Energy supply contract according to 223 fz. What should be guided by the State Unitary Enterprise when providing services for the transmission of electrical energy with an adjacent grid organization? Price as an essential condition of the contract

the federal law dated June 29, 2018 N 174-FZ "On Amendments to the Federal Law" On the Procurement of Goods, Works, Services certain types legal entities" and the Federal Law "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law No. 174-FZ) provided an opportunity for unitary enterprises from 06/29/2018 to amend their procurement regulations for the purpose of applying the Federal Law of July 18, 2011 N 223-FZ "On the Procurement of Goods, Works, Services by Certain Types of Legal Entities" (hereinafter - Law No. 223-FZ) when making purchases without attracting funds from the relevant budgets budget system Russian Federation.

It is assumed that the introduction of these changes to the procurement regulation should allow the unitary enterprise to avoid the need to apply the Federal Law of 04/05/2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - the Law No. 44-FZ). At the same time, there are certain inconsistencies in Law No. 223-FZ and Law No. 44-FZ, which indicate the opposite.

The changes introduced by Law No. 174-FZ do not exempt unitary enterprises from the application of Law No. 44-FZ, since Part 2.1. Art. 15 of Law No. 44-FZ indicates that state, municipal unitary enterprises carry out purchases in accordance with the requirements of Law No. 44-FZ, with the exception of certain cases.

In this way, by default, unitary enterprises are required to apply Law No. 44-FZ, and only if there is a procurement provision placed in the EIS, they can apply Law No. 223-FZ for procurements carried out within the framework of this provision:

a) at the expense of grants transferred free of charge and irrevocably by citizens and legal entities, including foreign citizens and foreign legal entities, as well as international organizations those who have acquired the right to provide grants on the territory of the Russian Federation in the manner prescribed by the legislation of the Russian Federation, subsidies (grants) provided on a competitive basis from the relevant budgets of the budgetary system of the Russian Federation, unless otherwise provided by the conditions determined by the grantors;

b) as a contractor under the contract in the event that other persons are involved on the basis of the contract during the execution of this contract for the supply of goods, performance of work or provision of services necessary to fulfill the obligations stipulated by the contract this enterprise, except for cases when the enterprise fulfills a contract concluded in accordance with paragraph 2 of part 1 of Article 93 of Law No. 44-FZ;

c) without attracting funds from the relevant budgets of the budgetary system of the Russian Federation.

But what should the customer do if the subject of his purchase is relations that are not subject to Law No. 223-FZ? For example, according to paragraph 8 of part 4 of Art. 1 of Law No. 223-FZ conclusion and execution of contracts in accordance with the legislation of the Russian Federation on the electric power industry, which are mandatory for participants in the circulation market electrical energy and (or) power is not subject to Law No. 223-FZ.

Last resort suppliers are participants in the electricity and (or) capacity circulation market and are obliged to conclude contracts with consumers of electricity. Consequently, those customers who are subject to Law No. 223-FZ are not entitled to apply its provisions to conclude an energy supply contract with a supplier of last resort. In turn, unitary enterprises in this case should ask themselves about the application of the provisions of Law No. 44-FZ. After all, they may not apply Law No. 44-FZ only in cases that are prescribed in their procurement regulations, and it states that it does not apply to such procurement. That's why unitary enterprises should conclude energy supply agreements with last resort suppliers in accordance with the norms of Law No. 44-FZ (this may be paragraphs 4 and 29 of part 1 of article 93).

Unitary enterprises must adhere to a similar approach in other cases provided for in Part 4 of Art. 1 of Law No. 223-FZ.

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

Answer

Oksana Balandina, chief editor of the State Order System

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

In accordance with the Federal Law of July 3, 2016 No. 321-FZ "On Amendments to Certain Legislative Acts of the Russian Federation on the Procurement of Goods, Works, Services to Ensure State and Municipal Needs and the Needs of Certain Types of Legal Entities" starting from January 1 2017, the provisions of the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” apply to state and municipal unitary enterprises, regardless of the types of activities they carry out.

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

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

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

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

How do state, municipal unitary enterprises make purchases?

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

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

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

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

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

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

Exception to the rule

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

Why change was invented

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

What should be done

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

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

In 2018, there will be a number of changes in the procurement procedure under Law No. 223-FZ. Some will come into force on July 1, 2018, and some are already in effect on January 1. Let's look at some of them.

