We will tell you which companies should conduct a mandatory audit, about the mandatory audit of the federal state unitary enterprise, about the mandatory audit of purchases under 223-FZ and the use of an electronic digital signature.

The problem of conducting a mandatory audit of accounting (financial) statements is familiar to most companies that conduct purchases under 223-FZ "On the procurement of goods, works, services by certain types legal entities". In accordance with this law, the customer must conduct the procurement of a mandatory audit of accounting through an open tender within the framework of federal law 44-FZ.

Which companies must conduct a mandatory audit

So, as noted above, the choice of an audit firm responsible for checking accounting is outside the scope of Law 223-FZ. The selection of the auditing company is carried out in accordance with Federal Law No. 307-FZ.

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According to him, compulsory purchase audits should be carried out by organizations if:

• The organizational and legal form of the company is defined as "open joint stock company" (JSC);
• The company's securities are admitted for trading;
• The company is a participant in the securities market; insurance, credit, clearing company; trade organizer; a private pension, mutual or equity investment fund; management company private pension, share or joint stock investment funds;
• The amount of the organization's revenue from the sale of its goods and services exceeded 400 million rubles in the reporting year, and also if the amount of assets balance sheet exceeded 60 million rubles as of the end of the previous reporting year;
• The company publishes (or provides) consolidated financial statements;
• In other cases regulated by federal legislation.

According to 307-FZ, a mandatory audit must be carried out annually.

Mandatory audit of FSUE

Part 3 and part 4 of Article 5 of Federal Law 307-FZ indicate normative base for auditing public companies.

• If the share of state ownership in the organization is more than 25%, the audit should be carried out exclusively by audit companies;
• If the share of state ownership in the organization is more than 25%, then the audit financial statements FGUP, GUP and MUP according to 223-FZ can be carried out by one company for 5 years, under one contract concluded in accordance with the norms of 44-FZ.

Paragraph 4 of Article 5 establishes the following requirement: the procurement of a statutory audit must be carried out only through an open tender. The same paragraph provides for the possibility for the customer to install financial security contract. This rule provides the customer with protection from unscrupulous performers.

Audit of purchases under 223-FZ

Note that 223-FZ does not regulate only procurement for the selection of the executor of the mandatory audit of accounting. The purchase of other audit services is carried out by customers in accordance with Law No. 223-FZ.

As mentioned above, in accordance with the law 44-FZ, it is only necessary to carry out the procedure itself, and the placement of the purchase of a mandatory audit should be carried out within the framework of 223-FZ. The same applies to the procurement report: if an organization operates in the legal field of 223-FZ, then the report must be drawn up in accordance with 223-FZ. In the event that an open tender is held to determine the contractor for a mandatory audit under the law 223-FZ, and not 44-FZ, the customer faces an administrative fine of 15 to 30 thousand for officials.

Electronic digital signature

There are no less questions regarding the electronic signature for work within the framework of laws 44-FZ and 223-FZ. An electronic signature designed to work within the framework of 223-FZ is not suitable for working with 44-FZ. Therefore, to obtain an electronic digital signature, you must contact the Treasury. Read about how to get an EDS in the article.

Read the latest news and insights from experts on hot topics in public procurement at magazine "Goszakupki.ru"

Now there are many questions regarding the procurement of audit services by organizations that have the status of a customer in accordance with the Federal Law of July 18, 2011 No. 223-FZ “On the Procurement of Goods, Works, Services by Certain Types of Legal Entities” (hereinafter referred to as the Procurement Law).

We asked Doctor of Law, leading researcher Institute of Legislation and Comparative Law under the Government of the Russian Federation, Olga Belyaeva.

A few words about the history of all customer doubts

In accordance with clause 7, part 4, article 1 of the Law on Procurement, relations related to the selection by the customer of an audit organization for the mandatory audit of the accounting (financial) statements of the customer in accordance with Art. 5 of the Federal Law of December 30, 2008 No. 307-FZ "On audit activity(hereinafter referred to as the Audit Law).

A literal interpretation of this norm leads, in my opinion, to the conclusion that all relations on the choice of a contracting party for a statutory audit are excluded from the scope of Law No. 223-FZ. However, now among many lawyers there is an opinion that this rule should be interpreted restrictively for the following reasons.

By itself, Art. 5 of the Audit Law consists of several parts:

• the first part contains a list of cases in the presence of which a mandatory audit is required;
• the second part establishes the deadline for the mandatory audit - annually,
• the third part lists organizations whose statutory audit of reporting is carried out only by audit organizations,
• the fourth part requires the conclusion of an agreement by some organizations only on the basis of the results of an open tender held in accordance with the procedure established by Federal Law No. 94-FZ of July 21, 2005 "On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs" (hereinafter - ordering law).

Thus, about the "selection audit organization”(namely, such a wording is contained in paragraph 7 of part 4 of article 1 of the Procurement Law) it is only in part 4 of art. 5 of the Audit Law. It follows that only those relations that are related to the selection of an audit organization in accordance with the rules of the Procurement Law are excluded from the scope of the Procurement Law.

An additional argument in favor of the fact that the norm of paragraph 7 of part 4 of Art. 1 of the Procurement Law does not apply to all organizations listed in Part 1 of Art. 5 of the Law on Auditing, is an indication of the selection of audit organizations, and not just the selection of an auditor. After all, it is the audit organizations that conduct the mandatory audit of organizations named in Part 4 of Art. 5 of the Audit Law.

Based on the above considerations, many experts believe that the purpose of the legislator when introducing an exception to the Procurement Law regarding the selection of an auditor was to exclude conflicts with the provisions of the Law on placing orders; and it is unlikely that the legislator intended in this way to exclude a conflict with corporate law.

A different understanding of the analyzed norm of the Procurement Law will mean that the procedure for purchasing services during a mandatory or initiative audit, as well as when an individual auditor or an audit organization is involved, will radically differ, which does not meet the objectives of the Procurement Law. In addition, representatives of state bodies, in particular, the Ministry of Economic Development of Russia and the Federal Antimonopoly Service of Russia, call the Procurement Law "the law on information transparency of costs", noting that this is its main focus.

