September 24, 2014

In accordance with 223-FZ, procurement is a set of sequential actions of the customer aimed at selecting a counterparty to conclude a specific contract with him. The law applies to three types of transactions: supply of goods (purchase and sale), where the customer is the buyer, contracting and paid provision of services, in which he is the customer of the work or service.

Relations that are not regulated by 223-FZ and, accordingly, to which there is no reason to apply the procurement provision, are directly listed in Part 4 of Art. 1 of this Law, their list is closed. According to Part 1 of Art. 2 223-FZ, the customer’s legal acts regulating the procurement rules (purchase regulations) regulate the customer’s procurement activities. The Procurement Law does not give the customer the right to independently decide which types of procurement activities will be regulated by the procurement regulations and which will not.

It would seem that the rules provided for by the procurement regulations should be applied to the procedure for concluding any contracts, with the exception of those that fall under the exemptions of Part 4 of Art. 1 of the Procurement Law. Nevertheless, many contractual relations do not correspond to the concept of “purchase”, but also do not fall into a number of exceptions from the scope of 223-FZ, such as, for example, a loan agreement.

A loan agreement is understood as an agreement under which a bank or other credit organization (lender) undertakes to provide funds (loan) to the borrower in the amount and on the terms stipulated by the agreement, and the borrower undertakes to return the amount of money received and pay interest on it (clause 1 Art. 819 Civil Code). Interest paid by the borrower on the loan amount in the amount and in the manner specified in clause 1 of Art. 809 of the Civil Code of the Russian Federation are payments for the use of funds.

What is a loan agreement?

In Art. 30 of the Federal Law of December 2, 1990 No. 395-1 “On Banks and Banking Activities” states that relations between the Bank of Russia, credit institutions and their clients are carried out on the basis of agreements, unless otherwise provided by federal law. The contract, among other things, must indicate the cost of banking services. Article 32 of this Law prohibits credit institutions from entering into agreements and carrying out concerted actions aimed at monopolizing the banking services market, as well as limiting competition in banking.

From the above rules we can conclude that the provision of credit is one of the types of banking services.

Antimonopoly legislation also uses the term “banking service” (Article 4 of the Federal Law of July 26, 2006 No. 135-FZ “On the Protection of Competition”): Financial service - banking service, insurance service, service on the securities market, contract service leasing, as well as a service provided by a financial organization and related to the attraction and (or) placement of funds from legal entities and individuals.

Those. The concept of banking service is well-established in relation to the conclusion of loan agreements. And the procurement of paid services must be carried out in accordance with the norms of 223-FZ.

At the same time, in the theory of civil law, a different understanding of the essence of the loan agreement is accepted, while it is precisely this that is the purpose of the procurement procedure in the context of the requirements of Law No. 223-FZ.

The rules governing legal relations on a loan are contained in paragraph 2 of Chapter 42 of the Civil Code of the Russian Federation. Relations related to the provision of paid services are regulated by Chapter 39 of the Civil Code of the Russian Federation.

We can conclude that the legal regulation of relations associated with the provision of paid services and relations associated with a loan is different, and, it seems, the effect of 223-FZ does not apply to the conclusion of a loan agreement.

In modern legal literature one can find different opinions regarding the legal nature of a loan agreement: from recognizing it as a type of loan agreement to qualifying a loan agreement as an independent civil law agreement. Thus, from the point of view of the theory of civil law, a loan agreement does not relate to agreements on the provision of services, but belongs to the category of agreements on the transfer of property, paid loan agreements and is not related to bank deposit and bank account agreements, which really belong to the category of agreements on provision of financial (banking) services.

However, despite the obvious discrepancies between the above positions (legislation and civil law theory), The customer is still recommended to apply the norms of 223-FZ to the conclusion of loan agreements, because we are talking about the established concept of a banking service. Thus, in accordance with the explanations of the FAS, in cases provided for by the loan agreement, the client pays for the bank’s services for the use of funds in the form of interest accrued on the loan amount (clause 1Art. 819GK). Thus, when concluding a loan agreement, the customer purchases a financial service, and, consequently, must be guided by the requirements of the Procurement Law upon conclusion of the said contract.

How to choose the type of procurement procedure for a loan?

Obtaining a loan by the customer in any case requires a lot of time and the preparation of a huge package of documents reflecting all the “ins and outs” of the customer.

When conducting an open competitive procurement procedure, this package of documents must be laid out as part of the procurement documentation (which is very inappropriate from the point of view of trade secrets, as well as the lack of a single standard list of documents required to obtain a loan) or sent upon official requests to potential procurement participants, but responses to requests are also required to be officially published in the Unified Information System. The effectiveness of this procurement method is difficult to assess, and such a purchase may last indefinitely.

In this situation, there are two options:

1) Conduct a two-stage competitive procedure, where:

• Stage I - pre-qualification selection: at this stage, it is possible to select credit institutions based on their reliability and on their credit and commercial offers, based on general information about the customer;
• Stage II is a closed procurement procedure or a procedure with limited participation based on the results of Stage I.

The advantage of this method is that the customer controls the circle of people to whom a package of documents is sent to receive a loan. Disadvantage - it requires time and significant labor costs.

2) Conduct a non-competitive procurement procedure - purchase “from a single supplier” (can be applied only if this is stipulated in the customer’s procurement regulations).

