Date: 09.08.2016

The purchase of leasing (financial lease) under 223-FZ is one of the most complex procurement procedures.

According to Art. 2 of the Federal Law of October 29, 1998 No. 164-FZ “On financial lease(Leasing)” (hereinafter referred to as the Financial Lease Law) leasing is a set of economic and legal relations arising in connection with the implementation of a leasing agreement, including the acquisition of a leased asset. Under a leasing agreement, the lessor (lessor) undertakes to acquire ownership of the property indicated by the lessee (lessee) from the seller specified by him and provide the lessee with this property for a fee for temporary possession and use. However, the leasing agreement may provide that the choice of the seller and the acquired property is carried out by the lessor.

Financial lease (leasing) and 223-FZ

On this moment in practice, there is no single approach regarding the regulation of 223-FZ for the purchase of leasing (financial lease). Some procurement professionals believe that renting (leasing) is independent view contractual obligations that cannot, from a legal point of view, be attributed directly to goods, works or services. Therefore, the norms of 223-FZ are not applicable to procurement procedures with such an item. However, there is another point of view, according to which the purchase of leasing (financial lease) should be carried out in accordance with 223-FZ.

According to Art. 4 of the Law on Financial Lease, the lessor, at the expense of attracted and (or) own funds, acquires property in the course of the implementation of the leasing agreement into ownership and provides it as a subject of leasing to the lessee for a certain fee for a certain period and under certain conditions for temporary possession and use with transfer or without the transfer to the lessee of the ownership of the subject of leasing. In Art. 1 of the Law on Procurement states that it does not apply to relations related to the implementation of leasing and interbank operations by a credit institution (including with foreign banks). In other words, 223-FZ is not applicable to the procurement procedures of customers - credit institutions acting as a lessor (at the expense of its own funds (or borrowed) under a leasing agreement, acquires ownership of the leased asset and provides it on certain conditions to the lessee).

It should be noted that customers who are not credit institutions, when purchasing a leased asset for their own needs, must also purchase in accordance with 223-FZ. Otherwise (conclusion of contractual relations for financial lease without carrying out the relevant procurement procedures) may raise questions from regulatory authorities, and may also serve as a basis for the court to recognize such an agreement as invalid.

...from judicial practice:

1. The prosecutor's office applied to the Arbitration Court with a claim for recognition invalid contract leasing concluded between the leasing company OJSC "A" and OJSC "B", on the application of the consequences of the invalidity of a void transaction in the form of the obligation of OJSC "B" to transfer to the leasing company (JSC "A") buses in the amount of 20 pcs. By decision of the court of first instance, the claim was dismissed. Disagreeing with decision, the plaintiff filed an appeal, in which he indicated that the court of first instance incorrectly applied the norms of substantive law, therefore, an erroneous conclusion was made about the non-distribution of 223-ФЗ to legal relations related to the rental of vehicles under a leasing agreement. The plaintiff pointed out that the concluded contract does not comply with the current legislation in the field of procurement and is a void transaction. The Court of Appeal considered erroneous the conclusion of the court of first instance that it was not necessary to comply with the public procedure for concluding a disputed contract, statutory. JSC "B" does not belong to the category of customers specified in parts 5 - 8 of Art. 8 of Law 223-FZ, therefore, it was obliged to approve the procurement regulation within 3 months from the date of entry into force of the named NLA. However, this fact was not confirmed in court. Taking into account the fact that the leasing agreement was signed on June 29, 2012, i.e. after the three-month period specified in Part 4 of Art. 8 of Law 223-FZ, when concluding this agreement, JSC "B" should not have been guided by the norms of 94-FZ. In considering the case file, the Court of Appeal concluded that misapplication the court of first instance of the norms of 223-FZ did not lead to the adoption of an incorrect decision on the merits of the case and, in accordance with the current legislation, the appealed decision is not subject to cancellation. The applicant's argument about the conclusion of a disputed leasing agreement in violation of 94-FZ is a new argument that was not cited in the court of first instance, and therefore was not considered by the court of appeal 1 .

2. LLC "A" (the lessee) applied to the Arbitration Court with statement of claim to JSC "B" (the lessor) on the obligation to acquire the object of leasing under the relevant agreement in the ownership of LLC "V" and lease it. The court satisfied the requirements specified in the claim: JSC "B" was obliged to purchase a car (the subject of leasing) in the ownership of LLC "V" and lease it to LLC "A". The respondent, disagreeing with this decision, filed an appeal with a higher court. It followed from the materials of the case that a financial lease agreement was concluded between LLC A and OJSC B, under the terms of which OJSC B undertook to acquire the object of leasing indicated by the plaintiff and transfer it to the plaintiff for a fee for temporary possession and use. The seller of the subject of leasing is OOO "V". The defendant notified the plaintiff that, on the basis of 223-FZ, a tender was announced to select a supplier. Subsequently, JSC "B" notified LLC "A" that the subject of leasing will be acquired before June 30, 2012, LLC "V" can be a supplier if it participates in an open tender and provides them with the most favorable conditions compared to others offers. The Court of Appeal came to the conclusion that the court of first instance rightfully established that since the defendant did not fulfill its obligations under the leasing agreement, the plaintiff's demands for the obligation to purchase the subject of leasing from OOO "V" and lease it to the plaintiff are legitimate and subject to satisfaction; the argument of the applicant of the appeal about the need to hold a tender in accordance with 223-FZ was rightfully rejected by the court of first instance. In its decision, the Court of Appeal pointed out that the fulfillment by the customer (defendant) of contractual obligations to acquire the leased asset not for the needs of the defendant is not subject to 223-FZ. 2

