Russian Federation simplified procurement 223 federal law. On the procurement of goods, works, services by certain types of legal entities. Who can take part in the procurement

On 05.10.2017
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223-FZ, 44-FZ, Purchases from a single supplier, Request for quotations, Request for proposals, Tender, FAS, Electronic auction, ETP

Procurement legislation is represented by two main laws - 44-FZ and 223-FZ. The first of them regulates public procurement, the second applies to purchases carried out by state corporations and other companies with a state share. Purchases in the field of corporate orders (under 223-FZ) are carried out several times more than under 44-FZ. At the same time last law is considered very strict, but 223-FZ is called much more loyal. Let's consider the principles of this law, the mechanism of its operation and.

Differences between laws

Law 44-FZ is a procedural normative act - it defines all the rules for conducting procurement. The customer has practically no opportunity to choose anything, with rare exceptions - he is forced to follow the clear requirements of the law. 223-FZ, on the contrary, is a framework law and gives the customer all the cards. He can set his own rules, the main thing is that they do not contradict the requirements of the law. This, perhaps, is the main difference between 223-FZ and 44-FZ.

More specifically, the difference is as follows:

Registration in ERUZ EIS
From January 1 2020 year to participate in tenders under 44-FZ, 223-FZ and 615-PP registration is required in the ERUZ register (Unified Register of Procurement Participants) on the UIS portal (Unified information system) in the field of procurement zakupki.gov.ru.
We provide a service for registration in the ERUZ in the EIS:

Within the framework of government orders, uniform rules apply to all customers. In procurement under 223-FZ, each of them sets its own rules and reflects them in the Procurement Regulations.
44-FZ allows procurement through strictly defined procedures - auctions, tenders, requests for quotations and proposals, as well as procurement from a single supplier. Federal Law 223 does not contain a closed list of procedures, so the customer can determine the supplier using a variety of methods.
Different approaches to purchasing from a single supplier: 44-FZ defines a list of cases when this is possible, and customers under 223-FZ compile this list themselves.
Within the framework of 44-FZ, only auctions are held on the electronic trading platform (ETP), and within the framework of 223-FZ - any purchases.
The customer under 44-FZ is obliged to conclude a contract with the winner of the procedure, but the customer under 223-FZ does not always enter into a contract with the winner.

Principles of 223-FZ

As mentioned above, 223-FZ provides the customer with the opportunity to determine almost everything independently. However, the rules it establishes must not contradict the law itself and its principles. And they are like this:

Information openness. Any interested party should have the opportunity to see what the customer of this purchase is purchasing and on what basis.
Targeted and efficient spending cash . This principle means that it will not be possible, for example, to purchase goods from a single supplier at inflated prices, because such spending of money is not effective.
Any organization or individual entrepreneur can become a supplier. This principle eliminates the difficulties that small companies previously faced when trying to get a contract with a state corporation.
Fairness and non-discrimination towards participants. This means that customers must not allow unreasonable restrictions on competition.

Due to the fact that the law does not establish specific requirements, its principles are from beautiful words become a mechanism through which participants can assert their rights. For example, the customer established that the supplier under the contract cannot be a company with a turnover of less than 10 million rubles. On the one hand, 223-FZ does not prohibit the customer from establishing his own rules of the game. On the other hand, this requirement directly violates the principles of the law on the participation of any person and the equality of participants. And on this basis, a supplier who cannot take part in the procurement due to low turnover has the right to go to court. Please note that this type of claim is considered by the courts, since.

Who should work under 223-FZ

Business entities that apply Law 223-FZ in their work are:

state corporations, state companies, natural monopolies, as well as organizations in which the state share is more than 50%;
subsidiaries (“subsidiaries”) of such organizations, as well as subsidiaries of these “subsidiaries”;
budgetary institutions, if their purchases are made at the expense of grants or funds that they earned independently, as well as in the case when they themselves are executors under the contract and attract other persons to perform it.

Procurement Regulations

The main document on the basis of which customers carry out procurement activities under 223-FZ is Procurement Regulations. It must be developed and published on www.zakupki.gov.ru before the beginning of the year.