The FAS Russia in its letter No. IA/44025/12 dated December 24, 2012 notes that if the legal acts (legal act) establishing the procurement rules approved and posted on the official website do not regulate certain types of purchases of the customer, in relation to such purchases, the provision on procurement is considered not placed in the manner prescribed by the Procurement Law. Therefore, when making such purchases, the customer must be guided by the provisions of the Law on placing an order. In other words, if relations on the selection of an audit organization are excluded from the scope of the procurement regulation, and the state authorities consider that these relations, nevertheless, fall within the scope of the Procurement Law, it will turn out that the procurement regulation issues the selection of an auditor (auditor organizations) is not settled. Thus, when concluding an agreement with an auditor (audit organization), the customer will have to be guided by the provisions of the Law on placing orders.

How should Law No. 223-FZ be adequately interpreted?

All of the above reminds me of the Russian proverb "Burned with milk, they blow on the water." Paradoxically, even a direct indication in the Procurement Law that within its scope
does not include the selection of an audit organization, does not convince customers that they can limit themselves to compliance with their corporate procedures. Let's figure out how to adequately interpret the rules in question, adequately - that is, as close as possible to their literal meaning.

So, is the customer obliged to select an audit organization in accordance with the procedures established by the Procurement Law? Wouldn't the removal of the provisions on the selection of an audit organization from the purchase order of the customer lead to the need to be guided by the provisions of the Law on placing orders?

Relations that are not regulated by the Procurement Law and, accordingly, to which there are no grounds to apply the procurement provision itself, are listed in Part 4 of Art. 1 of the Law on Procurement, their list is closed, there are no grounds for its broad interpretation.

The above norm provides for eight exemptions from the scope of regulation of the Law on Procurement, and it is worth noting that it is impossible to bring them to a common denominator - it is not clear what idea the legislator underlies these exemptions, since we are talking about different legal relations.

In the first case, the basis of the exemption is the object of the contract ( securities and currency values), in the second - the specifics of the transactions being concluded (exchange market), in the third - the features of the legal status of the customer, guided in his activities by the provisions of the Law on Placement of Orders, in the fourth - a special field of activity (military-technical cooperation), in the fifth - a priority international law over national legislation; in the sixth case, the exemption is due to the type of service provided - a mandatory audit of the accounting (financial) statements of the customer, conducted by audit organizations in accordance with Art. 5 of the Audit Law.

The last two exceptions are combined cases where both the entities and the relations in which they participate come together (conclusion and execution of contracts in accordance with the legislation of the Russian Federation on the electric power industry, which are mandatory for wholesale market entities - participants in the circulation of electric energy and (or) power; implementation credit institution leasing operations and interbank operations, incl. with foreign banks).

The specialization of norms, the difference in their nature and purpose in regulation predetermine the fact that individual norms have different parts, there is no single, universal model of the structure inherent in all legal norms. So, the norm sub. 7 h. 4 tbsp. 1 of the Law on Procurement is blanket, since its disposition refers to an article of another regulatory legal act.

The rule of law and the article of a normative legal act are not identical to each other, they may or may not coincide. A rule of law is a rule of conduct, and an article legislative act- a form of expression of the state will, a means of implementing the rule of law. The rule of law, being the content, correlates in different ways with the article of the normative act, which acts as its form.

In Art. 5 of the Audit Law, several legal regulations, the connecting link of which is the fact that they all relate to the conduct of a statutory audit:

• the first part of the article defines the circle of entities subject to mandatory audit;
• in the second - indicates the frequency of the mandatory audit;
• in the third - persons are listed whose mandatory audit of accounting (financial) statements is carried out only by audit organizations;
• the fourth section names the persons who are obliged to conduct an open tender in accordance with the rules of the Law on placing orders in order to conclude an agreement on a mandatory audit of accounting (financial) statements.

Blanket disposition sub. 7 h. 1 tbsp. 1 of the Law on Procurement, although it mentions such concepts as “audit organization” and “selection”, it does not refer to part 3 of Art. 5 of the Law on Auditing (where we are talking about audit organizations) and not to part 4 of Art. 5 of the Law on Auditing (which refers to the conclusion of an agreement based on the results of an open tender, which could be correlated with the concept of "selection"), and to the article in its entirety - without any exceptions.

The interpretation of such a disposition can be presented as follows: in Part 4 of Art. 1 of the Procurement Law establishes six exemptions from the scope of its regulation, it is necessary to analyze two of them in a systemic relationship - sub. 3 and 7 of the above norm.

So, in sub. 3 hours 4 tbsp. 1 it is noted that the Law on Procurement does not apply to relations related to the placement by the customer of orders for the supply of goods, performance of work, provision of services in accordance with the Law on placing orders. Despite the use of the same term, the Procurement Law in Part 2 of Art. 1 and the Law on placing orders in art. 4 regulate the activities of different customers.

Moreover, there are no points of contact between these customers, with some exceptions, when the customer, in the sense of the Procurement Law, is obliged to apply the Law on Placement of Orders in its activities.
Such exceptions under the current legislation Russian Federation three:

1. the customer did not approve and did not post on the official website its procurement regulation (part 4 of article 8 of the Procurement Law);
2. the customer is a federal state unitary enterprise to which the powers of the state customer have been transferred in cases provided for by Decree of the Government of the Russian Federation dated December 28, 2012 No. 1456 “On the procedure for implementing budget investments in objects in 2013 capital construction state property of the Russian Federation”;
3. the customer is a state company, state corporation, state unitary enterprise, economic company, in the authorized capital of which the share state participation more than 50% percent, and concludes an agreement for a mandatory audit of accounting ( financial reporting) according to the results of an open tender held in accordance with the rules of the Law on placing orders (Part 4, Article 5 of the Law on Auditing).

Thus, an open tender according to the rules of the Law on Placement of Orders for the conclusion of an agreement for a mandatory audit of the accounting (financial) statements of the customer refers to the exemption established in subpara. 3 hours 4 tbsp. 1 of the Procurement Law, and the blanket rule sub. 7 h. 4 tbsp. 1 of the Procurement Law has an independent and specific content: it refers to customers in general, that is, to all legal entities that are referred to in this way for the purposes of the Procurement Law. In other words, the norm of Part 4 of Art. 5 of the Law on Auditing is consistent with the norm sub. 3 hours 4 tbsp. 1, not sub. 7 h. 4 tbsp. 1 of the Procurement Law.

