Procurement participants under 223 fz

In accordance with paragraph 4 of Art. 3 44-FZ, a procurement participant is absolutely any legal entity or individual, including individual entrepreneurs.

The procurement participant may have different registration data - legal form, type of ownership, legal address, place of origin of capital. The exceptions are legal entities registered in the state, in the territory for which a preferential regime is approved (subclause 1, clause 3, article 284 of the Tax Code of the Russian Federation) or in offshore zones.

In order for the above persons to be able to take part in the procurement, they are required to comply with the requirements for procurement participants under 44-FZ.

The parameters that must be met by those who decide to participate in the procurement are established by Article 31 of the Law on the contract system of the Russian Federation. They are usually divided into single and additional.

The uniform requirements for procurement participants are as follows:

The participant complies with the requirements of the law for suppliers of goods, performers of work and services (clause 1, part 1, article 31). To confirm the application, for example, copies of licenses, SRO certificates or certificates of conformity are attached.
In relation to a potential executor, no liquidation procedure (Article 61 of the Civil Code of the Russian Federation) or bankruptcy (Article 2 of Law No. 127 of October 26, 2002) is carried out, and its activities have not been suspended administratively (Article 3.12 of the Code of Administrative Offenses of the Russian Federation). All this information must be confirmed by a declaration of conformity. You can check the procurement participant for bankruptcy on the website of the Unified Federal Register of Bankruptcy Information.
There is no arrears on mandatory payments to the budgets of the Russian Federation in the amount of more than 25% of the balance sheet value of the participant's assets (clause 5, part 1, article 31). This information must also be confirmed by declaring.
There is no conviction for crimes in the economic sphere and criminal penalties for violations of the law that are directly related to procurement activities under articles 289, 290, 291 and 291.1 of the Criminal Code of the Russian Federation (clause 7, part 1, article 31). At the time of the announcement of the purchase from the supplier, the conclusion of the executive body on punishment in the form of deprivation of the right to hold certain positions, carry out certain activities directly related to the supply of goods, works or services that are purchased objects (Article 47 of the Criminal Code of the Russian Federation) should not be valid. The performer also should not have administrative penalties in the form of disqualification (Article 3.11 of the Code of Administrative Offenses of the Russian Federation). This sign refers to the company's managers, as well as to the chief accountant, and is confirmed by the declaration. If the customer finds that the participant was previously convicted for these offenses, but the conviction is canceled or extinguished, then such a supplier has every right to take part in the purchase.
A person participating in the auction must not be an offshore organization (Order of the Ministry of Finance of the Russian Federation No. 108n dated November 13, 2007). An extract from the Unified State Register of Legal Entities is provided as confirmation.
There is no conflict of interest between the customer and the participant in the procedure (Letter of the Ministry of Finance of the Russian Federation No. 24-05-09 / 47126 of 07/24/2017). This is confirmed by the corresponding declaration.
A person participating in the auction has exclusive rights to the results of intellectual activity. The condition is necessary if, during the execution of the contract, the customer acquires the rights to such results (clause 8, part 1, article 31).
Procurement participant - a legal entity that within two years prior to participation in the procurement was not brought to administrative responsibility for committing an administrative offense under Art. 19.28 of the Code of Administrative Offenses of the Russian Federation, - illegal remuneration on behalf of a legal entity (clause 7.1, part 1, article 31).
The requirements should not contain other restrictions on participation in the procurement (clause 11, part 1, article 31, introduced by law No. 504 of December 31, 2017).

Any procurement participant must comply with these parameters - this is clearly established by 44-FZ.

According to part 1.1 of Art. 31 of Federal Law No. 44, the customer also has the right to establish the condition that the company of a potential contractor (including the entire management team) should not be included in the register of unscrupulous suppliers (Letter of the Ministry of Finance of Russia dated September 26, 2017 No. 24-05-09 / 62505) .

If we talk about additional conditions for tender participants, it should be noted that the Government of the Russian Federation has the right to establish them depending on the type of purchased goods, works and services. So, in accordance with Decree of the Government of the Russian Federation of 04/05/2015 No. 99, these include:

experience, real estate, certain equipment and technical means (for example, to carry out work to preserve cultural heritage sites);
experience in the execution of a similar contract over the past three years (refers to construction work);
experience, as well as possession of river or sea vehicles (for the provision of transport services in the field of military sea and river transport).

