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 the 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 N 44-FZ in terms of conducting procurement in a manner other than an open tender, in connection with the establishment by Law N 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, as a general rule, Law No. 44-FZ governs all the relations specified in Part 1 of Article 1 of Law No. 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, the establishment of a requirement for securing applications 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 over 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 FAS 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, 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 bidding procedure, the conduct of 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

The date: 17.04.2018

Companies carrying out their procurement activities under 223-FZ must conduct a mandatory audit confirming the reliability of financial statements. What legal norms should the customer pay special attention to when choosing an audit organization? How to competently prepare and conduct the purchase of a mandatory audit? What should be considered when drafting a contract? What threatens the customer for violating the rules? Let's talk about this in our article.

In what cases is a mandatory audit carried out, and who buys it?

According to the definition of 307-FZ "On Auditing", an audit is an independent verification of the accounting (financial) statements of an audited entity in order to express an opinion on the reliability of such statements (clause 3, article 1, 307-FZ).

In fact, this is a tool for monitoring the procurement activities of the customer.

Please note that Law 223-FZ does not regulate the selection of audit organizations for a statutory audit (clause 7, part 4, article 1, 223-FZ). Therefore, in this case, the customer is guided by Article 5 No. 307-FZ "On Auditing".

According to Law No. 307-FZ “On Auditing Activities”, the following organizations must conduct a mandatory audit:

1. Joint stock companies;
2. Organizations whose securities are admitted to organized trading;
3. Banks and MFIs (microfinance organizations), credit history bureaus, professional participants in the securities market, insurance organizations, clearing organizations, mutual insurance companies, trade organizers, NPFs or other funds, AIF (joint stock investment funds), AIF MC, UIF MC, UK NPF;
4. Organizations whose revenue from the sale of GWS (goods, works, services) for the year preceding the reporting year exceeds 400 million rubles. or the amount of assets in the balance sheet as of the end of the year preceding the reporting one exceeds 60 million rubles.
5. Organizations presenting and publishing consolidated accounting (financial) statements;
6. Other organizations in cases established by federal laws (Article 5, 307-FZ).

The exception is:

• state bodies, state institutions;
• local governments;
• GUPs, MUPs;
• agricultural cooperatives and their unions;
• state off-budget funds.

They do not conduct a mandatory audit according to the general rules of 307-FZ.

But what about autonomous organizations? Do they audit? Many people ask this question. In Law 307-FZ there is no special indication of a mandatory audit in autonomous institutions. According to paragraph 6 of part 1 of Art. 5 307-FZ, a mandatory audit may be carried out in other cases established by federal laws.

The supervisory board of an autonomous institution resolves the issue of conducting an audit of the annual financial statements of this institution independently (clause 12, part 1, article 11, No. 174-FZ "On Autonomous Institutions"). The requirement for a mandatory audit may be established by the Supervisory Board of the Autonomous Institution, and it is mandatory for the head of the Autonomous Institution.

Consider the situation when the customer falls under No. 223-FZ and must conduct a mandatory audit, but is not included in the list of cases given in Art. 5 307-FZ. What should he be guided by when making a purchase?

In this case, the customer has the right to organize an open tender for the right to conclude an agreement on a mandatory audit of accounting (financial) statements. Moreover, he can do this, even if he is not obliged to carry out this procedure in the manner prescribed by the legislation in the field of procurement.

A notice of such a purchase should not be posted in the EIS, but rather on your own corporate website or on trading floors, or in the media.

Customers operating under 223-FZ are interested in whether it is necessary to include the purchase of a mandatory audit in the procurement schedule under 44-FZ? After all, they must carry out this purchase through an open tender according to the rules of 44-FZ.

The joint letter of the Ministry of Finance of Russia No. 24-04-06 / 3691, the Federal Antimonopoly Service of Russia No. RP / 4072/18 dated January 24, 2018 reflects the position of government agencies on this issue. With regard to legal entities specified in 223-FZ (with the exception of state unitary enterprises and municipal unitary enterprises), the provisions of 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 the contract system in the field of procurement. At the same time, the provisions of 44-FZ in terms of planning, standardization of purchases, execution of concluded contracts are not subject to application.

The following rules will help you not to get confused in the peculiarities of the purchase of a mandatory audit by various categories of customers.

Three rules for the procurement of a mandatory audit by various categories of customers

1. Customers falling under the 223-FZ and specified in Part 4 of Art. 5 307-FZ, select an audit organization for a mandatory audit in the manner prescribed by 44-FZ on the contract system - by conducting an open tender.
2. Customers conducting procurement activities in accordance with paragraph 7 of Art. 3 44-FZ and specified in Part 4 of Art. 5 307-FZ, carry out procurement for the provision of statutory audit services in the manner prescribed by 44-FZ on the contract system (open tender under 44-FZ), including planning, procurement regulation, contract execution, control in the field of procurement.
3. Customers falling under the 223-FZ, but not specified in Part 4 of Art. 5 307-FZ, carry out procurement for the provision of statutory audit services in the manner prescribed by 223-FZ and the customer's procurement regulations.

Customer responsibility

Recall the responsibility: if the customer violates the law and purchases the services of a mandatory audit under 223-FZ, at the time when it is necessary to carry out this purchase according to the requirements of 44-FZ on the contract system, then he faces a fine of 20,000 to 30,000 rubles. - on officials; from 50,000 to 100,000 rubles. - for legal entities (part 3, art. 7.32.3, Code of Administrative Offenses of the Russian Federation).

Procurement from SMEs

Part 5 of Art. 5 307-FZ states that in an open tender for concluding a contract to audit the accounting (financial) statements of an organization, the amount of proceeds from the sale of GWS (goods, works, services) for the previous reporting year does not exceed 1 billion rubles, a mandatory is the participation of audit organizations that are small and medium-sized businesses (SMEs).

In this case, it is necessary to conclude an agreement only with SMEs. Therefore, the documentation should include a requirement that the participant complies with the requirements of Art. 4 209-FZ "On the development of small and medium-sized businesses in the Russian Federation".

A contract for a statutory audit is concluded with an audit organization or an individual auditor determined by holding an open tender in the manner prescribed by 44-FZ on the contract system, the following organizations (clause 4, article 5, 307-FZ):

• an organization in the authorized capital of which the share of state property is at least 25%,
• state corporations, state companies,
• GUP, MUP.

Such an agreement must be concluded at least once every five years.

The Audit Council approved the “Guidelines for organizing and holding open tenders for the right to conclude an agreement to audit the accounting (financial) statements of organizations specified in Part 4 of Article 5 of the Federal Law “On Auditing”. In particular, recommendations are made on the following issues:

• organization of an open tender for the right to conclude an audit contract;
• features of the description of the procurement object;
• requirements for procurement participants;
• the procedure for determining the initial (maximum) price of the audit contract;
• features of the content of the bids of procurement participants;
• rules for evaluating bids of procurement participants;
• content and draft contract for the audit.

In accordance with 44-FZ, the tender documentation must include a draft agreement (according to 44-FZ - a contract) for a mandatory audit.

It is recommended that a draft contract for a statutory audit be drawn up on the basis of a Model contract for an audit of an organization's accounting (financial) statements approved by the Audit Council.

Based on 307-FZ, the draft contract for a statutory audit should not contain any provisions aimed at narrowing the range of issues to be clarified during the audit, as well as restricting access to information and documentation requested by the audit organization by an individual auditor. The presence in the requested information and documentation of information containing commercial secrets cannot be grounds for refusing to provide them.

Please note that the draft audit agreement cannot contradict the requirements of 307-FZ, federal auditing standards, the rules for the independence of auditors and audit organizations, the Code of Professional Ethics for Auditors. All these features must be taken into account when preparing it.

It is recommended to indicate in the draft audit agreement that the auditor should inform the management of the customer and representatives of its owners only the information that is of interest to management, and to which the auditor will pay attention as a result of the audit, and that the auditor is not required to develop audit procedures, specifically aimed at finding information relevant to the management of the customer.

Anti-dumping measure

The Guidelines mention that 44-FZ on the contract system establishes an anti-dumping measure. It is as follows: if, during an open tender under 44-FZ, the NMC contract for an audit is 15 million rubles. and less and the procurement participant with whom the contract is concluded offered a price that is 25% or more lower than the NMC, then the contract for a mandatory audit is concluded only after such a participant provides security for the performance of the contract. The amount of the security is set at an amount that exceeds one and a half times the amount of the security for the performance of the contract specified in the tender documentation, but not less than the amount of the advance payment (if the contract provides for the payment of an advance payment), or information confirming the good faith of such a participant as of the date of filing the application.

Who is authorized to audit?

Tenders are held to support business, in particular by creating a competitive environment, as well as to fight corruption. But in reality, it turns out that companies that simply offer a low price, but due to lack of experience cannot provide quality work, can win.