If we compare the circle of customers named in Part 2 of Art. 1 of the Law on Procurement, with a list of persons whose mandatory audit must be carried out by audit organizations, given in Part 3 of Art. 5 of the Law on Auditing, it becomes obvious that they do not match. In particular, organizations whose securities are admitted to circulation on organized trading, credit and insurance organizations and non-state pension funds.

Another example: in the authorized capital of a business company there is a state participation of 30%, such a company does not have the status of a customer in the sense of the Procurement Law, but is obliged to conduct an open tender according to the rules of the Law on Placement of Orders and has the right to allow only auditors to participate in such a tender. organizations. Quite a few more similar examples can be cited, all of them will demonstrate the discrepancy between the subject composition of persons with the status of which certain legal implications are linked by three different legal acts: the Procurement Law, the Law on Placement of Orders and the Law on Auditing.

With regard to the concept of "selection", mentioned in sub. 7 h. 4 tbsp. 1 of the Procurement Law, it is appropriate to refer to the so-called golden rule of interpretation. It is expressed in the fact that the words and expressions used by the law should be given their widespread, usual meaning. Selection is the selection of someone or something from any environment. Conducting an open tender for the purpose of concluding an agreement is a kind of selection, selection of a future counterparty.

However, the concepts of “competition” and “selection” are not identical to each other, selection is a much broader concept in its meaning, therefore the phrase “selection of an audit organization” cannot be reduced to holding a tender, another form of bidding or another method of procurement.

conclusions

1. Norm sub. 7 h. 4 tbsp. 1 of the Procurement Law establishes a general exception from the scope of the Procurement Law regarding the activities of all customers listed in Part 2 of Art. 1 of the Procurement Law. There is no reason to believe that the named norm concerns any customers selectively.
2. The procedure for selecting an audit organization to conclude an agreement on a mandatory audit of the accounting (financial) statements of an organization that has the status of a customer on the basis of Part 2 of Art. 1 of the Law on Procurement and is the subject of a mandatory audit on the basis of Part 1 of Art. 5 of the Law on Auditing, is not subject to regulation in the procurement regulation.
3. The opinion that the Procurement Law presupposes the information transparency of any spending obligations of customers is common in modern practice, but it diverges from both the title and the text of the Procurement Law itself. An exemption regarding the procedure for selecting an audit organization for a statutory audit of accounting (financial) statements is clearly established in subpara. 7 h. 4 tbsp. 1 of the Procurement Law. With regard to possible legal conflicts with the provisions of the Law on Placement of Orders, another provision is aimed at eliminating them, namely subpara. 3 hours 4 tbsp. 1 of the Procurement Law.
4. The exclusion of the procedure for selecting an audit firm from the purchase order of the customer cannot oblige the customer to be guided by the provisions of the Law on placing orders for two reasons:
   • such an exception is based on an express provision of the Procurement Law itself;
   • The customer has no other grounds to apply the Law on Placement of Orders in its activities.
5. On the procedure for concluding contracts for the conduct of an initiative audit, as well as contracts concluded with auditors, and not with audit organizations, the norm is signed. 7 h. 4 tbsp. 1 of the Procurement Law does not apply.

Make a new purchase, the obligatory form for it is an open tender.

The text of the joint letter of the Ministry of Finance of the Russian Federation N 24-04-06 / 3691, the Federal Antimonopoly Service of the Russian Federation N RP / 4072/18 of 01/24/2018

MINISTRY OF FINANCE OF THE RUSSIAN FEDERATION

N 24-04-06/3691

FEDERAL ANTIMONOPOLY SERVICE

N RP/4072/18

LETTER

ABOUT POSITION

OF THE MINISTRY OF FINANCE OF RUSSIA AND THE FAS OF RUSSIA FOR APPLICATION

"ON THE CONTRACT SYSTEM IN THE SPHERE OF PROCUREMENT OF GOODS, WORKS,

SERVICES TO PROVIDE STATE AND MUNICIPAL

WORKS, SERVICES BY CERTAIN TYPES OF LEGAL ENTITIES"

WHEN PROCURING FOR PROVISION OF SERVICES, MANDATORY

AUDIT OF ACCOUNTING (FINANCIAL) STATEMENTS

In connection with incoming questions about the application of the provisions of Federal Laws of April 5, 2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services for state and municipal needs" (hereinafter - Law N 44-FZ), dated 18 July 2011 N 223-FZ "On the procurement of goods, works, services by certain types of legal entities" (hereinafter - Law N 223-FZ) when making purchases for the provision of services for the mandatory audit of accounting (financial) statements (hereinafter - the mandatory audit) of the Ministry of Finance Russia and FAS Russia report the following.

1. On the application of Law N 44-FZ and Law N 223-FZ by legal entities that purchase statutory audit services in accordance with the Federal Law of December 30, 2008 N 307-FZ "On Auditing" (hereinafter - Law N 307 -FZ).

Law N 223-FZ regulates the procurement of a wide range of legal entities specified in part 2 of article 1 of this law. At the same time, in accordance with clauses 3, 7 of part 4 of article 1, Law N 223-FZ does not regulate relations related to:

procurement of goods, works, services in accordance with Law N 44-FZ;

selection of an audit organization for a statutory audit in accordance with Article 5 of Law N 307-FZ.

Article 5 of Law N 307-FZ establishes the cases of a mandatory audit in relation to individual organizations.

In accordance with Part 4 of Article 5 of Law N 307-FZ, an agreement to conduct a mandatory audit of the accounting (financial) statements of an organization in whose authorized (share) capital the share of state ownership is at least 25 percent, as well as to conduct an audit of accounting (financial) statements state corporation, state company, public company, state unitary enterprise or municipal unitary enterprise is concluded based on the results of an open tender at least once every five years in the manner established by the legislation of the Russian Federation on the contract system in the field of procurement, goods, works, services to meet state and municipal needs.

Thus, Part 4 of Article 5 of Law N 307-FZ contains an exhaustive list of certain types of legal entities that conclude an agreement for a mandatory audit in the manner prescribed by the legislation of the Russian Federation on the contract system in the field of procurement. It should be taken into account that such legal entities, in cases established by the legislation of the Russian Federation, may at the same time be subjects of regulation of Laws N 44-FZ, N 223-FZ.