In addition to these conditions, the customer has the right to provide for a condition on the absence of information in the RNP (a register containing information about suppliers who have poorly performed or not performed the provisions of the contract at all).

As for the conditions for providing various kinds of SRO certificates, licenses, we recall that the unified requirements include a clause on the compliance of the supplier with all the conditions specified in the procurement documentation. At the same time, for example, from the norms that regulate the procedure for conducting a request for quotations, it follows that the customer is not entitled to demand such documents. In such a situation, it is the responsibility of the customer to check the compliance of the participant. However, there is another point of view regarding the requirements put forward when requesting quotations. Thus, arbitration courts note that the conditions of the customer to provide certificates or licenses are legitimate, since they are established on the basis of paragraph 1 of part 1 of Art. 31 FZ 44.

If you meet all the items on the list, you can join the member association and help other members protect their rights and interests. The Association of Procurement Participants (APU) is a non-profit association of individual entrepreneurs and legal entities created on a voluntary basis for the purpose of carrying out social activities. The basis of this activity is the representation and protection of the interests of the members of the AOU, mainly in the field of procurement.

Conditions under 223-FZ

Federal Law No. 223 establishes only general provisions and principles on tenders held by organizations, without establishing specific requirements for procurement participants under 223-FZ. More detailed information about the terms, methods and parameters can be obtained from the Procurement Regulations, which is approved by the customer and is the main document during the bidding. This Regulation must be published in the EIS.

Despite the fact that law No. 223 does not clearly define the requirements for procurement participants, the law obliges customers to establish them in the specified Regulation, as well as in the tender documentation. At the same time, one of the fundamental provisions is that it is not allowed to restrict access to participation in the tender by establishing unmeasurable requirements for contractors.

In addition, uniform requirements, which are described above, also apply.

Consider the conditions that are set for those who wish to take part in the auction, using the example of one of the preschool educational institutions. According to the Regulations of this customer, in order to participate in the auction, the supplier must meet the reasonable wishes of the customer: work experience, the availability of material, technical, financial, personnel and other capabilities, as well as a positive business reputation. At the same time, the customer reserves the right to provide for a condition on the absence of information about bidders in the register of unscrupulous suppliers.

Excessive requirements for procurement participants

Excessive requirements are conditions that significantly limit the competition of procurement participants in the course of public procurement procedures.

For example, some customers began to actively evaluate the business reputation of contractors using the business reputation index. Moreover, according to the FAS, organizations are required to confirm the IDR by a certificate of compliance with GOST R 66.1.01-2015, which significantly limits competition between potential procurement suppliers.

There is no indication in Federal Law No. 44 that participants must certify their business reputation in accordance with GOSTs. Confirmation of their good faith can be generated in free form (FAS Letter No. IA/71669/18 of 09/07/2018, Letter of the Ministry of Economic Development No. OG-D28 of 01/19/2017).

As part of the procurement activities in accordance with the standards of Federal Law No. 223, customer organizations independently establish requirements for the content, form, design and composition of the application for participation in the procurement (FAS Letter No. SP / 51294-PR / 18 dated 05.07.2018).

At the same time, many institutions abuse their powers and set excessive requirements for procurement participants, such as communication with the manufacturer, certain experience in the supply of purchased products. Also, some customers require special conditions for the form and content of the application, they indicate the presence of extracts and certificates that the contractor simply cannot receive within the time allotted for submitting the application. All these excessive requirements lead to the restriction of competition in the implementation of the purchase, resulting in the rejection of applications on formal grounds.

The way out of this situation can be the development of a model procurement regulation at the regional level, which will standardize uniform requirements both for procurement participants and for the formal and meaningful type of applications.

What to do if a member does not qualify

The customer must remember that if the procurement commission detects a participant’s non-compliance with the uniform procurement requirements or if they provide false information, the exclusion of performers from participation in the electronic competition, auction or refusal to conclude a contract with the winner of the procurement can be carried out at any time until the conclusion of the contract (h 9 article 31 of law no. 44).