Procurement methods

According to 223-FZ, in the procurement regulation, the customer may provide for other (in addition to a tender or auction) methods of procurement, indicating the procedure for their implementation. The customer in his procurement regulation has the right to indicate a specific method of purchasing a financial lease (leasing). Analyzing in the EIS the practice of procurement, the subject of which is leasing, we can conclude that many customers prefer to purchase from a single source (that is, without competitive procedures). However, for the most efficient use Money and economy, as well as to ensure competition among contractors providing leasing services, in order to select the most profitable partner, it is preferable for the customer to conduct competitive procedures with several parameters for evaluating received applications (for example, a tender or a request for proposals).

Another important task that needs to be solved before the start of the procurement procedure - in what form the procurement will take place - electronic or "paper". The choice may depend final result purchases. Many customers and suppliers (contractors, performers) register and work on electronic trading platforms in accordance with their regulations. Purchasing certain types of goods, works and services specified in Government Decree No. 616, customers under 223-FZ are required to carry out in electronic form (at present, the list of such goods has been significantly expanded). The purchase of leasing services is not provided for by this act, but this does not mean that the organizers of purchases should avoid electronic paperwork(document flow in this case takes place electronically).

To be sure of the need for a purchase, the customer should compare OKPD code 2 purchased goods, works, services (in this case, leasing services) with the combinations of numbers indicated in the above-mentioned Decree No. 616. In the All-Russian classifier of products by type economic activity(OKPD 2) 3 you need to find section N "Administrative and auxiliary services", the class "Rent and leasing services" and select the appropriate subclass (group / subgroup / type / category / subcategory) depending on the upcoming purchase. You should also pay attention to references and reservations in this section of the classifier.

For example,

77 Rental and leasing services

This grouping does not include:

- services for financial leasing, see 64.91.10

In accordance with Article 4 of 223-FZ, the procurement organizer indicates in the documentation criteria for evaluation and comparison of applications to participate in the procurement procedure, as provided for in the procurement regulations. Each of them has its own significance factor and scoring system.

The customer conducts an open request for proposals for the selection of a leasing company (the seller of goods under the terms of this purchase is chosen by the lessor in agreement with the lessee).

The scoring system is scoring.

Significance of criteria:

• Contract price (including leasing payments) - 40%
• Leasing term - 20% (36 months - 1 point. Other term - 0 points)
• Advance payment - 20% (up to 31% - 1 point, from 31% or more - 0 points)
• Redemption payment - 15% (up to 5000 rubles - 1 point, from 5000 rubles and more than 5000 rubles - 0 points)
• Business reputation -5%. (presence of information confirming business reputation -1 point, absence - 0 points.) (letters of thanks, diplomas, previously concluded contracts, etc.)

Ra i \u003d A max - A i / A max x 100,

A max - the maximum price of the contract, taking into account leasing payments (based on monitoring the conditions of leasing companies)

A i - contract price offered by the i-th participant;

Technical task

The terms of reference is an important part of the procurement documentation, since it contains information about the purchased goods (works/services) and necessary requirements to it, therefore, the organizer of the procurement procedure must carefully consider its preparation. The Law on Procurement does not contain restrictions and prohibitions on specifying a specific type of goods in the procurement documentation or the obligation of the customer to mark “or equivalent”. The organizer of the purchase needs to describe in detail what exactly he needs to purchase to ensure the operation of the enterprise with the effective use of funds with the necessary indicators of price, quality and reliability (Article 1 of Law 223-FZ).

From July 1, 2016, new rules for the formation of terms of reference under 223-FZ came into force, according to which the customer, when describing the purchased products in the procurement documentation, will need to use the parameters that are provided technical regulations in accordance with the legislation of the Russian Federation on technical regulation, as well as documents developed and applied in the national standardization system, adopted in accordance with the legislation of the Russian Federation on standardization (Article 4 of Law 223-FZ). 4

When drawing up the terms of reference, the customer should not allow restriction of competition among the participants by formulating certain requirements for the product. However, in order to declare a violation by the organizer of the purchase of the Federal Law of July 26, 2006 No. 135-FZ "On Protection of Competition", it is necessary to establish that the use of specific product characteristics creates an obstacle to participation in the purchase. As a rule, the court accepts the position of the customer, if he can justify why he prescribed certain requirements in terms of reference(for example, compatibility with the equipment used).