Considering that clause 7 of part 4 of article 1 of Law N 223-FZ excludes from the scope of Law N 223-FZ only the selection of an audit organization carried out in accordance with article 5 of Law N 307-FZ, the Ministry of Finance of Russia and the FAS Russia come to the following conclusions:

1) legal entities that are customers in accordance with Law N 223-FZ and specified in part 4 of article 5 of Law N 307-FZ select an audit organization for a statutory audit in accordance with the procedure established by the legislation of the Russian Federation on the contract system in the field of procurement;

2) legal entities that are customers in accordance with clause 7 of article 3 of Law N 44-FZ and specified in part 4 of article 5 of Law N 307-FZ, carry out procurement for the provision of statutory audit services in the manner established by the legislation of the Russian Federation on the contract system in the field of procurement, including planning, regulation of procurement, execution of the contract, control in the field of procurement;

3) legal entities that are customers in accordance with Law N 223-FZ, but not specified in part 4 of article 5 of Law N 307-FZ, carry out procurement for the provision of statutory audit services in the manner established by Law N 223-FZ, the customer's regulation on purchase.

2. On the issue of selecting an audit organization by a legal entity that is a customer in accordance with Law N 223-FZ and specified in part 4 of Article 5 of Law N 307-FZ.

Law N 44-FZ establishes a different content of the terms "purchase" and "definition of the supplier (contractor, performer)". The term "determining the supplier (contractor, performer)", established by paragraph 2 of Article 3 of Law N 44-FZ, includes a set of actions that are carried out, starting with the placement of a notice of procurement and ending with the conclusion of a contract, that is, in essence, they involve directly selecting a supplier (contractor, performer).

Considering that part 4 of article 5 of Law N 307-FZ establishes the obligation of the legal entities specified in this part to conclude an agreement in the manner established by the legislation of the Russian Federation on the contract system in the field of procurement based on the results of an open tender, the Ministry of Finance of Russia and the FAS Russia consider that in in relation to such legal entities (with the exception of customers in accordance with paragraph 7 of Article 3 of Law N 44-FZ), the provisions of Law N 44-FZ are applied exclusively in terms of determining the supplier (contractor, performer) by holding an open tender, as well as the relevant regulatory legal acts on contract system in the field of procurement. At the same time, the provisions of Law N 44-FZ regarding planning, standardization of purchases, execution of concluded contracts are not subject to application.

1) part 1 of article 55 of Law N 44-FZ establishes cases in which a contract is concluded with a single supplier (contractor, performer) in accordance with paragraph 25 of part 1 of article 93 of Law N 44-FZ, which in turn provides for the coordination of the conclusion of a contract with by the relevant control body in the field of procurement, depending on the level of state, municipal needs provided;

3) part 4 of article 55 of Law N 44-FZ establishes cases in which the procurement is subsequently carried out by conducting a request for proposals in accordance with paragraph 8 of part 2 of article 83 of Law N 44-FZ or otherwise in accordance with Law N 44-FZ.

Considering that part 4 of article 5 of Law N 307-FZ establishes the obligation of the legal entities specified in this part to conclude an agreement solely on the basis of the results of an open tender, the Ministry of Finance of Russia and the Federal Antimonopoly Service of Russia consider that the legal entities specified in part 4 of article 5 of Law N 307- FZ (with the exception of customers in accordance with paragraph 7 of Article 3 of Law No. 44-FZ of Law No. 44-FZ):

1) conclude a contract with a single supplier (contractor, performer) in the cases provided for by part 1 of article 55 of Law N 44-FZ, in accordance with paragraph 25 of part 1 of article 93 of Law N 44-FZ without the consent of the control authority in the field of procurement, since Law N 44-FZ does not provide for the implementation of the specified coordination with such a control body by a person who is not a customer in accordance with paragraph 7 of Article 3 of Law N 44-FZ;

2) do not apply the provisions of Parts 2, 4 of Article 55 of Law No. 44-FZ in terms of conducting procurement in a manner other than an open tender, in connection with the establishment by Law No. 307-FZ of the obligation to carry out procurement exclusively through an open tender;

3) do not apply the provisions of part 4 of article 55 of Law N 44-FZ in terms of conducting a request for proposals in connection with the above circumstance.

3. On the issue of procurement for the provision of statutory audit services by a legal entity that is a customer in accordance with clause 7 of Article 3 of Law N 44-FZ and specified in part 4 of Article 5 of Law N 307-FZ.

Federal Law No. 321-FZ of 03.07.2016 includes unitary enterprises in the number of customers that make purchases in accordance with Law No. 44-FZ (except for the cases established in part 2.1 of Article 15 of Law No. 44-FZ). Thus, according to general rule Law N 44-FZ regulates all the relations specified in Part 1 of Article 1 of Law N 44-FZ when purchasing by a unitary enterprise.

It should be noted that, according to Part 4 of Article 5 of Law N 307-FZ, when concluding a contract for the provision of statutory audit services, establishing a requirement for securing bids for participation in the tender and (or) for securing the performance of a contract is not mandatory.

However, in accordance with part 1 of article 2 of Law N 44-FZ, the rules of law contained in other federal laws and governing relations specified in part 1 of article 1 of Law N 44-FZ must comply with Law N 44-FZ, which contains special requirements for securing bids, execution of the contract, their size.

The Ministry of Finance of Russia and the FAS Russia come to the conclusion that the customers specified in paragraph 7 of Article 3 of Law N 44-FZ, including unitary enterprises, when making purchases for the provision of statutory audit services, apply the provisions of Law N 44-FZ, establishing the requirements to secure bids, execution of the contract.

4. On the issue of the procedure for appealing, as well as control in relation to the actions (inaction) of legal entities procuring statutory audit services.

Chapter 6 of Law N 44-FZ establishes the procedure for appealing against actions (inaction) of subjects of control provided for by Law N 44-FZ. Chapter 5 of Law N 44-FZ establishes the content of subjects of control, types and grounds for control measures. The provisions of Chapters 5, 6 of Law N 44-FZ apply to customers specified in paragraph 7 of Article 3 of Law N 44-FZ, since such customers are classified as subjects of control provided for by Law N 44-FZ.