Therefore, if uniform requirements are established in the procurement documentation, in accordance with Part 1 of Article 31 of the Federal Law on the Contract System, the members of the commission should consider all applications for their compliance with these conditions and remove those performers who do not comply with them (Letter of the Ministry of Finance of the Russian Federation No. 24-03 -08/70136 dated 10/25/2017).

The same applies to non-compliance of suppliers with the parameters determined in accordance with Part 1.1 of Art. 31 - if the customer organization has set a condition for the supplier that there are no unscrupulous suppliers in the register, and the members of the commission, when checking according to the norms of Part 8 of Art. 31 found a company (its manager, etc.) or an individual, individual entrepreneur (potential performers) in the RNP, then the commission must reject such an application or refuse to conclude a contract with the winner of the tender, auction, information about which is contained in the RNP (Letter from the Ministry of Finance RF No. 24-05-09/62505 dated September 26, 2017).

Which persons can take part in corporate procurement as executors? What does it mean to be a procurement participant and why is it important to have this status? In the article, we will consider these and other topical issues about participation in procurement under 223-FZ.

Who can participate in procurement

By and large, a procurement participant can become practically any person- organization, individual entrepreneur, individual. As for companies, their legal form, location and origin of capital do not matter.

Moreover, on the side of one participant can act several persons. In this case, they are usually united on the basis of a joint activity agreement (simple partnership). Although the law does not provide for any special forms of such participation, which means that they may be different. In addition to the mentioned persons and their associations, the Ministry of Finance recognizes it as lawful when persons affiliated with it act on behalf of one participant.

Registration in ERUZ EIS
From January 1, 2019 to participate in trading under 44-FZ, 223-FZ and 615-PP registration required in the ERUZ register (Unified Register of Procurement Participants) on the EIS (Unified Information System) portal in the field of procurement zakupki.gov.ru.
We provide a service for registration in the ERUZ in the EIS:

On the side of one procurement participant under 223-FZ, several organizations conducting joint activities can act

Who is denied access to purchases

But the circle of persons who cannot take part in procurement is stipulated in the legislation quite clearly. This auction organizers, customers, as well as their employees. In addition, it is very likely that soon they will not be able to take part in procurement and relatives of persons from the management of the customer and members of the procurement committee. The corresponding draft law is posted on the portal of legal acts and is undergoing the stage of anti-corruption expertise.

Who is considered a member

Law 223-FZ does not clarify the term "participant of the purchase" and criteria for classifying a person as such. However, customers must do so in their Terms of Purchase. This is necessary in order to make it clear which persons have participation rights and which do not.

The rights mentioned, for example, include appealing the customer's actions or omissions out of court or in court. In addition, the Regulations on the procurement of the customer may provide participants with other rights, including in terms of appeal.

But since the procurement legislation does not contain a clear definition of a participant, in practice abuses sometimes occur. In particular, complaints are filed by persons who still could not become executors due to their lack of opportunity to deliver (implement/execute) the procurement object.

What requirements must participants meet?

In this context, it means General requirements to a person who can be recognized as a procurement participant, and not to a potential executor of a specific contract. An example of such requirements could be:

registration as an organization or individual entrepreneur, that is, the presence of a person in the relevant register;
lack of debt to the budget;
the absence of bankruptcy, bankruptcy proceedings, liquidation, suspension of activities in relation to the person.
availability of all necessary permits, certificates, licenses and so on;
financial stability and solvency of a person, which follows from the indicators of his financial and economic activities;
the absence of a subject in the RNP (the right to establish such a requirement for the customer is given by clause 7 of article 3 of the law).

This list is incomplete, because you can’t foresee everything in advance. Specific requirements for participants in a particular procurement must be write in its documentation. And the Regulations should indicate that the list of requirements given in it is open and can be clarified for each specific procedure.

For example, in the Regulation, the participant indicates that the procurement documentation may include the requirements:

to the reputation of the performer;
to his experience;
its compliance with other requirements that may be relevant for the performance of the contract.