...from judicial practice:

1. State Unitary Enterprise "A" applied to the arbitration court with an application to recognize the decisions and orders issued by the OFAS as illegal. The court's decision satisfied the stated requirements. By decision of the Arbitration Court of Appeal, the decision of the court was left unchanged. OFAS filed a cassation appeal against the decision of the arbitration court and the decision of the arbitration court of appeal in the same case. As follows from the materials of the case, SUE "A" posted a notice of an open request for prices in electronic form for the supply of vehicles on lease (the name of the goods is the bus PAZ 320302-08 with gas equipment, as well as the manufacturer of the vehicle is registered). 223-FZ does not provide for any restrictions regarding the indication in the procurement documentation of both a specific type of product and its specific manufacturer. In view of the foregoing, the courts decided that the use of a specific name of the product and its manufacturer in the procurement documentation by the customer does not lead to discrimination and unreasonable restriction of competition. 5

2.Plaintiff, ( leasing company) LLC "A", filed a lawsuit with the arbitration court against the defendant MP "B" to invalidate the results of an open auction in electronic form, as well as an agreement for the provision of services for the financial lease (leasing) of buses big class for the needs of MP "B". According to the plaintiff, the documentation of the open auction was drawn up by the customer in violation of the current legislation of the Russian Federation and is aimed at unreasonably narrowing the circle of procurement participants. In the terms of reference, the organizer of the procurement procedure set a height limit vehicle in connection with the material and technical equipment of the enterprise and the impossibility of operating a vehicle exceeding the specified dimensions without reconstruction. The Court of Appeal concluded that there were no grounds to annul the disputed judicial act. In accordance with the auction documentation and terms of reference, the customer indicated the technical requirements for equipment that meet his needs without direct indications of a specific product (brand, model, manufacturer). At the same time, the documentation does not contain unmeasurable requirements for procurement participants and purchased equipment. The court concluded that the establishment by the customer maximum height due to both technical and economic factors. 6

The characteristics and parameters of the goods must be described in detail by the customer in the terms of reference, specified in the draft contract and subsequently reflected in the concluded contract, allowing identification of the subject of leasing.

...from judicial practice:

LLC A applied to the arbitration court with a statement of claim against LLC B for the recovery of funds (including unjust enrichment). By the decision of the arbitration court, the claims were satisfied in terms of recovering unjust enrichment from the defendant in favor of the plaintiff, as well as interest for the use of other people's money. By decision of the Arbitration Court of Appeal, the said decision was upheld. The defendant did not agree with the above judicial acts and filed a cassation appeal, in which he asks to cancel the decision and decision of the appellate instance. As follows from the materials of the case, LLC "A" (the lessee) and LLC "B" (the lessor) entered into a leasing agreement, according to which LLC "B", under the terms of the sale and purchase agreement agreed with LLC "A", must acquire ownership from the chosen by the lessee the seller's property and present it to the lessee. According to the agreement, the subject of leasing is a vehicle (indicating the brand of car, model and year of manufacture). The agreement does not include any additional characteristics vehicle, such as body type, volume, engine power, gearbox type, body color. In the opinion of the lessee, these characteristics are essential and in their absence it is impossible to uniquely identify the vehicle (the subject of leasing). The courts came to the conclusion that the leasing agreement should be considered not concluded, and therefore the funds transferred by LLC “A” to LLC “B” are unjust enrichment for the latter and are subject to return to the plaintiff. 7

Example of terms of reference for the purchase of leasing services (the lessor determines the seller)

Specifications (name of the subject of leasing, e.g. road dust collector)

The customer should indicate:

• All required parameters goods (height, length, width, voltage, motor, performance, frequency, etc.);
• what is included in the price (for example, VAT 18%, delivery to the specified address, installation, commissioning, etc.);
• payment schedule (for example, decreasing);
• the cost of 1 unit of equipment (for example, the cost of 1 road dust collector, taking into account lease payments, is not more than 2,224,110 rubles 00 kopecks, including 18% VAT);
• the amount of the redemption payment (for example, not more than 3,000 rubles);
• lease term (for example, 36 months);

The organizer of the purchase should also state that the goods must be new, unused, technically sound, ready for use, not in dispute and prohibited, not encumbered with the rights of third parties.

The initial conditions for the provision of leasing services, as a rule, are formed by the customer based on monitoring the market for these services. Their commercial offers participants indicate directly in the application. In addition to the evaluation criteria, the organizer of the procurement procedure can prescribe in the application form the conditions of interest for the upcoming transaction, for example:

The Procurement Participant agrees that:

• the leased property and its seller are determined by the Lessor (upon written agreement with the Lessee);
• The Lessor undertakes to acquire property from the seller and provide for a fee for temporary possession and use of the Lessee property;
• The Lessee receives the property by granting a financial lease by the Lessor with further redemption.

Thus, the bidders will become more familiar with all the nuances of the procurement procedure, objectively assess their own opportunities to participate in it. The more precisely all the conditions for granting a financial lease (leasing) are indicated, the higher the likelihood for the customer to conduct a successful transaction on favorable conditions and leasing the necessary goods.

Often, the organizers of the purchase do not indicate all the conditions of the purchase, or they prescribe them not clearly enough for the participants in the procurement procedure. In order to understand the procurement documentation, applicants for participation have the right to send a request for clarification of its individual points. One of the common questions asked by the participants to the customer concerns the choice of the subject of leasing: will the lessor or the lessee carry it out?

Seller's choice

The Law on Leasing provides for the possibility of choosing the seller of the leased asset by both the lessee and the lessor (see also FAS Letter No. АЦ/23329 dated July 23, 2012). The customer, for example, can first carry out the procedure for selecting a supplier necessary equipment, select the most acceptable offer, and then make another purchase for the provision of leasing services (the subject of leasing will already be known). However, there is a possibility that not a single leasing company will respond to the conditions stated in the procurement documentation.