The regulation is a kind of “law” according to which procurement activities will now have to be carried out. It is necessary to provide for the methods by which procurement will be carried out, the procedure for their preparation and implementation, the procedure for concluding contracts, a list of goods, works and services that will be purchased from small and medium-sized businesses.

The customer can change anything in his Procurement Regulations at any time - the law does not establish restrictions on this. When the Regulations are changed, it is necessary to publish its new version and a document listing all changes.

If the customer does not approve the Regulations on time, then he will not be able to work under 223-FZ and will be forced to make purchases under 44-FZ. If in this case he neglects the norms of the legislation on public procurement, he will be fined under Part 3 of Article 7.32.3 of the Administrative Code. In accordance with this norm, the fine for legal entities is 50,000-100,000 rubles, for officials - 20,000-30,000 rubles.

In addition to the Procurement Regulations, the customer must develop a Procurement Plan for one year. Before each specific procedure, a procurement notice and procurement documentation are published.

Terms of reference

The parameters of the procurement object are indicated in Terms of reference. The quality of the product, work or service and their compliance with the customer’s needs directly depends on its correct preparation. According to experts, a well-written technical specification accounts for 80% of the success of a procurement, so special attention should be paid to its preparation.

The terms of reference must first of all contain a qualitative description of the procurement object. Unlike the law on public procurement, 223-FZ allows not only to specify its parameters in detail, but also to indicate the trademark, as well as the exact, rather than range, values of certain of its characteristics. In addition, the terms of reference include requirements for configuration, quantity, timing and place of delivery, quality, installation, maintenance and training of personnel, as well as guarantees of the supplied goods. This minimum set requirements that should be specified in the Technical Specifications.

Electronic signature

Both the customer and the supplier cannot do without electronic signature . And if 44-FZ determines what types of electronic signatures should be used by one or another procurement party, then 223-FZ only requires the presence of a qualified certificate. On the one hand, it is simpler - theoretically, any type of electronic signature will do. On the other hand, procurement under 223-FZ is carried out on many different platforms, which have the right to set their own requirements for the electronic signature certificate. So, a certificate obtained for working on one ETP may not be accepted by others. Thus, you need to apply for a certificate having already identified a list of sites where the supplier intends to work.

Illustration: Pravo.ru/Petr Kozlov

Innovations in the procurement law will significantly change the procedures under 223-FZ. All purchases will be divided into competitive and non-competitive. Priority will be given to the first ones, which will be carried out mainly in electronic form. The regulations give the customer new responsibilities. In particular, rules have been added on how to describe the item of purchase. The main trend is convergence with the stricter rules of the public procurement law 44-FZ.

On July 1, significant changes to Law No. 223-FZ, which regulates procurement by state corporations, unitary enterprises and others, came into force. commercial organizations with state participation of more than 50%. The main innovation is that procurement will be divided into competitive and non-competitive. In competitive ones, the notice, as a rule, will be placed in the unified information system (UIS), and such purchases themselves will become electronic by default. An exception is if the customer specified a different procedure in the documentation. If only small and medium-sized businesses can take part in the procurement, then the electronic form becomes mandatory, the new law says. For the first time, he provided for the rules by which customers must prepare technical specifications, equated the request for quotations and proposals to bidding forms and defined general requirements to them. The specifics of holding auctions and competitions are also regulated.

Electronic platforms: why no one is ready

The law established the procedure for conducting competitive procurement in electronic form. Entrepreneurs will have to undergo accreditation on new electronic platforms. To deposit funds as security, the supplier will have to open a special account in a bank authorized by the Government. According to Kalinina, purchases from small and medium-sized businesses will not begin on July 1, 2018, but only after new site operators begin operating (tentatively in the fall). As Vedomosti reported, the Government extended the period for banks to conclude agreements with sites until January 1, 2019. Large customers also do not have time to prepare: at a round table in the Federation Council, they asked for a few more months to integrate their programs with the Unified Information System. Suppliers, in turn, need time to open special bank accounts, Kommersant wrote. Despite the delay, customers now need to take into account the upcoming changes, warns Kalinina.