Part 10 of Article 3 of Law N 223-FZ establishes cases of appealing the actions (inaction) of the customer in the manner established by the antimonopoly authority. Article 18.1 of Federal Law No. 135-FZ of July 26, 2006 "On Protection of Competition" (hereinafter - Law No. 135-FZ) establishes the procedure for consideration by the antimonopoly body of complaints about violations of the tender procedure, which is mandatory in accordance with the legislation of the Russian Federation. Article 6 of Law N 223-FZ establishes the content of control over compliance with Law N 223-FZ.

Based on a systematic analysis of the provisions of these Federal Laws, the Ministry of Finance of Russia and the Federal Antimonopoly Service of Russia come to the following conclusions:

1) appeal against actions (inaction) of legal entities that are customers in accordance with Law N 223-FZ and specified in part 4 of article 5 of Law N 307-FZ, is carried out in the manner established by article 18.1 of Law N 135-FZ for consideration by the antimonopoly body of complaints for violation of the bidding procedure, the holding of which is mandatory in accordance with the legislation of the Russian Federation (in particular, Law No. 307-FZ);

2) appeal, as well as control in relation to legal entities that are customers in accordance with clause 7 of article 3 of Law N 44-FZ and specified in part 4 of article 5 of Law N 307-FZ, is carried out in the manner established by Chapters 6, 5 of Law N 44-FZ, respectively;

3) appeal, as well as control in relation to legal entities that are customers in accordance with Law N 223-FZ, but not specified in part 4 of article 5 of Law N 307-FZ, is carried out in accordance with part 10 of article 3, article 6 of Law N 223-FZ;

4) appeal against actions (inaction) of legal entities that are not customers either in accordance with Law N 223-FZ or in accordance with Law N 44-FZ, but specified in part 4 of Article 5 of Law N 307-FZ, is carried out in the manner established by Article 18.1 of Law No. 135-FZ for consideration by the antimonopoly authority of complaints about violations of the tender procedure, which is mandatory in accordance with the legislation of the Russian Federation (in particular, Law No. 307-FZ).

This letter is not a legal act and is for informational purposes only.

Deputy Minister of Finance

Russian Federation

A.M. LAVROV

Deputy Head

Federal Antimonopoly Service

R.A. PETROSYAN

Federal Law No. 223-FZ of July 18, 2011 . "On Procurement of Goods, Works, Services by Certain Types of Legal Entities" entered into force on January 1, 2012 .

From January 1, 2014, absolutely all customers specified in the law must work in accordance with 223-FZ. Budgetary institutions have a special status.

On January 1, 2014, Federal Law No. No. 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs."

In accordance with Part 2 of Article 15 of Federal Law 44-FZ budgetary institutions for some purchases have the right not to apply the norms of the strictly regulated 44-FZ, but to work in accordance with the more convenient Federal Law of July 18, 2011 No. 223-FZ “On the Procurement of Goods, Works, Services by Certain Types of Legal Entities”.

From under the action of 44-FZ, budgetary institutions can withdraw purchases:

• funded by grants;
• which are carried out at the expense of funds received in the course of other income-generating activities;
• in the event that a budgetary institution itself acts as a contractor under the contract (in the event that other persons are involved on the basis of an agreement in the course of the execution of this contract for the supply of goods, performance of work or provision of services necessary to fulfill the obligations of this institution under the contract).
• A budgetary institution can withdraw purchases from 44-FZ only after the adoption and publication of the Procurement Regulations for a period up to April 1, 2014. All other customers had to place the Regulation on the CAB until December 31, 2013.

For all other organizations, 223-FZ regulates absolutely all purchases, regardless of the source of income, the use of received Money behind the list of exceptions that are listed directly in 223-FZ.

Ten steps for easy purchases under 223-FZ

1. Get an enhanced electronic signature at a certification center accredited by the Ministry of Communications. (Electronic signature is issued for one year).
2. Register individual in ESIA http://www.gosuslugi.ru/.
3. Register a legal entity in the ESIA http://www.gosuslugi.ru/.
4. Register on the official website in the section for procurement under 223-FZ: http://zakupki.gov.ru/223/. This is not an electronic platform, this is the official site for posting information (OOS). Stages 2 to 4 are described in detail in the roadmap on the website: http:/ /zakupki.gov.ru/223/ in the information for customers and suppliers section.
5. Develop .
   There is no general Procurement Regulation approved for all. Additional regional acts may be adopted that establish Additional requirements to the position (for customers in Moscow, this is Decree No. 441).
6. Approve and publish the Procurement Regulations on the official website before January 1, 2014.
   As for budgetary institutions, the law on the contract system 44-FZ (94-FZ) states that the Regulations must be published by them before April 1, 2014, if it is not published, then in 2014 such an institution will not be able to work according to 223 -FZ.
7. Develop in accordance with and publish on the official website before January 1, 2014. (This norm is specified in Government Decree No. 908.)
8. .
   The site is a bulletin board where the customer publishes information about his purchases, regulations, reports, etc.
   Procurement in electronic form must be made directly to electronic platform.
9. Pass the .
   Requirements in the law itself professional education, there is no qualification, but from 2014 the law will be adopted.
10. Make purchases according to your own rules.

The regulation should regulate all purchases under 223-FZ, regardless of their cost!

Request for prices and request for quotations;

Competitive negotiations (for large companies).

In addition to specifying the procurement methods, it is necessary to regulate the conditions for choosing one or another method.

• The procedure for preparing and conducting procurement:

When are changes to the procurement documentation published;

Explanations for the procurement procedure.

• The procedure for concluding and executing contracts.
• It is necessary to regulate in the Regulations who and in what period of time the first signs the contract.
• Other Provisions.
• The customer places the Regulations on the official website zakupki.gov.ru
• On its own website, the customer can duplicate it.

Position approval

Customer	Who claims
State Corporation	The supreme governing body of a state corporation
State company	The supreme governing body of a state company
State unitary enterprise
Municipal unitary enterprise	Head of a unitary enterprise
Autonomous institution	Supervisory Board of an Autonomous Institution
Joint-stock company	Board of Directors (Supervisory Board) or collegiate executive agency of a joint-stock company, if the charter of a business company provides for the exercise of the functions of the board of directors (supervisory board) by the general meeting of shareholders of the business company
Limited Liability Company	General meeting members of the society
State-financed organization	Founder

If the customer falls under 223-FZ, but has not posted the Regulations on the CAB, he must apply 44-FZ during procurement.