Another option looks more expedient when the customer conducts a procurement procedure to select a leasing company, which will subsequently select the seller of the necessary goods (the organizer of the purchase has the right to make a reservation “in agreement with the lessee”, thereby facilitating the work of the lessor and ensuring the correctness of his choice as much as possible).

In Art. 9.1. The law on leasing specifies the features of a leasing agreement concluded by a state or municipal institution. One of them concerns the choice of the seller of goods: “in a leasing agreement, if the lessee is a state or municipal institution, the obligation of the lessor to independently determine the seller of the property under the leasing agreement should be provided. In this case, the main burden of the transaction will fall on the shoulders of the lessor, who will select the seller. However, on the other hand, the lessor independently determines the most “convenient” and proven counterparty (with the right product), with which he will subsequently need to work.

In accordance with Art. 22 of the Law on Leasing, the risk of the seller's failure to fulfill obligations under the contract for the sale of the object of leasing and the associated losses shall be borne by the party to the leasing contract that chose the seller, unless otherwise provided by the leasing contract.

The Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 17 of March 14, 2014 “On Certain Issues Related to a Buyout Lease Agreement” clarifies the above article:

“The said norm, imposing on the party that has chosen the seller the risk of the seller not fulfilling its obligations under the sale and purchase agreement, does not exclude the need for both parties to the leasing agreement to take measures to reduce the risks associated with improper delivery of the leased asset, since both parties are interested in the timely receipt and use of the leased asset. . Availability in the law on leasing special rules on risk sharing does not in itself preclude the use general provisions Chapter 25 of the Civil Code of the Russian Federation on liability for breach of obligations, taking into account the specifics of the leasing agreement. So, if the seller was chosen by the lessee, but the lessor deliberately or negligently (that is, in violation of the standard of conduct of a reasonable and prudent merchant) contributed to an increase in the amount of losses caused by improper delivery of the leased asset, or did not take reasonable measures to reduce them, this is in accordance with paragraph 1 of Article 404 of the Civil Code of the Russian Federation is the basis for reducing the amount of liability of the lessee. 9

In other words, both the lessor and the lessee are responsible for choosing the seller, so both parties must think through issues related to the delivery of the leased asset, as well as possible risks the transaction being made.

1 Resolution of the Fourth Arbitration Court of Appeal dated June 3, 2014 No. 04AP-6154/13

2 Resolution of the Eleventh Arbitration Court of Appeal dated February 12, 2013 in case No. A-65-20908/2012

3 All-Russian classifier of products by type of economic activity (OKPD 2) OK 034-2014 (CPE 2008) (adopted and put into effect by order federal agency By technical regulation and metrology dated January 31, 2014 N 14-st)

4 Art. 4 of the Federal Law of July 18, 2011 N 223-FZ "On the procurement of goods, works, services certain types legal entities"

5 Resolution of the Arbitration Court of the Urals District of August 20, 2015 No. Ф09-5639/15 No. А07-22653/2014

6 Resolution of the Eleventh Arbitration Court of Appeal dated December 28, 2015 in case No. 11AP-15510/150

7 (Federal Arbitration Court ruling Central District dated March 11, 2016 in case No. А14-16240/2008/535/5)

8 Federal Law No. 164-FZ of October 29, 1998 "On Financial Leasing (Leasing)"

9 Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of March 14, 2014 N 17 "On certain issues related to the buyout lease agreement"

How much to hang exactly?

Purchase of spare parts for cars according to the rules of Law No. 223-FZ

The purchase of spare parts is a topical issue for every organization that has vehicles on its balance sheet. Customers working under Law No. 223-FZ should be especially careful, since for them such a purchase implies three additional issues: the wording of the subject of the purchase, precise definition the method and form of procurement and the determination of the volume of procurement.

What do we buy?

If the purchase of one single part or a set of such parts is on the agenda, then everything is more or less clear with the subject of the purchase - this is a product of a certain name with certain technical characteristics.

But as a rule, spare parts appear in more complex contracts. So, contracts are concluded for the maintenance of cars, which, in addition to supplying the necessary parts, also imply work on their installation. The same agreements may include a condition for the provision of troubleshooting services. In this case, the wording of the subject of the purchase will be based not on the description of the spare parts to be installed, but on the description of the vehicle, the maintenance of which is the subject of the contract.

Simply put, the list of parts in the car maintenance contract can be omitted at all, and this will not be a violation of the requirements of Law No. 223-FZ - provided that the procurement documentation and the draft contract, in particular, accurately describe the car that is subject to maintenance, and list of works and services included in this very Maintenance. If these requirements are formulated vaguely and indefinitely, then the customer may be charged with violating the antimonopoly law: the complainant will convince the antimonopoly service that if the requirements were accurate, then a wider range of potential suppliers could participate in this purchase.