Previously, most procurement regulations contained an open list of cases of procurement from a single supplier. As a result, state-owned companies carried out a third of their purchases in this form. A closed list should improve the situation.

Art De Lex lawyer Anna Bolshakova

In addition, rules for describing goods, works or services in competitive procurement have appeared:

it is necessary to indicate the functional characteristics (consumer properties) of the object, as well as technical, quality and, if necessary, operational characteristics;
in most cases, it is impossible to indicate trademarks, brand names, country of manufacture, etc., since this unreasonably limits the number of procurement participants;
If it is still necessary to name a trademark, it is necessary to provide for the possibility of an equivalent. The law specifies exceptions, for example, a spare part or consumable material is required for a machine and the manufacturer requires the original.

Instead of the initial (maximum) contract price, it will be possible to set the unit price and the maximum contract price. Another option is the formula for determining the contract price and its maximum value.

223-ФЗ+44-ФЗ=?

According to Kalinina, 223-FZ has ceased to be a framework law that defines only general principles and transfers most questions to the customer. Now the customer's freedom is significantly limited.

The main trend is the convergence of the rules of the 223rd and the more strict 44th laws. The new restrictions in 223-FZ are largely mechanically copied from the state procurement law 44-FZ, but it has a completely different subject of regulation.

Partner at DS Law Maria Kalinina

The trend is visible in the example of the new rules for describing procurement items. They have been written off from 44-FZ, but are not adapted to the specifics of corporate procurement, continues DS Law partner. But in general, she advocates limiting the rights of corporate customers: “Until now, it was a very uncompetitive market where it was common to fish in troubled waters.”

Suppliers must now prepare new procurement regulations that would meet all the requirements of the new edition of 223-FZ. "Our lawyers help joint stock companies, autonomous institutions and other corporate customers in order to meet the July 1 deadline,” Kalinina shared. - But not everyone does this. In this case, they will be spurred on by complaints from suppliers when the changes take effect.”

On at the moment, there are two Federal procurement laws. These are Federal Law 44 and Federal Law 223. A distinctive feature of Federal Law 223 is the impact on only one of the parties to the transaction - the customer. According to this law, the customer must develop, in accordance with legislative norms, and then approve the procurement regulations.

Federal Law 223 was adopted on July 18, 2011. The Law “On the procurement of goods, works, services by certain types of legal entities” regulates the process and procedure for procurement between legal entities. This law applies only to legal entities in the Russian Federation.

This list includes:

state companies and organizations;
representatives of natural monopolies;
legal autonomous institutions;
electric grid companies, organizations involved in gas supply, heat and water supply, as well as other commercial organizations;
autonomous institutions;
state and municipal unitary enterprises.

The main provisions of Federal Law 223 include:

a completed plan posted on the government procurement portal;
documentation related to the purchase of goods must be available in the Unified Information System;
In the case of an electronic procurement auction, the customer must select a supplier based only on the procurement provisions. These provisions are drawn up based on 223-FZ.

If the customer is faced with an unscrupulous supplier who has not fulfilled the requirements for the supply of goods, then he can be entered into the register. The register of unworthy suppliers is also based on Federal Law 223.

Latest changes to 223-FZ “On Procurement”

Changes in the latest edition of 223-FZ “On Procurement” affected the procedure for generating reports. SMP has also appeared - a procurement partnership program. Rationing of purchased goods for customers is now carried out by the customers themselves. Individual legal entities are allowed to independently choose electronic platform for transactions.

In the new edition, the following articles have undergone changes:

Article 1.

This article describes the goals of regulation of 223 Federal Law, as well as the relations regulated by it. The changes affected the fifth paragraph, from which the pronoun “they” was removed, referring to state and municipal unitary enterprises. Also, paragraph 5, part two of the first article, was supplemented with a subparagraph on the lack of attraction of funds from the budgetary system of the Russian Federation for state and municipal unitary pharmacy organizations.

Article 2.

This article describes legal basis acquisition of goods, as well as who approves the procurement regulations. These may be the highest management bodies of a state corporation, heads of a unitary enterprise, a board of directors, or a supervisory board.

