44 fz more or less. Actual changes to the contract system for procurement participants. Establishment of conflicting requirements in the description of the procurement object

Hello dear colleague! Surely, you perfectly understand the meaning of the term preference. This is a certain advantage or benefit that is given to someone. Such benefits can be provided to states, enterprises or organizations to support certain types of activities. 44-FZ also provides for a number of preferences, which will be discussed below in this article. We will take a closer look at what these benefits are and who can take advantage of them. So let's get started ...

1. Preference: what does it mean under 44-FZ?

Target Federal law No. 44-FZ is not only about creating an open and competitive environment for public procurement, but also in supporting certain categories of suppliers who participate in these purchases.

According to the requirements of 44-FZ, preferential conditions are provided for 3 categories of participants:

Let's now take a closer look at what preferences are provided for each category of participants.

2. Preferences of the NSR and SONKO under 44-FZ

Before talking about the advantages for the SMP and SONKO established by 44-FZ, I propose to understand in detail what kind of participants they are and what requirements they must meet.

Small businesses (SME) must meet the requirements of Article 4 of the Federal Law of July 24, 2007 No. 209-FZ "On the development of small and medium-sized businesses in the Russian Federation".

Firstly , RF share in authorized capital SMP should beno more than 25% , and the share of foreign legal entities. persons and legal entities persons (who are not SMEs) in the authorized capital must benot more than 49% .

Secondly , the average number of SME employeesshould not exceed 100 people inclusive.

Thirdly , revenue excluding VAT or book value of assetsshould not exceed 800 million rubles (Note: The limit values of income are determined by the Decree of the Government of the Russian Federation No. 265 of 04.04.2016).

We have dealt with the subjects of small business, we are moving on ...

Socially oriented non-profit organizations(SONKO) - organizations in the forms provided for by Chapter II of the Federal Law "On Non-Commercial Organizations" dated 12.01.1996, No. 7-FZ(excluding state corporations, state-owned companies and political parties).

These organizations must carry out the activities listed in Article 31.1 of Law No. 7-FZ:

social service, social support and protection of citizens;
provision of legal assistance free of charge or on a preferential basis to citizens and non-profit organizations and legal education of the population, activities to protect human and civil rights and freedoms;
measures for medical rehabilitation and social rehabilitation, social and labor reintegration of persons engaged in illegal consumption drugs or psychotropic substances;
etc. (a total of 18 types of activities).

Now let's look at the advantages that are established by 44-FZ for these categories of participants.

Purchase volume

Customers are required to make purchases from SMP and SONKO in the amount ofnot less than 15% the total annual volume of purchases (AGOZ). Moreover, such purchasesshould not exceed 20 million rubles (part 1 of article 30 44-FZ).

An important point: Participants who do not belong to this category cannot take part in the procurement.

Also, for Customers, Article 7.30 of the Code of Administrative Offenses of the Russian Federation provides for liability for non-compliance with the legislation on placing an order with SMP and SONKO.

According to part 11 of article 7.30 of the Code of Administrative Offenses of the Russian Federation, the procurement of goods, works, services to meet state and municipal needs from the SMP, SONKO in an amount less than the amount provided for by the legislation of the Russian Federation on the contractual system in the field of procurement entails the imposition of an administrative fine on officialsin the amount of 50,000 rubles .

SMP and SONKO on subcontracting

The customer during the purchaseRIGHT install in the notice there is a requirement for a supplier that is not a SMP or SONKO to involve subcontractors, co-contractors from the SMP, SONKO in the execution of the contract (part 5 of article 30 44-FZ).

Shortened terms of payment under the contract

If the purchase is carried out only among SMP and SONKO, then the contract includes a mandatory condition for the Customer to pay for the delivered goods, work performed, services rendered on time n e within 15 working days from the date of signing by the Customer of the acceptance document (part 8 of article 30 44-FZ). For other purchases (not for SMP and SONKO), this period is no more than 30 calendar days.

The OIC size is calculated from the offered price

If a contract is concluded based on the results of a procurement among SMEs and SONKOs, the size (abbreviated as OIC), including the one provided taking into account, is set from the price at which the contract is concluded, but cannot be less than the size (part 6 of article 96 44 -FZ). In all other purchases, the size of the OIC is set from the NMCC, and not from the winner's proposed price.

OIC may not be provided

A procurement participant with whom a contract is concluded based on the results of a procurement among SMP and SONKO is exempt from the provision of OIC, including taking into account anti-dumping measures, if such a participant provides informationabout 3 executed contracts without fines and penalties within 3 years prior to the date of application to participate in the purchase. Whereinthe sum of the prices of such contracts must be at least NMCK specified in the notice of procurement and procurement documentation(part 8.1 of article 96 44-FZ).

What does it mean? This means that if a participant (SMP, SONKO) has 3 executed contracts under 44-FZ over the past 3 years, for which no fines and penalties have been charged, then he can provide information about these contracts to the Customer and not provide contract enforcement. The main thing is that the total price of these three contracts should not be less than the NMCK of the purchase in which it won.

For the convenience of checking and providing such information, there is an excellent service that in a matter of seconds allows you to determine whether you need to provide OIC to the Customer for a specific purchase or not.

The verification steps are very simple:

You follow the link;
In the window that opens, enter your TIN and registry number the purchase in which you won;
Click on the "Check" button;
Receive information on executed contracts;
Copy the information received to the site when signing the contract or prepare an information letter (in free form) to provide to the Customer.

Reduced fines

The amount of the fine for non-fulfillment or improper fulfillment by the supplier (determined based on the results of the purchase among SMP and SONKO) of the contractual obligations is establishedin the amount of 1% of the price of the contract (stage), but not more than 5 thousand rubles and not less than 1 thousand rubles (Clause 4 of the Decree of the Government of the Russian Federation No. 1042 dated 30.08.2017.).

When making purchases on a general basis, the fines are much higher (See clause 3 of the RF Resolution No. 1042 of August 30, 2017):

3. Preferences for organizations of people with disabilities under 44-FZ

MUST provide benefits to organizations of people with disabilities in relation to the contract prices they offer, the amount of prices for units of goods, work, services in the amount of up to 15%in accordance with the procedure established by the Government of the Russian Federation and in accordance with the lists of goods, works, services approved by the Government of the Russian Federation (part 3 of article 29 44-FZ).

The list of such goods (works, services) is established by the Decree of the Government of the Russian Federation of April 15, 2014, No. 341 "On the provision of benefits to organizations of persons with disabilities when determining the supplier (contractor, performer) in relation to the contract price they offer, the sum of the prices of units of goods, work, services" (together with the "Rules for granting benefits to organizations of persons with disabilities when determining a supplier (contractor, performer) in relation to the contract prices they offer, the sum of prices for units of goods, work, services")

Disabled People's Organizations - all-Russian public organizations persons with disabilities (including those created as unions of public organizations of persons with disabilities) and organizations whose authorized (pooled) capital entirely consists of contributions from all-Russian public organizations of persons with disabilities (Art. 29 44-FZ).

Criteria for classifying organizations as organizations of persons with disabilities

All-Russian public organizations of disabled people (OI), their unions: 80% of members are disabled

Organizations whose authorized (pooled) capital is 100% composed of OI contributions:

— average headcount disabled people in relation to other employees - at least 50%;

- share wages disabled people in the wage fund - at least 25%.

How does the 15% preference under 44-FZ work?

Suppose that the Customer purchases goods from the list of the PP of the Russian Federation No. 341 dated April 15, 2014, and the documentation establishes an advantage for organizations of disabled people in the amount of 15%. The initial maximum contract price is 100,000 rubles.

Participant # 1 (not OI) offered a price of 85,000 rubles. And Participant No. 2 (OI) in his application indicated the price - 80,000 rubles. Participant # 2 won because he indicated the price below. But since the Customer established a 15% preference for organizations of disabled people, Participant No. 2 can exercise his right and send the Customer a demand to increase the price offered by him by 15%. Thus, the contract with Participant # 2 will be concluded at a price of 80,000 + 15% = 92,000 rubles.

The only rule in this case is that the price at which the contract with the winner will be concluded does not exceed the NMCK set in the documentation. In our case, this rule is observed, since NMCK - 100,000 rubles, and the contract with a 15% preference was concluded for 92,000 rubles.

If Participant # 2 (OI) had won with a price of 90,000 rubles and would have exercised his right to receive an advantage of 15%, then the contract would have been concluded with him for 100,000 rubles, and not for 103,500 rubles (90,000 + 15% ).

4. Preferences of the UIS under 44-FZ

When conducting purchases, with the exception of purchases from a single supplier, the CustomerMUST to provide UIS institutions and enterprises with advantages in relation to the contract price they offer, the sum of the prices of units of goods, work, services in the amount of up to 15%in accordance with the procedure established by the Government of the Russian Federation and in accordance with the lists of goods, works, services approved by the Government of the Russian Federation (part 2 of article 28 44-FZ).

The list of goods (works, services) is established by the Decree of the Government of the Russian Federation of July 14, 2014 No. 649 "On the procedure for providing institutions and enterprises of the penal system with advantages in relation to the contract price they offer, the sum of the prices of units of goods, work, services."

Institutions and enterprises of the penal system - organizations from the list contained in the Decree of the Government of the Russian Federation No. 89 dated 01.02.2000 (as amended on 22.11.2018) "On approval of the list of types of enterprises, institutions and organizations that are part of the penal system."

Such institutions include: logistics and military supply bases, construction departments, educational institutions, and so on.

The principle of operation of the preference of 15% for institutions of the penal system is the same as in the above example for organizations of persons with disabilities. The difference lies only in the list of goods (works, services), which for the UIS is established by the PP of the Russian Federation No. 89 of 02/01/2000.

Finally, there is one more general preference for organizations of persons with disabilities and institutions of the penal system. Its essence is as follows.

In the event that the procurement is carried out in accordance with Articles 28 and 29 44-FZ, the procurement participant is an institution or enterprise of the penal system or an organization of disabled people and the NMCK makesmore than 20 million rubles , the amount of the order securitycannot exceed 2% of NMCK (part 17 of article 44 44-FZ).

For all other purchaseswith NMCK more than 20 million rubles, the amount of security for the application is set in the amount of 0.5% to 5% of NMCK .

So we discussed with you what preferences are provided by 44-FZ for procurement participants. However, in addition to the preferences we have considered, there is also Article 14 44-FZ, which establishes preferences for domestic manufacturers and manufacturers from EAEU countries but this is a topic for a separate article.

That's all for me today. I hope this information was useful to you. And if so, then do not be lazy to like and support the article with your voice. You can ask all questions on this topic in the comments below, I will be happy to answer them.

On 07.09.2018
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44-FZ, EIS, Request for quotations, Request for proposals, Tender, NMCK, SMP, Electronic auction, ETP

Among suppliers in public procurement there are several preferential categories. They need to be given certain benefits. Consider who they are intended for and how the customer should act.

Preferential categories of participants in public procurement

The contract system was created not only to make budget spending more transparent, but also to provide participants with equal access to procurement. This promotes fair competition. At the same time, preferences are provided for certain groups. The state order contains three categories of beneficiaries:

small businesses and socially oriented non-profit organizations ( SMP and SONO);
disabled people's organizations ( OI);
correctional institutions ( UIS).

The rules for assigning participants to each category and references to regulations are presented in the following diagram.

Registration in ERUZ UIS
From January 1 2020 years to participate in trades under 44-ФЗ, 223-ФЗ and 615-ПП registration is required in the register of URUZ (Unified Register of Procurement Participants) on the EIS (Unified Information System) portal in the field of procurement zakupki.gov.ru.
We provide a service for registration in the ERUZ in the EIS:

SMP and SONO

Disabled People's Organizations

Correctional institutions

Article 30 44-FZ

Article 29 44-FZ,
Resolution No. 341 dated 04/15/14

Article 28 44-FZ,
Resolution No. 649 dated 07/14/14

SMP: Small businesses that meet the criteria of the law of 24.07.2007 No. 209-FZ.
Main criteria:

revenue without VAT up to 800 million rubles;
the average number of employees is up to 100 people;
share of commercial companies (not SMEs) in the authorized capital - no more than 49%

SONO: Organizations in the forms stipulated by the law of 12.01.1996 No. 7-FZ (except for state corporations, state-owned companies, political parties). They carry out the activities listed in Article 31.1 of Law No. 7-FZ.

All-Russian public organizations of disabled people (OI), their unions:

80% of members are disabled;

Organizations whose capital is 100% composed of OI contributions:

the average number of disabled people in relation to others is at least 50%;
the share of salaries of disabled people in the wages fund is at least 25%.

Organizations from the list contained in the Government Decree of 01.02.2000 No. 89.

The following table provides basic information on benefits, their amount and how they are provided.

Table. Benefits for SME and SONO, IP institutions, organizations of people with disabilities

How preferences are provided to preferential categories

Benefits for OI and UIS

The above categories are provided with benefits if the procurement object is included in the list from the relevant decree (No. 341 and No. 649, respectively). The customer is determined with the object of the procurement and is checked against these regulations. If the product is included in one of them, it is necessary to establish benefits for the corresponding category of participants.