At the same time, unlike the state customer, the subject of Law No. 223-FZ is not bound by the limitation of paragraph 1 of part 1 of Art. 33 of Law No. 44-FZ, which means it can indicate a certain trademark(brand) of purchased parts, even without justifying their compatibility. For a customer operating under Law No. 223-FZ, an indication of a brand is not considered an unreasonable restriction of competition - such a restriction is justified by the technological needs of this customer, and this is quite enough to comply with the norm of clause 2, part 1, art. 3 of Law No. 223-FZ. Initially, the Antimonopoly Service was against this approach, requiring an analogue clause in the procurement documentation, similar to the state order system. However, since 2013, customers have been able to defend their right to indicate the brand in court. According to the court, Law No. 223-FZ does not contain a direct prohibition on the indication in the procurement documentation of trademarks or the name of the manufacturer, and with such an indication, the customer imposes a restrictive requirement not on the procurement participants, but on the goods of certain manufacturers, which indicates that the participant who submitted the application is not limited in his rights to conclude a supply contract, and such an opportunity is provided for an unlimited number of suppliers (this position is formulated, in particular, in the decisions of the Seventeenth Arbitration Court of Appeal No. 17AP-1205/2013-AK of 03/01/2013).

Procurement in electronic form

If, when establishing requirements for purchased products and participants, the customer is limited by the norms of antimonopoly law, then when choosing a method for purchasing spare parts, he is still limited only by the norms of his own procurement regulations. At the same time, one should not ignore the norms of Decree of the Government of the Russian Federation dated 06/21/2012 No. 616 - even if the purchase is positioned as the conclusion of an agreement for the performance of works or services for the maintenance of vehicles, the availability of parts and accessories of the vehicle as part of such maintenance automatically refers such a purchase to the list of goods , works and services, the procurement of which is carried out in electronic form. You can, of course, challenge the extension of this rule to a maintenance contract, but in this case, the arguments that not only spare parts are purchased will hardly help - in this case it is important that they are also purchased.

In this situation, the customer only needs to remember that he himself chooses the method of procurement in accordance with his procurement regulations. After all, Decree No. 616 requires the customer to purchase car parts through electronic procurement, but such a purchase does not have to be an electronic auction. Moreover, if the subject of the purchase is not a separate part, but namely maintenance, then it is advisable for the customer to choose an electronic request for proposals as a procurement method, which can be carried out quickly, but at the same time compare not only prices, but also the quality of work of potential suppliers. Even the Antimonopoly Service admits that Law No. 223-FZ does not establish minimum terms publication of a notice on the procurement using non-trade methods (request for quotations, request for proposals, etc.) - this is confirmed, for example, by the decision of the St.

When choosing a procurement method, the customer must imagine on what basis he will ultimately determine the winner. When conducting an auction or a request for quotation, the sole criterion for selecting the winner will be the price: per part, per batch of parts, or per vehicle maintenance, depending on what is determined as the subject of the purchase. If the customer ventured to choose just such a method, then it is necessary to describe in as much detail as possible the requirements for the part or the list of works, moreover, with the details of what exactly each item of this list implies. If such requirements are formulated insufficiently accurately, then an unscrupulous supplier will be able to dump, simply looking for “loopholes” in the procurement documentation that allow him to save on quality (during the validity of the outdated Law No. 94-FZ, this scheme has been worked out many times). Moreover, if the customer allows in the wording detailed requirements subjectivism, then he runs the risk of being accused of "sharpening" documentation for a specific supplier.

Purchasing through a tender or request for proposals allows you to focus not only on the prices of potential suppliers, but also on the quality of spare parts or work. Here it is already important not so much to formulate exhaustive quality requirements, but to determine the criteria and procedure for comparing the proposals of potential suppliers. To do this, the customer will first need to establish those key aspects on which the comparison will be made: guarantee period part service, country of manufacture, speed of repair and willingness to guarantee long work repaired vehicle assembly. The price in these criteria may not appear at all - in this case, the initial price will indicate only the maximum funding limit laid down by the customer for the annual maintenance of the car, which will be discussed in more detail below. Having established the comparison criteria, the customer must determine the specific weight of each of them and the procedure for assigning points when evaluating the criterion (for example, 1 point can be assigned for a six-month warranty, 5 points for a one-year warranty, etc.). The procurement participant with the highest total number of points becomes the winner. Of course, the criteria and order of evaluation in without fail are indicated in the procurement documentation (part 10 of article 4 of Law No. 223-FZ).

Obviously, a multi-criteria comparison is more suitable for the purchase of maintenance, and a price comparison is more suitable for the purchase of standard spare parts (suppliers will bargain for the price of a single spare part or for the price of the entire lot, depending on what the customer has defined as a unit of purchased products). In both the first and second cases, the customer, in addition to the procedure for evaluating the application (by price or by a combination of criteria), also establishes requirements for the suppliers themselves, so that those who do not meet these requirements do not participate in the application. And again, it would not be superfluous to recall that these requirements should not unreasonably restrict competition, but should be aimed only at ensuring the effectiveness of the procurement and ensuring that the best of the participants becomes its winner.

How much to hang exactly?

As a rule, car maintenance “eats up” more than 100 thousand rubles not only for a year, but even for several months. This means that regardless of the method of purchase, even if it is a purchase from a single supplier, the customer is still obliged to publish information about such a purchase in accordance with the requirements of Art. 4 of Law No. 223-FZ. In particular, when purchasing spare parts, it is necessary to publish the corresponding line in the procurement plan, the notice of purchase and the procurement documentation.