1. information about the audit organization, individual auditor must be included in the register of auditors and audit organizations of SRO auditors;
2. an audit organization, an individual auditor are required to undergo external quality control of work;
3. at the time of the competition and during the period of the proposed signing of an audit agreement with an audit organization, an individual auditor should not be suspended membership in the SRO;
4. mandatory audit should be carried out only by audit organizations in the following companies:
   • banks, MFIs and insurance organizations,
   • organizations whose securities are admitted to organized trading,
   • organizations in the authorized capital of which the share of state property is at least 25%,
   • state corporations, state companies, public companies;
5. auditors must be independent of the customer, for example, they must not be relatives of the customer, employees of branches and subsidiaries of the customer, not have shares in the customer's company, etc.;
6. auditors should not allow a conflict of interest to arise.

We have analyzed the main features of a statutory audit, which are important to consider for the customer. We found out which organizations should carry it out. Established the procedure for preparing for an open tender for the selection of an audit organization, as well as the limits of application of 44-FZ during its conduct.

Procurement Workshop / Experience Exchange

Features of procurement of mandatory audit of accounting (financial) statements under the Law on the contract system

I. I. Kogogina,
legal adviser-expert in procurement organization

The published material has been prepared to help organizations that, by virtue of the requirements of Law No. 307-FZ, are required to conduct a mandatory audit of accounting (financial) statements. Describing the procedure for this type of procurement within the framework of the Law on the contract system, the author focuses on how to avoid common mistakes.

Item 7, part 4, art. 1 of Law No. 223-FZ directly indicates that this law does not regulate relations related to the mandatory audit of the customer's accounting (financial) statements. Thus, according to Law No. 223-FZ, this type of service is not purchased.

As follows from part 4 of Art. 5 of the Federal Law of December 30, 2008 No. 307-FZ "On Auditing" (hereinafter - Law No. 307-FZ), an agreement for the provision of services for the mandatory audit of the accounting (financial) statements of an organization must be concluded in the manner established by the legislation of the Russian Federation on contract system in the field of procurement, goods, works, services to meet state and municipal needs on the contract system, i.e. within the framework of the Law on the contract system. However, this requirement applies only to organizations belonging to one of the following categories:

• an organization in the authorized (share) capital of which the share of state property is at least 25%;
• state corporation;
• state company;
• state unitary enterprise;
• municipal unitary enterprise.

Conditions for conducting a mandatory audit under the Law on the Constitutional Court

Part 4 of Art. 5 of Law No. 307-FZ defines the following conditions for concluding an agreement:

• the contract is concluded with an audit organization or an individual auditor;
• frequency of holding an open tender: at least once every five years;
• method and form of procurement: open tender;
• the establishment of requirements for securing bids for participation in the tender, as well as for securing the performance of a contract, is not mandatory.

Whoshouldconductrequiredaudit

In accordance with Part 3 of Art. 5 of Law No. 307-FZ, a mandatory audit of the accounting (financial) statements of the following categories of organizations, as well as an audit of consolidated statements heldonlyauditorganizations:

• organizations whose securities are admitted to circulation in organized trading;
• other credit and insurance organizations;
• non-state pension funds;
• organizations, in the authorized (share) capitals of which the share of state property is at least 25%;
• state corporations;
• state companies.

This means that the audit of the reporting of organizations related to those listed in Part 3 of Art. 5 of Law No. 307-FZ categories, as well as the audit of consolidated statements (regardless of the categories of the organization listed in parts 3 and 4 of article 5 of Law No. 307-FZ) should be carried out exclusively by audit organizations, despite the fact that part 4 Art. 5 of Law No. 307-FZ for similar categories of organizations, for example, organizations in the authorized (share) capital of which the share of state ownership is at least 25%, state corporations, state companies, it is possible to conduct an audit by an individual auditor.

As a rule, customers have developed standard documentation, where, when submitting requirements to procurement participants, a standard wording is prescribed that provides for the participation of individuals in the procurement. Therefore, taking into account the requirements of Part 3 of Art. 5 of Law No. 307-FZ, in the tender documentation for the procurement of statutory audit services, one should not forget to indicate that only a legal entity (or a group of legal entities) can be a procurement participant.

Wayandorderdefinitionssupplier

Procurement for the selection of an audit organization for a mandatory audit of financial (accounting) statements by virtue of Part 4 of Art. 5 of Law No. 307-FZ cannot be carried out in any other way than opencompetition.

The frequency of this procedure is at least once every five years. At the same time, in accordance with Part 2 of Art. 5 of Law No. 307-FZ, a mandatory audit is carried out annually. How often should a competition be announced in such a case? An open competition for a mandatory audit can be held both annually and once every 2–5 years. For example, the subject can be worded as follows: “Conducting an open tender for the right to conclude an agreement for the provision of services for the audit of the consolidated financial statements of JSC XXX in accordance with IFRS for 2014, 2015, 2016.” If an open tender is held every 2–5 years, it is more convenient to single out the stages of the audit (1 year - 1 stage), where the documentation and the draft agreement also provide for a stage-by-stage payment procedure based on the documents closing the stage (and not the contract).

Since an open tender for a statutory audit must be carried out in accordance with the procedure established by the Law on the contract system, then when developing criteria for evaluating and comparing applications of participants in the tender documentation, customers should be guided by the rules for evaluating applications, final proposals of participants in the procurement of goods, works, services to meet state and municipal needs, approved by Decree of the Government of the Russian Federation dated November 28, 2013 No. 1085. In addition, the Law on the contract system provides for the opening of envelopes with participants' applications, consideration and evaluation of such applications by the tender commission. Therefore, in addition to the norms of the Law on the contract system regarding the procedure for determining suppliers (contractors, performers) through tenders, which are contained in Art. 48-58 of the said law, to the customernecessaryalsocreatecommissionfordefinitionssupplier(performer, contractor) in the manner prescribed by Art. 39 of the Law on the contract system. At the same time, as a general rule, when holding tenders (according to the Law on the contract system), the customer is obliged to establish a requirement for securing applications (part 1 of article 44 of the Law on the contract system).

However, it should be noted that, despite the specified norm of the Law on the contract system, the customer is still entitled, by virtue of Part 4 of Art. 5 of Law No. 307-FZ do not establish this requirement during an open tender for a statutory audit of reporting, as well as (or) not establish a requirement for securing the performance of a contract.

By virtue of the requirements h. 5 Article. 5 of Law No. 307-FZ, organizations in which the amount of proceeds from the sale of products (sales of goods, performance of work, provision of services) for the previous reporting year does not exceed 1 billion rubles, it is necessary to select an audit organization for a mandatory audit of financial (accounting) statements among small and medium businesses. Therefore, it is necessary to conclude an agreement only with medium and small businesses. Therefore, the documentation should include a requirement that the participant complies with the requirements of Art. 4 of Law No. 209-FZ "On the development of small and medium-sized businesses in the Russian Federation".

However, the question arises: is it possible to conduct procurement on a general basis and conclude an agreement with a counterparty that is not a small and medium-sized business entity, if there were no applications from such entities at an open tender? Within the meaning of Part 4 of Art. 5 of Law No. 307-FZ, the conclusion of a contract in this case is possible only with a participant who is a subject of small and medium-sized businesses.

Consequences of declaring an open tender void

Article 55 of the Law on the contract system in the event of a tender being declared invalid, in addition to holding a re-tender or a new purchase (part 2 of article 55 of the Law on the contract system), also provides for the conclusion of an agreement with a single supplier in accordance with paragraph 25 of part 1 of art. 93 of the Law (part 2 of article 55 of the Law on the contract system) and procurement through a request for proposals (part 4 of article 55 of the Law on the contract system). Is it possible in this case to purchase this type of service from a single supplier or through a request for proposals?

According to the author of the article, no, because the procurement for the selection of an audit organization for a mandatory audit of financial (accounting) statements by virtue of Part 4 of Art. 5 of Law No. 307-FZ cannot be carried out in any other way than an open competition. The conclusion of a contract for a mandatory audit based on the results of procurement in such ways as a request for proposals and a single supplier would be contrary to the imperative norm of Law No. 307-FZ, which is also special in relation to the norms of the Law on the contract system.

In addition, when organizing and holding open competitions for the selection of an audit service provider, the author of the article recommends that customers be guided by the materials adopted to improve the practice of such competitions by the Audit Council (Order No. 18 dated September 18, 2014), namely:

• Guidelines for organizing and holding open tenders for the right to conclude an agreement to audit the accounting (financial) statements of organizations specified in Part 4 of Art. 5 of the Federal Law "On Auditing";
• an exemplary contract for an audit of the organization's accounting (financial) statements.

The Ministry of Finance of Russia in a letter dated September 30, 2014 No. 07-04-12 /48814 informs that these materials are posted on the official website of the Ministry www.minfin.ru in the section "Audit activities" ("General information" - "Mandatory audit "and" General Information "-" Activities of audit organizations and individual auditors ").

It will also be useful to familiarize yourself with the presentation prepared by the Department of Regulation of Accounting, Financial Reporting and Auditing of the Ministry of Finance of Russia on the topic “Guidelines for organizing the procurement of audit services”. This presentation is also available for review on the website of the Ministry of Finance.

Violationorderholdingaudit

Let us turn to administrative practice when considering cases of violation of the procedure for the procurement of services for the mandatory audit of accounting (financial) statements.