Penalties, according to the draft law No. 370370-6.

Non-placement of the approved Procurement Regulations entails the imposition of an administrative fine:

- on officials in the amount of thirty thousand rubles;

- for legal entities in the amount of one hundred thousand rubles.

All customers, including budgetary institutions, can make changes to the already published Procurement Regulations.

Changes are published on the official website. The old version of the Regulation remains on the CAB and is recognized as invalid, and the new one becomes available.

It is possible to publish the Regulations on the EP without seals and signatures.

The procedure for publishing documentation for environmental protection is established in Government Decree No. 908 of September 10, 2012 “On approval of the regulation on posting procurement information on the official website”.

The customer is obliged to post on the official website:

1. Documents regulating the activities of the customer.

Regulations on the purchase - within 15 days;

Change in position - within 15 days.

2. Procurement plans.

Procurement plan for a period of at least 1 year.

If purchases are not planned for a year, or all purchases do not exceed 100,000/500,000 rubles, you can publish an empty plan on the official website.

3. Procurement documents.

Purchase notice;

Documentation;

Draft agreement;

Changes;

protocols.

4. Changes to contracts.

Essential terms of the contract - a period of 10 days.

5. Reports.

Monthly (by the 10th day of each month).

If the customer had 0 purchases, then 0 contracts are written, 0 amount, but the report is published.

A report Form 1-Purchases is submitted to Rosstat, once every six months.

Purchasing plan form

Government Decree №932 dated September 17, 2012 "On approval of the rules for the formation of a procurement plan for goods (works, services) and requirements for the form of such a plan."

The procurement plan should have a monthly or quarterly breakdown.

The plan does not include:

• Purchases constituting a state secret.
• Purchases determined by the decision of the Government of the Russian Federation.

The plan may not include:

• Purchases worth up to 100,000/500,000 rubles.

AT regulations it is not indicated who approves the plan, therefore the organization independently decides this issue on the basis of local acts.

The plan can be changed as often as needed. When the plan is changed, it also generates new plan and a document listing the changes made.

The plan does not have to match the report.

Purchases up to 100,000 (500,000) rubles:

• May not be included in the plan.
• It is possible not to publish notices of such purchases on the CAB.
• Should be included in the monthly report.
• It should be included in the Rosstat report.

The monthly report on concluded contracts under 223-FZ must also include those purchases whose value does not exceed 100,000 rubles.

Many customers mistakenly believe that they have the right not to include small purchases in the monthly report on the basis of part 15 of article 4 of Law 223-FZ:

“The customer has the right not to post on the official website INFORMATION ON THE PURCHASE of goods, works, services, the cost of which does not exceed 100,000 rubles.”

At the same time, part 19 of article 4 of Law 223-FZ says that:

“The customer… posts on the official website:

1) INFORMATION ON THE NUMBER AND TOTAL COST OF CONTRACTS, concluded by the customer based on the results of the procurement of goods, works, services"

Information on the purchase is not equal to information on the quantity of the cost of contracts

There is no approved monthly report form. The report is filled out on the site Zakupki.gov.ru.

	Name of information	What do we include
	Information about contracts concluded by the customer as a result of the purchase of goods, works, services.	2 line + 3 line + 4 line + competitive purchases
	Information about contracts concluded by the customer as a result of the purchase from a single supplier (executor, contractor).	Only purchases from a single supplier (including purchases up to 100,000/500,000 rubles)
	Information about contracts concluded by the customer as a result of the procurement, information about which constitutes a state secret.	Only purchases containing state secrets
	Information on the number and total cost of contracts concluded by the customer as a result of the purchase from small and medium-sized businesses.	Only purchases from SMP

In the first line, the customer must include information about all contracts concluded under 223-FZ, and not just those concluded as a result of competitive procedures.

Penalties under 223-FZ

Violation by the customer of the deadlines established by law for posting on the official website information on the number and total cost of contracts concluded by the customer as a result of the procurement:

• No more than 10 working days:

for DL: 3,000 rubles; for legal entities: 10,000 rubles.

• More than 10 business days:

for DL: 15,000 rubles; for legal entities: 50,000 rubles.

• Not accommodation:

for DL: 30,000 rubles; for legal entities: 100,000 rubles.

Procurement methods

2. Auction - (term 20 calendar days, part 2 of article 3 of 223-FZ).

3. Competition - (term 20 calendar days, part 2 of article 3 of 223-FZ).

Any method of procurement can be carried out in electronic form.

framework agreement

It is possible to conclude a framework agreement!

At the same time, the purchase contract must indicate the quantity of the goods supplied (the amount of work, services) - clause 3, part 9, art. 4 Law No. 223-FZ and an indication that the delivery is carried out at the request of the customer.

If there is no volume in the contract, each delivery under such contract is a separate purchase.

P.1. Art. 432 of the Civil Code of the Russian Federation: An agreement is considered concluded if an agreement is reached between the parties, in the form required in the relevant cases, on all essential terms of the agreement.

P. 2. Art. 434 of the Civil Code of the Russian Federation: An agreement in writing can be concluded by drawing up one document signed by the parties, as well as by exchanging documents by postal, telegraph, teletype, telephone, electronic or other communication, which makes it possible to reliably establish that the document comes from the party under the agreement.

Auto-prolongation

Information letter of the Presidium of the Supreme Arbitration Court No. 59:

When extending a lease agreement for a building concluded for a period of less than one year, for the same period after the end of the initial lease period, the relations of the parties are governed by a new lease agreement.

Thus, in fact, at the end of the initial term of the agreement between the parties, a new lease agreement began to operate, the terms of which were identical to the terms of the expired agreement.

Old contracts with auto-prolongation must be terminated, or accounted for as purchases from a single supplier!

Electronic Procurement. Procurement in electronic form

"On approval of the list of goods, works and services, the procurement of which is carried out in electronic form". Examples from this list:

• Paper
• Polygraphy
• office
• medical equipment
• Cars
• Maintenance and repair of office equipment
• Cleaning

Penalties for non-purchase in electronic form

Adoption by an official of a legal entity of a decision on the procurement of goods, works, services in a different form, if such procurement of goods, works, services in accordance with the legislation of the Russian Federation on the procurement of goods, works, services by certain types of legal entities must be carried out through procurement in electronic form shall entail the imposition of an administrative fine on officials in the amount of fifty thousand roubles; for legal entities - three hundred thousand roubles.

