Question about 223-FZ. The procurement regulations of an autonomous institution indicate that procurement can be carried out from a single supplier if the cost of concluded contracts for the supply of products of the same name does not exceed 500 thousand rubles, including VAT (if applicable), during the quarter. About goods (works, services) with the same name - goods, works, services similar in technical and functional characteristics, which may differ from each other in minor features (details) that do not affect the quality and basic consumer properties of goods, results of work, services, are homogeneous according to their consumer purpose and can be interchangeable. 1) The indicated 500 thousand rubles do not include purchases up to 100 thousand rubles, according to Part 15 of Art. 4, 223-FZ? 2) The content of the clause is not entirely clear: works of the same name, for example, major repairs in general, cannot cost more than 500 thousand rubles? 3) What about supply contracts? Since they are highlighted in the first sentence, they are not considered in the sense that supplies in general cannot be more than 500 thousand rubles, but only supplies for products of the same name?
- Price. Be careful if a specialist names a fee without even listening or inquiring about the situation in the case (direction of law, subject composition, procedural stage, number of episodes, etc.).
- Price dumping. If a lawyer offers services extremely cheaply, then ask questions about what is included in the scope of the service at a given cost.
- Specialization. Is the specialist involved in this area of law and how can he confirm his expertise (qualification).
- Reputation. Beware of choosing lawyers with dubious reputations and poor practice.
- An alternative when choosing a lawyer. Use different ways to select and check the expertise of a lawyer. Do not rely solely on the opinions of relatives, colleagues or friends. Check the “name” and reputation of the lawyer on the Internet. Please consult with the office before entering into an agreement. There is a danger in collaborating with a lawyer who works “on the fly” and does not have an office to work and receive visitors.
- Guarantees and promises. The law on advocacy prohibits giving guarantees. Be careful if the lawyer immediately starts suggesting solutions to problems outside the “legal framework.”
- Subjective judgments. In relations with a client or client, a lawyer must rely solely on legal norms, without taking into account his own interests, political or social preferences, or everyday emotionality.
- Fixation of legal relations. A lawyer works on the basis of a legal assistance agreement, as well as a power of attorney or warrant (depending on the direction of the case). Be careful if a lawyer suggests working on trust, etc. It is necessary to understand that the contract protects both parties and also imposes certain obligations.
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Purchase of goods of the same name (similar) according to Law N 223-FZ
Law N 223-FZ establishes only general principles for the procurement of goods, works, services and the basic requirements for procurement procedures. This Law does not establish a list of procurement methods and conditions for their application; all these provisions are regulated by the procurement regulations approved by the customer himself (Article 2 of Law No. 223-FZ). In particular, Law N 223-FZ does not in any way regulate the possibility of using certain methods for the purchase of goods, works, services of the same name, in particular, it does not contain any restrictions on the amount for which they can be purchased during the or other period.
Likewise, Law No. 223-FZ does not regulate the formation of the subject of procurement (the subject of the contract concluded as a result of the procurement procedure). Certain restrictions follow only from Part 3 of Art. 17 of the Federal Law of July 26, 2006 N 135-FZ "On the Protection of Competition", which establishes a ban on restricting competition between bidders and requesting quotations by including in the lots products (goods, works, services) that are technologically and functionally unrelated to the goods , works, services, supplies, performance, provision of which are the subject of bidding or request for quotations, which applies to all purchases carried out in accordance with Law N 223-FZ by virtue of Part 5 of the same article (within the meaning of these norms - to all purchases carried out by competitive methods). The legislation does not contain a ban on dividing the purchase of interconnected goods, works, and services into items of several works.
At the same time, in our opinion, the emergence of a conflict situation in connection with the “fragmentation of the subject of procurement” cannot be ruled out. A similar term (“unreasonable fragmentation of orders”) appeared during the period of validity of the Federal Law of July 21, 2005 N 94-FZ “On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs” (hereinafter referred to as Law N 94-FZ ) in connection with the restrictions established by a number of its norms on the acquisition of goods, works, services of the same name based on the results of a request for quotations, placing an order with a single counterparty within one quarter in certain amounts (Part 3 of Article 42, paragraphs 14 and 14.1 of Part. 2, Article 55 of Law No. 94-FZ). Just in relation to one of the norms, clause 14, part 2, art. 55 of Law N 94-FZ, in the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 12, 2011 N 2518/11, it was stated that it is “aimed at stopping the artificial division (fragmentation) of a single order into a group of similar ones” with the aim of refusing to conduct tenders. Formally, “unreasonable fragmentation of an order” could be qualified only in relation to the formation of contracts concluded specifically by entities guided by Law No. 94-FZ, and only during the validity of the specified norms of this Law.