It is also worth specifying in the Regulation that the documentation may contain other requirements for participants, which are determined by the specifics of the purchase. At the same time, they must comply with the principles of corporate procurement set forth in Article 3 of the law.

Procurement principles under 223-FZ related to the selection of participants

In terms of admission to procurement, according to Law 223-FZ, the following principles must be observed:

Equality, fairness, absence of discrimination and unreasonable restriction of competition.
The inadmissibility of setting unmeasurable requirements for participants.

The implementation of the first principle is achieved by the fact that Almost everyone is allowed to participate.. In addition, in pursuance of this principle, Law 223-FZ prohibits customers from setting requirements for participants that are not specified in the procurement documentation. The law also stipulates that the requirements should apply equally to all participants. However, here there are exceptions:

national treatment, that is, the priority of goods of Russian origin;
preferences for small and medium businesses.

An example of what requirements are considered restrictive of competition and unacceptable in procurement under 223-FZ,.

Target ban on setting non-measurable requirements so that the participant, even before submitting an application, can assess his strength and understand whether he meets the established criteria. In this regard, the customer cannot demand what cannot be measured. For example, having “the right amount” of human resources is an unacceptable requirement. After all, it is not clear what a particular customer means by the required quantity, and there are no clear criteria for this concept. The participant may consider that he has the required number of employees, and the customer will have a different opinion and reject the application.

In other words, all requirements in the documentation must be clear and measurable. In the example with the required number of employees, it would be correct to indicate, for example, that the customer must have at least 10 employees who have undergone professional training in a certain area and have the specified qualification, confirmed by a certificate or other document.

Recording of a webinar for novice suppliers on 223-FZ:

The Federal Law of July 18, 2011 No. 223-FZ “On the Procurement of Goods, Works, Services by Certain Types of Legal Entities” (hereinafter - Law No. 223-FZ) also meets with an ambiguous attitude in 2018. This is largely due to the fact that this law provides too much freedom of action for customers. And it is worth admitting that sometimes this freedom greatly harms the principles of Law No. 223-FZ: equality, fairness, non-discrimination and unreasonable restrictions on competition in relation to participants in procurement procedures.

Law No. 223-FZ outsources to the customer the establishment of requirements for participants, as well as the procedure for evaluating applications. Unfortunately, not all customers manage to dispose of such freedom.

The requirement for the participant to have work experience similar to the subject of procurement is logical. After all, even in ordinary life, none of us wants to pay money to people for the work that they have never done. In its letter dated September 14, 2016 No. D28i-2344, the Ministry of Economic Development of Russia agrees with this position, but clarifies that the requirements of the customer should not be discriminatory and should not lead to a restriction on the number of procurement participants.

Let's try to figure out what is hidden behind such a formulation.

In the request for quotations, the customer has set a requirement that the participant must have a positive experience working directly with this customer, otherwise the application is rejected. The Commission of the FAS Russia, having considered the complaint of the participant, came to the conclusion that such a requirement violates the requirements of the law and is unreasonable (Decision No. 223FZ-17/16 of January 22, 2016). It is worth agreeing with the commission, since it is almost impossible for the customer to prove how the experience of working with him is fundamentally different from similar experience with other organizations. At the same time, if specific experience is included in the assessment, then the FAS Russia can be loyal to this.

The customer determined in the evaluation criteria whether the participants had experience in performing work in a particular region. At the meeting, the customer explained this need and proved that many organizations have such experience. It was also emphasized that this criterion is not a selection criterion and does not prevent companies from participating in this procurement. In addition, the commission's attention was drawn to the fact that procurement under Law No. 223-FZ provides for the possibility of combining several legal entities acting on the side of one procurement participant. Taking this into account, the Commission of the Moscow OFAS Russia agreed with the customer's arguments that there were no signs of a violation of Russian law in the documentation, and recognized the complaint as unfounded (Decision dated 06/01/2017 in case No. 1-00-1347 / 77-17). A similar position is shared by the Commission of the St. Petersburg OFAS Russia, the customer in his documentation established the experience of working with a particular customer as one of the criteria for evaluating applications. Since this requirement is not a qualifying one and does not prevent participation in the procurement, the complaint was recognized as unfounded (Decision dated March 16, 2016 on complaint No. T02-136 / 16).

