes agreed by the parties, the conditions for the use of energy resources (including temperature regime, illumination level, other characteristics that meet the requirements in the field of labor organization, maintenance of buildings, structures, structures) and other conditions agreed upon when concluding an energy service agreement (contract);
2) on the obligation of the contractor to install and put into operation metering devices for the energy resources used;
3) on determining the price in the energy service agreement (contract) based on the indicators achieved or planned to be achieved as a result of the implementation of the energy service agreement (contract), including based on the cost of saved energy resources;

Price as an essential condition of the contract

The assignment of the price of the contract to the essential conditions depends on how it was formed. If the price is determined according to the established tariffs ( state regulation), then in this situation this condition of the contract is not determined by the agreement between the parties. In accordance with the law "On the Electric Power Industry", the supply of electricity for all consumer groups (except for the population) must be carried out at free prices in full (can be determined by agreement of the parties). Consumers of energy should receive energy exactly at the agreed price.

If the contract was made until January 1, 2015, then information about its execution and the contract itself do not need to publish in the register, as the law has no retroactive effect. If such an agreement is changed or terminated after January 1, 2015, then information about this also does not need to be entered in the register.

In the situation under consideration, customers only have the obligation to post information about the energy supply contract in monthly reports. However, some customers with an extended contract make the entire amount of payments in the report for December (that is, for the entire year at once), while others publish information every month in the report on the purchase from a single supplier.

If the energy supply contract is signed after January 1, 2015(when the above Decree came into force), the customer enter information into the register about the contract within 3 working days from the moment of its conclusion.

The energy supply contract has several payments during the year, and customers have questions about how to enter information about them in the register: monthly or is it permissible to display information at a time when the contract is closed. Both options take place when publishing information in the registry, but the latter is the most preferable and convenient for customers.

Documentation on the concluded agreement (scanned copy of the agreement, additional agreement, etc.) to be published in the register in 2015 no need. Such an obligation arises for customers only from January 1, 2016. Purchasing organizers must pay information on changes, execution, termination of contracts (without uploading scans of these documents) since the beginning of 2015. When placing information about the concluded agreement in the register, customers should also not forget about the monthly reporting, which is posted on the CAB no later than the 10th day of the month following the reporting one (according to 223-FZ).