Procurement in electronic form and the only supplier

"P. 2: Install that purchase goods, works and services included in the list approved by this resolution, not carried out electronically:

if the purchase is carried out from a single supplier(executor, contractor) in accordance with the procurement regulation provided for by Article 2 of the Federal Law "On the procurement of goods, works, services by certain types of legal entities."

Electronic form≠ electronic auction

Benefits of e-procurement:

• Compliance with the general policy of the state
• Compliance with the requirements of 616 Government Decree
• Time saving
• Qualified Contractors
• Convenient purchasing tool
• Budget Savings

Purchases through the ETP reduce the time the customer communicates with the official website zakupki.gov.ru

Register of dishonest suppliers

Conducted in accordance with Decree No. 1211 "On maintaining a register of unscrupulous suppliers, provided for by the Federal Law" On the Procurement of Goods, Works, Services by Certain Types of Legal Entities.

Appeal:

3 cases under 223-FZ:

• There is no purchase clause.
• Does not work according to 44-FZ.
• Requirements are put forward that were not originally in the documentation.

• Long procces.
• Contracts are terminated by court order.

Questions from listeners

Question: Do autonomous institutions make purchases under 223-FZ or 44-FZ?

Answer: By default, all autonomous institutions conduct purchases under 223-FZ, but if the customer - an autonomous institution has not posted the Procurement Regulations on the Environmental Protection Agency, then it must apply 44-FZ when purchasing.

Question: Amendment to the Regulations on the procurement of budgetary institutions is also approved by the founder?

Answer: The amendment to the Procurement Regulation is approved by the same body that approved this Regulation. In budgetary institutions, the Procurement Regulations are approved by the founder.

Question: The customer - a budgetary institution - published the Procurement Regulations approved by the head on December 25, 2013, is this a violation?

Answer: It is not a violation, but the Regulation, approved improperly, is invalid. It is necessary to approve correctly and publish it on the CAB again.

Question: The customer - a budgetary institution posted the Procurement Regulations until December 31 and the plan approved by the head, what should I do at the moment?

Answer: It is necessary for the founder to approve the Regulations, the plan is not necessary for the founder to approve, and post these documents again on the official website.

Prior to the placement of correctly approved documents, the customer works only according to 44-FZ.

Question: Should the existing contracts from 2013 be included in the plan?

Answer: When all the essential conditions are agreed in the contract, then purchases under such an agreement are not subject to 223-FZ and the customer does not include them in the plan or in the report. If the contract is from 2013 with open conditions(i.e. neither total cost contract, or the cost of a unit of work, services, or even the procedure for its formation), then it is not considered concluded and purchases under such an agreement fall under the 223-FZ from January 1, 2014, when each purchase will be considered a separate contract and is included in the plan, in report, etc.

Question: Sum up checks only? Contract for 90,000 rubles, 30,000 rubles paid in January. Summarize 90,000 or 30,000 in a January report?

Answer: The contract is included in the report by the date of its signing. All 90,000 rubles will be included in the January report.

Question: What about the purchase of railway and air tickets for a trip to a competition with a total amount of more than 100,000 rubles?

Answer: For trips to the competition, on business trips, it makes sense to provide for the possibility not to conduct a competitive procedure, but to purchase from a single supplier.

Question A: If the deal is due in February, then the report is in March?

Answer: Yes that's right.

Question A: If the customer accepted two laptops. One sold and one returned. The difference was paid to the supplier on the return invoice. What are the customer's actions?

Answer: In this situation, you need to make changes to the report.

Question: What to publish when paying bills for 2013 in 2014, since it was not possible to pay in December?

Answer: If the contract was concluded last year and all the essential conditions are indicated in it, then payment data is not included anywhere. Because it's a deferred liability.

Question: Should air and railway tickets be included in the plan or should they be purchased without competitive procedures?

Answer: It is better to buy tickets without competitive procedures. The customer provides that this is a purchase from a single supplier, while purchases from a single supplier exceeding 100,000/500,000 rubles are not exempt from inclusion in the plan. It is necessary to include this purchase in the plan, indicate the method of purchase, purchase from a single supplier, publish a notice, documentation, draft contract on the website, include it in the report.

Question: If contracts from 100,000 to 300,000 rubles are included in the schedule. Is it possible to make changes to change the method of purchase. How to arrange it?

Answer: You can make changes to the procurement plan. Publish a new procurement plan to the CAB along with a document indicating the amended items.

Question: If there is no contract, the goods were purchased by receipt, should they be included in the report?

Answer: This is also considered a purchase and is included in the report.

Question: The contract with a single supplier was concluded in 2013 for a total amount of more than 100,000 rubles (but less than 100,000 per month), should this be indicated in the plan?

Answer: The total amount of the contract must be indicated in the plan and posted on the CAB (official website).

(lease agreement real estate it is better to contract with a single supplier, but also publish information on the CAB.)

Question: How to conclude an agreement under 223-FZ: on hard copy or electronically?

Answer: How to conclude a contract, the customer decides independently, the procurement regulations should provide for the execution procedure and conditions for concluding the contract.

Question: Is it necessary to justify the price according to 223-FZ?

Answer: Price justification is not required by default.

Question: Do we use OKDP or OKPD when compiling a report and a schedule?

Answer: Codes are not applied when generating a report. When drawing up a procurement plan for 223-FZ, OKDP is applied.

Question: The regulation was approved in a new edition, changes were made due to 396 law, should a new regulation, a notice of change be published? Will there be a penalty if the regulation is approved on November 22, in personal account posted Nov 25 but posted Dec 30?

Answer: There will be no penalty. The law does not have retroactive effect, unless otherwise specified in the law. The new provision, the notice must be published on the CAB.

Question: Is it possible to indicate the company name of the product in the quotations?

Answer: It is better not to write a trademark, or if you write, then indicate the equivalent. The trademark must be justified.

Question: In addition to the report, what documents should be published on purchases from a single supplier?

Answer: If the purchase does not exceed 100,000/500,000 rubles, then information is published in the report. If the purchase from a single supplier exceeds 100,000/500,000 rubles, then the customer includes such a purchase in the plan, publishes a notice, documentation, draft contract and includes it in the report.