Based on the decisions on complaints, it can be concluded that if the customer wants to confirm that the procurement participants have specific experience, for example, experience with the customer or experience in a particular region, then this should be established in the evaluation procedure, and should not be a qualifying requirement . Also, such a requirement should not be key in the assessment. At the same time, the customer should always remember that there is no case law in Russia, therefore, decisions largely depend on the persons who make them and, unfortunately, can radically differ from existing practice.

Customers can establish not only discriminatory requirements, but also a non-transparent procedure for evaluating applications. One of these criteria are various variations on the theme "participant's proposal on the functional and qualitative characteristics of goods, works, services." Law No. 223-FZ does not expressly prohibit the establishment of such a criterion, but in paragraph 13. part 10. Article 4 establishes that the procurement documentation must contain the procedure for evaluating and comparing applications for participation in the procurement. At the same time, such an evaluation procedure should be clear to the participants, and they should understand why they receive specific points. Therefore, when the customer prescribes in the documentation a phrase in the spirit that the most developed proposal receives the maximum score, then he goes to an obvious violation of not only the Law No. 223-FZ, but also the Federal Law of July 26, 2006 No. competition." The Commission of the FAS Russia (Decision No. 223FZ-243/16 dated 07.06.2016) and the Moscow Arbitration Court (case No. А40-156155/16) adhere to the same position. The evaluation should be transparent and understandable to the participant and not allow any possibility for the customer to subjectively evaluate the submitted applications. It should be added that in the above decision, the Commission of the FAS Russia considered that the customer limited the rights of the participants by establishing an assessment of the experience of performing work on a territorial basis, which once again proves that the existing practice should be treated very carefully.

It is worth noting that there are enough unfair actions on both sides, on the basis of this, customers are reinsured and can set deliberately discriminatory requirements. We are talking about the requirement to provide a bank guarantee only from a certain list of banks, which is set by the customer. The desire of the customer is understandable, especially considering that as of January 1, 2018, 561 banks were registered in Russia, while in 2017 alone 62 banks ceased to exist. Such insurance on the part of the customer is unreasonable, since the choice of a bank by a procurement participant does not affect the fulfillment of the conditions under the contract (decision of the Arbitration Court of Moscow dated March 09, 2016 in case No. .2015 in case No. 223FZ-366/15). To avoid problems, it is advisable for the customer to prescribe the procedure for replacing a bank guarantee directly in the draft contract. Creating your own list of banks is an obvious violation of the law, and it can only be explained by the subjective ideas of the customer.

This text touched upon only some of the problems that arise during procurement under Law No. 223-FZ. Unfortunately, today the relationship between customers and participants is far from ideal. Customers continue to be afraid of relationships, often justifiably, with new counterparties, preferring to work with trusted companies. All this leads to the fact that the practice of Law No. 223-FZ raises certain questions. It is important for customers to remember that the preparation of documentation is regulated not only by their own position and desires, but also by the principles established by Russian law. When establishing the requirements and evaluation procedure in the documentation, it is important to understand whether they will be objective and whether they are related to the performance of work under the contract.

Requirements for procurement participants under Law N 223-FZ

Law N 223-FZ establishes only the general principles for the procurement of goods, works, services and the basic requirements for such procurement by the types and categories of legal entities listed in Part 2 of Art. 1 of Law N 223-FZ (hereinafter - customers). This Law does not directly determine the methods of procurement, the conditions for their application and the procedure for conducting procurement, but only requires customers to develop and approve a procurement regulation. It is this document that regulates the procurement activities of the customer and contains procurement requirements, including the procedure for preparing and conducting procurement procedures (procurement methods) and the conditions for their application, as well as the procedure for concluding and executing contracts (Article 2 of Law N 223-FZ, see. also, for example, letter of the Ministry of Economic Development of the Russian Federation dated 02.09.2011 N D28-317).