Information on holding an open tender for the purpose of a mandatory audit of accounting (financial) statements in order to avoid the risk of appealing the procedure should be posted in the section of the Official Website intended for placing information on placing orders for the supply of goods, performance of work, provision of services (under the Law on the Constitutional Court).

To do this, an organization registered on the Official website as a customer, according to Law No. 223-FZ in the manner prescribed by order of the Ministry of Economic Development of Russia No. 506, the Treasury of Russia No. 13n dated 10.08.2012, must be registered in the appropriate section of the site (according to the Law on the Constitutional Court) in the manner prescribed by the order of the Treasury of Russia dated March 25, 2014 No. 4n.

If the organization is not subject to Law No. 223-FZ, however, by virtue of Art. 5 of Law No. 307-FZ, it is obliged to conduct an open tender in the manner prescribed by the Law on the contract system, then such an organization should also first register on the Official Website in the manner prescribed by order of the Treasury of Russia dated March 25, 2014 No. 4n.

As already mentioned, Law No. 223-FZ does not regulate relations related to the selection by the Customer of an audit organization for a mandatory audit of accounting (financial) statements. However, some customers, ignoring paragraph 7 of part 4 of Art. 1 Law No. 223-FZ, develop documentation within the framework of Law No. 223-FZ and a procurement regulation approved in accordance with this law, which is illegal. This position is reflected in the decisions of the Kalmyk OFAS dated August 18, 2014 No. 08/2254, the Ivanovo OFAS dated September 15, 2014 No. 10126, the Tatarstan OFAS dated November 20, 2014 in case No. T04-201 / 2014, etc.

Also, some customers develop documentation in accordance with the requirements of the Law on the contract system, and a notice of procurement is posted on the Official website in a section intended for posting information on procurement by certain types of legal entities (according to Law No. 223-FZ). In this situation, the position of the antimonopoly authority in different regions regarding the legality of such actions is not so unambiguous. Thus, the Moscow OFAS (decision of December 3, 2014 in case No. 1-00-1795 / 77–14), the Ivanovo OFAS (decisions of September 15, 2014 No. 10126, of November 13, 2014 No. 10313) believe that it does not matter, in on which part of the Official Site the notice is placed, since the search for the required subject of procurement cannot be difficult, because when typing the word “audit” in the search line, information about all purchases is displayed, regardless of the section in the information resource on which the information is posted. However, the Tatarstan OFAS (decision of November 20, 2014 in case No. T04-201 / 2014), the Penza OFAS (decision of August 22, 2014 in case No. 3-09/34-2014), the Kalmyk OFAS (of August 18, 2014 No. ) hold the opposite position, citing the fact that posting a notice of an open tender for the selection of an audit organization for a mandatory audit of accounting (financial) statements in the section of the Official Website intended for posting information on procurement by certain types of legal entities is a violation of the procedure for determining the winner of an open tender, which may lead to a limit on the number of participants competition.

If apurchaseauditnotcarried outinframeworklawaboutKS

There is a certain category of customers that are subject to Law No. 223-FZ, who are required to conduct a mandatory audit, but are not included in the list of cases when it must be carried out in the manner prescribed by the Law on the contract system. Is it legal in this case to carry out a purchase under Law No. 223-FZ and post information on the Official website in the section dedicated to it? In our opinion, since Law No. 223-FZ (by virtue of clause 7, part 4, article 1) does not regulate the purchase of this type of service, the documentation should be developed outside the framework of this law. If the organization carries out its procurement activities within the framework of Law No. 223-FZ and has passed the registration procedure on the Official Website in the appropriate section (according to Law No. 223-FZ) as a customer and in the manner prescribed by order of the Ministry of Economic Development of Russia No. 506, the Treasury of Russia No. 13n dated 08/10/2012, then technically, of course, such organizations have the opportunity to post a notice of the procurement of audit services on the Official website, but is this legal?

According to the author of the article, this is illegal. Information on the procurement is published on the Official website due to the fact that its placement is provided for by Law No. 223-FZ, but by virtue of clause 3 of the Decree of the Government of the Russian Federation of 10.09. hereinafter - Decree No. 908) it is not allowed to post information on the Official Website, the publication of which is not provided for by this law. Therefore, information on the procurement, which is carried out outside the framework of Law No. 223-FZ, is not subject to placement on the Official Website.

However, this position is not always reflected in the decisions of the antimonopoly authorities when considering cases of violation by the customer of the procedure for conducting an open tender procedure, the subject of which is the selection of an audit company for a mandatory audit of accounting (financial statements). Thus, the applicant’s complaint, which pointed out that an open tender, the subject of which is the procurement of services for a mandatory audit of accounting (financial) statements, should have been carried out within the framework of the Law on the contract system and, accordingly, information on procurement should also be placed in the appropriate section of the Official site, was recognized by the Kaluga OFAS as unfounded (decision dated September 11, 2014 in case No. 02-31t / 2014). The OFAS Commission found that the norms of Part 4 of Art. 5 of Law No. 307-FZ cannot be applied to such an organizer of the auction, since the company is not a state corporation, state company, state unitary enterprise or municipal unitary enterprise, and the share of state ownership in the authorized capital of the company is less than 25%. Having motivated (in our opinion, quite rightly) by these circumstances the refusal to satisfy the applicant's complaint, the Kaluga OFAS nevertheless did not reveal a violation of paragraph 3 of Resolution No. 908, despite the fact that the organizer of the auction in his explanation directly indicated that that the company held the above competition on a voluntary basis, not based on the norms of Law No. 223-FZ by virtue of paragraph 7 of part 4 of Art. 1 of the above law. The customer substantiated this by the fact that the information about the open tender was posted on the Official website www.zakupki.gov.ru in the section devoted to Law No. 223-FZ in order to attract as many potential bidders as possible, since the publication of information holding an open tender only on the official website of the company would reduce the circle of potential participants in the open tender.

Despite the fact that some customers do not have the obligation to carry out procurement activities in the manner prescribed by Law No. 223-FZ or the Law on the contract system, nevertheless, in order to save money, the service for conducting a mandatory audit of accounting (financial) statements can be purchased by conducting competitive methods for determining the supplier . In this case, it makes sense to use your standard procurement documentation and modify it taking into account the specifics of the procurement of this type of service. If the organization does not have standard documentation, then you can use the experience of other customers who publish such notices on the Official Website. Information on the procurement, including notice, documentation, draft contract, can be published on the corporate website of the organization. In the absence of a relevant section on such a site, as well as in order to attract the largest number of participants, a notice of the procurement can be placed on one of the commercial electronic platforms.

So, if you wish an organization may announce an open tender for the right to conclude an agreement on a mandatory audit of accounting (financial) statements, even if there is no obligation to carry out this procedure in the manner prescribed by the current legislation in the field of procurement. However, the notice of purchase should be posted either on your own corporate website, or on trading floors, or in any other media, but not on the Official Website, as recommended by the author of the article. At the same time, the purchase can be carried out in any other way (auction, request for proposals, etc.) and in any other form, including electronic.

Standard documentation is a documentation template that customers use when placing various purchases, since it is rather laborious to develop new documentation for each purchase. Each customer has, as a rule, its own standard documentation, which is periodically finalized and changed.

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Procurement Workshop / Application of Law No. 223-FZ

On some issues of applying the register of unscrupulous suppliers in the framework of Law No. 223-FZ

K. K. Sharova,
Deputy Head of the Legal Department of the FAS Russia

Art. 5 of Law No. 223-FZ, which establishes the procedure for its maintenance, as well as the grounds under which information about procurement participants is included in the specified register. Commenting on this order, the author dwells on some controversial issues.

The goals of Law No. 223-FZ are to ensure the unity of the economic space, create conditions for the timely and complete satisfaction of the needs of legal entities specified in Part 2 of Art. 1 of the law under consideration, in goods, works, services, expanding the opportunities for the participation of legal entities and individuals in the procurement of goods, works, services for the needs of customers and stimulating such participation, the efficient use of funds, the development of fair competition, ensuring transparency and openness of procurement, preventing corruption and other abuses.

One of the tools that ensure the implementation of the goals of regulation of relations defined in the above article of the Law No. 223-FZ on fair competition, prevention of corruption and other abuses is the register of unfair suppliers.

Orderreferenceregister of unscrupulous suppliers

In accordance with Part 1 of Art. 5 of the Law on the contract system, the register of unscrupulous suppliers is maintained by the federal executive body authorized by the Government of the Russian Federation in a single information system.

According to paragraph 5.3.4 of the Regulations on the Federal Antimonopoly Service, approved by Decree of the Government of the Russian Federation of June 30, 2004 No. 331, the federal executive body authorized to maintain the register of unscrupulous suppliers in accordance with Law No. 223-FZ is the FAS Russia.

The maintenance of the register of unscrupulous suppliers is also regulated by Decree of the Government of the Russian Federation dated November 22, 2012 No. 1211 “On maintaining the register of unscrupulous suppliers, provided for by the Federal Law“ On the procurement of goods, works, services by certain types of legal entities “”.