Article 3.

Article 3 223-FZ specifies the principles that the customer must follow when purchasing goods.

This list includes:

information openness;
equality between the parties to the transaction;
targeted and cost-effective spending of funds, etc.

Also, the article clarifies that the deal can be appealed to the antimonopoly authority. Any party to the transaction can do this.

Article 4.

The article describes the information that should be contained in the documentation when registering purchased goods.

For example, according to the law, the procurement notice must indicate:

the method of purchasing goods or services;
identification and contact information of the customer;
subject of the transaction;
place and date of the transaction, etc.

Also, the procurement documentation must contain information based on the procurement regulations:

customer requirements for the quality of the purchased item. Compliance with its size, packaging, functional characteristics;
requirements for the content and execution of the purchase application;
the procedure for forming the contract price;
form and terms of payment for goods, etc.

Article 5.

The fifth article 223 of the Federal Law describes the register of unscrupulous suppliers. According to the law, the article indicates that the maintenance of this register is controlled federal body executive power. The register includes suppliers who evaded concluding a contract, or those with whom the contract was terminated in judicial procedure, due to violation of conditions. The list of information included in the register is established by the Government of the Russian Federation. Information is stored in the register for two years from the date of entry; it must be available for review without charging a fee.

The peculiarity of Law 223-FZ is that it establishes only certain frameworks within which the customer is given freedom of choice. But while this is a benefit for experienced buyers, it raises many questions for beginners. In this material, we tried to present basic information about corporate procurement in an easy and accessible way.

Difference from 44-FZ

The strict law 44-FZ, according to which state and municipal customers are required to conduct procurement, creates much less choice. In contrast, work under 223-FZ assumes:

that customers independently develop rules for conducting procurement procedures, which are prescribed in Procurement Regulations;
that the person entrusted with procurement may be any specialist of the organization(no specialized education required);
that tenders can be organized on any electronic trading platforms(there are more than 150 of them).

Who does Law 223-FZ apply to?

If we simplify the provisions of paragraph 2 of Article 1 of Law 223-FZ and present them in accessible language, then all customers can be divided into three groups:

Registration in ERUZ EIS
From January 1 2020 year to participate in tenders under 44-FZ, 223-FZ and 615-PP registration is required in the ERUZ register (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:

State companies and corporations, subjects of natural monopolies. The share of state participation in such organizations is more than 50%.
Subsidiaries of the organizations specified in paragraph 1, in which the share of the state parent is more than 50%. And also the daughters of the subsidiaries themselves on the same conditions.
State and municipal unitary enterprises and budgetary institutions - regarding procurement on your own income or received grants, as well as in cases where they themselves are executors of contracts and involve third parties under the contract.

Preparation for procurement activities

Before making purchases, the customer can go through preparatory stage . It consists of several steps:

Obtaining an electronic digital signature. To do this, you need to contact any certification center that issues a cap for trading.
Registration on the government procurement website zakupki.gov.ru.
Development and approval of the Procurement Regulations.
Drawing up a procurement plan and publishing it in the Unified Information System (on the government procurement website).
Getting to know personal account EIS and its configuration.

As for, it needs to provide for the following:

Methods used by the customer to determine the supplier.
The order of procedures.
Everything about timing.
Supplier evaluation criteria.
The procedure for concluding, amending and terminating a contract.
Payment procedure.
Responsibility of the parties and the procedure for resolving disputes.

Publication of information in the EIS

Law 223-FZ requires the customer to place in the Unified Information System not only the Procurement Regulations, but also other documents:

procurement plans,
purchase notices,
documentation, including a draft agreement,
protocols that are drawn up during the procurement.

There is information that is in the EIS cannot be posted. This is the purchasing information:

related to state secrets;
included in the list from Government Order No. 2027-r.

In addition, the customer has the right not to publish procurement information in the Unified Information System if the contract price less than 100 thousand rubles. And if the revenue is more than 5 billion rubles per year, then you don’t have to place purchases with a price up to 500 thousand rubles. Since 2018, it has been permitted not to publish information about some other purchases related to property management and the placement of funds on deposits.