The benefits for penal system institutions and organizations of persons with disabilities are as follows: the contract will be concluded at a price 15% higher than that indicated in the bid of such a participant. From the wording of the law it may seem that the advantage may be less than 15%, but this interpretation is erroneous. It is understood that the advantage is 15%, but the contract can be concluded at a price not higher than NMCK (letter from the Ministry of Economic Development 10/15/2014 No. D28i-2197).

The lists of regulations contain codes according to the OKPD2 classifier. It has a specific structure (shown below for an example of class 13 "Textiles and textile products"). The benefits extend to all lower levels of the code structure.

Structure of OKPD2

13 Class "Textiles and textile products"
	13.9 Subclass "Other textile products"
		13.92 Group "Ready-made textile products (except for clothing)"
			13.92.1 Subgroup "Ready-made textiles for household use"
				13.92.12 View "Bed linen"
					13.92.12.110 Category "Bed linen made of cotton fabrics"
						13.92.12.114 Subcategory "Cotton bedding sets"

For example, a customer has a need for electric portable luminaires. This purchase item has a code OKPD2 27.40.21.110. We check with the decree No. 341 and see that the code is included in it 27.40.2 "Luminaires and lighting devices". The purchase object required by the customer is included in the structure of this code. Accordingly, it is necessary to establish an advantage in procurement for disabled people's organizations.

Important! If you need to purchase different items, make sure that they are all included in the list... Only then is it worth including them in one purchase. If you need to buy goods in addition to the list, carry out different procedures.

The advantage must be set to planning documents and is duplicated in the procurement documentation, the draft contract. It should also be noted that the contract cannot be concluded at a price higher than the NMCK. Below is an excerpt from the auction documentation containing the benefit clause for preferential categories:

Benefits provided for institutions and enterprises of the penal system, organizations of persons with disabilities
Advantage to institutions and enterprises of the penal system Installed by the customer in accordance with section ________ of the electronic auction documentation in the amount of up to 15% of the price offered by the institution or enterprise of the penal system, the recognized winner, but not more than the initial (maximum) contract price
Benefit to disabled people's organizations Set by the customer in accordance with section ________ of the electronic auction documentation in the amount of 15% of the price proposed by the organization of disabled people, recognized as the winner, but not more than the initial (maximum) contract price	Set at 15% of the contract price, but not more than the initial (maximum) contract price / Not set

How members prove they belong to a specific category

To take advantage, the participant must be classified as an AIS or OI. This must be documented. The method of confirmation depends on which method is used for the purchase:

If this is an electronic auction, a request for proposals in electronic form, then the participant must submit documents(copies of them), which will confirm the right to receive the corresponding benefits.
If carried out electronic request quotes, the participant provides electronic declaration, which is formed using the means of the electronic trading platform.

Customer's actions in case of victory of the beneficiary

The winner belongs to the UIS. His application must include a claim for benefits. If there is, the advantage must be granted.

The winner belongs to the Olympic Games. His application must contain a statement of compliance with the category. Before signing the contract, he must send the customer a claim for the benefit. If a demand is filed, the price of the contract must be set taking into account the advantage.

Attention! If the winner avoids concluding a contract, and the participant following him belongs to the preferential categories, then he should also be given an advantage.

Contract price

Let's show with an example how to calculate the contract price if the beneficiary won. Let the subject of the procurement be included in the list from Resolution No. 341, which means that an advantage is given to organizations of disabled people. Initial contract price - 300,000 rubles... The winner is the application of a subject of the OI category with a price 270,000 rubles... The size of the advantage is 15%.

Let's calculate the contract price. The following formula applies:

Estimated price = ROI price * 15% + ROI price

The calculation is as follows: 270,000 * 15% + 270,000 = 310,500 rubles.

The estimated price, taking into account the given advantage, is higher than the initial (maximum) price. Thus, the contract with the organization of disabled people will be concluded at a price of 300,000 rubles, that is, according to the NMCK.

Benefits for SMP and SONO

Customers are required to purchase from small and non-profit businesses at least 15% of the total annual procurement volume (AGOZ)... First of all, you need to correctly determine this volume. If you make a mistake in the calculations or fail to meet this limit, you can get a fine of 50,000 rubles.

Formula for calculating SGOZ:

When the SGOZ is calculated, you need to take from it 15% - this will be the minimum of purchases from the SMP and SONO. However, when planning purchases, you need take this percentage with a margin, after all, some of them may not take place. In this case, the customer runs the risk of not gaining 15% volume and getting a fine.

Setting a procurement advantage

Small business benefit worth setting in those purchases, the objects of which they are able to supply. So, you should not announce a purchase for the NSR and SONO if the object is, for example, medical services or fuel. Because the companies that supply such goods and services rarely belong to the category of small businesses.

When you have selected procurement objects from the SMP, you need to reflect this in planning documents, procurement documents and a contract. There are two important points that need to be registered:

Payment. If the contract is concluded with SMP or SONO, then no more than 15 working days should pass from the moment of signing the acceptance documents to the day of payment.
Penalties. Penalties are charged for late payments. In all other cases, the facts of non-performance or improper performance of the contract are punishable by fines. These conditions must be prescribed without fail. It is necessary to indicate a fixed amount of the fine, determined based on the value of the contract, as well as the entire penalty line. For small businesses, the sizes are:
- for a contract price of up to RUB 3 million, the fine is 3%;
- with a contract price of 3 to 10 million rubles - 2%;
- with a contract price of 10 to 20 million rubles - 1%.

An example of the wording of the penalty clause is shown in the following image.

Example of Penalty Statement

What else the customer needs to know

Do not forget to check the winning bidder if you have announced it for SMP and SONO. The application must contain a declaration of its belonging to this category. But it does not hurt to check the information with the corresponding register on the FTS website.

It is not always easy to collect the required volume of purchases from small companies. To simplify the task, it is advisable involve SMP and SONO as subcontractors... In the procurement documentation, it is necessary to establish requirements for a supplier, which is not a small business itself, to hire SMP and SONO as co-executors. At the same time, it is necessary to establish the exact amount of attraction in value terms and register it in the draft contract.

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Can the state customer formulate the parameters of the goods intended for delivery in such a way that in the end only one manufacturer can supply such goods? It would seem that the negative answer is obvious, because 44-FZ, which has been in force for almost a year, is based on the principle of ensuring competition. However, several arbitration courts decided otherwise.

1. Is there one manufacturer? No problem. Suppliers are different.

The state customer held an electronic auction for the supply of food for pregnant women and nursing mothers. One of the participants in the auction contested the results of the auction, stating that only one Dutch company milk mixtures were suitable for the parameters presented by the defendant.

Considering the claim, the courts of three instances had to answer the question: can the state customer formulate such parameters of the goods intended for delivery, which correspond to the goods of only one manufacturer. According to the plaintiff, such actions are unacceptable - they lead to a limitation of the number of potential participants in the auction. “The department has significantly narrowed the parameters of goods that can be supplied based on the results of the auction, which led to an unreasonable limitation of the number of possible bidders and created an advantage for the winner,” the losing bidder said as an argument.

In turn, the courts unanimously considered such actions of the state customer to be legitimate. They pointed out that "compliance with the technical characteristics defined by the customer in the technical assignment of the products of only one manufacturer is not an unconditional basis indicating the restriction of competition." The goods with the parameters proposed by the customer, in the opinion of the courts, “can be supplied by an indefinite number of suppliers”.

The logic of the courts is simple. It does not matter that there is only one manufacturer - different suppliers can supply the goods purchased from him. However, it is unlikely that such an interpretation was expected by the creators of the contract system in the field of public procurement.

By the way, the fact that the plaintiff (the losing bidder) was not the manufacturer of the goods purchased by the defendant was another argument for the courts. "The plaintiff is not limited in the choice of counterparties from whom he can purchase goods, including according to the characteristics proposed by the defendant," the courts noted (decision of the CA of the Kirov region of 05/13/14, resolution 2 of the AAC of 07/21/14, resolution of the AC Volgo- Vyatka district of 20.11.14 in case No. A28-2624 / 2014).

2. When formulating an application, one should not rely on the number of manufacturers.

Courts in other regions also come to the same conclusions as in the above case. At the same time, new, to put it mildly, controversial, arguments appear.

Thus, the regional OFAS received complaints about two electronic auctions for the purchase of baby food. The reasons for the complaint are the same - the parameters of the purchased goods correspond to the goods of a single manufacturer. The Antimonopoly Department supported the arguments of the complaint and saw in the actions of the state customer the limitation of the number of participants in the auction. At the same time, the regional OFAS referred to the letter of the FAS Russia dated 26.12.2012 No. AK / 44401/12. In this letter, the FAS pointed out the inadmissibility of establishing requirements in the procurement documentation that only one manufacturer of powdered milk mixtures can meet.

The CA of the Republic of Sakha (Yakutia) did not agree with the antimonopoly authority (case No. A58-5173 / 2014). According to the court, the auction was held specifically for the supply of goods, and not for its production (manufacture), therefore, the number of potential suppliers is unlimited. “Since the subject of an open auction is 'supply' and not 'production / manufacture', the fact that dry fermented milk mixture ... is the only product on the market that meets the requirements established by the auction documentation cannot in itself be considered a restriction of competition, since how the goods with the parameters set by the customer can be offered for delivery by an unlimited number of suppliers ... ", the court of first instance indicated in its decision of 07.11.14.

A similar case was considered by the AU of the Republic of Bashkortostan (decision of 10.10.14 in case No. A07-9320 / 2014, currently appealed to 18 AAC). As in Yakutia, the regional OFAS recognized the participant's complaint justified electronic auction... According to the department, the customer did not substantiate the establishment of specific parameters for the content of substances in the protein mixture (protein content in the amount of 40 g, fat 20 g and 30 g carbohydrates), although the corresponding GOST R 53861-2010 establishes the range of values of each component (protein - from 40 to 75 g, fats - 5 to 20 g, carbohydrates - 10 to 30 g). Moreover, a protein mixture of only one manufacturer was suitable for the specific parameters of the content of substances established by the state customer.

The Arbitration Court, in turn, invalidated the decision of the OFAS, not finding violations of the legislation on the contract system. “The arguments that ... that specific indicators for products limit competition, since they relate to only one type of product produced in the territory Russian Federation products ... cannot be imputed as a violation of antimonopoly legislation, since Federal Law No. 44-FZ does not provide for the customer's obligation to be guided by the number of market participants, manufacturers (suppliers, executors) when determining the requirements for the procurement object, ”the court said.

The decisions of the courts of first instance have not yet entered into force. Perhaps the judges of the higher courts will approach the decision of the case differently than their colleagues in the Volga-Vyatka district. After all, an unreasonable limitation of the number of manufacturers of purchased goods, even with an unlimited number of suppliers, does not contribute to the development of competition and does not meet the goals of the legislation on the contractual system in the field of public procurement.

One of the brightest innovations of the Law on the Constitutional Court is the unified rules for describing the procurement object. Analyzing the first results of the existing practice of describing purchases, the article concludes that not all participants in the contract system lawfully apply those established in Art. 33 of Law No. 44-FZ, rules for describing the procurement object.

In this article, you will learn:

rules for describing the procurement object;
responsibility for violations in the description of the purchase;
requirements for indicators of quality and conformity of goods when purchasing;
requirements for the technical characteristics of the procurement objects;
a fine for failure to indicate the words “or equivalent” in the description of the object of the procurement together with the trademark.

Rules for the description of the procurement object under 44-FZ

According to clause 1 of part 1 of Art. 33 of the Law on the Contract System, the customer, when describing the procurement object in the documentation, must be guided by the following rules:

the description of the object of the procurement must be objective;
the description of the procurement object indicates the functional, technical and quality characteristics, operational characteristics of the procurement object (if necessary);
the description of the object of the procurement shall not include requirements or indications in relation to trademarks, service marks, trade names, patents, utility models, industrial designs, appellation of origin or manufacturer's name, as well as requirements for goods, information, works, services provided that such requirements entail a limitation of the number of participants in the procurement, unless there is another method providing a more accurate and clear description of the characteristics of the procurement object;
the procurement documentation may contain an indication of trademarks if, when performing work, providing services, it is intended to use goods, the supply of which is not the subject of the contract.
In this case, a prerequisite is the inclusion of the words “ or equivalent

Let's consider the five main violations of customers in the description of procurement objects, identified by the FAS Russia.

Violation number 1.

Indicators of the quality of goods are not established

As mentioned above, by virtue of the provisions of Art. 33 of the Law on the Constitutional Court, the description of the procurement object must be objective. In the description of the procurement object, the functional, technical and quality characteristics, operational characteristics of the procurement object (if necessary) are indicated. However, not all customers fulfill this requirement.

Example

Clause 2.1.1 of the technical requirements for the system unit of the auction documentation for the processor states - “not weaker than Intel Core i3-4130”;
Clause 2.4 of the technical requirements for a server of type 1 of the auction documentation for the processor states “at least two processors of a type not worse than E5-2690v2”;
Clause 2.5 of the technical requirements for a server type 2 of the auction documentation for the processor states “at least one processor of a type not lower than Intel Xeon E3-1240v3”.