Thus, at the moment, the fastest and least labor-intensive way to conclude a loan agreement (and also the most neutral in the light of controversial interpretations about its nature) is to purchase “from a single supplier,” unless otherwise specified in the customer’s procurement regulations.

MINISTRY OF ECONOMIC DEVELOPMENT OF THE RUSSIAN FEDERATION

The Department for the Development of the Contract System of the Ministry of Economic Development of the Russian Federation considered an appeal on the issue of clarification of certain provisions of the Federal Law of July 18, 2011 N 223-FZ “On the procurement of goods, works, services by certain types of legal entities” (hereinafter referred to as Law N 223-FZ) and reports following.

According to Part 1 of Article 2 of Law No. 223-FZ, when purchasing goods, works, and services, customers are guided by the Constitution of the Russian Federation, the Civil Code of the Russian Federation, Law No. 223-FZ, other federal laws and other regulatory legal acts of the Russian Federation, as well as those adopted in accordance with with them and the legal acts regulating the procurement rules approved taking into account the provisions of Part 3 of Article 2 of Law N 223-FZ (hereinafter referred to as the procurement regulations).

The procedure for preparing and conducting procurement procedures (including procurement methods) and the conditions for their application are established by customers independently in the procurement regulations. The procurement regulations may provide for procurement in the form of a competition and auction, or in other ways. In particular, the customer has the right to provide in the procurement regulations the possibility of purchasing goods, works, services from a single supplier (performer, contractor), and the procurement procedure must be established in the specified way.

Thus, Law N 223-FZ applies to all purchases of goods, works, services carried out by legal entities specified in Part 2 of Article 1 of Law N 223-FZ, including the purchase of loans and credits.

In this case, the customer has the right, in accordance with Part 2 of Article 2 of Law N 223-FZ, to adopt a procurement provision, which may reflect that this type of financial transaction is a purchase from a single supplier.

Thus, procurement from a single supplier, based on clear and understandable criteria for certain cases of classification as such procurement, as well as the validity of the definition of such cases established in the procurement regulations, will help ensure compliance with the principles of Federal Law of July 26, 2006 N 135 -FZ “On the Protection of Competition” (hereinafter referred to as Law No. 135-FZ).

We note that in accordance with Part 1 of Article 18 of Law No. 135-FZ, state and municipal customers enter into contracts with financial organizations, regardless of the transaction amount, only based on the results of an open competition or open auction held in accordance with the provisions of Federal Law No. of April 5, 2013 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs."

At the same time, we draw your attention to the fact that clarifications of a government body have legal force if this body is endowed, in accordance with the legislation of the Russian Federation, with special competence to issue clarifications on the application of the provisions of regulatory legal acts. The Ministry of Economic Development of Russia is a federal executive body, which is not vested with the competence to clarify the legislation of the Russian Federation under the current regulatory legal acts of the Russian Federation, including the Regulations on the Ministry, approved by Decree of the Government of the Russian Federation of June 5, 2008 No. 437.

On the purchase of loans and credits from a single supplier

Almost every Russian has heard about lending today. There are a huge number of loans, be it mortgages, car loans and so on. One of the varieties is a tender loan. Currently, to secure applications for participation in competitions or auctions, entrepreneurs use a service called tender loan under 223 Federal Law. This service is the issuance of a certain amount of money for the purpose of participating in a competition or auction.

223 FZ tender loan: features

This loan is issued on the basis of Federal Law No. 223; in contrast to Federal Law No. 44, in this case the customer has more freedom. Securing the application is necessary so that the customer, at the very first stage, excludes those participants who do not want to win the contract. It often happens that unscrupulous participants disrupt the auction, they set minimum prices for the contract, and then refuse to fulfill it. That is why the concept of securing an application for participation in a competition was introduced. If the competition is unsuccessful, the application security will be returned to the participant’s account within five days.

Such an application can be secured thanks to a tender loan issued by the bank.

223 Federal Law tender loan: varieties

There are two types of tender loans:

• One-time. With such a loan, the amount is issued to the applicant once for participation in a specific competition. The loan period is ninety days, this is exactly the time during which the competition takes place and the results are announced;
• There is also a line of credit. This method is the issuance of funds throughout the year. Then the participant can participate in an unlimited number of competitions throughout the year.

Lending terms

• The processing time for an application is approximately 7 working days, it all depends on the bank, possibly less;
• The interest rate is approximately 1.2% per month of the loan amount;
• The maximum loan term is one year;
• Sometimes a guarantee or security is required.

Thus, a tender loan is a very convenient procedure that is necessary for the development of entrepreneurs.

Loan to secure an application for participation in the auction (Tender loan) from Loko-Bank- will allow you to take part in an auction in the shortest possible time without the need to divert funds from the company’s turnover and increase the number of auctions in which you can take part.

Terms of the loan:

• The goal is to provide an application for participation in an open auction in electronic form
• Amount – up to 15,000,000 rubles
• Form of lending - one-time loan, revolving credit line
• Loan term – up to 12 months (tranche/one-time loan term – up to 120 days) Repayment of the loan/tranche is carried out on time depending on which of the events occurs first:
  - refund of funds in connection with the cancellation/end of the auction, withdrawal/recognition of the application as not meeting the requirements before the end of the term of the tranche/loan issued to secure the application for participation in these auctions,
  - at the end of the term of each tranche/loan (no more than 120 days)
• Security – guarantee of the owners and/or the sole executive body (for the Borrower - a legal entity)