Question: Form 1-Trading quarterly or semi-annual?

Answer: Form 1-Purchase is provided in 223-FZ, it is semi-annual. Form 1-Trading only for customers working under 44-FZ.

Question: If paper is purchased up to 100,000 rubles?

Answer: If paper is purchased for more than 100,000 rubles, then you need to register on the electronic platform and conduct e-procurement in accordance with the regulation.

If paper is purchased for an amount of less than 100,000 rubles, then the purchase may not be carried out in electronic form. In accordance with the regulation, such a purchase is carried out from a single supplier.

Question: How to justify the chosen method of procurement directly to the contract up to 100,000 rubles?

Answer: The procurement regulations must specify the criteria for choosing the method of procurement. Specifically, for each purchase from a single supplier, there is no need to make a justification.

Question: Is it obligatory for state unitary enterprises to work according to the UIS system?

Answer A: No, not necessarily.

Question: An autonomous institution receives a subsidy to carry out a municipal assignment. Do these expenses need to be reported monthly?

Answer: All institutions, except budgetary institutions, received subsidies for capital investments, the reconstruction should be used according to Article 15 of the 44-FZ. Such subsidies are not included in either the plan or the report under 223-FZ. If the subsidy is for the fulfillment of a state, municipal task, then by default it is spent according to 223-FZ, unless otherwise specified in the conditions for granting a subsidy.

Question: Is it possible to learn more about the names of the goods?

Answer: In 223-FZ, the names of goods are not considered.

Question: What documentation is being prepared for e-bidding?

Answer: Similar to paper purchase documentation.

Question: Do I need to place an application and documentation when purchasing from a single supplier?

Answer: The method of purchase is not important. If the purchase price exceeds 100,000/500,000 rubles, then it is necessary to place a notice, documentation, a draft contract and a protocol on the CAB.

Question: Tell us the order of the procedures. Where can I get standard forms of documentation?

Answer: Standard documentation you can look at the OS.

Question: Is it necessary to ask for a contract for each purchase with a check and invoice?

Answer A: No, not necessarily. The check itself is a contract in writing. Therefore, a contract is not needed for each purchase.

Question: If there is no product of the same name, is it possible to purchase medicines and medical instruments at the same time for one lot, when they belong to different nomenclature groups?

Answer: There is no eponymous name, but there is a law No. 135-FZ “On Protection of Competition”. And if the customer buys medicines and instruments in one lot, and there are complaints, then the Federal Antimonopoly Service could potentially recognize this as a restriction of competition.

Question: The contract for fuel and lubricants was concluded in 2013, the bill was paid in January in the amount of more than 100,000 rubles. Not to publish a notice of purchase from a single supplier? If changes are made, what happens?

Answer: If the customer signed a contract for fuel and lubricants in 2013 and you have the price of the contract in the contract, then the contract must be included in the report, regardless of the date of payment.

Question: When should the procurement plan be posted?

Answer: The procurement plan must be placed before December 31, 2013. If the plan is not placed, then you can place it now. There is no responsibility for this right now.

Question: Can autonomous organizations conduct joint tenders and how should this be stated in the regulation?

Answer: The provision must indicate that the customer can conduct a joint purchase and separate the concepts of the customer and the organizer of the procedure. The customer is the one whose needs are satisfied, the organizer, the one who conducts a competitive purchase.

Question: What percentage of the allocated annual amount will be able to allocate an educational institution for purchases up to 100,000 rubles, i.e. without bidding electronically?

Answer: Public institutions and all other organizations independently decide how much they buy from a single supplier. The recommended figure is 60%-70% of purchases to be made by competitive means in electronic form.

Question: Who approves the regulation on procurement from autonomous institutions?

Answer A: Supervisory Board approves.

Question: If the position budget institution posted in December 2013 and approved by the founder?

Answer: Everything is in order, from January 1, 2014 you can continue to work. At budget organizations The deadline for placing the procurement regulation is April 1, 2014.

Question: Who approves the regulation on the purchase of municipal government institutions?

Answer: The position is approved by the head.

Question A: The contract is paid monthly. Does the report include the monthly amount or the entire contract?

Answer: If the total amount of the contract is indicated, there is a quantity of goods, such a contract is included in the report once when it was concluded.

Question: The contract was concluded before the entry into force of 223-FZ, in January an additional agreement was concluded for the amount of more than 100,000 rubles. Do I need to publish notice and documentation? Or not, because the main contract is old?

Answer: If the customer concluded the contract before the entry into force of the law 223-FZ, then the additional agreement will be new purchase if this purchase is suitable for purchase from a single supplier, otherwise such an additional agreement will not be possible to conclude. the contract is new, and he concluded an additional agreement for more than 100,000 rubles, then such a purchase does not need to be included in the plan or in the report. The customer simply publishes on the site information about the change in the contract.

Reforming legislation in the field of procurement within the framework of the Federal Law of 18.07.2011. No. 223-FZ "On the procurement of goods, works, services by certain types of legal entities", Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" and tightening law enforcement practice regulators force organizations to take precautionary measures regarding violations of antitrust and “purchasing” laws. One of the tools to reduce risks for organizations is to conduct an audit (verification) of purchases.

Auction Consulting LLC offers a service Audit (verification) of purchases: diagnosing and identifying problems, identifying risk areas.

aim"purchasing audit" is to reduce the likelihood of violations and, as a result,
the risk of sanctions (fines vary from 3,000 to 300,000 rubles in accordance with Articles 7.29 - 7.32.3 of the Code of Administrative Offenses).

Auction Consulting experts are recognized in the professional community as legal practitioners in the field of procurement. Each member of the expert team has a proven qualification, a continuous long-term experience in procurement of at least 10 years, experience in control and supervisory bodies and regulatory agencies. During the audit (verification) of procurement, our specialists will carry out expert, analytical, informational and other work by checking, analyzing and evaluating the procurement data of your organization. In its work, the company "Auction Consulting" guarantees quality and confidentiality. Based on the results of the audit (verification) of purchases, the following is provided:

1. detailed report;
2. a list of recommendations for optimizing procurement activities, eliminating identified violations, minimizing the consequences of violations (risks) if any, advice on taking measures to prevent and suppress them in subsequent activities;
3. conclusion.