Thus, from these provisions it is impossible to determine the indicators of goods corresponding to the needs of the customer. At the same time, from the position of FAS Russia, the actions of the customer who did not properly establish the functional, technical and quality characteristics, operational characteristics of the procurement object, with the exception of cases of incompatibility of goods on which other trademarks are placed, violate clause 1 of part 1 of Art. 33 of the Law on the Constitutional Court (decision and prescription of the FAS Russia dated April 22, 2014 in case No. K-657/14).

It should be borne in mind that according to Part 2 of Art. 33 of the Law on the Constitutional Court, procurement documentation in accordance with the requirements specified in Part 1 of Art. 33 of the Law on the Constitutional Court, should contain indicators that allow determining the compliance of the purchased goods, work, services with the requirements established by the customer. In this case, the maximum and (or) minimum values of such indicators are indicated, as well as the values of indicators that cannot be changed.

What the FAS Russia says

Currently, some customers violate the above rule. For example, in accordance with the auction documentation, the customer has set the following minimum and maximum values: “the total length of the attachment is not less than 150.1 mm and not more than 114.4 mm”, “the length is not less than 0.57 m and not 0.71 m”.

As follows from the decision and instructions of the FAS Russia of March 28, 2014 in case No. K-381/14, when considering the complaint, the customer's representative explained that a technical error had been made in the specified paragraph of the auction documentation. At the same time, the FAS Russia concluded that in the documentation on the auction by the customer, in violation of Part 2 of Art. 33 of the Law on KS does not establish indicators to determine the needs of the customer.

A similar conclusion about the absence in the procurement documentation of indicators allowing to determine the conformity of the goods (building materials) used in the work was made in the decision of the FAS Russia dated 04.22.2014 in case No. K-657/14. So, in accordance with clause 17 of the terms of reference for the auction documentation, the customer established, including the following requirement for concrete used in the work under the contract: “The minimum compressive strength at the age of 28 days must be more than 27.3 and less than 33.6 (more than 270 and less than 340) ".

According to Part 2 of Art. 33 of the Law on the Constitutional Court in accordance with the requirements specified in Part 1 of Art. 33 of the Law on 44-FZ, should contain indicators that allow you to determine the compliance of the purchased goods, work, services with the requirements established by the customer. In this case, the maximum and (or) minimum values of such indicators are indicated, as well as the values of indicators that cannot be changed.

Thus, the customer has not defined indicators that allow determining the conformity of the concrete used in the work, the customer's requirements, and also has not established a unit of measurement for the "ultimate strength in compression", which is a violation of clause 1, h. 64 of the Law on the Constitutional Court.

How to describe the object of purchase when there are no GOSTs, technical regulations, technical specifications?

Violation number 2.

Establishing requirements for performance of goods in an inappropriate manner

In accordance with paragraph 2 of Part 1 of Art. 33 of the Law on the Constitutional Court, when compiling a description of the procurement object, it is allowed to use, if possible, standard indicators, requirements, symbols and terminology related to the technical and quality characteristics of the procurement object, established in accordance with technical regulations, standards and other requirements stipulated by the legislation of the Russian Federation on technical regulation. If the customer does not use such standard indicators in the description of the procurement object, the requirements, legend and terminology, the procurement documentation should contain a justification for the need to use other indicators, requirements, designations and terminology.

However, one of the customers in the instructions for completing the first part of the auction documentation submitted a list of common normative documents that should be taken into account when preparing an application for this auction: GOST 1709-75, 22245-90, 16442-80, 9548-74, 7399-97, 14791-79, 6465-76, 3262-75, 10503-71, 30108- 94, 23732–2011, 25328–82, 28013–98, 7931–76, 26869–86, 9128–2013, 23558–94, 8267–93, 52128–2003, 24909–81, 53299–2009, 26602.5–2001, 24699-2002, 7827-74,9.014-78, 2228-81, 53301-2009, 30674-99, 18599-2001, 190-78, 10178-85, 9179-77, 125-79, 12820-80, 22266- 94, 22266–94, 30884–2003, 30108–94, 8420–74, 20259–80, 18477–79, 52605–2006, 14918–80, 52325–2005, 6527–68, 28196–89, 50597–93, 12.4.026-2001, 52875-2007, 17608-91, 51728-01, 5583-78, 3134-78, 15860-84, 949-73, 17811-78, 23567.10-93, 9410-78, 10036-75, 9467-75, 20448-90, 10923-93, 9097-82, 7805-70, 6631-74, ..., GOST 23683-89, as well as other GOSTs that regulate the materials presented in the annex to the terms of reference, if these GOSTs are associated with the work being carried out. If the GOSTs presented in this list are outdated, then you should apply given number GOST, but in the current edition (with a different index after the number) ".

The above example of the provisions of the auction documentation indicates that the customer has not properly established the requirements for the indicators of conformity of goods used in the performance of work, the needs of the customer. In addition, from the position of FAS Russia, the customer has not established which GOST corresponds to the product, and therefore it is not possible for the procurement participants to compare the GOST with the product when filling out the application for participation in the auction.

Taking into account the above, the FAS Russia Commission considered that the instruction set by the customer for filling out the application for participation in the auction does not allow the procurement participants to form an application for participation in the auction properly.

Quite often there are well-grounded complaints of procurement participants, indicating the indication in the terms of reference of the requirements for the indicators of the purchased goods, which contradict the GOST specified in the documentation.

Example

Clause 4 "Polyethylene film" of the technical assignment established the following characteristics of the product: "The static coefficient of friction must be within the range of up to 0.5". At the same time, according to GOST 10354–82, the requirement for compliance with which is indicated in the auction documentation, the static coefficient of friction is set within 0.1–0.5. At the same time, from the point of view of the FAS Russia, the requirement for the indicator "Static coefficient of friction" established in clause 4 "Polyethylene film" of the technical task does not meet the requirements of GOST 10354-82, which does not allow filling out an application for participation in the auction (decision and prescription of the FAS Russia dated 04.06.2014 in case No. K-893/14).

As a result of an unscheduled inspection carried out by the FAS Russia, it was revealed that Appendix No. 2 to the documentation on the auction for the purchase of finished metal products for the product "Three-tiered battery storage rack", including the following requirements:

The rack must be made in the form of a metal structure and comply with GOST 16140–77.
Material steel sheet, steel 3 GOST 19903-74, grade St3ps of ordinary quality, in accordance with GOST 14637-89, equal-flange angle: for shelves 32 × 32, for racks 45 × 45 GOST 8509-93 ".

Also, the customer established the following requirement: "To protect the floors and ensure the stability of the racks, squares of at least 60 × 60 mm made of St3ps steel of ordinary quality, with a thickness of at least 2 mm, must be welded to the lower part of the legs."

In accordance with GOST 14637–89, the standard applies to thick-sheet hot-rolled steel of ordinary quality carbon steel, manufactured with a width of 500 mm and more, with a thickness of 4 to 160 mm inclusive.

Thus, the indication by the customer in the auction documentation of the requirements for the thickness of steel, from which squares of at least 60 × 60 mm, “at least 2 mm,” must be made, does not comply with GOST 14637–89, which misleads the procurement participants and does not allows you to fill out an application for participation in the auction properly.

Specified customer actions violate clause 1 of part 1 of Art. 64 of the Law on the Constitutional Court and contain signs of an administrative offense, responsibility for the commission of which is provided for by Part 4.2 of Art. 7.30 of the Administrative Code of the Russian Federation (decision and prescription of the FAS Russia dated 03.12.2014 in case No. K-1779/14).

Violation number 3.

Establishment of conflicting requirements in the description of the procurement object

As follows from the decision of the FAS Russia of May 26, 2014 in case No. K-831/14, the actions of the customer, who established contradictory requirements for the provision of services in the tender documentation, violate clause 1 of part 1 of Art. 50 of the Law on the Contract System and contain signs of an administrative offense under Part 4.2 of Art. 7.30 of the Administrative Code of the Russian Federation.

So, according to paragraphs. 1.1.2 and 1.2. Table 2 of Section IV "Description of the object of procurement of works (services)" (hereinafter - Table 2) of the tender documentation as amended on 05/07/2014, the contractor must agree with the customer no later than three working days before the seminars-meetings information letters, program, handouts materials and documents and (or) materials for discussion of each seminar-meeting.

At the same time, according to these types of services in table 5 of section IV "Description of the object of procurement of works (services)" (hereinafter - Table 5) of the tender documentation as amended on 05/07/2014, the customer must agree within five working days the program of each seminar-meeting. Also, according to clause 2.1.1 of Table 2, the contractor must agree with the customer on the description of the tactical target system for 2015; in Table 5, for these types of services, approval is not required. In accordance with paragraphs. 1.4.1 and 2.4.1 of Tables 2, the contractor must agree with the customer the forms of expert opinions and summary expert opinions; in Table 5, for these types of services, approval is not required.

Consequently, the requirements set for the services provided in Table 2 contradict the requirements set out in Table 5.

Similarly, considering the applicant's complaint about the customer's misconduct when describing the M / FTD B737NG simulators with a full-size imitation of the B737NG cockpit, the FAS Russia concluded that there were conflicting requirements in the description of the procurement object.

According to the applicant, since the object of the procurement is the supply of M / FTD B737NG simulators with a full-size imitation of the cockpit of B737NG aircraft, an objective description of this procurement object will be an indication of the correspondence of the elements of the simulators to the real design of the cockpit of B737NG aircraft.

At the same time, according to the requirements of the tender documentation, the simulator must include the following hardware, including "for B737NG FCU, MCDU (left and right), ECAM Control Panel, Switching Panel", which refers to the components of the cabin the crew of the Airbus320.

In accordance with the terms of reference of the tender documentation, the simulator must include the following hardware: “for B737NG FCU, MCDU (left and right), throttle, ECAM Control Panel, Switching Panel, steering wheels and control pedals”.

At the meeting of the FAS Russia Commission, the applicant submitted documents and information that the FCU (flight control unit) is a technical component of the aircraft structure, in this designation (name) is an integral part of the Airbus320 cockpit. In the cockpit of the aircraft and on the B737NG simulator, instead of the FCU, there is an MPC (Model Control Panel) element - a control panel for aircraft modes. MCDU (left and right) (Multipurpose Control Display Unit) - multipurpose control display, also refers to the cockpit of the Airbus320 aircraft, in the cockpit and on the B737NG simulator in place of the CDU (Control Display Unit) - control and display unit, etc. ...

Thus, the actions of the customer, who indicated contradictory requirements for the procurement object in the terms of reference of the tender documentation, do not comply with clause 1 of part 1 of Art. 33 of the Law on the Contract System and violate paragraph 1 of Part 1 of Art. 50 of the Law on the Contract System and contain signs of an administrative offense under Part 4.2 of Art. 7.30 of the Administrative Code of the Russian Federation (decision of the FAS Russia of 28.10.2014 in case No. K-1545/14).

Violation number 4.

Failure to specify specific requirements for the technical characteristics of procurement objects

It should be noted that practice is a vivid example of failure to specify specific requirements for the technical characteristics of purchased goods.

For example, in Ch. 5 § 5.1 "Requirements for the supplied equipment" of Table 2 "Parameters of technical support" in sub. 1.1 clause 1 of the auction documentation is set as follows: "screen resolution - at least 1920 × 1080" without specifying the unit of measurement; item 2 is set: "Dimensions (LxWxH) no more than 870 × 770 × 1050" without specifying the unit of measurement. Thus, the actions of the customer, who established the description of the procurement object without specifying the units of measurement, do not meet the requirements of the Law on the Constitutional Court and violate paragraph 1 of part 1 of Art. 64 of the Law on the Constitutional Court (decision of the FAS Russia of October 29, 2014 in case No. K-1558/14).

In another case, clause 16.1 of the terms of reference of the auction documentation is established: "Ventilation grill 600 × 300 aluminum - 4 pcs." without specifying units of measurement. Clause 1087 of the terms of reference for the auction documentation established "Air valve size 821 × 440 - 1 pc." without specifying units of measurement.

At the meeting of the FAS Russia Commission, the representative of the customer said that in accordance with clause 1.8 of GOST 2.307-68 (ST SEV 1976-79, ST SEV 2180-80) “ one system design documentation... Dimensioning and maximum deviations "linear dimensions and their maximum deviations in the drawings and specifications are called in millimeters, without designation of the unit of measurement.

At the same time, the auction documentation does not contain an indication of the relevant regulatory document. Accordingly, the actions of the customer, who did not establish specific requirements for the technical characteristics of the goods, do not comply with clause 2 of part 1 of Art. 33 of the Law on the Contract System and violate paragraph 1 of Part 1 of Art. 64 of the Law, which contains signs of an administrative offense under Part 4.2 of Art. 7.30 of the Administrative Code of the Russian Federation (decision of the FAS Russia dated 09.06.2014 in case No. K-915/14).