According to paragraph 5 of the said resolution the customer is obliged to send to the authorized body the information provided for in paragraphs. 2-4 resolutions in writing with a cover letter signed by an authorized official of the customer, or in electronic form using an electronic digital signature or other analogue of a handwritten signature, to verify this information and documents for facts confirming the supplier's bad faith.

Foundationsforinclusioninregister of unscrupulous suppliers

Part 2 Art. 5 of Law No. 223-FZ provides two independent grounds for including an unscrupulous procurement participant in the register of unscrupulous suppliers:

• evasion from the conclusion of the contract;
• termination of the contract with the supplier (executor, contractor) in connection with a material breach of the terms of the contract.

At the same time, one of the features of the regulation of the procedure for maintaining a register of unscrupulous suppliers is the fact that in Law No. 223-FZ, in contrast to the Law on the contract system, the concept of “avoidance of concluding a contract” is not disclosed.

Thus, in each individual case, when considering the issue of including an organization in the register of unscrupulous suppliers, the specific circumstances of the case, documents and information submitted for consideration by the Commission for Control over Procurement by Certain Types of Legal Entities are subject to investigation.

At the same time, given the importance and significance of maintaining a register of unscrupulous suppliers, this issue objectively requires regulation and, in the presence of mandatory standards, can function even more efficiently, especially since the legislator has actually provided for the possibility of detailed regulation of legal relations in the procurement of certain types of legal entities in the provisions about the purchase.

So, according to Part 2 of Art. 2 of Law No. 223-FZ, the procurement regulation is a document that regulates the procurement activities of the customer and must contain procurement requirements, including the procedure for concluding and executing contracts.

Based on the foregoing, it would be expedient for customers to indicate in the procurement regulation, along with the procedure for concluding a contract, also the concept of "avoidance of concluding a contract". It can be, for example, such cases as:

• direct written refusal to sign the contract;
• non-signing by the project participant of the contract within the period provided by the customer for this;
• untimely submission of the contract security;
• presentation of counterclaims under the terms of the contract at the time of signing the contract in contradiction to those previously proposed in the participant’s application, and others.

Evasion of the contract due to the fault of the customer

Often, when examining information and documents for the presence of facts confirming the supplier’s dishonesty, the controlling body reveals that at the stage of concluding an agreement following the results of the procurement procedure, the customer violated this procedure established by the documentation and the procurement regulation. Practice shows that in most cases, customers improperly fulfill the requirements regarding the transfer of the draft contract to the winner of the procurement.

In such cases, information about suppliers is not subject to inclusion in the register of unscrupulous suppliers due to the fact that due to unfair actions of customers, the right of the procurement winner to conclude an agreement was violated in the manner and on the conditions established by the procurement regulations and documentation.

Based on the foregoing, it should be emphasized the importance of strict compliance with all the stipulated requirements for the procedure for concluding a contract, both on the part of the winner of the procurement procedure and on the part of the customer.

This position is also confirmed by the practice of arbitration courts, in particular, by the decision of the Arbitration Court of the Moscow District in case No. A40-62415 / 2014.

Evasionfromcontractonresultsprocedures, carried outnotinformbidding

An interesting practice is to include in the register information about unscrupulous suppliers who evaded the conclusion of a contract as a result of a procedure not in the form of a tender or auction.

So, according to part 4 of Art. 447 of the Civil Code of the Russian Federation, auctions are held in the form of a tender and an auction.

However, part 3 of Art. 3 of Law No. 223-FZ provides for the right of the customer to provide in the procurement regulations for other (other than a tender or auction) methods of procurement. In this case, the customer is obliged to establish in the procurement regulation the procedure for procurement by the indicated methods.

On practice there are cases when a participant in a procurement conducted by a procurement method other than a tender or auction, for example, in the form of a request for prices or an offer to make offers, after being recognized as the winner of this procurement procedure, avoids concluding a contract, considering himself not burdened by any obligations in part of the conclusion of the contract following the results of the procurement procedure on the grounds that it was not carried out in the form of tenders.

However, this position is unacceptable. contradicts the provisions of the Civil Code of the Russian Federation, Law No. 223-FZ, judicial and administrative practice of its application.

In accordance with Part 1 of Art. 2 of Law No. 223-FZ, customers are guided, among other things, by the Civil Code of the Russian Federation.

By virtue of paragraph 2 of Art. 437 of the Civil Code of the Russian Federation, an offer containing all the essential terms of the contract, from which the will of the person making the offer is seen to conclude an agreement on the conditions specified in the offer with anyone who responds, is recognized as an offer (public offer).

Part 2 of Art. 435 of the Civil Code of the Russian Federation, it is established that the offer binds the person who sent it from the moment it is received by the addressee, i.e., the issuance of the offer binds the offeror with the obligation to conclude the contract specified in the offer with the acceptor who officially accepted the offer on the terms set forth in the offer.

According to paragraph 3 of Art. 438 of the Civil Code of the Russian Federation, acceptance is the response of the person to whom the offer is addressed, about its acceptance. The performance by the person who received the offer, within the period established for its acceptance, of actions to fulfill the conditions of the contract specified in it is considered an acceptance, unless otherwise provided by law, other legal acts or specified in the offer.

Thus, the acceptance of an offer (i.e., an application for participation in the procurement procedure) can be considered the drawing up by the customer of a protocol for summing up the results of the procurement on recognizing the participant as the winner of the procurement, as well as actions to send him a draft contract containing the conditions specified in the application of the procurement winner , for signature.

EXAMPLE

The Arbitration Court of the Moscow District, in its decision dated December 22, 2014 No. A40-179257 / 2013, emphasized that in relation to Law No. 223-FZ, a person, when deciding to participate in the procurement procedure, bears the risk of adverse consequences for him, provided for by this law.

Evasion from concluding a contract can be expressed both in the commission of targeted (intentional) actions or inaction carried out for the specified purpose, and in their commission through negligence, when the procurement participant negligently does not take the necessary measures to comply with the rules and regulations necessary for concluding a contract, i.e. creates conditions that make it impossible to sign a contract.

Based on the foregoing, a procurement participant that has not withdrawn its application for participation in the procedure before the deadline established by the procurement regulation, if it is recognized as the winner of the procurement, is obliged to conclude an agreement with the customer on the terms specified in the procurement documentation, as well as in the application of this participant.

Thus, the argument of the procurement participants that the procedure is not in the form of a tender or auction excludes the possibility of evading the conclusion of a contract is based on an incorrect interpretation of substantive law.

An independent basis for including information about the supplier in the register is the termination of the contract by a court decision in connection with a material breach by the supplier of this contract.

Expediencyinclusionarbitrationreservations

An important issue to be researched is the advisability of including an arbitration clause in the contract concluded as a result of the procurement procedure in accordance with Law No. 223-FZ.

According to Art. 4 of the Federal Constitutional Law of December 31, 1996 No. 1-FKZ “On the Judicial System of the Russian Federation” in the Russian Federation there are federal courts, constitutional (charter) courts and justices of the peace of the constituent entities of the Russian Federation, which make up the judicial system of the Russian Federation.

By virtue of Art. 1 of the Federal Law of July 24, 2002 No. 102-FZ “On Arbitration Courts in the Russian Federation”, by agreement of the parties to arbitration proceedings, any dispute arising from civil legal relations may be referred to an arbitration court, unless otherwise established by federal law.

According to paragraph 4 of Art. 421 of the Civil Code of the Russian Federation, the terms of the contract are determined at the discretion of the parties, unless the content of the relevant condition is prescribed by law or other legal acts.

As pointed out by the Constitutional Court of the Russian Federation in Resolution No. 10-P dated May 26, 2011, “arbitral tribunals do not exercise state (judicial) power and are not included in the judicial system of the Russian Federation, consisting of state courts ... The Constitution of the Russian Federation does not exclude the possibility of resolving civil law disputes between individuals in the arbitration procedure through arbitration tribunals”.

In addition, the Presidium of the Supreme Arbitration Court, in its decision No. 11535/13 dated January 28, 2014, noted that the presence of such a concentration of socially significant public elements in a single legal relationship does not allow recognizing disputes arising under contracts as disputes of an exclusively private nature between individuals that can be considered privately - by arbitration courts.

Due to the fact that Law No. 223-FZ contains norms of both public and private law, is of a special nature in relation to the general provisions of civil law, the term “court” used in it cannot be considered as a collective concept that also covers arbitration courts .

Based on the foregoing information about procurement participants, contracts with which were terminated by the decision of the arbitration court in connection with a material breach of contracts by them, are not subject to inclusion in the register of unscrupulous suppliers due to the lack of a direct indication of the law.

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On the issue of payment of the contract price to contractors applying the simplified taxation system

A. V. Udalikhin,
director of LLC "NSO"

The author tells how to make payments for the work performed with the winner of the procedure for determining suppliers, working under a simplified taxation system, the cost of which included the cost of VAT (18%), without violating the Law on the contract system and the current estimated rationing.

The problems that the parties to the contract face when the contractor is not a VAT payer often arise. Customers usually rightly believe that persons who do not pay this tax are also not entitled to receive funds in part of 18% of the contract price. Contract executors who are exempted from the obligation to pay VAT, no less rightly believe that they are deprived of the right to receive a VAT deduction, which persons applying the basic taxation system (OSNO) have, and therefore are in a less favorable position, partly offset by the right to receive 18 % of the contract price.