However, in our opinion, there is a possibility of appealing similar actions of the customer, guided by the norms of Law N 223-FZ, actually aimed at non-compliance with the norms of the regulation approved by him. From Part 2 of Art. 2 of Law N 223-FZ, which defines the procurement regulation as a legal act, it follows that compliance with the provisions of the procurement regulation approved and posted in the unified information system (hereinafter referred to as the UIS) by the customer is mandatory for him. Accordingly, the choice of procurement method in any situation depends on the content of the procurement regulations. And in the case, for example, if the procurement provision limits the possibility of using a purchase from a single counterparty or carrying out any procurement method by price (the initial (maximum) price of the contract, the division of the subject of procurement into items of different contracts can be done to avoid the need for a competitive procurement method or more complex (longer) competitive method. In this case, in our opinion, such actions of the customer can be appealed by the procurement participants in court on the basis of Part 9 of Article 3 of Law No. 223-FZ. This is possible, for example, through a requirement to recognize a series of contracts, the goods, works, services purchased under which technically and (or) functionally complement each other, pretend transactions covering up another transaction aimed at performing the entire range of works, providing the entire range of services, supplying the entire set of goods necessary for a specific purpose ( for example, installation of a set of equipment) (clause 2 of Art. 170 Civil Code of the Russian Federation). At the same time, we note that technically and (or) functionally complementary goods, works, services do not necessarily have to be of the same name (homogeneous).
In any case, of course, the final question of “unreasonable fragmentation of the subject of procurement” in the event of a conflict can only be resolved by the court, based on the circumstances of a particular case. It seems that, for example, contracts for the performance of work of the same name (homogeneous) at different sites, for the purchase of goods of the same name (homogeneous) for completing or ensuring the operation of various pieces of equipment, and similar purchases determined by the technological conditions of meeting the actual needs of the customer cannot be found to be feigned. And in any case, it will be necessary to take into account the rules of the procurement regulations, including those governing the formation of the subject of the contract, if any.
Officials of the Russian Ministry of Economic Development developed and approved a nomenclature of goods, works, and services of the same name. It is valid from February 1, 2011.
Innovation was necessary
Order No. 601 of the Ministry of Economic Development of Russia dated December 1, 2010 (registered with the Ministry of Justice of Russia on December 29, 2010) approved the range of goods, works, and services for the needs of state and municipal customers.
First of all, we note that the norms of the document are applied by all customers when placing orders for the supply of goods, performance of work, and provision of services starting from February 1, 2011.
Article 10 of the Federal Law of July 21, 2005 No. 94-FZ determines that goods (work, services) that belong to the same group in accordance with the newly adopted nomenclature are considered to be of the same name.
The identity of goods (works, services) is of great importance when placing orders due to the following points:
It is prohibited to place orders for goods (works, services) of the same name during one quarter in the amount of more than 500 thousand rubles. when requesting quotes and more than 100 thousand rubles. when placing orders under clause 14 of part 2 of article 55 of Law No. 94-FZ (so-called “small purchases”);
Joint tenders can be held by customers and authorized bodies only in the case of placing orders for the supply of goods of the same name, performance of work of the same name, provision of services of the same name (Part 6 of Article 10 of Law No. 94-FZ);
When placing an order through an auction for construction, reconstruction, or major repairs of a capital construction project, provided that the initial (maximum) contract price (lot price) is 50 million rubles. and more, customers have the right to establish a requirement for participants to have experience in performing construction work related to the same group, subgroup or one of several groups, subgroups of work for which the order is placed, that is, work of the same name (Part 2.1 of Article 11 Law No. 94-FZ).
Previously, existing norms did not allow unambiguous interpretation of goods (works, services) of the same name, on the one hand, by customers, and on the other, by authorities authorized to exercise control in the field of placing orders. The former, trying to avoid holding tenders and requesting quotations, split the products into smaller orders, while the regulatory authorities, on the contrary, “enlarged” the products.
Now goods, works, and services of the same name are determined in accordance with the approved nomenclature, which, we hope, will help customers in placing orders correctly and competently.