Violation number 5.

Failure to indicate in the description of the procurement object the words "or equivalent"

According to clause 1 of part 1 of Art. 33 of the Law on the Constitutional Court, the procurement documentation may contain an indication of trademarks in the event that, when performing work, rendering services, it is intended to use goods, the supply of which is not the subject of the contract.

In this case, a prerequisite is the inclusion of the words "or equivalent" in the description of the procurement object, except for cases of incompatibility of goods on which other trademarks are placed, and the need to ensure the interaction of such goods with goods used by the customer, as well as cases of procurement of spare parts and Supplies to machines and equipment used by the customer, in accordance with technical documentation for the specified machines and equipment.

Thus, considering the applicant's complaint against unlawful actions of the customer regarding the failure to indicate the words "or equivalent" to the trademark, FAS Russia recognized the customer's actions as contradicting the legislation on the contract system.

According to clause 3 of the terms of reference for the auction documentation, the customer established a requirement for the delivery of the “Chance” -E self-rescuer without specifying the words “or equivalent”. At the meeting of the FAS Russia Commission, the applicant presented a certificate for the “Chance” trademark, the copyright holder of which is NPK Pozhkhimzashita LLC. At the same time, the customer at the meeting of the Commission did not provide evidence that the designation "Self-rescuer" Chance "-E" is not a trademark.

Thus, according to the decision and order of the FAS Russia of August 29, 2014 in case No. K-1279/14, the auction documentation contains an indication of the Chance Self-rescuer-E trademark without the use of the words "or equivalent", which does not correspond to clause . 1 h. 1 tbsp. 33 of the Law on the Contract System, violates paragraph 1 of Part 1 of Art. 64 of the Law on the Contract System and contains signs of an administrative offense, the responsibility for the commission of which is provided for in Part 4.2 of Art. 7.30 of the Administrative Code of the Russian Federation.

A similar practice has developed by virtue of the provisions of paragraph 1 of part 1 of Art. 33 of the Law on the Constitutional Court and in contract procurement. For example, at a meeting of the FAS Russia Commission it was established that in Appendix No. 2 to the tender information card, the list of equipment and other material resources required to carry out work under the contract contains an indication on a trademark unaccompanied by the words "or equivalent":

Truck crane Grove GBT 35 or similar;
Tower crane Mitsuber MCT 8FR or analog;
Bulldozer KOMATSU D275AX-5 or similar

At the same time, from the point of view of the FAS Russia, the actions of the customer who indicated the trademark in the tender documentation without the words "or equivalent" do not correspond to clause 1 of part 1 of Art. 33 of the Law on the Constitutional Court and violate Part 3 of Art. 56 of the Law on the Constitutional Court (decision of the FAS Russia dated May 13, 2014 in case No. K-759/14).

Taking into account the current administrative practice, the following conclusion can be drawn: when preparing procurement documentation for customers, authorized bodies should pay special attention to the description of the procurement object, taking into account the rules specified by the Law on the Constitutional Court. At the same time, objectively describing the object of procurement, one should not establish contradictory requirements, provided that the quality indicators of the purchased goods, works, services are properly established, allowing to determine the customer's need.

Encyclopedia of Judicial Practice. Rules for describing the object of the procurement (Article 33 of the Law "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs")
1. General requirements for the description of the object in the procurement documentation

1.1. The customer has the right, with the necessary detail, to include in the procurement documentation such characteristics and requirements for the goods that meet his needs, and is not obliged to justify such needs.
1.2. Customer requirements must be unambiguous and the same in all parts of the procurement documentation
1.3. When describing the procurement object, the possibility of limiting the number of procurement participants should be excluded
1.4. The description of the object of the procurement should be performed in such a way as not only not to limit the number of participants in the procurement, but also to increase the chances of acquiring exactly the kind of goods that is needed.
1.5. The description of the object of the procurement must be unambiguous

2. Formation of the subject of the contract

2.1. Inclusion in one lot of technologically and functionally related goods (works, services) is lawful
2.2. Dissimilarity, heterogeneity and non-relationship according to OKVED codes of the types of work included in the subject of the contract does not in itself mean the absence of a functional connection between them.
2.3. The possibility of supplying goods (performing work, rendering services) by different persons does not indicate an illegal combination of contract objects into one lot and restriction of competition
2.4. If only the products of a certain manufacturer meet the requirements specified by the customer, this does not constitute a restriction on competition if it is possible to purchase such products from a counterparty.
2.5. The lack of an opportunity for persons interested in concluding a contract to deliver goods that meet the needs of the customer does not indicate a limitation by the customer of the number of bidders
2.6. Consolidation into one lot of functionally related and united by the final goal of construction work and the supply of equipment is lawful
2.7. Consolidation of construction works and supply of equipment in one lot during turnkey construction may be recognized as illegal if certain stages of turnkey construction are not provided for by the purchase.
2.8. Consolidation of the supply of computer equipment and the software necessary for its operation into one lot is lawful
2.9. If the initial (maximum) contract price exceeds the limit value established by the Government of the Russian Federation, it is illegal to combine a unique and only drug with a drug produced by several manufacturers into one lot.

3. Description of the procurement object

3.1. The presence of GOST does not exclude the right of the customer independently and, taking into account his needs, to determine specific characteristics for the goods offered for delivery within the parameters established by GOST.
3.2. The establishment by the customer of additional values of indicators in comparison with GOST needs to justify the need to use such an indicator
3.3. The wording of the requirements for the procurement object, given by reference to GOST, is illegal
3.4. The units of measurement specified by the customer in the procurement documentation must correspond to those specified in the corresponding GOST
3.5. If the customer does not specify units of measurement in the procurement documentation, the procurement participant must be guided by the units of measurement specified in the corresponding GOST
3.6. The customer has the right to establish in the procurement documentation units of measurement other than those specified in GOST for voluntary use
3.7. When concluding a contract for the provision of OSAGO services, the customer is obliged to independently indicate in the procurement documentation information about the Bonus-Malus coefficient
3.8. The lack of properly formulated requirements for the procurement object in the procurement documentation may cause an unreasonable reduction in the number of procurement participants
3.9. The indication by the customer in the purchase description of the trade name excludes the need to describe the parameters, functional, technical and quality characteristics of such a product, if the specified parameters and characteristics are inherent only to him
3.10. The absence of an indication "or equivalent" in the purchase description can be considered justified in the case when the customer needs to ensure interaction of the purchased goods with those already purchased
3.11. The customer's indication of the trade name means that the participant must proceed from the compliance of the equivalent not only with the characteristics set forth in the procurement documentation, but also with the characteristics of the goods, the name of which is indicated in the notice.
3.12. An obvious technical error in the procurement documentation regarding the indication of the subject of the procurement does not indicate the uncertainty of the object of the procurement
3.13. When purchasing medicines, it is allowed to establish a requirement for the residual shelf life in percent, if this does not lead to restriction of competition and is due to the needs of the customer.
3.14. When purchasing equipment, an indication of the possibility of its delivery with components, the description of the parameters of which is accompanied by the words "no more", "no less", etc., may be recognized as illegal if the manufacturers of such equipment set unchanged parameters for these components
3.15. If, during the procurement of construction work, the design and estimate documentation was developed on the basis of a standard project, the presence of a corresponding indication in the procurement description is not necessary.

Encyclopedia judicial practice
Procurement Object Description Rules
(Art. 33 of the Law "On the contract system in the procurement of goods, works, services to meet state and municipal needs")

1. General requirements for the description of the object in the procurement documentation

Note

FAS Russia opinion:

When describing the object of the procurement, the customer must accurately describe the scope of work to be performed (clause 5 of the Review of Administrative Practice, prepared by the FAS Russia State Order Control Department, May 2016).

1.1. The customer has the right, with the necessary detail, to include in the procurement documentation such characteristics and requirements for the goods that meet his needs, and is not obliged to justify such needs.

Attention

FAS Russia indicates that when approving the procurement documentation, the customer is not entitled to establish requirements for the technical characteristics of the goods suitable for only one product (clause 1 of the Review of Administrative Practice prepared by the FAS Russia State Order Placement Control Department, July 2015)

Depending on his needs, the customer in the auction documentation must establish requirements, in particular, to quality, technical characteristics (consumer properties), sizes, packaging of goods, taking into account the specifics of his activities and in order to ensure the effective use of budget funds, subject to the established legislation of the Russian Federation. Federation of provisions aimed at ensuring a competitive environment during bidding.

Accordingly, the customer has the right to include in the auction documentation such characteristics and requirements for the goods that meet his needs and are necessary to perform the relevant functions. In this case, the customer has the right to detail the subject of procurement to the required extent.

In addition, the law does not provide for restrictions on the inclusion in the auction documentation of requirements for goods that are significant for the customer; the obligation of the customer to substantiate his needs when establishing requirements for the supplied goods is also not provided. Moreover, the indication in the documentation of the specific characteristics of the supplied goods is provided for by the procurement legislation. The discretion of the customer is limited only by the requirement of inadmissibility of restricting competition.

The courts correctly indicated that from the systemic interpretation of the above norms it follows that today the legislation in the field of procurement allows the customer to independently form his order, based on the needs of the latter. In particular, when describing the goods, the customer has the right to indicate the quality parameters for the procurement object, which are decisive for him, but at the same time do not limit the number of potential procurement participants; he is not deprived of the opportunity to more accurately and clearly indicate the requirements for the purchased goods.

Based on the analysis of these norms [part 1-3 of Federal Law No. 44-FZ], the courts reasonably indicated that the customer has the right to include in the documentation on holding an electronic auction such characteristics of the goods that meet his needs. In this case, the customer has the right to detail the subject of the electronic auction to the required extent. Federal Law No. 44-FZ does not provide for restrictions on the inclusion in the documentation of an electronic auction of requirements for goods that are significant for the customer; the obligation of the customer to substantiate his needs when establishing requirements for goods is also not provided.

The institution in the auction documentation established the requirements for the medicinal product, taking into account its needs and based on the specifics of the type of activity being carried out. The task of procurement legislation is, first of all, to identify, as a result of tenders, a person whose performance of the contract will most closely meet the objectives of the effective use of funding sources and the customer's needs for the goods necessary for the implementation of his activities. The law does not provide for restrictions on the inclusion in the documentation of an electronic auction of requirements for goods that are significant for the customer and meet his needs. The provisions of the Law also do not oblige the customer, when defining the characteristics of the supplied goods in the documentation, to establish such characteristics that would correspond to all existing types, types, models of goods. The institution, having established the requirements for the goods necessary for it, acted in accordance with Law No. 44-FZ.

The current legislation in the field of procurement allows the customer to independently form his order, based on the needs of the latter. In particular, when describing the goods, the customer has the right to indicate the quality parameters for the procurement object, which are decisive for him, but at the same time do not limit the number of potential procurement participants; he is not deprived of the opportunity to more accurately and clearly indicate the requirements for the purchased goods, including in this situation and for its composition.

The customer, forming these requirements for the characteristics of the goods (cava filters), determined his needs, taking into account the specifics of his activities and the need to purchase cava filters of a special design, non-removable, made of the material he required and having a set necessary for the customer technical characteristics.

The Investigation Department [customer] does not dispute the presence of errors in the tender documentation, but indicates that the exact description of the technical characteristics of the goods was given in the design and estimate documentation drawn up by the LLC, which was posted on the official website on the Internet as part of the tender documentation. According to the applicant, the procurement participants were required only in the first parts of the bids to agree to the performance of work and the supply of goods. Consequently, according to the Investigative Directorate of the Investigative Committee of the Russian Federation for the Novgorod Region, the mistakes made do not indicate a violation by the customer of the provisions of Article 33 of Law No. 44-FZ.

This argument was previously cited by the Investigation Department during the trial in the courts of first and appeal instances, which reasonably rejected it.

The information on the goods provided in the first part of the application must contain specific, non-ambiguous, indicators that must correspond to the values established by the auction documentation (clause "b" of part 3 of article 66 of Law No. 44-FZ). Double indication of one procurement object with different indicators, incorrect indication of the units of measurement of indicators and non-existent characteristics of the materials used leads to the impossibility correct filling the first parts of the applications by the auction participants, and, as a result, to the rejection of applications for participation in the auction (part 4 of Article 67 of Law N 44-FZ).

The auction commission came to the conclusion that the procurement participant - LLC, in the information about building materials and products that will be used in the performance of work, does not indicate all the names and indicators of building materials, products provided for by the Technical Part, namely, the 133CH4 pipe is not indicated. 0.

Checking the validity of the grounds for refusing to admit the company to participate in the electronic auction, having analyzed the information contained in the auction documentation, which includes Section No. 3 Technical Part, consisting of the Terms of Reference and sections project documentation, the courts did not establish the presence in the documentation of an indication of the product - pipe 133Ch4.0. Therefore, we came to a well-grounded conclusion that the commission did not have grounds for recognizing the company's application as not meeting the requirements of the documentation.