NormslawaboutKS

It is obvious that the correct vector in resolving the question posed is contained in Part 13 Art. 34 of the Law on the contract system. The specified rule of law contains a description of the only case when the customer has the right to reduce the amount payable to the party under the contract by the amount of tax payments associated with the payment of the contract, namely if the contract is concluded with an individual, with the exception of an individual entrepreneur or other person engaged in private practice. In other cases, by virtue of the provisions of Part 1 of Art. 95 of the Law on the contract system, the price cannot be reduced by the customer without the consent of the contractor. In addition, the Law on the Constitutional Court establishes that the contract is concluded at the price proposed by the winner, while due to the provisions of Part 2 of Art. 34 of the Law on the contract system, the price of the contract is fixed and is determined for the entire duration of the contract.

Probably, the legislator also deliberately did not transfer to the Law on the contract system the provisions that were in force before, which required the inclusion in the procurement documentation of the procedure for setting the price of the contract, including information on the inclusion or non-inclusion of tax payments in it. Thus, the legislator granted the customer the right not to highlight in the text of the procurement documentation (including in the text of the draft contract) information about the inclusion of VAT in the price.

clarificationinperiodactionslaw № 94 -FZ

In general, in favor of the point of view, according to which the customer does not have the right to reduce the price of the contract concluded with a person who is not a VAT payer, the explanations that were published during the period of Law No. 94-FZ also speak.

So, in accordance with the letter of the Ministry of Finance of Russia dated 02.07.2012 No. 02-11-08 /2467, the legislation of the Russian Federation on placing orders for state and municipal needs does not allow purchases at the component parts of the price structure (including at a price that in further will be increased or decreased by the amount of VAT). Letter No. АЦ/39173 dated 06.10.2011 of the Federal Antimonopoly Service of Russia directly indicates that the amount of VAT is the profit of the winner who is not a payer of such tax. A similar point of view is also contained in the following clarifications:
- letter of the Ministry of Finance of Russia dated January 26, 2012 No. 03-07-11 / 21,
- letter of the Ministry of Regional Development of Russia dated 07.07.2009 No. 20943-IP / 08,
- letter of the Ministry of Economic Development of Russia dated 12.10.2011 No. D28-452,
- letter of the Ministry of Economic Development of Russia dated August 30, 2011 No. OG-D28-1140,
- letter of the Ministry of Economic Development of Russia dated 05.08.2011 No. D28-212,
- letter of the Ministry of Economic Development of Russia dated June 21, 2011 No. D28-80,
- letter of the Ministry of Economic Development of Russia dated November 10, 2009 No. D22-1255,
- clause 94 of the annex to the letter of the Federal Treasury dated April 19, 2013 No. 42–7.4–05 / 6.3–432,
- clause 10 of the annex to the letter of the Federal Treasury dated July 2, 2012 No. 42–7.4–05 / 6.3–354).

clarificationMinistry of FinanceRussiaandotherarguments

During the validity period of the Law on the contract system, the only letter of the Ministry of Finance of Russia (dated August 29, 2014 No. 02-02-09 /43300) was published, devoted to the issue of reducing the price of the contract in connection with the application of the simplified taxation system by the supplier (contractor, performer). The letter, in particular, notes that the norm of Part 13 of Art. 34 of the Law on the contract system is aimed at eliminating ambiguity in the enforcement of the norms of this law and the provisions of Ch. 24 of the Tax Code of the Russian Federation, which regulate the payment of personal income tax. It also says that the norm of Part 13 of Art. 34 of the Law on the contract system allows the customer, in the event of concluding a contract with an individual who is not an individual entrepreneur or other person engaged in private practice, to pay him an amount reduced by the amount of tax payments that will be transferred by the customer to the appropriate budget in fulfillment of the duty of a tax agent when payment of remuneration to an individual. Thus, according to representatives of the Ministry of Finance of Russia, the Law on the contract system establishes a ban on changing the contract price, with the exception of the provisions of parts 1–4 of Art. 95 of the Law on the contract system: in these cases, if there are grounds provided for by the Law on the Constitutional Court, the price of the contract may be changed by agreement of the parties.

In addition, in accordance with the provisions of h. 1 Article. 2 of the Law on the contract system, the rules of law contained in other federal laws and regulating relations regarding the execution of contracts must comply with the Law on the contract system.

Thus, according to the author of the article, the customer unilaterally reducing the price of the contract in connection with the application by the supplier (contractor, performer) of the simplified taxation system is contrary to the Law on the contract system, the rules of which are special in relation to the rules contained in other laws, to which , in particular, the Tax Code of the Russian Federation.

Based on the foregoing, when making settlements with the contractor, if the contractor is not a VAT payer, and this tax is included in the contract price, the customer should allocate VAT in the documents drawn up during the execution of the contract.

In this case, the author of the article proceeds from the following. A participant in the procedure for determining a supplier, who is exempt from paying VAT, by signing a contract in which the price is indicated including VAT, assumes the obligation to pay it by issuing appropriate invoices. If such a contractor does not pay VAT, then the corresponding amount is not subject to reimbursement by the customer (a similar point of view is contained in the decision of the Third Arbitration Court of Appeal dated October 21, 2011 No. 03AP-4174/11, the decision of the Third Arbitration Court of Appeal dated October 27, 2009 No. 4194 /2009, decision of the Eighteenth Arbitration Court of Appeal dated February 21, 2011 No. 18AP-470 /2011, decision of the Federal Arbitration Court of the North-Western District dated April 4, 2012 No. Ф07-1272 /12, decision of the Federal Arbitration Court of the Moscow District dated September 20, 2011 No. F05-9275 /11, decision of the Federal Arbitration Court of the Moscow District dated February 1, 2012 No. F05-14026 /11, decision of the Federal Arbitration Court of the Volga-Vyatka District dated March 15, 2013 No. F01-7323 /13, decision of the Federal Arbitration Court of the West Siberian District dated 07.12 .2012 No. F04-5997 / 12, etc.).

Such an approach insures the customer in cases where the contract is concluded with a person who uses the general taxation system, but in the process of executing the contract switches to a simplified system.

There are situations when, for example, an organization that works under the simplified tax system and which, in the process of performing construction and installation work, attracted subcontracting organizations that are VAT payers, was recognized as the winner of the purchase, and the contract price was reduced by 18% by agreement of the parties. At the stage of settlement for the work performed, the customer is not obliged and is not entitled to compensate the contractor for the costs of paying VAT accrued to the subcontractor.

At the same time, it should be borne in mind that the contractor has the right to attract any co-executor and, when exercising this right, must proceed from the general rule, according to which entrepreneurial activity is carried out by a person independently and at his own risk.

We also note that the current legislation on the contract system, as well as the legislation on placing orders that was in force before, does not allow comparing the price offers of procurement participants in a differentiated way, depending on the taxation system applied by the participant. At the same time, comparing prices without VAT is a widespread practice among persons carrying out activities in accordance with Law No. 223-FZ. In this situation, the VAT payer can win over the participant in the simplified taxation system, while the final price of such a winner can be an amount that would exceed the price offered by the “simplifier”. The indicated option for evaluating the participants' price proposals, however, also has a significant drawback, since it does not provide for a situation where the winner, after signing the contract, switches to the USNO.

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Administrative practice

Topical issues of law enforcement: extrapolation of the practice of Law No. 94-FZ to the application of the Law on the Constitutional Court

V. V. Kikavets,
cand. legal Sci., Associate Professor, Department of Financial Law, Russian State University of Justice

The author offers a number of the most interesting, relevant and significant, in his opinion, problematic issues reflected in judicial acts. Despite the fact that for the most part they still relate to the practice of applying Law No. 94-FZ, they can be used by contract service workers in the process of work, including for forming a legal position on difficult moments of procurement.

The development and establishment of the contract system in the field of procurement in the Russian Federation is invariably reflected in the relevant judicial acts. The content of judicial acts on disputes in the field of procurement has changed significantly due to the entry into force of the Law on the contract system, which specified certain aspects of law enforcement. However, there is still an array of ambiguous norms that can lead to legal conflicts in the process of interaction between all subjects of the contract system, especially regulatory authorities.

Despite the fact that Russia is not a country of case law, and although representatives of the antimonopoly service, although they “respect” judicial acts, they have the right not to take them into account in the process of considering countless complaints and conducting unscheduled inspections in the course of administrative procedures, judicial acts of various instances have important for law enforcement practice in the field of procurement.