The most important thing for the customer

The main thing to remember is the need to place the Procurement Regulations in the Unified Information System. If this is not done, the customer will lose the right to purchase under 223-FZ. In this case, its procurement activities will be regulated by law 44-FZ.

Another important point - comply with all deadlines. They are:

The procurement regulations, as well as its changes, must be placed in the Unified Information System within 15 days from the date of approval;
permission to place a procurement notice is given 20 days before the closing date for applications;
to place changes in the notice - 3 days;
placement of procurement documentation is carried out along with the publication of the notice;
clarifications that the customer gives in response to requests from participants are published no later than 3 days from the date of receipt of the request;
protocols that are drawn up during the procurement must be posted within 3 days;
permission to publish the signed agreement is given 3 days;
changes made to the contract are posted no later than 10 days;
- no later 10th(over the past month);
once a year - until February 1 year following the reporting year - the customer publishes a procurement report from SMEs.

Minimum deadlines have also been established for accepting applications from participants. They vary depending on the type of procedure and whether the supplier is an SME. We have presented these deadlines in the following table.

In the summer of 2011, Federal Law No. 223-FZ of July 18, 2011 “On the procurement of goods, works, and services by certain types of legal entities” was adopted (hereinafter - Federal Law No. 223), which comes into force on January 1, 2012. Therefore, individual legal entities were given five months to prepare for the new procurement rules. But time passes and 2012 will come very soon.

Federal Law No. 223 consists of only eight articles, but there are no fewer discussions about its provisions than when Federal Law No. 94-FZ of July 21, 2005 “On placing orders for the supply of goods, performance of work, and provision of services for state and municipal needs” was adopted. (hereinafter referred to as Federal Law No. 94). Regarding the provisions Federal Law No. 223 you can come across quite a lot of statements: some call it “clumsy”, others simply do not understand it.

Nevertheless, no matter how imperfect it was, it was still necessary to restore order in procurement carried out by individual legal entities.

Federal Law No. 223 aimed at improving the procurement activities of individual legal entities. Acceptance Federal Law No. 223 contributes to ensuring openness and transparency in the placement of orders, expanding opportunities for the participation of individuals and legal entities in procurement carried out by individual legal entities, and developing fair competition.
In this article we will highlight main aspects of Federal Law No. 223, which individual legal entities should pay attention to.

Who is covered by Federal Law No. 223

IN Federal Law No. 223 a clear list of legal entities that are subject to the provisions of this law has been established.

Among such persons Federal Law No. 223 refers:

State corporations and state-owned companies;
Subjects of natural monopolies;
Organizations carrying out regulated activities in the field of electricity supply, gas supply, heat supply, water supply, sanitation, wastewater treatment, disposal (disposal) of solid household waste;
State unitary enterprises and municipal unitary enterprises;
Autonomous institutions;
Business companies in whose authorized capital there is a participation interest Russian Federation, a subject of the Russian Federation, a municipal entity in the aggregate exceeds fifty percent;
Subsidiary business companies, in the authorized capital of which more than fifty percent of the shares in the aggregate belong to all of the above legal entities;
Subsidiary business companies, in the authorized capital of which more than fifty percent of the shares in the aggregate belong to the subsidiary business companies specified in clause 7.

As it was before

Previously, the procurement process of the above persons (hereinafter referred to as customers) was regulated by many different acts. Today for all these customers Federal Law No. 223 establishes uniform principles for the procurement of goods (works, services). Thus, as part of their procurement activities, customers must ensure:

information openness of procurement;
equality, fairness, absence of discrimination and unreasonable restriction of competition in relation to procurement participants;
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 the purchased products) and the implementation of measures aimed at reducing the customer’s costs;
no restrictions on access to participation in procurement by establishing non-measurable requirements for procurement participants.