The administration's reference to the fact that the scope of work presupposes the presence of pipe 133Ч4.0, which the procurement participant should have indicated in the first part of the application for participation in the auction, in the absence of an indication of such a product in the auction documentation, was rightfully rejected by the courts as not corresponding to the circumstances of the case and contradicting part 2 of article 33 of the Law on the contract system.

The presence of information T1, T2-133CH4.0 in the "Plan TK-10 (new)" scheme, rightfully not recognized by the courts as a circumstance that allows them to draw a conclusion about the exact and understandable formulation by the customer in the auction documentation of the requirement that participants in the order placement of this product as a separate product and its characteristics.

For the item "Heavy concrete, class B 7.5 (M 100)", the customer established the requirement: "The compressive strength class of concrete must not be lower than B 7.5".

This formulation assumes the possibility of the procurement participant offering the value of the indicator B 7.5 and above.

At the same time, in the same position in the column "name of the goods" the customer has set the goods with a fixed indicator - "Heavy concrete, class B 7.5 (M100)".

Thus, in the documentation, the customer established conflicting information about the characteristics of this and the same supplied goods, which entails a violation of the rights of potential auction participants and creates conditions for abuse by members of the auction commission when choosing the winner of the auction.

The courts reasonably did not accept the arguments of the company that the indication of the minimum and maximum values of the indicators of the goods complies with the requirement of Law No. 44-FZ. The customer has the right to indicate in the auction documentation either fixed characteristics of the goods required for delivery, or its minimum, maximum indicators. At the same time, the customer's requirements must be clear and unambiguous, and these indicators in all parts of the auction documentation must be the same.

In clauses 15, 24, 159 and 163 of the Bill of Quantities of Work and Materials, an expanded description of the purchased object is given in comparison with the parameters of GOST 31108-2003 and 6787-2001, which contradicts clause 5 of Section 3 of the Documentation, which provides for the use of only building materials (cement and ceramic tiles ) corresponding to GOST 31108-2003 and GOST 6787-2001.

Refusing to satisfy the applicant's claim to declare this decision unlawful, the courts of first and appellate instances proceeded from the fact that paragraph 1 of part 1 of Article 33 of Law No. 44-FZ provides that the description of the object of the procurement must be objective.

Having stipulated in the auction documentation the requirements for cement used in the work, as well as for ceramic tiles used for flooring with references to specific GOSTs, which establish unambiguous and strict quality criteria for the required goods, the customer informed the procurement participants about the requirements for goods necessary for execution of works. At the same time, the organizer of the tender in any case had to provide uniform and understandable for the participants requirements for the tender documentation, the most clear criteria for selecting the winner, ensuring the comparability of the proposals submitted by the participants.

1.3. When describing the procurement object, the possibility of limiting the number of procurement participants should be excluded

When conducting a purchase, the customer is entitled to self-determination the object of the procurement based on their needs, but without specifying the requirements for the goods (works, services), potentially limiting the number of participants in the procurement.

When placing a purchase, the customer is endowed with the right to independently determine the subject of the auction and the terms of delivery of goods, performance of work, provision of services, taking into account the observance of prohibitions on requirements for goods, information, work and services, potentially limiting the number of participants in the placement of the purchase.

1.4. The description of the object of the procurement should be performed in such a way as not only not to limit the number of participants in the procurement, but also to increase the chances of acquiring exactly the kind of product that is needed.

By virtue of the direct indication of the law, the customer in the description of the procurement object indicates the functional, technical and quality characteristics, operational characteristics of the procurement object (if necessary) that meet his needs and are necessary to perform the relevant state or municipal functions. Within the meaning of Article 33 of Federal Law N 44-FZ, customers purchasing according to the rules of this law, when describing the procurement object, should thus determine the requirements for purchased goods, works, services in order, on the one hand, to increase the chances of purchasing goods with just such the characteristics that he needs, and on the other hand, do not limit the number of participants in the procurement. The basic rule for describing the object of the procurement is that the description of the object of the procurement must be objective.

The courts reasonably considered that, by virtue of Article 33 of Federal Law N 44-FZ, customers purchasing according to the rules of this law, when describing the procurement object, should thus determine the requirements for the purchased goods, works, services in order, on the one hand, to increase the chances of purchase of goods with exactly the characteristics that he needs, and on the other hand, do not limit the number of participants in the purchase.

The reason for refusing to admit the entrepreneur's application to participate in the open auction was its inconsistency with the auction documentation, since the information contained in the application allowed an ambiguous interpretation of the material from which the work should be performed (Izospan D and hydroglass insol; galvanized corrugated board and metal tiles are homogeneous materials) ...

Recognizing the contested acts of the antimonopoly body as compliant with the current legislation, the courts, having analyzed the documentation for the auction, proceeded from the fact that the documentation provided for the possibility of replacing the material, and when carrying out the work, it was possible to use not only corrugated board, but also metal tiles, isospan D, hydroglass, as indicated by the entrepreneur in the application.

In such circumstances, the courts concluded that the auction commission, when deciding to reject the application filed by the entrepreneur, violated the requirements of parts 1, 3 of Article 67 of the Law on the Contract System, and therefore recognized the decision of the antimonopoly authority dated 12.01.2015 in case No. 690/14 in the contested part.

The ambiguity and ambiguity in the content of the instructions for filling out the application, which allows both the procurement participant and the members of the auction commission to have a double understanding of the characteristics of the materials offered for the work and information about the procurement object in general, leads to restriction of access to participation in the auction, which does not can be recognized as an objective description of the procurement object, in connection with which, when describing the specified indicators of goods, the customer violated the provisions of paragraphs 1 and 2 of part 1 of article 33 of Law No. 44-FZ.

2. Formation of the subject of the contract

2.1. Inclusion in one lot of technologically and functionally related goods (works, services) is lawful

Guided by the provisions of Articles 15 of Article 8, paragraph 1 of part 1 of Article 33, paragraph 1 of part 1 of Article 50 of the Law

The Court of Appeal made a reasonable conclusion that the engineering survey work can be combined with the design work by virtue of Section 5.2. Article 48 of the Urban Planning Code of the Russian Federation, and with work on the development of a project for the planning of the territory due to their technological and functional relationship, which corresponds to part 3 of Article 17 of the Federal Law of July 26, 2006 N 135-FZ "On Protection of Competition" and paragraph 3 of Article 421 Civil Code Of the Russian Federation, which provides for the possibility of concluding a mixed agreement (an agreement that contains elements of various agreements provided for by law or other legal acts). The rules on contracts, elements of which are contained in the mixed contract, apply to the relations of the parties to a mixed contract in the relevant parts, unless otherwise follows from the agreement of the parties or the essence of the mixed contract.

Since the ministry has placed the purchase in the form of work on the development of a project for the planning of the territory and work on the development of project documentation for a linear facility (construction of a highway), such an association complies with the current legislation and does not violate the customer's obligations established by paragraph 1 of part 6 of article 48 of the Town Planning Code of the Russian Federation, taking into account the mixed the nature of the contract concluded as a result of the procurement.

Taking into account the functional and technological relationship of these types of work, their combination is aimed at efficient spending of budgetary funds, since the division of these works into two purchases increases the period design work(first, the procurement of works on the development of the planning project is carried out and after the execution of the contract within the framework of this procurement, it is necessary to plan and carry out the procurement of works on the design of the road construction) and leads to a situation when, at the stage of development of project documentation for the construction of the road, deficiencies in the area planning project or results are revealed engineering surveys, which must be eliminated by the contractor who performed these works (who may object to the very fact of performing the work with shortcomings, and their nature, and also to evade their elimination, which significantly delays the process of eliminating the shortcomings, affects the quality of work).

In such circumstances, the conclusion of the court of appeal that the conditions of the tender documentation do not violate the requirements of the law and are aimed at efficient spending of budgetary funds is correct.

According to clause 3.1 of the auction documentation, the name of the procurement object: provision of cleaning services for the territory of Veliky Novgorod. The description of the procurement object is given in the terms of reference (Appendix No. 1 to the draft contract), according to which the scope of services for cleaning the territory of Veliky Novgorod includes: summer cleaning of the territory, winter cleaning of the territory, maintenance of waste bins and benches installed in the city-wide territories of Veliky Novgorod , maintenance of the site for temporary storage of estimates and snow.

As follows from the materials of the case, the antimonopoly body indicated in the appealed act that the actions of the Institution to include in the subject of the electronic auction the entire range of works on cleaning the territory of Veliky Novgorod and the establishment of the maximum amount of security for the application led to an unreasonable limitation of the number of participants in the procurement.

After examining and evaluating the evidence presented by the persons participating in the case according to the rules of Articles 65 and the Arbitration Procedure Code of the Russian Federation, the courts of two instances established that the cleaning services of Veliky Novgorod declared in the subject of the auction have a functional and technological relationship with each other, allow efficient and rational use of budget funds. that is significant for the customer.

Under such circumstances, the disputed non-normative act of the Office was rightfully recognized as illegal by the courts as inconsistent with the requirements of Federal Law No. 44-FZ of 05.04.2013 "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs."

The courts made the correct conclusion that the equipment purchased by the department is technologically and functionally interconnected, aimed at equipping a histological laboratory and is used in the process of a single cycle of histological examination.

The argument of the antimonopoly body about the non-compliance of the subject of the procurement with the conditions established by the customer was the subject of consideration of the courts and was lawfully rejected, since technical features of a set of equipment for equipping a histological laboratory, it is assumed that the process of supplying equipment includes the implementation of work on its installation, adjustment, commissioning and training of specialists, without which it is impossible to maintain the quality of the supplied goods and its performance.

2.2. Dissimilarity, heterogeneity and non-relationship according to OKVED codes of the types of work included in the subject of the contract does not in itself mean the absence of a functional connection between them.

In the opinion of the prosecutor who initiated the administrative offense case (and the judge of the district court, who made the contested decision, agreed with him), the work on the development of multimedia content and the Center's website with work on the manufacture, delivery, installation, transfer and installation of stands and exhibits of the Center are technologically and functionally unrelated, therefore they are illegally included in one lot.

The antimonopoly body made a decision, which recognized the justified argument of the complaint regarding the illegal inclusion in the tender documentation of equipment for a catering facility, laundry, with the exception of the equipment specified in clauses 66, 67, 69, 70, 71 of the local estimate, the actions of the customer and the authorized body were found to be in violation requirements of part 2 of article 8, paragraph 1 of part 1 of article 33 and paragraph 1 of part 1 of article 50 of the Federal Law dated 05.04.2013 44-FZ "On the contract system in the field of procurement of goods, works and services to meet state and municipal needs", an order was issued , in accordance with which the applicant and the authorized body are ordered to cancel the tender with limited participation in the period up to _.

Believing the contested decision and order of the antimonopoly body to be illegal, the Construction Department applied to the arbitration court with this statement.

The lower courts, taking into account the circumstances and legal relations of the parties established in the case, as well as the laws applicable in this case, concluded that the stated requirements were satisfied. At the same time, the courts proceeded from the fact that the controversial equipment, namely: a refrigerator temperature cabinet, an electric boiler, a planetary mixer, a vegetable cutter, a juicer, a medium-temperature monoblock, a joiner's workbench, a potato peeler, a desktop electric grinder, a meat grinder, etc., can be purchased by any construction organization regardless of its specialization at prices prevailing in the market, and namely entity carrying out construction work can purchase equipment that is technologically more efficient and suitable for installation at the facility under construction.

In this case, the subject of tenders is the performance of work on the construction of facilities (schools and preschool), as well as the supply of equipment and furniture for equipping a catering unit, laundry, installation of a shade canopy, benches, trash cans, carpet dryers, swings, sandboxes, slides, garbage containers.

Since the construction of these facilities and the supply (installation) of equipment can be carried out by different persons, the antimonopoly authority considered that their combination into one lot entails a limitation of the number of bidders.

Meanwhile, potentially any goods (works, services), united in one lot, can be supplied (performed, rendered) by different persons. Due to the absence of a legal prohibition on combining goods (works, services) into one lot, the possibility of supplying goods by different persons in itself cannot be evidence of restriction of competition.

The administration in the auction documentation and the draft municipal contract indicated the possibility of attracting subcontractors to perform work that the contractor cannot perform on its own.

Under such circumstances, the arbitration court of first instance came to the correct conclusion that in this case the consolidation in one lot of the execution of construction installation works and the supply of equipment and furniture does not violate clause 1 of part 1 of article 33, clause 1 of part 1 of article 64 of Federal Law No. 44-FZ and does not entail a limitation on the number of participants in the procurement.

The courts reasonably concluded that the requirements for the supplied goods contained in Part 4 "Terms of Reference" of the electronic auction documentation are necessary and significant to ensure the activities of the Ministry of Informatization and Communications of the Republic of Tatarstan. The documentation on electronic auctions fully complies with the requirements of the legislation of the Russian Federation in the field of procurement, and the actions of the customer do not contradict the provisions of Article 33

The argument of the antimonopoly body on the illegality of combining into one lot of goods that are the subject of these electronic auctions, due to the possibility of delivery software and computer equipment by different persons was lawfully rejected by the courts, since due to the absence of a legal prohibition on combining goods (works, services) into one lot, the possibility of supplying goods by different persons in itself cannot be evidence of the illegality of the documentation on electronic auctions.