Realizing that not many customers are able to make a strong-willed decision and dare to challenge the non-normative acts of the regulatory authority in the field of procurement in court, we sincerely believe, we hope that this article, which also contains judicial acts on disputes arising from legal relations in the field of placing orders, with from our point of view, will be a useful tool in the work of absolutely all subjects of the contract system in the field of procurement.

arbitrationcourtsinframeworkdisputeson public contracts

Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 28, 2014 No. 11535/13 on the review by way of supervision of the ruling of the Moscow Arbitration Court dated February 1, 2013 in cases No. A40-14581 / 12, A40-160147 / 12 and the decision of the Federal Arbitration Court of Moscow district dated 05/07/2013 in the same case it was determined that disputes from contracts concluded in accordance with Law No. 94-FZ cannot be considered by arbitration courts due to the specific nature of these legal relations and the totality of the requirements imposed on them by the specified law, as well as due to the incompatibility of the legislative principles of arbitration proceedings and the legislative principles of placing orders, otherwise the interpretation violates the fundamental principles of Russian law (anti-corruption, ensuring competition).

Developing this legal position, the supervisory authority notes that contracts have a public basis, pursue the public interest and are aimed at achieving the result necessary for public purposes to meet public needs, achieved by spending budget funds. The presence in a single legal relationship of such a concentration of socially significant public elements does not allow to recognize disputes arising under contracts as disputes of an exclusively private nature between individuals that can be considered privately - by arbitration courts.

Law No. 94-FZ, as well as the Law on the contract system, is a comprehensive legislative act containing the norms of both public and private law, and the term “court” used in it cannot be considered as a collective concept covering arbitration courts.

However, according to paragraph 3 of Art. 5 of the Federal Law of July 24, 2002 No. 102-FZ “On Arbitration Courts in the Russian Federation” (hereinafter referred to as the Law on Arbitration Courts), an arbitration agreement on resolving a dispute under an agreement, the terms of which could be accepted by the other party only by joining the proposed agreement as a whole (attachment agreement), is invalid if such an agreement is concluded before the grounds for filing a claim arise. Therefore, the presence in the contract of a knowingly invalid condition on the consideration of disputes under the contract in a specific arbitration court, from which the counterparty (the winner of the order placement) cannot refuse, is a violation of the legislation of the Russian Federation. In such a situation, the winner of the order placement, misled by the authority of the customer, the external legitimacy of such a demand and the impossibility of waiving it, may consider himself bound by it and act in good faith contrary to the law and his interests.

The unmotivated choice by the state customer and his inclusion in the draft contract of a specific permanent arbitration court is a violation of the requirements of Law No. 94-FZ and the Law on Arbitration Courts, does not contribute to transparency and combating corruption when placing orders, provides such an arbitration court with unreasonable preferences in its activities related to with the extraction of income by arbitrators. Accordingly, we can say the same about the arbitration court in relation to the Law on the Constitutional Court.

Banattracttoexecutioncontractsubcontractors

Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 28, 2010 No. 11017/10 on the supervisory review of the decision of the Arbitration Court of the Astrakhan Region dated December 14, 2009 in case No. A06-6611 / 2009 and the decision of the Federal Arbitration Court of the Volga District dated May 11, 2010 on that in the same case, it is determined that the prohibition to involve subcontractors in the execution of the contract is a condition on the method and procedure for the execution of the contract after the auction, and not a requirement for the participants in the placement of the order that they have the production capacity and other resources necessary to perform the work that is the subject of the contract at the time of the auction and does not contradict the provisions of Law No. 94-FZ.

The supervisory authority notes that, in accordance with the requirements of paragraph 1 of Art. 706 of the Civil Code of the Russian Federation, a contract may include a condition on the personal performance of work by the contractor. At the same time, neither the Civil Code of the Russian Federation nor Law No. 94-FZ contain provisions that exclude the application of the said norm of the Civil Code of the Russian Federation to relations arising from the conclusion of a work contract through tendering.

Separately, it is indicated that the main task of the legislation establishing the procedure for conducting tenders is not so much to ensure the widest possible range of participants in the placement of orders, but to identify, as a result of tenders, a person whose execution of the contract will best meet the objectives of the effective use of funding sources, prevention of abuses in the field of placement orders. Whereas only those persons who meet the listed purposes may participate in the auction, the inclusion in the tender documentation of conditions that ultimately lead to the exclusion from the list of participants in the placement of an order of persons who do not meet such goals cannot be considered as restricting access to participation in the auction and is not a violation of Art. 17 of the Federal Law of July 26, 2006 No. 135-FZ "On Protection of Competition" (hereinafter - the Law on Protection of Competition).

It should be noted that the prohibition to involve subcontractors in the execution of the contract can be considered as a violation of the Law on Protection of Competition only if the antimonopoly authority proves that this condition is included in the auction documentation specifically in order to ensure that a particular economic entity wins the auction. And this is quite difficult.

Of considerable interest to employees of the contract service (contract manager) in this aspect is the indication of the supervisory authority that the interpretation of legal norms contained in this decision of the Presidium of the Supreme Arbitration Court of the Russian Federation is generally binding and is subject to application when considering similar cases by arbitration courts.

Payment: behindactuallyrenderedservicesor bypriceprisonercontract?

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 19371/13 dated 05.13.2014 on the supervisory review of the decision of the Federal Arbitration Court of the West Siberian District dated 09.25.2013 in case No. A45-27060 /2012 of the Arbitration Court of the Novosibirsk Region determined that the requirement of the contractor to collect payment from the customer for services that were not provided under the contract is not subject to satisfaction. Payment under the contract for the provision of services is carried out for the services actually rendered, and if the contractor did not actually provide services for the entire amount stated in the contract, then the contractor's demand to pay the entire price of the contract cannot be satisfied as unreasonable, illegal, unfair.

Separately, it was noted that the position that the price of the contract is fixed and payable in the initially agreed amount, regardless of the volume of services rendered, is erroneous, since the price of the contract is determined in relation to the volume of services agreed upon in it. Concerning a decrease in the volume of services rendered under the contract entails a commensurate reduction in the price of the contract.

A different approach is contrary to the principles of remuneration of civil law contracts and paid services, violating the balance of rights and interests of the parties, and violates public interests when paying for services on the basis of a contract due to the unreasonable expenditure of budgetary (public) funds.

collectiononperformedandpaidcontract

Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 19891/13 dated April 22, 2014 on the supervisory review of the decision of the Moscow Arbitration Court dated July 2, 2013 in case No. A40-151181 /12, the decision of the Ninth Arbitration Court of Appeal dated September 11, 2013 and the ruling Federal Arbitration Court of the Moscow District dated December 03, 2013 in the same case determined that unjust enrichment is compensated to the victim, regardless of whether it was the result of the behavior of the acquirer of the property, the victim himself, third parties or happened against their will, since Art. 1102 of the Civil Code of the Russian Federation establishes the obligation of a person who, without the grounds established by law, other legal acts or a transaction, has acquired property at the expense of another person, to return to the latter the unjustly acquired property.

In paragraph 12 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 24, 2000 No. 51 “Review of the practice of resolving disputes under a construction contract” it is indicated that the presence of a work acceptance certificate signed by the customer does not deprive the customer of the right to submit objections to the court in terms of volume and cost works.

Since the control measurement after acceptance and full payment of the contract work established an overestimation of their volume and cost as a result of unreasonable application (non-application) of prices, and the contractor's representative was present during the verification of the scope of work performed and agreed with these violations by signing the statement of control measurement of the volume of work performed, the courts made the correct conclusion about the inclusion in the price of the contract of erroneous payment for work that was not actually performed or was not provided for by the contract.

Appealcustomerincontrollingorganaboutharmonizationconclusionscontractwiththe onlyparticipantpurchases

By the decision of the Tenth Arbitration Court of Appeal dated 08.08.2014 in case No. A41-18249 /14 on the consideration of an appeal against the decision of the Arbitration Court of the Moscow Region dated 05.15.2014 in case No. A41-18249 /14 (the cassation appeal was returned due to a missed deadline) it was established that what the issuance of an order by the OFAS based on the results of consideration of the possibility of concluding a contract with a single procurement participant is not provided for by law, goes beyond the competence of the territorial antimonopoly authority provided for by the Law on Protection of Competition and the Law on the contract system. At the same time, the essence and consequences of non-normative acts issued without a statutory basis affect the legal rights and obligations of the person who carried out the procurement procedure.

Order of the Ministry of Economic Development of Russia dated September 13, 2013 No. 537 approved the Procedure for harmonizing the use of closed methods for determining suppliers (contractors, performers), the possibility of concluding (concluding) a contract with a single supplier (contractor, performer) (hereinafter referred to as the Procedure).

In accordance with clause 12 of the Procedure, based on the results of consideration of the application, the control body decides on approval or refusal to agree on the possibility of concluding a contract with a single supplier (contractor, performer). The decision is drawn up by a letter, which is sent to the customer within a period not exceeding 10 working days from the date of receipt of the application.

Based on the provisions of clause 12 of the Procedure, based on the results of consideration of the appeal, the powers of the supervisory authority include making a decision on agreeing on the use of a closed method for determining suppliers (contractors, performers), the possibility of concluding a contract with a single supplier (contractor, performer). Thus, the Rules contain an exhaustive list of actions that the antimonopoly body can take when considering an application for approval of the possibility of concluding a contract with a single supplier (contractor, performer). The Procedure does not provide for the issuance of prescriptions based on the results of consideration of applications for approval.