When filling out these documents, the question inevitably arises: how to correctly formulate the subject, and even more so the volume of the purchase, if it is not known in advance what will break and how much will be required to fix the breakdown?

There are no special problems with the plan: both in relation to the volume and in relation to the initial (maximum) price, in accordance with Decree of the Government of the Russian Federation of September 17, 2012 No. 932, you can indicate not the exact figure, but only information. Information, in particular, is the words “depending on the occurrence of needs”, “upon the fact of a breakdown”, etc. The plan requires you to specify another month and year for the execution of the contract - but even if the maintenance contract is concluded for the whole year, it is quite acceptable to indicate December (the last month of the contract) as the month, since it is in this month that the contract will be considered finally fulfilled.

The situation is more complicated with the proper wording of the notice of the purchase of spare parts and procurement documentation, because in both documents it is necessary to indicate the exact volume of purchased products (clause 3, part 9 and paragraph 3, part 10, article 4 of Law No. 223-FZ). How to specify this volume, if it is not known in advance and generally depends solely on the events that have yet to occur after the conclusion of the contract itself? In this case, it will not be possible to refer to the norms of the new article 429.1 of the Civil Code of the Russian Federation on a framework agreement, since Law No. 223-FZ is a special law in relation to Civil Code and can specify his requirements - so he specifies, obliging the customer to publish in advance the volume of the products he needs.

And yet to the design framework agreement you have to resort, only you need to do it in such a way as not to enter into direct conflict with the imperative requirements of Law No. 223-FZ (and the requirement to indicate the volume is prompt, and it cannot be canceled by the norm of the procurement regulation). Experienced customers in this case indicate the maximum, maximum possible volume of products that may be required under this contract - and at the same time, the draft contract includes conditions that, firstly, individual deliveries within this volume are carried out exclusively at the request of the customer, and secondly the contract terminates after a certain date without mutual claims, even if the maximum volume is not selected by the customer. Or it is extended, but on the same conditions: delivery on request and the possibility of completion before full exhaustion.

Separate bids pursuant to such a framework agreement are not considered stand-alone procurement precisely because during the procurement for the conclusion of this framework agreement, all the information provided for in Art. 4 of Law No. 223-FZ. But if the actually selected volume does not coincide with the limit specified in the procurement documentation - and in practice this is what happens most often - then it is important not to forget to publish the relevant information on the official website www/zakupki.gov.ru. Compliance with this simple requirement of Part 5 of Art. 4 of Law No. 223-FZ makes changing the volume of purchases absolutely legal. By the way, this change can be not only in the direction of decrease, but also in the direction of increase, if the actual breakdowns suddenly exceeded all predicted levels.

And, finally, returning to the details of cars, what is better to indicate in such quasi-framework contracts as volume limits? It depends, as was said at the very beginning of the article, on what exactly is indicated as the subject of the purchase. If only individual spare parts are purchased, which will then be installed by the customer's employees, then in the procurement documentation and specification it is advisable to list the entire range of parts that may be needed during the term of the contract, and indicate the maximum volume of needs for each type of part. Of course, it is not worth splitting the purchase into separate lots for each type of part, but it is necessary to include in the contract a condition on the possibility of the customer submitting an application for the supply of only certain items from the specification.

If the subject of the purchase is still the maintenance of cars, then when describing the scope of the purchase, you will need to indicate the technical characteristics of each car, their number, the entire range of work that theoretically may be needed if they break down, as well as the requirements for parts that will be used when performing such work. In this case, it is the scope of work that will be the scope of the purchase, but, as in the case of goods, it is necessary to provide for a condition on the possibility of submitting an application only for certain positions from the list of works provided for in the contract.

Although when formulating information about the initial (maximum) price, one can confine oneself to the phrase “initial (maximum) price has not been determined”, any customer has the right to indicate its exact value. And in this case, it is extremely important that this value corresponds to what the customer has defined as a unit of purchased products - separate detail, a batch of such parts or maintenance of a specific vehicle? If the customer specifies the initial (maximum) price for a single part, then he will have to break the purchase into lots in order to indicate in each of them that starting price, which corresponds to this type of part. If a batch is purchased various details, then it will be enough to indicate the initial price for the batch, and already in the documentation, if necessary, indicate the limit values ​​\u200b\u200bof the prices per unit of certain parts included in this batch. If the unit of the purchased product is the maintenance of one car, then it is most logical to indicate the maximum limit set for annual maintenance as the initial (maximum) price this vehicle: this limit will serve as the limit of exhaustion of the quasi-framework agreement, which will be signed as a result of such a purchase.

The purchase of a car under 223 FZ can be carried out not only in the form of tenders, because the price of the vehicle is not limited to certain limits and can be any.

However, if this method is chosen, the law establishes serious requirements. A customer who does not comply with them will face serious fines.

The regulation on 223 FZ must contain the following information on the purchase:

what they apply to;

its amount;

what goods are purchased;

implementation plan.

There is one important point, the purchase of cars directly from the manufacturer or through direct dealers occurs only through an electronic auction.

Terms of reference for the purchase of vehicles

According to 223 FZ, the quantity of goods and their characteristics must be contained in the notice of purchase, but given that this document is always published along with others, the law allows deviations from this rule. For example, the quantity of goods and their characteristics can be specified in the tender documentation, namely, in the terms of reference. As a rule, it is this document that contains all the information about the subject of the auction that the bidder should know.