The subject of the considered electronic auctions was the right to conclude a state contract for the supply and installation of equipment, and not to manufacture the subject of the procurement, therefore, any legal tender may be a participant in the procurement. individual, individual entrepreneur, including a person who is not a manufacturer of the goods required for delivery, who is ready to deliver goods that meet the requirements of the electronic auction documentation and satisfy the needs of the customer.

The fact that any persons interested in concluding a contract do not have the opportunity to deliver goods that meet the needs of the customer does not indicate a violation by the customer of the rights of these persons, as well as a limitation by the customer of the number of participants in the procurement.

The legislation governing the legal relations under consideration does not prohibit the customer from including in the tender documentation a condition on the possibility of attracting subcontractors to perform the work, which was the case in this case. But it is impossible to unequivocally assess the implementation of this law by the customer, as well as the subsequent actual involvement of subcontractors by the only participant in the tender (as indicated by the prosecutor), as confirmation of the absence of technological and functional connection between the objects of purchase of goods, works, services included in one lot.

2.4. If only the products of a certain manufacturer meet the requirements specified by the customer, this does not constitute a restriction on competition if it is possible to purchase such products from a counterparty.

As follows from the materials of the case, the claimant's claim was conditioned by the decision of the Department's commission to reject the Company's application due to the non-compliance of the goods offered by the applicant with the customer's requirements for the composition of powdered milk mixtures for therapeutic and prophylactic nutrition of children. The LLC believes that only the "Malyutka" porridge of the Dutch company "Nutricia" is suitable for the parameters presented by the defendant.

There is no evidence in the materials of the case indicating the restriction of competition, since the goods with the parameters proposed by the customer can be supplied by an indefinite number of suppliers, which is confirmed by the existing ones in the case. commercial offers other persons.

Consequently, in this case, the rights of the Society are not violated.

As follows from the materials of the case, the claim of the plaintiff is due to the decision of the Department's commission to reject the Company's application due to the non-compliance of the goods offered by the applicant with the customer's requirements for the composition of dry milk mixtures for therapeutic and prophylactic nutrition of children. The LLC believes that only the Nutrilon GA2 mixture of the Dutch company Nutricia is suitable for the parameters presented by the defendant.

LLC is not a manufacturer of the goods requested by the defendant, but acts as a supplier-seller who purchases goods for the buyer, and is not limited in the choice of counterparties from whom he can purchase goods, including according to the characteristics proposed by the defendant.

The courts established, and this does not contradict the materials of the case, that the inclusion of certain parameters of baby food in the auction documentation did not create an advantage for some participants in the order placement over others and did not lead to a limitation of the number of participants in the order placement.

Article 71 of the Arbitration Procedure Code of the Russian Federation, the courts established that in this case, within the framework of the formation of the order, the Institution was guided by the existing need; the antimonopoly authority did not prove that the requirements for the procurement object formulated by the customer led to a limitation of the number of participants in the auction, and did not refute the statement of the Institution that the gloves it needs were produced not only by RusMed-Upak LLC, but also by Nitriteks (m) Sdn . Bhd. ", Malaysia.

When justifying the initial maximum contract price on the basis of market analysis (by the method of comparable market prices), the Institution sent inquiries to the organizations supplying medical gloves. From LLC "Neya", LLC "Veles", LLC "ATEX GROUP" received commercial offers for the supply of gloves mentioned in the request, including paragraph 19 of Part III "Technical part" of the auction documentation. Thus, examination gloves, sterile neoprene powder-free, can be supplied on the territory of the Russian Federation by various business entities, and not only by manufacturers or their official dealers, who did not participate in the controversial auction at all.

Thus, the courts came to a reasonable conclusion that the description of the procurement object used by the Institution complies with paragraph 1 of part 1 of article 33, paragraph 1 of part 1 of article 64 of Federal Law No. 44-FZ.

In the opinion of the antimonopoly authority, the courts unlawfully failed to take into account that the inclusion in the auction documentation of such an indicator as "storage without limiting the light regime" leads to a limitation of the number of auction participants, since only one medicinal product with the trade name - Tienam by the indicator storage at a temperature not exceeding 25 ° C from 7 registered manufacturers of a medicinal product with an international non-proprietary name Imipenem + Cilastatin. At the same time, there is no need to establish such an indicator, since an institution, having a license to carry out medical activities, is obliged to store medicinal products in accordance with the storage conditions established by the Storage Rules. medicines, approved by the order of the Ministry of Health and Social Development of the Russian Federation of 23.08.2010 N 706n "On approval of the rules for storing medicines."

The applicant's argument in cassation that the courts, pointing out the establishment by the customer of the requirements for the quality of the goods that he needed, did not take into account another necessary aspect - not to limit the number of participants in the procurement with such requirements, does not correspond to the factual circumstances of the case and the conclusions of the courts, which rightly indicated to the fact that the presence of a single manufacturer of a medicinal product does not lead to a limitation of the number of procurement participants, since the subject of the electronic auction was the supply of a medicinal product registered and authorized for use in the territory of the Russian Federation, and not its manufacture. At the same time, the courts took into account the presence in the case file of two applications numbered 4 and 5, ready to supply the required drug.

The determination in the auction documentation of the requirements for a medicinal product required by the institution, taking into account the specifics of its use in treatment, cannot be considered as restricting access to participation in the auction. As can be seen from the case materials, five participants applied for participation in the auction. The courts also established that the drug, the supply of which was the subject of the auction, is freely circulating on the pharmaceutical market, the supply of the drug can be carried out by persons holding a valid license to carry out pharmaceutical activities or manufacture drugs. In this regard, any business entity, provided that it receives required license has the ability to supply the drug required by the customer.

The applicant did not provide evidence that the circulation of the drug with the required values in the relevant market is impossible or difficult, and the establishment of the requirements necessary for the customer actually limits the number of potential participants in the procurement or creates an advantage for some participants in the procurement over others.

In the opinion of LLC, the inclusion by the customer in the terms of reference of the requirements for the form of the tablet and the method of its division was aimed at purchasing a medicinal product manufactured under the trade name Glemaz, the only manufacturer of which is "Kimika Montpellier SA" Argentina.

The arguments of the Federal Antimonopoly Service of Russia in the Tula Region that any of the auction participants had the opportunity to purchase medicines from the manufacturer - "Kimika Montpellier SA" Argentina, in order to supply them for the needs of the customer, is also not documented, and therefore the contested decision in this part is not motivated.

It follows from the materials of the case that section 5 "Terms of Reference" of the auction documentation establishes requirements for functional, technical and quality characteristics, operational characteristics of the subject of purchase (diesel reverse gear units DRRA26K) or its equivalent.

At the same time, in section 5 of the Terms of Reference, the customer intended to purchase marine diesel reverse gear units DRRA-26K or their equivalent, therefore, the supply of goods equivalent to the declared characteristics and requirements of the customer was allowed.

From the letters from Weichai presented in the case materials, it follows that this company in the territory of the Russian Federation in 2014 supplied marine diesel reverse gear units 170 series (8170, 6170) Russian organizations... None of the companies has entered into an exclusive agreement for the supply of these marine diesel reverse gear units, and therefore the sales of these units are made without any restrictions. At the same time, Weichai noted that 170 series units are supplied by many companies, some of the largest customers are: JSC, LLC 1, LLC 2.

Evidence that the company did not have a real opportunity to create or acquire goods that meet the requirements and characteristics established for the procurement object in Terms of reference, in the materials of the case is not presented.

2.5. The lack of an opportunity for persons interested in concluding a contract to deliver goods that meet the needs of the customer does not indicate a limitation by the customer of the number of bidders

After examining and evaluating the evidence presented in the case materials according to the rules established in Article 71 of the Arbitration Procedure Code of the Russian Federation, the courts established that in this case, within the framework of the formation of the order, the Institution was guided by the existing need; in the documentation, the customer indicates several types of technical conditions, in accordance with which various manufacturers manufacture the declared materials and goods, and the proposal by the procurement participants for materials and goods produced in accordance with any of the listed technical specifications would correspond to the Terms of Reference; the antimonopoly authority did not prove that the requirements formulated by the customer for the procurement object led to the limitation of the number of participants in the auction; the fact that any persons interested in concluding a contract do not have the opportunity to deliver goods that meet the needs of the customer does not indicate a violation by the customer of the rights of these persons, as well as the customer's limitation of the number of bidders.

The auction documentation of the institution does not limit the bidders to offer an equivalent for delivery, that is, another product that has similar or improved technical and functional characteristics that meet the needs of the customer.

The fact that any persons interested in concluding a contract do not have the opportunity to deliver goods that meet the needs of the customer does not indicate a violation by the customer of the rights of these persons, as well as the customer's limitation of the number of bidders.

2.6. Consolidation into one lot of functionally related and united by the final goal of construction work and the supply of equipment is lawful

As established by the courts of first and appellate instances, the contested decision of the antimonopoly body in the actions of the department and the department of the contract system in the field of procurement of the Administration of the city of Omsk as a customer and an authorized body for holding tenders for development working documentation on the construction of a school and the performance of work on the construction of a preschool institution in the city of Omsk, violations of part 2 of article 8, paragraph 1 of part 1 of article 33, paragraph 1 of part 1 of article 50, part 2 of article 56, part 5 of article 24 of the Procurement Law were established. unjustified procurement in the form of tenders with limited participation and merging into one subject for the procurement of construction work and the supply of equipment, in this regard, orders were issued to eliminate the violations by canceling the results of the tenders.

Disagreeing with the specified decision and prescription, the department went to court with this statement.

Canceling the decision of the court of first instance in part, the court of appeal considered that in this case the consolidation of purchases into one lot does not violate the provisions of part 2 of Article 8, paragraph 1 of part 1 of Article 33, paragraph 1 of part 1 of Article 50 of the Procurement Law and does not entail a restriction the number of procurement participants.

Article 71 of the Arbitration Procedure Code of the Russian Federation, the evidence presented by the parties, the court of appeal came to a reasonable conclusion that the supply of the controversial equipment and furniture is technologically and functionally related to the construction of a school and a kindergarten, since the final purpose of the procurement was the construction of facilities prepared for operation or the provision of services ...

clause 3.14 of the Methodology for determining the cost of construction products on the territory of the Russian Federation, approved by decree

As correctly indicated by the court of appeal, the combination of works on the construction of facilities and the supply of equipment in this case meets the needs of the customer, allows you to focus the management functions of all stages of the creation process finished products in one organizational structure, to carry out this process in a continuous manner, reducing belt costs, and rationally spend budget funds.

The antimonopoly authority believes that the unification of the construction of the facility and the supply of equipment technologically and functionally unrelated to the construction and installation work in one lot leads to an unreasonable limitation of the number of procurement participants.

After examining and evaluating, in accordance with Article 71 of the Arbitration Procedure Code of the Russian Federation, the content of the project documentation and the terms of reference, the court of appeal came to a reasonable conclusion that the subject of the procurement in this case was a complex of construction, installation and commissioning works for the construction of a kindergarten, for the implementation of which the supply of equipment was required ...

The appellate court reasonably indicated that the combination of works on the construction of facilities and the supply of equipment in this case meets the needs of the customer, will ensure their high-quality implementation, effectively and efficiently use budget funds.

After examining and evaluating the evidence presented by the parties in accordance with Article 71 of the Arbitration Procedure Code of the Russian Federation, the arbitration courts came to a reasonable conclusion that the supply of the disputed equipment is functionally related to the construction of a preschool institution, since the final purpose of the procurement was the construction of an object prepared for operation or the provision of services.

Delivery and installation of this equipment is provided for in the design documentation. The possibility of including in the estimated cost of construction the cost of the acquisition of equipment and the cost of work on its installation is established by clause 3.14 of the Methodology for determining the cost of construction products on the territory of the Russian Federation, approved by the Resolution of the State Committee of the Russian Federation for Construction and Housing and Utilities Complex dated 05.03.2004 N 15 / one.

In the case under consideration, the combination of works on the construction of facilities and the supply of equipment meets the needs of the customer, allows you to concentrate the management functions of all stages of the process of creating finished products in one organizational structure, to carry out this process in a continuous manner, reducing time costs, and rationally spend budget funds.

2.7. Consolidation of construction works and supply of equipment in one lot during turnkey construction may be recognized as illegal if certain stages of turnkey construction are not provided for by the purchase.

From the materials of the case, the courts established that the object of the disputed purchase was named as "Execution of work on the construction of the object" Kindergarten for 200 places in p / r ... "The following scope of work is declared:" turnkey construction "of a two-storey kindergarten building for 200 places with a technical floor, a basement, a technical underground, with a total area of at least 5400 sq. m, with the implementation of all work stipulated by the documentation for the electronic auction, including: internal and external finishing; laying of internal engineering and technical systems (heating, power supply, water supply, sewerage, ventilation, fire alarm and fire alarm, burglar alarm); construction of external networks of electric lighting, water supply, sewerage, heat supply; installation of technological equipment; landscaping, gardening, installation of small play forms ".