Analysis of the norms of Art. 23, 39, 50 of the Law on Protection of Competition determines that the antimonopoly authority eligibleendureprescriptionafterarousalandonresultsconsiderationaffairs on violation of antitrust laws.

Thus, the grounds for conducting scheduled and unscheduled inspections by the antimonopoly authority are determined by law, while the legislator literally does not allow, as an independent basis for scheduled and unscheduled inspections, the discovery by the regulatory authority of signs of violation of the law, the customer's request to agree on the possibility of concluding a contract with a single supplier.

In the case under consideration, it was established that the verification, as a result of which the contested order was drawn up, was carried out by the interested person on his own initiative when considering the issue of agreeing on the possibility of concluding a contract with a single supplier. At the same time, the disagreement of the antimonopoly body with the conclusions of the court of first instance is not a basis for canceling the contested decision.

Legality of inclusion in construction workacquisitions andmountingequipment

By the decision of the Eighth Arbitration Court of Appeal dated August 21, 2014 in case No. A46-3706 /2014 on the consideration of an appeal against the decision of the Arbitration Court of the Omsk Region dated April 29, 2014 in case No. A46-3706 /2014, the legal position of the customer was confirmed on the legitimacy of including the acquisition and installation of equipment in construction work.

The position of the antimonopoly body is that combining into one object of procurement of construction works with the supply of equipment that is technologically and functionally not related to construction entails limiting the number of procurement participants from among, in particular, suppliers and (or) manufacturers of specialized equipment that carry out its activities in other commodity markets than construction.

The court noted that, in accordance with paragraph 13 of Art. 1 of the Civil Code of the Russian Federation, construction is understood as the creation of buildings, structures, structures (including on the site of demolished capital construction projects). According to part 2 of Art. 48 of the Civil Code of the Russian Federation, design documentation is documentation that defines the architectural, functional, technological, structural and engineering solutions necessary to ensure the construction, reconstruction of capital construction facilities, as well as their overhaul. Based on part 6 of Art. 52 of the Civil Code of the Russian Federation, the person carrying out the construction is obliged to carry out the construction, reconstruction, overhaul of the capital construction object in accordance with the project documentation, the requirements of the town-planning plan of the land plot, the requirements of technical regulations and at the same time ensure the safety of work for third parties and the environment, compliance with safety requirements labor, preservation of cultural heritage sites.

In the case under consideration, the design documentation provides for the installation of equipment for a catering unit and a laundry. The conclusion of the antimonopoly authority that the equipment for the catering and laundry facilities is technologically and functionally not related to construction was recognized by the Court of Appeal as unfounded, since the final purpose of the purchase was the creation of a ready-to-use preschool institution (kindergarten). As the Presidium of the Supreme Arbitration Court of the Russian Federation pointed out in Resolution No. 11017/10 dated December 28, 2010 in case No. A06-6611 /2009, the main task of the legislation establishing the procedure for conducting tenders is not so much to ensure the widest possible range of participants in placing orders, but to identify as a result of the bidding, the execution of the contract by which to the greatest extent will meet the objectives of the effective use of funding sources, prevention of abuse in the field of placing orders.

The court considered that in the case under consideration there is not only a connection between construction work and equipment installation services, but it is also seen that the combination of these works and services will ensure their high-quality performance, as well as the efficient and rational use of budgetary funds. Any construction organization, regardless of its specialization, can purchase the above equipment at prices prevailing on the market. Moreover, it is the legal entity conducting construction work that can purchase equipment that is technologically more efficient and suitable for installation at a facility under construction.

In turn, the antimonopoly body did not prove that the formation by the customer of the procurement object in this form led to the restriction of competition.

Confessioncontractinvaliddeal

Decree of the Federal Arbitration Court of the Moscow District dated March 22, 2011 No. KG-A41 / 946-11 on consideration of a cassation appeal against the decision of the Tenth Arbitration Court of Appeal dated November 2, 2010 in case No. A41-385 / 10 on invalidating a contract, applying the consequences of the invalidity of a void transaction determined that placing an order for the right to conclude a state contract for the overhaul of automatic fire alarms and a warning system and managing the evacuation of people in case of fire was carried out in violation of the requirements of Law No. 94-FZ, the state contract concluded as a result of the auction is an invalid transaction.

At the same time, the appellate and cassation instances came to the conclusion that restitution or the recovery of unjust enrichment under the contract was inadmissible, despite its conclusion with gross violations of Law No. 94-FZ.

Within the meaning of Art. 449 of the Civil Code of the Russian Federation, taking into account the provisions provided for by Art. 167 of the Civil Code of the Russian Federation, auctions declared invalid by the court do not give rise to legal consequences.

Since the concluded contract was executed by the parties in full, it is impossible to bring the parties to their original position with the return of what was received under the transaction.

Thus, the recovery of unjust enrichment in the form of profit received to the federal budget will not lead to the restoration of the rights of the Russian Federation in the person of the customer.

Not rightcalculatedcustomerNMCC

Decree of the Federal Arbitration Court of the Far Eastern District dated 05.02.2013 No. F03-6189 / 2012 on the consideration of cassation complaints against the decision of the Sixth Arbitration Court of Appeal dated 04.10.2012 in case No. A16-772 / 2011 (decision of the Supreme Arbitration Court of the Russian Federation dated 08.27.2013 No. BAC-7383 / 13 refused to transfer cases to the Presidium of the Supreme Arbitration Court of the Russian Federation) on invalidating the auction, it was established: documentation containing false information about the bidding price (the initial price of the contract is overstated by 55.5% of the approved cost of work at the facility) is a violation of Law No. 94-FZ, which is unconditionally recognized as the basis for canceling the placement of the order.

At the same time, the customer incorrectly declared the subject of the claim (recognition of the auction as invalid), the court of first instance, declared later, rejected the petition for invalidating the protocol for summing up the results of the open auction, considering that the plaintiff had simultaneously changed the subject and the basis of the claim.

However, in essence, the customer filed a requirement to challenge the placement of the order, and the incorrect wording of the clarification of the claim does not exclude the obligation of the court to independently determine from which legal relationship the dispute arose and what rules of law are to be applied in resolving the case (Articles 133, 168 of the Arbitration Procedure Code of the Russian Federation). And since the plaintiff did not cite other grounds that were not previously indicated in the statement of claim, the appellate court recognized as erroneous the conclusion of the court of first instance about the simultaneous change in the subject and grounds of the claim and pointed out the unlawfulness of the refusal to satisfy the petition to change the subject.

The Plenum of the Supreme Arbitration Court of the Russian Federation, in clause 27 of Resolution No. 36 of May 28, 2009 “On the Application of the Arbitration Procedure Code of the Russian Federation in Considering Cases in an Arbitration Court of Appeal”, clarified that if the court of appeal, when considering an appeal in the appeal proceedings, will established that when considering the case in the court of first instance, the person filed a petition in accordance with Art. 49 of the Arbitration Procedure Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation) on changing the subject or grounds for the claim, increasing or decreasing the claims, and the court unlawfully refused to satisfy such a request or considered the application without taking into account the stated changes or at some other request of the person participating in the case, did not make a decision, and lost the possibility of making an additional decision, the Court of Appeal, based on the provisions of h. 1 Article. 268 of the Arbitration Procedure Code of the Russian Federation on the retrial of the case, by virtue of Part. 6.1 Article. 268 of the Arbitration Procedure Code of the Russian Federation proceeds to the consideration of the case according to the rules established by the Arbitration Procedure Code of the Russian Federation for the consideration of the case in the court of first instance, within the framework of which it considers claims not previously considered, accepts the amended subject or basis of the claim, increased (reduced) claims. Under such circumstances, the Court of Appeal proceeded to consider the case according to the rules for the consideration of the case in the Court of First Instance.

According to the auction documentation, the initial (maximum) price of the contract was 93,124,780 rubles. As a justification for the price, there was a reference to an expert opinion dated 06/24/2011. Meanwhile, the positive conclusion of the state examination (repeated) dated January 31, 2012, attached to the case file, confirmed that as a result of the adjustment, the estimated cost of the object in current prices decreased compared to the declared one in the amount of 41,411.93 thousand rubles. including VAT 18%. The design documentation for the facility is recommended for approval, including with an indicator of the total cost of reconstruction in prices for the 4th quarter of 2011 (including VAT) 975.38 thousand rubles.

Thus, the contract price indicated in the auction documentation was determined on the basis of an opinion drawn up with errors that influenced the conclusions about the cost of the work.

The courts of appeal and cassation proceeded from the fact that the unreliability of the contract price indicated in the documentation is a significant violation of Law No. 94-FZ, which entails inefficient use of budget funds. The defendant's disagreement with the courts' assessment of the evidence presented in the case cannot serve as grounds for canceling the contested judicial act.

Reference of the defendant (bid winner) to the improper defendant or other judicial acts of arbitration courts in cases related to the conclusion of contracts in accordance with Law No. 94-FZ, as examples confirming the violation of uniformity in the interpretation and application of the rules of law by arbitration courts in this case, is unfounded, since in each case there are factual circumstances to which the norms of the said law apply.