What Federal Law No. 223 does not regulate

It is important to note that the relationship associated with the purchase and sale securities and currency values, the purchase by the customer of exchange goods on a commodity exchange, procurement in the field of military-technical cooperation, the purchase of goods, works, services in accordance with the international treaty of the Russian Federation, the customer placing orders for the supply of goods, performance of work, provision of services in accordance with the Federal Law No. 94, as well as the customer’s selection of financial organizations for the provision of financial services and the customer’s selection of an audit organization to conduct mandatory audit accounting (financial) statements, Federal Law No. 223 are not regulated (Part 4 of Article 1 of Federal Law No. 223).

Who can take part in the procurement

All suppliers participating in the procurement of the above customers Federal Law No. 223 identified as procurement participants.
According to Part 5 of Art. 3 Federal Law No. 223 a procurement participant can be:

any legal entity or several legal entities acting on the side of one procurement participant, regardless of the organizational and legal form, form of ownership, location and place of origin of capital;
any individual or several individuals acting on the side of one procurement participant;
an individual entrepreneur or several individual entrepreneurs acting on the side of one procurement participant.

As indicated Federal Law No. 223, all the above participants must meet the requirements set by the customer.

Methods that Federal Law No. 223 allows to be used when purchasing goods, works, and services

It is noteworthy that Federal Law No. 223 as possible ways placing an order indicates only an open competition and auction center (parts 2 and 3 of article 3 of Federal Law No. 223). At the same time, there is no mention of the possibility of purchasing using the help anywhere, but there is a clause according to which the Government of the Russian Federation has the right to establish a list of goods, works, services, the purchase of which is carried out in electronic form ( Part 4 Art. 3 Federal Law No. 223). Most likely, we should wait for the release of an additional regulatory act.

The legislator left customers the right to use other procurement methods (in addition to a tender or auction), but on the condition that the method of procurement and the procedure for its implementation by the customer will be specified in Procurement Regulations.

Procurement Regulations

Federal Law No. 223 indicates that customers, when purchasing goods (works, services), should be guided by a number of regulatory documents. These include: Constitution of the Russian Federation, Civil Code of the Russian Federation, Federal Law No. 223, as well as others federal laws and other regulatory legal acts of the Russian Federation. In addition, the legislator talks about one more document that the customer must follow. This document is called Procurement Regulations. In this case, customers are obliged to independently develop and approve it ( Part 3 Art. 2 Federal Law No. 223).

According to Part 2 of Art. 2 Federal Law No. 223 Procurement Regulations should become a key document regulating the customer’s procurement activities and contain procurement requirements, including the procedure for preparing and conducting procurement procedures (including procurement methods) and the conditions for their application, the procedure for concluding and executing contracts, as well as other provisions related to ensuring procurement.

Based on the analysis of Part 4 of Article 8 Federal Law No. 223, it follows that the customer is given a period of three months from the date of entry into force for the development and placement of the Procurement Regulations Federal Law No. 223. However, if the customer does not develop and place Procurement Regulations, then he has the right when purchasing goods, works, services be guided by the provisions of Federal Law No. 94, but only until the approved Procurement Regulations.

In addition to development Procurement Regulations It is the customer's responsibility to compose and post plan for the procurement of goods, works, services for a period of at least one year. The procedure for the formation and timing of placement of such a plan must be approved by the Government of the Russian Federation. It was also established that from January 1, 2015, plans for the purchase of innovative products, high-tech products and medicines will be placed by the customer for a period of five to seven years.

Generation of procurement documents

IN Federal Law No. 223 there is no detailed description of procurement procedures, as provided for by the provisions of Federal Law No. 94. It is understood that the main issues of procurement with their full regulation must be independently identified and described in detail in Procurement Regulations.

By design Federal Law No. 223 customers, just as when working with Federal Law No. 94, must generate a procurement notice, documentation, a draft contract, which is an integral part of the procurement notice and procurement documentation, as well as protocols drawn up during the procurement. At the same time, in Federal Law No. 223 it is determined what the notice and procurement documentation should contain, as well as the procedure for making changes to the notice and procurement documentation (Parts 9, 10, 11 of Article 4 of Federal Law No. 223). Deadlines have been established for providing clarifications of the provisions of the documentation (Part 11, Article 4 of Federal Law No. 223).