The approximate content of the TOR for the purchase of a car according to 223 FZ:

purpose of transport;

terms of payment;

the price of the vehicle and its components: insurance, taxes, customs duties, etc.;

technical conditions: approximate dimensions, weight, engine characteristics, amount of fuel consumed, body type, etc.;

terms of delivery of the car;

year of issue (not earlier than ..., not later than ...);

supplier requirements;

delivery conditions.

An important point for both customers and suppliers is the price of the car, it should include all the costs of transporting the vehicle to the place, insurance, customs clearance, etc. This is a necessary condition, the customer decides on the choice of a supplier based on the final price that he offers.

In order to avoid problems with the FAS, it is necessary to correctly draw up the TOR for the tender.

You cannot specify specific characteristics, brand or parameters of the machine.

For example, if the tender documentation specifies that the length of the purchased vehicle must be exactly 4.5 meters, the customer may well have problems with the FAS. Why? Because if you can't substantiate the claims, most likely the Federal Antimonopoly Service will consider this a restriction of competition.

Thus, the main thing is not to specify the exact parameters.

Advice: if you need a car with a length of 4 meters, in the terms of reference you need to clarify that deviation from the norm is allowed within certain limits (for example, 20 cm in any direction). And if purchases are made on a vehicle of a certain brand, indicate that its analogues are allowed.

The main requirement of 223 FZ to the terms of reference is its validity. As an example was already given above, if the TOR is drawn up for the parameters of a particular vehicle, the FAS may regard this as an artificial restriction of competition and may impose a fine for such actions.

Requirements for the vehicle supplier as part of the procurement of 223-FZ

He must be official representative(dealer or distributor) of the vehicle manufacturer.

The supplier must provide a certificate and an agreement with the manufacturer, as well as similar documents.

The company must show no signs of bankruptcy.

Lack of ongoing litigation on previously concluded contracts.

Absence of overdue debts to any budgets or off-budget funds.

This is a list of formal requirements for suppliers that do not restrict competition under either Federal Law 44 or Federal Law 223.

Also, at its discretion, the customer may include other, more subjective conditions: for example, the supplier's experience in a particular market sector or the availability positive feedback consumers.

OOO IWC"RusTender"

The material is the property of the site. Any use of the article without indicating the source - the site is prohibited in accordance with article 1259 of the Civil Code of the Russian Federation

The company intends to purchase a car, the method of purchase is a request for quotations in electronic form. Preferences - car Toyota Corolla. How to prescribe in the procurement documentation the requirements for the object of procurement in order not to limit competition and at the same time avoid the supply of cheaper and less quality analogue?

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 on the ETP, how to choose a site and get an electronic signature, what are the rules for concluding contracts during the transition period and after.

According to Part 1 of Art. 3 of 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), when purchasing goods, works, services, customers are guided by the following principles:

1. information openness of the procurement;
2. equality, fairness, absence of discrimination and unreasonable restrictions on competition in relation to procurement participants;
3. targeted and cost-effective spending of funds for the purchase of goods, works, services (taking into account, if necessary, the cost of the life cycle of purchased products) and the implementation of measures aimed at reducing customer costs;
4. no restrictions on admission to participation in the procurement by establishing non-measurable requirements for procurement participants.

To get full access to the PRO-GOSZAKAZ.RU portal, please, register. It won't take more than a minute. Select a social network for quick authorization on the portal:

In accordance with paragraph 1 h. 10 Article. 4 of Law No. 223-FZ, the procurement documentation must contain the information specified in the procurement regulation, including: - quality requirements established by the customer, technical specifications goods, works, services, their safety, functional characteristics (consumer properties) of goods, dimensions, packaging, shipment of goods, results of work and other requirements related to determining the conformity of the goods supplied, work performed, services provided to the needs of the customer.

By virtue of h. 2 Article. 4 of Law No. 223-FZ, the customer places in a single information systems e plan for the procurement of goods, works, services for a period of at least one year. The procedure for the formation of a plan for the procurement of goods, works, services, the procedure and terms for posting such a plan in a single information system, the requirements for the form of such a plan are established by the Government of the Russian Federation.

Attention:

So, according to par. 4 clause 1 of the Rules for the formation of a plan for the purchase of goods (works, services) and the requirements for the form of such a plan, approved by Decree of the Government of the Russian Federation of September 17, 2012 No. 932, the plan for the purchase of goods (works, services) is formed by the customer in the form according to the application in the form a single document in an electronic format that provides the ability to save it on technical means users and allowing the possibility of searching and copying an arbitrary fragment of text by means of the corresponding viewer program, and contains the following information:

• the minimum necessary requirements for the purchased goods (works, services), stipulated by the contract, including functional, technical, quality characteristics and performance characteristics the subject of the contract, allowing to identify the subject of the contract (if necessary).

Thus, when describing the procurement object (when preparing documents on request for quotations and in electronic form), it is advisable to use the information regarding this product specified in the procurement plan posted on the official website.

Note that Law No. 223-FZ does not contain other requirements for the rules for describing the procurement object.