Absencesoundsspeeches onaudio recordingsatautopsyenvelopeswithapplications

By the decision of the Federal Arbitration Court of the North Caucasus District dated July 27, 2009 in case No. A53-20928 /2008 on the consideration of a cassation appeal against the decision of the Fifteenth Arbitration Court of Appeal dated April 27, 2009 in case No. A53-10928 /2008 on invalidating the decision of the antimonopoly body, it was established that what audio and video recordings are only one of the evidence that allows you to establish or refute the fact of violation of the legitimate interests of the participants in the competition. The customer made an audio recording, however, for technical reasons, there are no sounds of speech on it, which in this case is not a significant violation of the tender procedure, since all participants in the tender were present at the procedure and also had the opportunity to make an audio recording, file comments on the envelope opening protocol, complain about actions of the competition commission at this stage of the competition.

In order to ensure the legitimate rights and interests of the competition participants, the legislation establishes a number of guarantees, which are expressed in ensuring the openness and accessibility of the competition. At the same time, in order to confirm the fact of compliance with the tender procedure, namely at the stage of opening envelopes with applications containing the conditions for the execution of a state contract, which at the same time are a criterion for evaluating applications for participation in the tender, a record of opening envelopes is kept; access and the opportunity to be present to representatives of participants in placing orders when opening envelopes is provided. When carrying out the procedure for opening envelopes containing the conditions for the execution of a state contract by the customer, an audio recording is made, this opportunity is also provided to representatives of the participants in the order placement, who are present directly at the opening.

In addition, the results of opening the envelopes are reflected in the protocol for opening envelopes with applications for participation in the competition and opening access to applications submitted in the form of electronic documents for participation in the competition. The case materials confirm and do not deny by the parties to the case that the envelope opening protocol was drawn up without violations, and its content confirms that during the opening procedure the name of the order placement participant, his postal address, application for participation in the tender, proposal for functional and qualitative characteristics of the goods, the quality of work, services, which, in turn, confirms the fact that the applications of the participants in the order placement were announced.

The antimonopoly body, in addition to the argument that the absence of speech sounds casts doubt on the fact of announcing the bids of the participants in the order, did not provide evidence indicating the materiality of the alleged violation, how it affected the objectivity of the tender and what right of the participant in the order was affected by such a violation .

concessionrightrequirementsdebtonpaymentexecutedcontract

Decree of the Federal Arbitration Court of the Moscow Region dated June 30, 2010 in case No. KG-A41 / 6148-10 on consideration of a cassation appeal against the decision of the Arbitration Court of the Moscow Region dated December 30, 2009, decision of the Tenth Arbitration Court of Appeal dated March 18, 2010 in case No. A41-34430 /09 on the recovery of funds from the customer, it was established that in accordance with the requirements of the Civil Code of the Russian Federation, the assignment of the right to claim (cession) is possible without the consent of the customer and is not made dependent on the norms of Law No. 94-FZ.

As a result of the fulfillment of obligations under the contract, the contractor did not receive timely payment, as a result of which he concluded an agreement on the assignment of rights of claim (cession) with the plaintiff and notified the customer. The court emphasized that since the rights of claim, which were transferred by a third party to the plaintiff, do not apply to relations regulated by the norms of Art. 383 of the Civil Code of the Russian Federation, then they are subject to transfer in the order of assignment.

The customer's argument that the assignment agreement has not been concluded, since there is no his consent to conclude the said agreement, is subject to rejection, since there are no grounds for agreeing to conclude the said agreement with the debtor.

In addition, late payment of debts to a new creditor, including due to lack of funds in the personal account, is the basis for collecting a penalty from the customer.

According to paragraph 8 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 22, 2006 No. 21 “On Certain Issues of the Practice of Considering Disputes by Arbitration Courts with the Participation of State and Municipal Institutions Related to the Application of Article 120 of the Civil Code of the Russian Federation”, if the creditor presents a requirement to apply measures to the institution liability for violation of monetary obligations to the court when applying Article. 401 of the Civil Code of the Russian Federation, it must be borne in mind that the absence of an institution of funds at its disposal cannot in itself be regarded as taking all measures for the proper fulfillment of an obligation with the degree of care and diligence that was required of it by the nature of the obligation and the conditions of turnover.

Underfunding of an institution by the owner of its property cannot in itself serve as a circumstance indicating the absence of the institution's fault.

Auction protocols are placed by the customer on the CAB through the operator of the electronic platform

By the decision of the Sixth Arbitration Court of Appeal dated November 24, 2014 No. 06AP-5823 /2014 on the consideration of the appeal against the decision dated August 28, 2014 in case No. A73-9526 /2014, it was confirmed that despite the obligation of the customer contained in the Law on the contract system to place all protocols, drawn up in the process of conducting an electronic auction not only on an electronic site, but also in a single information system, the customer does not have the technical ability to place protocols in the latter case. At the same time, before the unified information system is put into operation, all information to be placed in it is published on the official website, which currently does not have the necessary functionality for the customer to fulfill a number of requirements defined by the Law on the contract system.

Currently, some regulatory bodies, allowing a formal approach in identifying violations of the legislation in the field of procurement, without taking into account the actual circumstances of the case, attract customers for violating the terms for posting protocols on the official website.

The courts of the first and appellate instances established that the Law on the contract system provides for the sending of documents and information by the customer to the participant of the electronic auction or by this participant - the customer, the specified document flow is carried out through the electronic platform, with the exception of the conclusion of a contract based on the results of such an auction. And untimely posting of protocols on the official website by the operator of the electronic platform occurs due to technological failures of the integration process. Under such circumstances, based on the specific circumstances of the case, taking into account the systematic interpretation of the provisions of the Law on the contract system, the customer is not in violation of the provisions of the Law on the contract system due to technical reasons.

Professional publication for professionals in the field of procurement

Special rules apply for the procurement of a statutory audit of financial statements. In addition to laws 44-FZ and 223-FZ, the audit of accounting and financial statements is regulated by Article 5 of Federal Law No. 307-FZ of December 30, 2008.

In a joint letter, the FAS and the Ministry of Finance explained how to properly purchase this service.

A number of organizations are required to order an audit of financial and accounting statements at least once every five years. The selection of the auditor is carried out according to Law No. 44-FZ. The list includes:

organizations, in the authorized (share) capital of which the share of state property is not less than 25 percent;

• state corporations;
• state companies;
• public law companies;
• state unitary enterprises;
• municipal unitary enterprises.

Organizations are listed in Part 4 of Article 5 of Federal Law No. 307-FZ dated December 30, 2008.

State companies and corporations, public companies, organizations with a state share in the capital of more than 25 percent purchase goods, works, services in accordance with Law No. 223-FZ. SUE and MUP - according to Law No. 44-FZ, but there are exceptions.

Legal entities that are listed and work under 44-FZ purchase a mandatory audit according to the same rules as other services. The authors of the letter emphasize that Article 5 of Federal Law No. 307-FZ dated December 30, 2008 does not require securing applications and contracts, but this rule does not apply to customers under 44-FZ.

Customers under 223-FZ determine the supplier of mandatory audit on the basis of Law No. 44-FZ. Only one form of procurement is possible: open competition. The condition also applies to re-purchases.

Example 1. The state corporation held a competition. Purchasing object: cleaning services. When choosing a contractor, the institution follows the norms of Law No. 223-FZ. All applications do not meet the tender documentation. The customer conducts a request for proposals.

Example 2. The state corporation held a competition. Purchasing object: audit of financial statements. When choosing a contractor, the institution follows the norms of Law No. 44-FZ. All applications do not meet the tender documentation. Article 5 of the Federal Law of December 30, 2008 No. 307-FZ provides for the only method of procurement: an open tender. The customer again holds an open tender for audit services.

It is allowed to purchase an audit from a single supplier. Condition: only one application complies with Law No. 44-FZ and tender documentation. Purchasing from a single supplier does not need to be coordinated with the control body. The norms of 44-FZ are used only to determine the supplier. It is necessary to plan purchases and execute concluded contracts in accordance with Law No. 223-FZ.

In a joint letter, the FAS and the Ministry of Finance explained how contractors can appeal against the purchase of a mandatory audit. A complaint against a customer under 223-FZ is made in the manner established by Article 18.1 of the Federal Law of July 26, 2006 No. 135-F3. For the customer under 44-FZ - in the manner established by chapters 5, 6 of Law No. 44-FZ.

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 Federal Law 223 “On the purchase of goods, works, services by certain types of legal entities”. In accordance with this law, the customer must purchase a mandatory audit of accounting records through an open tender under 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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In accordance with it, organizations should conduct a mandatory audit purchase 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; the management company of a private pension, mutual or equity investment fund;
• The volume of the organization's revenue from the sale of its goods and services exceeded 400 million rubles for the reporting year, and also if the amount of assets in the 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

Parts 3 and 4 of Article 5 of Federal Law 307-FZ specify the regulatory framework for auditing state-owned 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 of the financial statements of Federal State Unitary Enterprise, State Unitary Enterprise and Municipal Unitary Enterprise under 223-FZ can be carried out by one company for 5 years, under one agreement 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 establish financial security for the 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 the 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.

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