Where should procurement information be posted and within what time frame?

Procurement regulations, plans, procurement notice, procurement documentation, draft contract, changes made to the notice and documentation, explanations of documentation, protocols drawn up during the procurement, as well as other information about the procurement must be posted on the official website www.zakupki. gov.ru. At the same time, the legislator left the opportunity for customers to duplicate procurement information on the customer’s website. The procedure for posting procurement information on the official website www.zakupki.gov.ru must be established by the Government of the Russian Federation. At the same time part 3 art. 8 Federal Law No. 223 determined that until July 1, 2012 Procurement Regulations, changes made to the Regulations, procurement plans, as well as other information about the procurement can be posted on the customer’s website. After July 1, 2012, all of the above information must be posted on the official website www.zakupki.gov.ru.

But before posting information, customers must register on the website www.zakupki.gov.ru. However Federal Law No. 223 does not regulate this procedure and indicates that the procedure for registering customers on the official website www.zakupki.gov.ru will be determined by the federal executive body authorized by the Government of the Russian Federation to maintain the official website.
The customer has the right not to post on the official website information about the purchase of goods, works, services, the amount of which:

does not exceed one hundred thousand rubles;
does not exceed five hundred thousand rubles, but provided that the customer’s annual revenue for the reporting financial year is more than five billion rubles.

If the customer organization is created after the effective date Federal Law No. 223, then the customer must, within three months from the date of registration of this organization in the unified state register of legal entities, approve and post the Procurement Regulations on the official website www.zakupki.gov.ru.

If the total share of participation of the Russian Federation, a constituent entity of the Russian Federation, or a municipal entity in the authorized capital has changed business entities, the total share of participation of legal entities specified in clause 1, part 2 of art. 1 Federal Law No. 223 in the authorized capital of subsidiary business companies, the total share of these subsidiary business companies in the authorized capital of their subsidiary business companies, as a result of which these companies are subject to Federal Law No. 223(regarding relations arising in connection with the procurement of goods, works, services), the Procurement Regulations are posted on the official website www.zakupki.gov.ru within three months from the date of receipt of notification of a change in the total share.

It is noteworthy that in Federal Law No. 223 no sanctions have been established in case the customer does not comply with the above deadlines for placement Procurement Regulations on the official website. On the contrary, the legislator provides customers with an additional way out of the situation, indicating that if the customer does not comply with the deadlines for posting the Procurement Regulations (three months), then he must be guided by the provisions of Federal Law No. 94 when purchasing until he approves and publishes the Regulations about procurement ( Art. 8 Federal Law No. 223).

New register of unscrupulous suppliers

Based on the analysis of provisions Federal Law No. 223, expected that in Russia we will have two registers of unscrupulous suppliers ( part 7 art. 3 Federal Law No. 223). To the already existing register maintained by the FAS of Russia for state and municipal customers working under Federal Law No. 94, another register of unscrupulous suppliers will be added for the persons specified in Part 2 of Art. 1 Federal Law No. 223.

The grounds for including participants in such a register are essentially identical to the procedure regulated by Federal Law No. 94. The register of unscrupulous suppliers includes information about procurement participants who have evaded concluding contracts, as well as about suppliers (performers, contractors) with whom contracts are concluded by decision ships were terminated due to a significant violation of their contracts ( Art. 5 Federal Law No. 223). Information contained in the register of unscrupulous suppliers is also excluded from this register after two years from the date of their entry into the register.

At the same time Federal Law No. 223 grants customers the right to establish a requirement that the procurement participant must not be in the new register of unscrupulous suppliers and (or) in the register of unscrupulous suppliers provided for by Federal Law No. 94.

Appealing the customer's actions

Federal Law No. 223 provides for three cases in which a procurement participant has the right to appeal the actions (inaction) of the customer to the antimonopoly authority:

if the customer has not posted it on the official website www.zakupki.gov.ru Procurement Regulations, changes made to the Regulations, as well as other procurement information to be posted on the official website, and also if the customer violates the deadlines for such posting;
if the customer requires procurement participants to submit documents not provided for in the procurement documentation;
if the customer purchases goods, works, services in the absence of something approved and posted on the official website www.zakupki.gov.ru Procurement Regulations and without applying the provisions of Federal Law No. 94.