Separately, it should be noted that the nomenclature is not related to the formation of the placed order (lots). Often, customers believe that only those goods (work, services) that are contained in one group according to the nomenclature can be included in one order (lot). That is, each order (lot) can contain only goods (works, services) of the same name. Here it is necessary to distinguish between the same name for the purpose of limiting the number of orders placed per quarter (contracts (agreements) concluded for “small purchases” and based on the results of requests for quotations, respectively) and the “technological and functional” relationship of products, which is necessary for its inclusion in one order (lot) (Article 17 of Law No. 135-FZ “On Protection of Competition”). The fact that products are included in one group by the same name does not mean that they can only be combined into one lot.
When forming lots, you need to pay attention to another factor: whether this limits competition between participants in placing an order or not. And the concept of the same name for goods, works, and services is intended to limit the procedures for placing orders by customers without holding tenders.
It is also a misconception that if one group, according to the nomenclature, includes several subgroups (for example, group 89 “Household appliances, office equipment and electronics” includes both electrical household appliances and watches), then they should only be purchased together and you cannot place an order for them separately.
How to use the nomenclature
The nomenclature of goods, works, and services is compiled on the basis of the All-Russian Classifier of Types of Economic Activities, Products and Services (OKDP) OK 004-93. In total, the nomenclature includes 158 items.
Those goods, works, services, OKDP OK 004-93 codes that are contained in one group are of the same name (see Table 1).
An example of goods (works, services) of the same name in accordance with the approved list
In this case, for example, in code 1710000 “Yarn and thread; woven materials and pile fabrics" includes all items in accordance with OKDP contained in this group (from item 1711000 to item 1717680). Simply put, all products with codes in which the last digits change instead of zeros are a group. In the example, these are the last four digits.
But this rule does not apply to all OKDP codes, but only to codes corresponding to the type of product and service, that is, in a situation where all seven characters of the code carry information that may differ from zero. Information about classes and subclasses of types of products, presented in the form of a seven-digit code, is given in Part II of the OKDP. And the types of products in relation to the classes and subclasses of Part II of the OKDP are contained in Part III of the OKDP. For example, code 3010020 “Calculating machines, cash registers, ticket machines and similar equipment, including a counting device, instruments and mathematical tools” includes the following types of products:
3010150 “Accounting and invoicing complexes and machines”;
3010160 “Ticket and cash register machines”;
3010170 “Control and recording machines”;
3010180 “Other equipment, including counting devices”;
3010190 “Mathematical instruments and devices. Mechanical reference tables (devices, tools and mathematical devices)";
3010191 “Mathematical devices for calculating areas and moments of plane figures”;
3010192 “Mathematical devices for differentiation and integration of functions”;
3010193 “Instruments for measuring lines”;
3010194 “General purpose logarithmic rulers”;
3010195 “Specialized counting and reference rulers”;
3010196 “Mathematical devices”;
3010197 “Instruments for determining coordinates.”
Thus, in this situation, it is not the last digit in the code 3010020 that changes, but all three last digits.
It should be noted that the groups, according to the nomenclature, are quite large.
Thus, group 106 “Furniture” includes household furniture (tables, cabinets, chairs, etc.), and special furniture (for children's and school institutions, for administrative premises, etc.), and furniture components.
Separately, large groups are provided for medicines and drugs: cardiovascular, hormonal, for the treatment of malignant tumors, etc.
For other positions, on the contrary, there is a more detailed breakdown into groups. This, for example, applies to food products (see Table 2).
Range of goods, works, services for customer needs
No. | Product group name |
Meat (including poultry) |
|
Products of the meat processing industry |
|
Oils and fats |
|
Milk and dairy products |
|
Bread and bakery products |
|
Vegetables |
|
Fruits, nuts, beverage and spice crops |
|
Flour and cereal production products |
In relation to this example, in one quarter, the customer has the right to conclude, under clause 14 of part 2 of Article 55 of Law No. 94-FZ, contracts for the supply of meat, butter, milk, etc., the price of each of which will be 100 thousand rubles.
Pay attention to the next point.
In order to establish the requirement for procurement participants to carry out construction, reconstruction, and major repairs of a capital construction project over the past five years in accordance with Part 2.1 of Article 11 of Federal Law No. 94-FZ of July 21, 2005, the work included in group 158 is recommended classified into the following subgroups:
Work on the construction, reconstruction and overhaul of facilities classified in accordance with the Town Planning Code of the Russian Federation as particularly dangerous and technically complex facilities;
Work on construction, reconstruction and major repairs of other capital construction projects (including those classified as unique objects) that are not particularly dangerous and technically complex;
Work on the construction, reconstruction and major repairs of objects that are not capital construction objects (temporary buildings, kiosks, sheds and other similar buildings).