Online course ". Additional professional training program developed based on the requirements professional standard"Purchasing Specialist" Professional development 72 hours. At the end of 2017, four federal laws on amendments to Law No. 223-FZ were adopted at once:

  • Federal Law No. 470-FZ of December 29, 2017 “On Amendments to Certain Legislative Acts of the Russian Federation”;
  • Federal Law No. 481-FZ of December 31, 2017 “On Amendments to Certain Legislative Acts of the Russian Federation”;
  • Federal Law No. 496-FZ of December 31, 2017 “On Amending the Federal Law “On the Procurement of Goods, Works, and Services by Certain Types of Legal Entities”;
  • Federal Law No. 505-FZ dated December 31, 2017 “On Amendments to Certain Legislative Acts of the Russian Federation”.

In addition, two decrees of the Government of the Russian Federation on supporting the NSR came into force:

  • Decree of the Government of the Russian Federation of November 15, 2017 No. 1383;
  • - Decree of the Government of the Russian Federation of 19.08.2016 No. 819.

Changes related to exceptions in regulation 223-FZ regarding procurement

The list of exceptions to Law No. 223-FZ has been extended

From December 31, 2017, Law No. 223-FZ does not apply to:

1. conclusion and execution of contracts in accordance with the legislation of the Russian Federation on the electric power industry, which are mandatory for participants in the market for the circulation of electric energy and (or) capacity (clause 8, part 4, article 1 of Law No. 223-FZ);

2. performance by the customer of a contract concluded with a foreign legal entity an agreement the subject of which is the supply of goods, performance of work, provision of services outside the Russian Federation (clause 12, part 4, article 1 of Law No. 223-FZ);

3. the purchase by the customer of goods, works, services from legal entities that are recognized as interdependent persons in accordance with the Tax Code of the Russian Federation (clause 2 of article 105.1) and the list of which is defined in the procurement regulation. At the same time, in the procurement regulation from 12/31/2017, the customer is obliged to justify the inclusion of each legal entity in the specified list of persons interdependent with him (clause 13, part 4, article 1 of Law No. 223-FZ);

4. purchases of goods, works, services by a legal entity registered in the territory of a foreign state for the purpose of carrying out its activities in the territory of a foreign state (clause 14, part 4, article 1 of Law No. 223-FZ).

According to paragraph 8 of part 4 of Art. 1 of Law No. 223-FZ, this law does not apply to relations related to conclusion and execution of contracts, which are obligatory for participants in the market for the circulation of electric energy and (or) capacity.

This norm does not indicate which participants in which electricity circulation markets are meant - wholesale or retail, therefore it is understood that the specified exception applies to participants retail market circulation of electrical energy - which include any consumers of electrical power.

Thus, from December 31, 2017, contracts for the supply of electricity or sale and purchase (supply) of electrical energy (capacity) concluded by customers with suppliers of last resort are not included in the procurement plans and reports generated by customers in 2018.

The effect of Law No. 223-FZ is extended to the procurement of goods, works, services for the purposes of commercial use

From December 31, 2017, the law applies to purchases related to the commercial use of goods, works, services (Part 1 of Article 3 of Law No. 223-FZ).

Customers now have two options:

  1. purchase such goods, works and services through so-called interdependent legal entities;
  2. include such purchases in the list of purchases from a single supplier.

Changes related to clarifications and changes in information posted in the EIS

Information that customers have the right not to post in the EIS

Since December 31, 2017, a list of information has been established that customers have the right not to post in the EIS:

  1. on procurement of a number financial services(Clause 2, Part 15, Article 4 of Law No. 223-FZ): -
    • deposit attraction services (including placement of deposits) Money organizations;
    • -provision of credits and loans;
    • - services for the issuance of bank guarantees and guarantees;
    • - services for opening and maintaining accounts, including letters of credit;
    • - brokerage services;
    • - Depository services.
  2. on the procurement of services for trust management of property (clause 2, part 15, article 4 of Law No. 223-FZ);
  3. on procurement related to the conclusion and execution of a contract of sale, lease (sublease), contract trust management state or municipal property(Clause 3, Part 15, Article 4 of Law No. 223-FZ);
  4. on procurement related to the conclusion and execution of any contracts providing for the transfer of ownership and (or) use rights in relation to real estate (contracts for the sale, lease, sublease of real estate, etc.) (clause 3, part 15, article 4 of the Law No. 223-FZ).