According to the terms of reference of the controversial purchase, the winner of the auction for the construction of the facility "Kindergarten for 200 places in the n / a ..." must, in addition to the construction work itself, deliver and install the following " technological equipment": sewing machine, piano, vegetable cutter, bactericidal irradiator, juicer for fruits and vegetables, potato peeler, household refrigerator, dry oven, TV set, ironing rink, washing machine, drying machine, grinding and drilling and sharpening machines, electric frying pan, stove industrial electric, vegetable cutter, electric meat grinder, bread slicer, oven cabinet, personal computer.

Checking the arguments of the persons participating in the case, the Court of Appeal proceeded from the requirements of clause 1.2 of the Regulation on the organization of the construction of turnkey facilities, approved by the Resolution of the USSR State Construction Committee of 10.11.1989 N 147 (hereinafter referred to as the Regulation on the organization of turnkey construction) and in this the current moment, from which it follows that the "turnkey" construction method provides for the construction of facilities prepared for operation or provision of services, based on the concentration of management functions for all stages of the investment process in one organizational structure and is carried out as a single continuous complex process of creating a finished construction products (design - construction and installation work, including the completion of construction sites with technological and engineering equipment - commissioning).

clause 1 of part 1 of article 33 of the Law on the contractual system in the field of procurement.

In resolving the dispute, the courts proceeded from the fact that the presence of installed software on the supplied computer equipment is technologically connected with the supply of computer equipment due to the fact that the use of computer equipment without the necessary software is impractical, the requirements for the supplied goods contained in Part 4 "Terms of Reference" of the documentation on the electronic auction are necessary and significant to ensure the activities of the Ministry of Informatization and Communications of the Republic of Tatarstan, the documentation on electronic auctions fully complies with the requirements of the legislation of the Russian Federation in the field of procurement, and the customer's actions do not contradict the provisions of Article 33 of the Law on the contractual system in the field of procurement.

Articles 15, Federal Law of 26.07.2006 N 135-FZ "On Protection of Competition", the Arbitration Procedure Code of the Russian Federation, the courts concluded that the inclusion of technological and functionally related goods (works, services) in one lot does not violate the norms of Article 8, Clause 1 of Part 1 of Article 33, Clause 1 of Part 1 of Article 50 of the Law on the contractual system in the field of procurement and does not entail a limitation of the number of participants in the procurement, the documentation on electronic auctions meets the requirements of the legislation of the Russian Federation, the actions of the customer do not contradict the provisions of the Procurement Law , which was the basis for the recognition of the contested provisions of the decisions and orders invalid.

Bringing the full name to administrative responsibility under Part 4.1 of Art. 7.30 of the Code of Administrative Offenses of the Russian Federation, the official proceeded from the fact that the state customer - the Ministry of Informatization and Communications of the Republic of Tatarstan, in violation of the requirements of paragraph 1 of Part 1 of Art. 33 of the Federal Law of April 05, 2013 N44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs", the notice of the electronic auction establishes a condition on the need to supply computers and software product, which limited the number of participants in the procurement and violated the requirements of the current legislation on the contract system.

Canceling the rulings official in relation to the full name and terminating the proceedings, the judge of the district court [rightfully] proceeded from the fact that his actions did not contain an administrative offense under Part 4.1 of Art. 7.30 of the Administrative Code of the Russian Federation.

The systemic interpretation of the above norms [parts 1, 2 of article 33 of the Federal Law N44-FZ] and their consideration in conjunction, allows us to conclude that the current legislation in the field of procurement allows the customer to independently form his order, based on his needs, that is, when describing the customer has the right to indicate the quality parameters for the procurement object, which are decisive for him, but without limiting the number of potential procurement participants.

It should also be noted that the antimonopoly body did not take into account the fact that the presence of installed software on the supplied computer equipment is technically connected with the supply of computer equipment due to the fact that its use without the necessary software is impractical.

The antimonopoly authority came to the conclusion that the customer, having established in the description of the procurement object the conditions for the need to supply computers and software product, limited the number of procurement participants and violated the requirements of paragraph 1 of part 1 of article 33 of the Law on the contractual system in the field of procurement.

It follows from the materials of the case that the subject of the above auction is the supply of computers.

In the description of the object of purchase, the customer specifies the following terms of delivery of the goods: "Software for the possibility teamwork if the client part of this software is available on the managed computers ".

In this case, as lawfully noted by the courts, the antimonopoly body did not take into account the fact that the presence of installed software on the supplied computer equipment is technologically connected with the supply of computer equipment due to the fact that the use of computer equipment without the necessary software is impractical.

2.9. If the initial (maximum) contract price exceeds the limit value established by the Government of the Russian Federation, it is illegal to combine a unique and only drug with a drug produced by several manufacturers into one lot.

In accordance with the register of medicines in the Russian Federation, two drugs with INN Ipratropium Bromide + Fenoterol are registered in the form of a solution for inhalation: Berodual, manufactured by Boehringer Ingelheim Pharma GmbH and Co. KG, Germany, as well as Ipraterol-native, produced by the company with limited liability"Nativa", Russian Federation.

At the same time, the drug with INN Ipratropium Bromide + Fenoterol in the form of an aerosol for inhalation has one trade name - Berodual and this drug is produced only by Boehringer Ingelheim Pharma GmbH & Co. KG, Germany.

Therefore, the courts recognized that the customer, in violation of part 6 of Article 33 of the Law on the Contract System, paragraph 2 of the Government Decree, included in one lot the supply of the drug with INN Ipratropium Bromide + Fenoterol in various forms of release: aerosol for inhalation, as well as solution for inhalation. Provided that one trade name is registered in the form of release of aerosol for inhalation - Berodual, and also that the initial (maximum) price of the contract exceeds the limit value established by the Government of the Russian Federation - 1000 rubles.

In addition, the inclusion in one lot of drugs with INN Ipratropium Bromide + Fenoterol in the form of an aerosol for inhalation, as well as a solution for inhalation, will not allow organizations to participate in the procurement that have the ability to supply only the drug Ipraterol-native, for example, produced by a limited company. responsibility of "Nativ", Russian Federation, including the manufacturer of the specified drug. Combining a unique and only drug with a drug produced by several manufacturers into one lot leads to abuse on the part of the customer.

As established by the courts, along with other drugs, the customer purchases the drug Temozolomide, a lyophilisate for the preparation of a solution for infusion of 100 ml.

As follows from the state register of medicines, the specified drug has no analogues in the form of release and dosage and is produced by only one manufacturer Schering-Play Labo, Belgium.

Thus, as lawfully indicated by the courts, when developing the documentation for the auction, the customer combined medicines with international generic names, which have no analogues registered in the territory of the Russian Federation in terms of release form and dosage and are produced by a single manufacturer. At the same time, the initial (maximum) price exceeds the limit value of the initial (maximum) price established by the Decree of the Government of the Russian Federation of October 17, 2013 N 929.

The courts concluded that the requirements of the law for the content of the auction documentation were met, since this documentation specifies the obligation of the procurement participant to comply with the GOST requirements. At the same time, the courts reasonably proceeded from the fact that the State Standards of the Russian Federation always contain a list of regulatory documents, a list of associated GOSTs and SNiPs, the documentation of which is also used in a certain GOST and the customer did not require the procurement participants to indicate a specific number of a particular GOST, if an indication of it is not in the documentation, but asked that the product (material), in principle, comply with GOST, which regulates a certain type of product (material).

The courts found that when drawing up requirements for the technical and functional characteristics (consumer) properties of goods (materials), the Ministry was guided by the requirements specified in Article 33 of Law No. 44-FZ, and used (in particular, when describing the disputed items) exclusively technical regulations, standards (GOST) and technical conditions governing Construction Materials... The auction documentation establishes indicators of the main materials that will be used when performing work in accordance with the requirements of GOST. The standards establish mandatory and recommended provisions that determine the specific parameters and characteristics of the repair work performed. Also, the customer in the auction documentation set detailed instructions on filling out an application for participation in an electronic auction. That is, based on the requirements of the auction documentation, procurement participants must indicate the indicators of materials in accordance with the requirements of GOST, namely: indicate within the limits specified in the auction documentation.

In addition, the courts concluded that the violations indicated by the department were not significant and were of a formal nature. The Department did not prove that these violations could have misled the auction participants.

The courts rightly concluded that General requirements of this GOST does not exclude the right of the consumer of such products to purchase them within these parameters, and within the specified limits independently determine specific characteristics for the goods offered for delivery, taking into account the specific needs of the consumer.

Taking into account the above, and also taking into account the specific circumstances in the case [purchase of protein composite dry mixtures in pursuance of the Instruction on the organization of therapeutic nutrition in medical institutions, approved by order of the Ministry of Health of Russia dated 05.08.2003 N 330], the court of cassation considers the conclusions of the courts to be lawful on the customer's right to establish, taking into account his needs, indicators of food and energy values of dry protein composite mixtures not in the wide ranges established in GOST R 53861-2010, but taking into account the specifics of the type of activity carried out, based on the approved calculations for interchangeable products, taking into account their chemical composition.

The court of cassation agrees with the conclusions of the courts that in this case, these indicators for the content of proteins, fats, carbohydrates and energy value in the protein composite dry mixture are standard, since they are within the limits established by GOST R 53861-2010, therefore, their no justification is required in the auction documentation.

The general requirements of GOST do not exclude the customer's right to purchase protein mixtures with indicators within the parameters established by GOST and, within the specified limits, independently determine specific characteristics for the goods offered for delivery, taking into account the needs of the hospital.

The customer has established requirements for the product within the limits of the indicators established in GOST, taking into account their needs and based on the specifics of the type of activity being carried out. In this case, these indicators for the content of proteins, fats, carbohydrates and energy value in the mixture are standard, since they are within the limits established by GOST, therefore, additional justification for the use by the customer of the indicators specified in the auction documentation is not required.

The task of procurement legislation is, first of all, to identify, as a result of tenders, a person whose performance of the contract will most closely meet the goals of efficient use of funding sources and the customer's needs for the goods necessary to carry out his activities. The customer, having established the necessary requirements for the composition of the product, acted in accordance with Law No. 44-FZ. Determination of indicators in the auction documentation within the framework established by GOST cannot be considered as limiting access to participation in the auction.

3.2. The establishment by the customer of additional values of indicators in comparison with GOST needs to justify the need to use such an indicator

The courts, having examined and evaluated the auction documentation, found that the customer, when describing the requirements for the goods (light hatch), used the following characteristics: maximum value of the indicator: body diameter (D) - up to 760 mm, opening diameter (D1): up to 600 mm, height (H) - no more than 70 mm, the maximum width of the hatch cover (B) should not exceed 630 mm; minimum value indicator: body diameter (D) - not less than 640 mm, opening diameter (D1) - not less than 550 mm, height (H) - not less than 60 mm; constant value of the GOST 3634-99 indicator with drawing. As the courts have established, and the persons involved in the case do not dispute, the indicator "maximum width of the hatch cover" in GOST 3634-99 is not established. There is no justification for the need to use this indicator in the auction documentation.

In such circumstances, the courts came to the correct conclusion that the customer, when describing the object of the procurement, indicating the value of the indicator that was absent in GOST, in violation of part 1 of Article 33 of Law No. 44-FZ, did not substantiate the need to use such an indicator.

3.3. The wording of the requirements for the procurement object, given by reference to GOST, is illegal

In sub-clause 3.2.2 of clause 3 "Preparation of an application for participation in an auction in electronic form" of section 1.2 of part I of the documentation on an electronic auction, the customer determined that if the technical part specifies that the goods used comply with GOST (other applicable normative act) with full details, the participant in the order placement is obliged to indicate all specific indicators of this product using not only the technical part of the auction documentation in electronic form, but also the corresponding GOST. Thus, in the first part of the application, the indication of a specific indicator expressed in the corresponding GOST by alternative values is mandatory, and the absence of such an indication means that the participant does not express his full and unconditional consent to the terms of the auction documentation.

Thus, the courts came to a well-founded conclusion that this clause of the documentation on the electronic auction does not comply with clause 1 of part 1, part 2 of article 33 of Federal Law No. 44-FZ, since it allows the establishment of requirements for the procurement object by not listing them in the documentation on the electronic the auction, but by attaching regulatory (technical) documents (GOSTs) to the documentation and imposing on the auction participant the function of independently choosing the necessary characteristics and indicators of the procurement object that correspond to these regulatory documents.

With the considered case, the customer formulated the requirements for the procurement object by reference to regulatory (technical) documents (GOST), which contradicts clause 1 of part 1, part 2 of article 33 of Federal Law N 44-FZ, according to which the requirements for the procurement object must be specified in the documentation about the auction.

As the study of the documentation on the auction in electronic form (electronic auction) for the supply of Quicksilver 25W-40 boat motor oil or equivalent, approved by the full name, shows, it does not actually contain a description of the requirements for the product and its quality indicators. Reference in the terms of reference of the documentation to "GOST 10541-78. Interstate standard. Universal motor oils and for automobile carburetor engines. Technical conditions"(approved and put into effect by the Decree of the USSR State Standard of 08/04/1978 N 2103), cannot be recognized as a proper description of the procurement object, since the specified GOST provides for various technical requirements for different types motor oils that were not specified in relation to the object of purchase within the framework of the auction in question.