Not all group names correctly reflect their content
There are groups in the nomenclature whose names do not entirely accurately reflect their content. It turns out that, for example, advising a customer on using a computer, repairing a printer and holding a teleconference are works and services of the same name, they are included in one group, and the name of this group relates to a slightly different field of activity - “Software Products” (clause 137 nomenclature).
Services for the maintenance of machinery and equipment (code 9460000) are contained in the group “Vehicle repair services,” although equipment includes not only transport and related equipment, but, for example, also medical equipment.
Difficulties may arise when using nomenclature
Indeed, problems cannot be ruled out...
Firstly, for some goods there is uncertainty regarding their assignment to OKDP codes. For example, printer cartridges, on the one hand, can be classified as code 3010500 “Assemblies and parts for means of copying and rapid reproduction of documents” (group “Household appliances, office equipment and electronics” (clause 89 of the nomenclature)), and on the other hand - to code 3020365 “Components and spare parts for information input and output devices”, however this is already another group - “Computer technology” (clause 90 of the nomenclature).
The same problem arises when defining a group for stationery products, such as pens. They are found in code 3699110 “Pens (except automatic) and pencils (except mechanical)”, included in the “Household Goods” group, and in code 3010130 “Sets of automatic pens and mechanical pencils, tabletop writing utensils” (group “Household appliances, office equipment and electronics").
Secondly, not all goods, works, and services, as it seems at first glance, are included in the nomenclature. For example, some canned food products that customers often purchase are missing. At the same time, canned fish, meat, and dairy are included in the nomenclature, but canned vegetables and fruits and berries are absent (codes 1513050 “Canned fruits and vegetables”, 1513060 “Canned fruits, berries and fruits”).
Thirdly, the nomenclature contains codes according to OKDP, which are not in OKDP itself, for example 1511024 (group “Products of the meat processing industry”); the “Vehicle Repair Services” group contains code 3400200, which is simply not in the OKDP.
Another issue is the duplication of the same OKDP codes in different groups.
For example, the group “Printing services” (clause 35 of the nomenclature) includes code 2220000, which, in turn, contains code 2221030 “Office supplies made of paper and cardboard, not included in other groups -.” At the same time, both code 2221030 and code 2221690 are provided separately in the group “Office supplies, paper stationery” (clause 33 of the nomenclature).
In this situation, it seems logical that when customers determine the names of the same name, the “private” codes 2221030 and 2221690 should be excluded from the “general” code 2220000 and classified in the group “Office supplies, paper stationery.”
Responsibility for non-compliance with established standards
Almost any violation of the legislation on placing orders is subject to administrative liability.
The incorrect use of the nomenclature of goods (works, services) for the needs of customers is no exception. The RF Code of Administrative Offenses does not provide for such a direct violation, however, it is possible to impose an administrative fine for failure to comply with the requirements of the legislation on placing orders when deciding on the method of placing an order (Article 7.29 of the RF Code of Administrative Offences).
Liability under the above article occurs in the following cases.
1. In the quarter, under incorrectly concluded agreements (contracts) for goods, works, and services of the same name, the amount exceeded 100 thousand rubles. (for “small purchases”) and 500 thousand rubles. (for contracts concluded as a result of requests for quotations).
2. In the quarter, for incorrectly concluded contracts based on requests for quotations for goods, works, and services of the same name, the amount exceeded 500 thousand rubles, and the order had to be placed through an open auction in electronic form. For this offense, an official of the customer (that is, a manager or, as a rule, a person who decided to place an “extra” request for quotation or entered into (signed) an “extra” agreement) may be fined. The fine is 30 thousand rubles, and if the order had to be placed through an open auction in electronic form, then 50 thousand rubles. (Part 1 of Article 7.29 of the Code of the Russian Federation on Administrative Offenses).
Please note: based on the analysis of existing arbitration practice, the release of budgetary institutions from administrative liability due to extreme necessity and insignificance, which is allowed by the Code of the Russian Federation on Administrative Offenses, is practically not applied by bodies considering cases of administrative offenses.
Important to remember
From February 1, 2011, goods, works, and services of the same name are determined in accordance with the approved nomenclature. It is compiled on the basis of the All-Russian Classifier of Economic Activities and contains 158 positions. Violation of the standards established in the nomenclature may lead to administrative liability in accordance with the Code of the Russian Federation on Administrative Offenses.