However, in Art. 17 of the Federal Law of July 26, 2006 No. 135-FZ "On Protection of Competition", when conducting a request for quotations, actions that lead or may lead to the prevention, restriction or elimination of competition are prohibited.

Therefore, if the description of the object of procurement indicates, for example, a make, model of a car or another indicator that unambiguously determines that the supplier should supply only a "specific" car and no other, then we suggest using the phrase "or equivalent" in relation to such an indicator. In this case, it will be necessary to specify the equivalence parameters in such a way that 2 or more cars fall under the stated requirements for the product.

Also, when compiling a description of the procurement object, indicators can be used to determine the compliance of the purchased goods, work, services with the requirements established by the customer. At the same time, indicate the maximum and (or) minimum values ​​of such indicators, as well as the values ​​of indicators that cannot be changed.

Also, when drawing up a description of the procurement object, you can use standard indicators, requirements, symbols and terminology relating to the technical and quality characteristics of the procurement object, established in accordance with the technical regulations, standards and other requirements provided for by the legislation of the Russian Federation on technical regulation.

It is necessary to establish a requirement that the delivered product must be a new product.

For example, a customer plans to purchase a car. The essential characteristics for the customer are: type, body color, number of doors, equipment, engine size, body length, maximum power, environmental friendliness of fuel and capacity fuel tank, as well as economic components - the price of the car and fuel consumption.

After analyzing open sources, or after requesting quotations and potential suppliers, the customer stopped at the car " LADA Priora" sedan 4 doors, version:

Norm 1.6 l. 8-cl. (Euro-4), which satisfies the requirements of the customer, both in terms of price and technical requirements and performance characteristics:

1. length, mm 4350;
2. maximum power, kW 72;
3. fuel consumption in combined cycle, l/100 km 7.2;
4. fuel tank capacity, l 43;

Option requirements:

1. air conditioner;
2. climate control;
3. approximate price 361,500 thousand rubles.

In this case, if the customer indicates the trademark of the car in the auction documentation, then he should indicate the words “or equivalent” in relation to this requirement and establish equivalence indicators.

Therefore, the customer should analyze which cars from other manufacturers meet the customer's requirements, both in terms of price and technical requirements, and set equivalence indicators so as not to limit the number of order participants and purchase goods of the appropriate quality.

For example, cars of the following trademarks fall under the price requirements of the customer:

Daewoo Nexia sedan 1.6 l.
Length, mm 4280 - 4482
Maximum power, kW 82.0 - 80.0
Fuel consumption in the combined cycle, l / 100 km 6.5 - 8.9
Fuel tank capacity, l 45 - 50

the presence of an airbag for the driver;
yes - no air conditioning;
yes - there is climate control.
yes - no gasoline AI 95 AI 92

• Vehicle Features Hyundai Trademark Accent sedan 1.6 l.
• Option requirements:
• Approximate price 381,700 thousand rubles. - 346,000 thousand rubles.

Automobile Daewoo Nexia, despite the most low price, in terms of fuel consumption, its environmental friendliness, and also due to the lack of individual options, it does not meet the requirements of the customer. Therefore, in the future, the customer can establish requirements for the product and equivalence indicators, taking into account the fact that the supply of goods of this brand is excluded.

We define in the auction documentation the requirements for functional and quality characteristics car "LADA Priora" sedan 4 doors, version:

Length, mm 4350;
Maximum power, kW 72;
Fuel consumption in the combined cycle, l / 100 km 7.2;
Fuel tank capacity, l 43;
Use of AI 95 fuel;

the presence of an airbag for the driver;
air conditioner;
climate control.

• Norm 1.6 l. 8-cl. (Euro-4) and other indicators related to determining the compliance of the goods with the needs of the customer:
• Option requirements:
• The body color is white or blue, the year of manufacture of the car is 2012.

We establish equivalence indicators, understanding which trademark can be offered.

Length, mm not less than 4280;
Maximum power, kW not less than 72;
Fuel consumption in the combined cycle, l / 100 km, no more than 7.2;
Fuel tank capacity, l not less than 43;
Fuel consumption is not lower than AI 95.

body type - sedan;
engine displacement 1.6 l;
body color - white or blue;
year of manufacture of the car - 2012.

• Minimum and maximum equivalence scores:
• Equivalence indicators that should not change:
• option requirements:

the presence of an airbag for the driver;
air conditioner;
climate control.

As a result, both suppliers of AvtoVAZ products and suppliers of Hyundai Accent sedan 1.6 l.

Based on part 6 of Art. 3 of Law No. 223-FZ, it is not allowed to make requirements to procurement participants, to purchased goods, works, services, as well as to the conditions for the execution of a contract, and to evaluate and compare applications for participation in procurement according to criteria and in a manner that are not specified in the documentation on purchase. Requirements for procurement participants, for purchased goods, works, services, as well as for the conditions for the execution of the contract, the criteria and procedure for evaluating and comparing applications for participation in the procurement established by the customer, apply equally to all procurement participants, to the goods they offer , works, services, to the terms of the performance of the contract.

At the same time, it should be noted that the practice of applying Law No. 223-FZ has shown that customers, in the course of their procurement activities, conduct procurement procedures without using the words "or equivalent". However, when carrying out such procedures, in case of questions from the regulatory authorities, the customer is obliged to justify such a purchase.