Now customers can not place information in the EIS on contracts for settlement and cash services (that is, do not show such purchases either in the procurement plans or in the register of contracts). As for real estate lease agreements, it is necessary to indicate the total quantity and cost of the concluded agreements, but information about the purchase itself (notice, documentation, protocol) does not need to be placed in the EIS. This provision only applies to contracts entered into on or after January 1, 2018.

Information not subject to placement in the EIS

The powers of the Government of the Russian Federation have been expanded in terms of determining information that is not subject to placement in the EIS. They entered into force on December 31, 2017.

Article 4 of Law No. 223-FZ:

16. The Government of the Russian Federation has the right to determine:

3) a list of grounds for non-placement in the unified information system of information about the supplier (contractor, performer) with whom the contract is concluded;

4) lists and (or) groups of goods, works, services, the procurement of which is carried out by specific customers, information on the procurement of which does not constitute a state secret, but is not subject to placement in a single information system.

List of documents placed in the EIS

From December 31, 2017, it is necessary to make decisions on accession to the procurement regulation, on accession to changes in the procurement regulation of the management bodies of subsidiaries (parts 4 and 5 of article 2 of Law No. 223-FZ) in the EIS.

The decision to join must be posted in the EIS within 15 calendar days from the date of its adoption. Procurement regulations do not need to be entered into the EIS.

Clarified the responsibility of the customer in case of non-placement of the provision on procurement in the EIS

If the customer has not posted the approved procurement regulation (or the decision to join the procurement regulation) within the time limits established by law, the main provisions of Law No. 44-FZ apply to him until he performs the specified actions, in part:

  • justification of the initial (maximum) price of the contract, the price of the contract concluded with a single supplier (executor, contractor);
  • choosing a method for determining the supplier (executor, contractor);
  • procurement from SMP, SONKO;
  • application of requirements to procurement participants;
  • evaluation of applications, final proposals of procurement participants;
  • creation and functioning of the procurement commission;
  • definition of the supplier (executor, contractor),
  • procurement from a single supplier (executor, contractor).

Change in the rules of appeal under 223-FZ

From December 31, 2017, the list of grounds for administrative appeal of actions (inaction) of the customer, the procurement commission to the FAS Russia, as well as the circle of persons who can file such complaints has been expanded.

In this video advice, Stanislav Gruzin will tell you what has changed since 2018 in the rules for appealing 223-FZ. Watch an excerpt from the webinar "".

Purchases from small and medium-sized businesses from 01/01/2018

From January 1, 2018, the circle of customers who are obliged to purchase goods, works, services from SMEs:

This responsibility is now assigned to:

  1. all customers (with the exception of autonomous institutions and customers that are SMEs) whose annual revenue for the previous calendar year exceeds 500 million rubles.
  2. customers who are credit organizations(with the exception of customers - SMEs) whose assets for the previous calendar year exceed 500 million rubles.
  3. customers that are autonomous institutions, the total value of contracts concluded as a result of the purchase of goods, works, services for the previous calendar year exceeds 250 million rubles.

Also form annual report on the procurement of goods, works, services by certain types of legal entities from SMEs is supplemented with the following information:

  • on the share of purchases from SMP in the total annual value of contracts;
  • on the share of purchases from small businesses based on the results of tenders, other methods of procurement provided for by the procurement regulations, the participants of which are only.

Increased quotas for purchases from small and medium-sized businesses

Decree of the Government of the Russian Federation of August 19, 2016 No. 819 , which entered into force on January 1, 2018, increases the mandatory annual volume of purchases of goods, works, services from SMEs from 10% to 15%.

Information Systems

It is allowed to use corporate, regional and municipal information systems to post information that is subject to placement in the EIS under 223-FZ.

If the information on competitive procurement posted in corporate information systems in the field of procurement of goods, works, services, regional and municipal information systems in the field of procurement differs from the information posted in the EIS, the information posted in the EIS has priority.

Improve your skills on the course"". Professional retraining, 256 academic hours . The program is developed on the basis of the requirements of the professional standard.

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

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

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

  • contests;
  • auctions.

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

What is Direct Buying

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

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

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

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

  • notice;
  • documentation
  • protocol.

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

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

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

Situations when it is possible to cooperate with a single supplier

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

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

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

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

Violations of Federal Law 223

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

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

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

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

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

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

Professionals in the field government orders It is recommended to pay attention to the following points:

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