In this case, the procurement participant has the right when purchasing goods, works, and services.

In conclusion, we note that it is difficult to determine the purpose of this law: whether it is for the benefit of state corporations, natural monopolies and other entities, or to expect even greater problems from it.

On the one side, Federal Law No. 223 extremely liberal: it turns out that if you don’t want to develop a Procurement Regulation, work according to Federal Law No. 94, and there is no responsibility. Almost all Federal Law No. 223 built on general phrases that, with a skillful approach, can be used to please yourself. So, for example, with procurement methods that the customer himself can, at his discretion, establish in Procurement Regulations. Each customer will put their own content into them, which may complicate the participation of potential suppliers in procurement. That is, how the entire procurement process will be structured depends entirely on the customer himself.

On the other hand, precisely because of the general phrases contained in Federal Law No. 223, questions arise regarding the procurement process.

First of all, in Federal Law No. 223 There are absolutely no approximate parameters by which the customer can be guided when choosing a method for placing an order. Customers are also concerned about the question: will the competition and auction be subject to the provisions of Federal Law No. 94? By what criteria should customers evaluate applications from participants? If a competition is held, will it be possible to rely on Decree of the Government of the Russian Federation of September 10, 2009 No. 722? The procedure for appealing the actions (inactions) of the customer is also unclear. Yes, Federal Law No. 223 speaks of such a possibility, but will the provisions of Chapter 8 of Federal Law No. 94 apply to purchases carried out by state corporations, state-owned companies, natural monopolies, etc.?

Of course, the concerns of customers can be understood, but, on the other hand, Federal Law No. 223 gives customers freedom. He does not put them in a strict framework, so if the customer wants to purchase according to a competition regulated by Federal Law No. 94, and evaluate applications in accordance with the Decree of the Government of the Russian Federation of September 10, 2009 No. 722, then he simply describes this in detail in Procurement Regulations with the addition, perhaps, of something new, our own. The main thing is that there is no discrimination against participants; the requirements for them are reasonable and do not limit competition.

One thing is clear, that in addition to Federal Law No. 223 other normative and legal acts will necessarily be adopted, specifying individual provisions of this law.

And one last thing. Some customers will still be able to breathe a little sigh of relief, since not everyone has to use this law from January 1, 2012. For some customers, a so-called “deferment” is provided for the period of application Federal Law No. 223.

Duration of application of Law No. 223	Legal entity	Provided that...
	Natural monopolies and organizations carrying out regulated activities in the field of electricity supply, gas supply, heat supply, water supply, water disposal and wastewater treatment, recycling (disposal) of solid household waste	the total revenue from these types of activities is no more than ten percent of the total revenue for 2011 from all types of activities
	Subsidiary business companies	more than 50% of the authorized capital belongs to state corporations, state-owned companies, natural monopolies, organizations engaged in regulated activities, state unitary enterprises, state autonomous institutions, business companies in which the state's share of participation is more than 50%, subsidiaries of these subsidiaries of business companies with a participation share of more than 50 %.
	Municipal unitary enterprises and autonomous institutions created by municipalities
	Business companies in the authorized capital of which the share of participation of the municipal entity is more than 50%	an early deadline is not provided for by the representative body of the municipality
	Subsidiary business companies, in which more than 50% belongs to municipal unitary enterprises and business companies, in which more than 50% belongs to the municipality	an early deadline is not provided for by the representative body of the municipality
	Subsidiary business companies of the above-mentioned subsidiary business companies, the share of which is more than 50%	an early deadline is not provided for by the representative body of the municipality
In all other cases - from 01/01/2012.

Mezina Alla Alexandrovna
Specialist of the Unified Center for Consultations on Government Procurement,
legal consultant at the Orientir legal center

December 21, 2011

Do you have any questions about procurement in accordance with Federal Law No. 223 or how to develop Procurement Regulations? You can talk to ECHC specialists about this topic.