This also applies to the requirements for procurement participants (hereinafter referred to as participants). With the exception of the rule of Part 7 of Art. 3 of Law N 223-FZ, which allows the establishment of a requirement that there is no information about participants in the register of unscrupulous suppliers, provided for in Art. 5 of Law N 223-FZ, and (or) in the register of unscrupulous suppliers provided for by Law N 44-FZ, Law N 223-FZ does not specify the requirements for participants that the customer is entitled to establish. Restrictions on the freedom of the customer in establishing such requirements follow from Part 1 of Art. 3 of Law N 223-FZ, which establishes the principles of procurement. So, in accordance with paragraph 2 of part 1 of Art. 3 of Law N 223-FZ, one of the principles that customers are required to follow when making purchases is equality, fairness, non-discrimination and unreasonable restrictions on competition towards the participants. And by virtue of paragraph 4 of part 1 of Art. 3 of Law N 223-FZ, another of the principles of procurement is no restriction on admission to participation in the procurement by establishing non-measurable requirements to the participants. In the latter case, as we believe, the wording is not entirely accurate, obviously, it means that the indicators that reflect compliance with these requirements should be measurable.

As you can see, the law directly allows the customer to establish requirements for participants that limit admission to participation in a particular procurement, requiring only that these requirements be reasonable and measurable.

The same applies to the submission of documents confirming compliance with the requirements established by the customer. In paragraph 9, part 10 of Art. 4 of Law N 223-FZ states that the procurement documentation must contain requirements for participants and a list of documents submitted by participants to confirm their compliance with the established requirements. At the same time, it does not contain any restrictions regarding which documents in support of which particular requirements the customer may require.

As indicated in the definition of the IC on economic disputes of the RF Armed Forces dated July 31, 2017 N 305-KG17-2243, the inclusion by the customer in the procurement documentation of additional requirements for participants narrows the circle of potential participants. However, such actions can be recognized as a violation of antimonopoly legislation and Law N 223-FZ only if they led to an unreasonable restriction of competition, the creation of unjustified barriers to business entities in exercising their right to participate in competitive procurement procedures. It is also noted that the requirements for participants can be considered as violating the law if the antimonopoly authority proves that they are included in the documentation specifically to ensure the victory of a particular business entity, and the formation of the conditions for the purchase does not correspond to the goals and needs of the procedures conducted by the customer.

At the same time, it should be borne in mind that according to Part 6 of Art. 3 of Law N 223-FZ it is not allowed to make demands on participants that are not specified in the procurement documentation. Otherwise, the actions of the customer may be considered unlawful (see the decisions of the Ninth AAC dated 12/01/2014 N 09AP-42440/14 and the Moscow District Arbitration Court dated 03/17/2015 N F05-1173/15). At the same time, within the meaning of the provisions of Part 2 of Art. 2 and the general norm, part 10 of Art. 4 of Law N 223-FZ, relating to clause 9 of this part, only those requirements for participants and that list of documents submitted to confirm compliance with these requirements, which are provided for purchases of this kind in the procurement regulations. The inclusion in the notice of procurement of requirements for participants that are not provided for in the procurement regulations for procurements of this kind, for example, that they have relevant experience, may be considered unlawful (see, for example, the press release of the Federal Antimonopoly Service for the Khabarovsk Territory dated 08.11.2012 N 2/8159, decision of the OFAS for the Vologda region dated March 26, 2012 N 119-17AM3/12).

Thus, the customer independently determines the requirements for participants in the procurement regulation (for certain methods of procurement, procurement of certain types of goods, works, services) and a list of documents that confirm compliance with these requirements. In the documentation for a specific procurement, such requirements and a list of such documents are established in accordance with the procurement regulation (see also section 8 of the clarification on the application of the Federal Law of July 18, 2011 N 223-FZ "On the procurement of goods, works, services by certain types of legal entities ", sent by letter to the FAS Russia of December 24, 2012 N IA / 44025/12). The only restrictions are that such requirements must be justified, and compliance with them must be determined by measurable, objective indicators.

Note that some of the requirements arise from the norms of the legislation establishing the requirements for a license, a certificate of admission issued by a self-regulatory organization, or membership in such an organization as a condition for carrying out activities (