3.4. The units of measurement specified by the customer in the procurement documentation must correspond to those specified in the corresponding GOST

OFAS established that according to clause 122 of the table "Information on functional, technical and quality characteristics, operational characteristics of the procurement object" of subsection 11 of section III "Technical part" of the auction documentation, the customer requires a brick of grade 100 for water absorption - not lower than F50. From clause 129 of the same section III "Technical part" it follows that the customer needs 88-CA glue with a bond strength of 56 rubber with steel ST-3 24 hours after gluing at a tear off of at least 11.0 kgf / cm.

The courts made a well-founded conclusion that when specifying in the terms of reference for the positions "Guide profile PN-2" and "Metal profile rack PS-2", the customer did not specify the units of measurement for the twisting of the profiles around the longitudinal axis, for the item "Sand for construction work" the customer does not provide units for measuring the chemical composition of the sand.

, part 1 of article 50 of Law N 44-FZ.

3.6. The customer has the right to establish in the procurement documentation units of measurement other than those specified in GOST for voluntary use

The court of appeal established and the materials of the case confirm that in Appendix No. 2 to the terms of reference, on 9 pages in small print, "the requirements for the values of the indicators (characteristics) of the goods, or the equivalence of the goods offered for delivery, goods used for the performance of work, the provision of services, allowing to determine compliance with the requirements established by the customer ", in which the units of measurement of the value of the indicators of goods (degrees Kelvin and mm / min) are used, which are different from those given in GOST R 54169-2010 and GOST 13344-79.

From the materials of the case, it can be seen that the violation of paragraph 1 of part 1 of Article 64 of Law No. 44-FZ, imputed to the customer in the contested decision of the Office, was expressed, in the opinion of the antimonopoly authority, in a biased description of the procurement object and the use of non-standard values of indicators and designations (degrees Kelvin and mm / min).

At the same time, the Office did not take into account that GOST R 54169-2010 was approved by order of Rosstandart dated December 21, 2010 N 941-st for voluntary use, while based on Appendix N 1 to the Regulation on the units of quantities allowed for use in the Russian Federation , approved by Decree of the Government of the Russian Federation of October 31, 2009 N 879, which establishes the units of quantities allowed for use in the Russian Federation, their names and designations, as well as the rules for their use and writing, Kelvin is classified as a basic unit of the international system of units.

3.7. When concluding a contract for the provision of OSAGO services, the customer is obliged to independently indicate in the procurement documentation information about the Bonus-Malus coefficient

In the opinion of the institution, there is no violation of part 2 of article 33 of Law N 44-FZ in its actions, since insurers can independently obtain information on the Bonus-Malus coefficient (hereinafter - KBM) by requesting the professional association of insurers - the Russian Union of Motor Insurers (AIS RSA).

As mentioned above, in this case, the price of the contract (insurance premium) is calculated in accordance with Resolution N 739 according to the established formula, taking into account the reduction / increase coefficient (MSC). The absence of the MSC coefficient in the customer's documentation (in the Terms of Reference) did not allow the procurement participant to determine the amount of the insurance premium for each vehicle.

Thus, the customer did not indicate all the necessary components for determining the insurance premium in the procurement documentation, which is a violation of part 2 of article 33, paragraph 2 of article 42 of Law No. 44-FZ.

Information about the presence or absence of insurance payments in the event of insured events that occurred during the period of validity of previous OSAGO contracts was not in the customer's documentation, therefore the quotation participant - JSC - calculated the amount of the insurance premium using the MSC coefficient based on the data of the automated information system, and the rest of the participants - without the use of a reduction factor.

The drawing up of a technical task by the customer without information for the use of MSC and without indicating the possibility of its use in calculating the insurance premium and the contract price led to a clear price advantage for the OJSC over other participants based on the results of the consideration and evaluation of quotation bids, while for specific Vehicle the amount of the insurance premium determined in accordance with the procedure

After examining and evaluating the evidence presented in the case materials according to the rules established in Article 71 of the Arbitration Procedure Code of the Russian Federation, the courts concluded that the customer in paragraph 3 of the terms of reference of the auction documentation did not establish the functional and quality characteristics of the goods required for delivery.

The arguments of the Health Department that the requirements for the goods can be understood from the name and subject of the purchase, the relationship between the sections of the terms of reference, from the draft state contract, which, among other things, indicates that the supplied goods must comply with the requirements of state standards, sanitary rules and regulations and other requirements for equipment and medical products, a requirement was imposed on the period of quality assurance of the supplied goods, were considered by the courts and reasonably found insolvent and did not testify to the customer's compliance with the requirements of Article 33 of Federal Law No. 44-FZ.

The courts came to the correct conclusion that in this case, the absence in the documentation of the relevant requirements for the goods makes it difficult for participants in the placement of the order to form proposals for the execution of the state contract and entails a limitation of the number of participants in the placement of the order.

The antimonopoly authority established that in Appendix No. 2 to the terms of reference of the auction documentation, the customer, when describing the requirements for goods, uses non-standard units of measurement for the values of indicators of goods.

The use of units of measurement other than those specified in GOST should not lead to a change in the quality characteristics of the product. In this case, the Court of Appeal established and the Institution is not essentially contested that when recalculating the units of measurement declared in the auction documentation (700 ° K = 417 ° C), the indicators do not coincide with the norms established state standards(600 ° C).

In addition, based on the provisions of GOST 13344-79, the cutting ability of the abrasive paper is measured in mm3 / min, while in paragraph 29 of Appendix No. 2 to the technical task, non-standard units of measurement are used this indicator- mm2 / min.

In such circumstances, the cassation court agrees with the conclusion of the courts that the customer did not properly inform the procurement participants about the requirements for the goods used in the performance of work at the stage of contract execution, which led to a limitation of the number of procurement participants, and therefore the contested decision of the OFAS in terms of establishing violations by the Institution of paragraph 1 of part 1 of article 64 (paragraph 1 and paragraph 2 of part 1 of article 33) of Law No. 44-FZ is lawful and justified.

3.9. The indication by the customer in the purchase description of the trade name excludes the need to describe the parameters, functional, technical and quality characteristics of such a product, if the specified parameters and characteristics are inherent only to him

The indication by the customer in the purchase description of the trade name "Gensupen pen-injector" eliminates the need to describe the functional, technical and quality characteristics of such a pen-pen. This medical device has unique parameters and characteristics inherent only to it, which, in turn, are known to market participants. Thus, the description of the functional, technical and quality characteristics of Gensupen syringe pens in the auction documentation is superfluous.

Attention

FAS Russia believes that when describing the object of the procurement, the customer has the right to indicate specific trademarks only with the obligatory indication of the possibility of supplying goods with equivalent characteristics (clause 2 of the Review of Administrative Practice prepared by the FAS Russia State Order Placement Control Department, October 2015).

3.10. The absence of an indication "or equivalent" in the purchase description can be considered justified in the case when the customer needs to ensure interaction of the purchased goods with those already purchased

Having established that the AS Smeta software product had already been used at 75 workplaces of executive authorities in order to create a unified centralized accounting department, which provided for the use of the software product at 92 workplaces, the courts concluded that the customer did not include the words " or the equivalent "was due to the objective need to ensure the interaction of the purchased goods (services) with the goods (services) already used by the customer.

Taking into account the foregoing and guided by the provisions of the Federal Law of July 26, 2006 N 135-FZ "On Protection of Competition", the Arbitration Procedure Code of the Russian Federation, the courts concluded that the choice by the customer of a specific automated system in order to ensure the interaction of the purchased goods with the goods already used by the customer, does not violate the provisions of paragraph 1 of part 1 of article 33, paragraph 1 of part 1 of article 64 of the Law on the contract system, which was the basis for recognizing the contested provisions of decisions and orders invalid.

3.11. The customer's indication of the trade name means that the participant must proceed from the compliance of the equivalent not only with the characteristics set forth in the procurement documentation, but also with the characteristics of the goods, the name of which is indicated in the notice.

The courts, having established that the basic configuration of the product - Gazelle verticalizers, according to the Registration Certificate and its annex, differs from the verticalizers subject to delivery within the framework of the auction, such structural elements as a headrest, belts, table, knee rests, side supports bodies, are additional components of the Gazelle verticalizers (walker supports), they are not included in the standard delivery set, we came to the correct conclusion that, in fact, it was established by the requirements of the auction documentation that the Gazelle walker supports were not supplied in their basic version, but in a more complete configuration, or equivalents that meet all the requirements of the auction documentation.

The plaintiff did not refute this conclusion of the courts.

The inclusion of an indication of the trade name - Gazelle walker supports means that the person intending to participate in the auction must proceed from the conformity of the equivalent not only to the technical and other characteristics set forth in the terms of reference, but also to the characteristics of the goods, the name of which is indicated in the notice.

3.12. An obvious technical error in the procurement documentation regarding the indication of the subject of the procurement does not indicate the uncertainty of the object of the procurement

According to the auction documentation, the object of purchase was 10 thermohygrometers. Appendix No. 1 to the auction documentation indicates the purpose of the device - measuring temperature and humidity, as well as its characteristics and the completeness of the goods. Courts, evaluating the notice of the auction, the auction documentation, the minutes, the bid of the auction participant, the statement of the management on the approval of the conclusion of the contract with sole supplier, came to the conclusion that there was a technical misprint in clause 1.1 of the draft contract submitted to the antimonopoly authority in terms of specifying the subject of the procurement - detectors of excise stamps, since it follows from the analysis of the auction documentation that the customer held an auction for the supply of thermohygrometers, the requirements for functional, technical and quality characteristics relate directly to thermo-hygrometers. As follows from the company's application, it offered to supply thermo-hygrometers with the characteristics specified in the auction documentation. In such circumstances, the courts came to the correct conclusion that there were no violations of Article 33 of Law no.44-FZ.

A technical error made during the preparation of the draft contract in the presence of a notice of an auction, auction documentation, a company's application and a protocol for summing up the results of an electronic auction does not indicate that the customer did not specify the goods that are required for delivery in the auction documentation. The presence of a technical error in the draft contract when applying for approval of the conclusion of a contract with a single supplier is not provided for by Law No. 44-FZ and Procedure No. 537 as a basis for refusing such approval.

3.13. When purchasing medicines, it is allowed to establish a requirement for the residual shelf life in percent, if this does not lead to restriction of competition and is due to the needs of the customer.

The Court of Appeal rightly rejected the argument about the incorrect determination of the shelf life of the goods, since the current legislation does not establish an explicit prohibition on the establishment of the residual shelf life in percent. The establishment of the requirement for the residual shelf life, expressed as a percentage, must be conditioned by the needs of the customer (consumers of the goods) and cannot lead to an unreasonable limitation of the number of participants in the procurement.

3.14. When purchasing equipment, an indication of the possibility of its delivery with components, the description of the parameters of which is accompanied by the words "no more", "no less", etc., may be recognized as illegal if the manufacturers of such equipment set unchanged parameters for these components

As established by the antimonopoly body and confirmed by the courts, the terms of reference of the disputed electronic auction for the supply of server equipment include the following characteristics in the name of the components: "processor, type - at least 8 cores of x86 architecture with PM not lower than 2.0 Hz *, cache 3 levels at least 15 MB *, external interfaces, the number of PCI Express expansion slots 2 * ".

Clause 31 of Section 2 of the Information Card of the Electronic Auction stipulates that if in the Terms of Reference the value of the indicator of a technical or functional parameter is accompanied by the words "not less", "not more", "not less", "before", but at the same time marked "*", then this value is accurate and not subject to change, and in the application the participant of the electronic auction indicates such indicators with the words "not less", "not more", "not less", "before".

Since the disputed indicators with the "*" sign for the equipment manufacturers have the exact meaning that the applicant does not dispute the complaint, the requirement to fill out the application using the words "no less", "no more", "no less", "before" correct judgment of the courts, contradicts the requirements of paragraph 1 of part 1, part 2 of Article 33 of the Law on the Contract System, since the value of the indicator with the named words literally presupposes the variability of the indicator itself, and not its invariability.

3.15. If, during the procurement of construction work, the design and estimate documentation was developed on the basis of a standard project, the presence of a corresponding indication in the procurement description is not necessary.

As the courts correctly pointed out, the reference in some drawings of the auction documentation to the city of Kostroma or to another name of the object indicates only the use by the design organization of a standard project for the performance of the relevant work, which does not contradict urban planning legislation.

The absence in the auction documentation of an indication that the design and estimate documentation was developed on the basis of standard modified design documentation does not indicate a violation by the customer of the rules for describing the procurement object established in paragraph 1 of part 1 of article 33 of Federal Law No. 44-FZ.

The Department did not provide evidence that certain positions in the design and estimate documentation mislead the procurement participants when preparing an application for participation in the procurement.

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