223 fz the list of purchases in electronic form. What purchase is considered to be made in electronic form. Federal Law: types of purchases and their diversity

Innovations in the law on procurement will significantly change the procedures for 223-FZ. All purchases will be divided into competitive and non-competitive. Priority will be given to the first, which will be held mainly in electronic form. The regulations give the customer new responsibilities. In particular, rules have been added on how to describe the subject of the purchase. The main trend is convergence with the stricter rules of the law on public procurement 44-FZ.

On July 1, significant amendments to Law No. 223-FZ came into force, which regulates the procurement of state corporations, unitary enterprises and other commercial organizations with state participation of more than 50%. The main innovation is that purchases will be divided into competitive and non-competitive. In competitive notice, as a rule, will be posted in a single information system(EIS), and such purchases themselves will become electronic by default. An exception is if the customer indicated a different order in the documentation. If only small and medium-sized businesses can participate in the procurement, then the electronic form becomes mandatory, the new law says. He for the first time provided the rules by which customers should prepare technical task, equated the request for quotations and offers to the forms of bidding and determined General requirements to them. It also regulates the features of holding auctions and competitions.

Electronic platforms: why no one is ready

The law determined the procedure for conducting competitive purchases in electronic form. Entrepreneurs will have to pass accreditation on new electronic platforms. To contribute cash as security, the supplier will have to open a special bank account authorized by the Government. According to Kalinina, purchases from small and medium-sized businesses will not start working from July 1, 2018, but only after new site operators begin to operate (tentatively in the fall). As Vedomosti reported, the Government extended the deadline for banks to conclude agreements with sites until January 1, 2019. Large customers do not have time to prepare either: at a round table in the Federation Council, they asked for a few more months to dock their programs with the EIS. Suppliers, in turn, need time to open special bank accounts, Kommersant wrote. Despite the delay, customers already need to take into account the upcoming changes, Kalinina warns.

In the past, most procurement regulations contained open list purchases from a single supplier. As a result, state-owned companies carried out a third of purchases in this form. A closed list should improve the situation.

Art De Lex lawyer Anna Bolshakova

In addition, there were rules for describing goods, works or services in competitive procurement:

• it is necessary to indicate the functional characteristics (consumer properties) of the object, as well as technical, qualitative and, if necessary, operational;
• in most cases it is impossible to indicate trademarks, trade names, the country of the manufacturer, etc., since this unreasonably limits the number of procurement participants;
• if it is still necessary to name a trademark, it is necessary to provide for the possibility of an equivalent. The law names exceptions, for example, a spare part is required or consumable to the car and the manufacturer requires exactly the original.

Instead of the initial (maximum) price of the contract, it will be possible to set the price of a unit of goods and the maximum price of the contract. Another option is the formula for determining the contract price and its maximum value.

223-FZ+44-FZ=?

According to Kalinina, 223-FZ has ceased to be a framework law that defines only general principles and transfers most of the questions at the mercy of the customer. Now the freedom of the customer is significantly limited.

The main trend is the convergence of the rules of the 223rd and more stringent 44th laws. The new restrictions in 223-FZ are largely mechanically written off from the public procurement law 44-FZ, but it has a completely different subject of regulation.

DS Law Partner Maria Kalinina

The trend is visible in the example of the new rules for describing the items of purchase. They are written off from 44-FZ, but are not adapted to the specifics of corporate procurement, continues partner DS Law. But in general, she advocates restricting the rights of corporate customers: "Until now, it was a very uncompetitive market, where it was customary to fish in troubled waters."

Suppliers need to prepare new procurement regulations now that meet all requirements new edition 223-FZ. Our lawyers help joint-stock companies, autonomous institutions and other corporate customers in order to be in time by July 1, - Kalinina shared. But not everyone is doing it. In this case, they will be spurred on by complaints from suppliers when the changes go into effect.”

which relate to electronic procurement. Recall that the novelties are provided for by the Federal Law of December 31, 2017 No. 505-FZ. Head of Legal Expertise Department of B2B-Center, PhD in Law, Dmitry Kazantsev prepared a brief overview of innovations.

Procurement in electronic form and the status of ETP

Competitive purchases are by default carried out in electronic form (part 2 of article 3). Exceptions to this rule must be expressly stated in the Procurement Regulations.

The concept of electronic procurement is introduced as a competitive procurement conducted on an electronic platform (Part 1, Article 3.3). The requirements for the operator of an electronic site are reduced to its organizational and legal form and ownership structure (part 2 of article 3.3). No other requirements for operators of electronic platforms for conducting electronic procurement under the rules of Law No. 223-FZ have been established by novels.

Only for conducting electronic procurement, in which only SMEs participate, the operator of the electronic site must meet one more requirement: it must be included in the list of sites approved by the Government of the Russian Federation where such procurement is carried out in accordance with the rules of Law No. 223-FZ (part 11 of Art. .3.4).

A site can be included in such a list if it simultaneously meets:

a) uniform requirements provided for by Law No. 44-FZ.

b) additional requirements established by the Government of the Russian Federation for electronic platforms where procurement is carried out with the participation of exclusively SMEs in accordance with the rules of Law No. 223-FZ.

At present, the Government has not approved either uniform requirements or additional requirements.

At the same time, in order to conduct electronic procurement in accordance with the rules of Law No. 223-FZ, the Government of the Russian Federation will approve a separate list of electronic sites (direct indication of part 11 of article 3.4).

Procurement methods in electronic form

A closed list of procurement methods used in the course of procurement involving exclusively SMEs has been formulated (Part 2, Article 3.4). Such purchases are carried out exclusively in electronic form.

For all other purchases, the list of permitted methods is open (direct indication of clause 2, part 3.1, article 3). The customer, as before, has the right to conduct procurement in the ways established in its Procurement Regulations. The customer retained the right to install additional elements these purchases - such as the first stage, prequalification, rebidding. Only these additional elements should now be called stages (part 24 of article 3.2).

The mandatory participation of the procurement commission in determining the winner of each competitive procurement is provided for (part 8 of article 3.2). The composition of such a commission and the procedure for its work, as before, the customer determines independently.

The customer is deprived of the right to refuse the purchase after opening the envelopes, regardless of the method and form of the competitive purchase (part 5 of article 3.2). The novels also do not provide for the right to refuse to conclude a contract.

The use of the terms "competition", "auction", "request for quotations" and "request for proposals" established by paragraph 1 of part 3.1 of Art. 3, by virtue of the above, is desirable, but not mandatory.

When carrying out these purchases, the customer is limited by the deadlines established by Art. 3.2 for the publication of the notice and documentation in the EIS:

• Competition - 15 days before the deadline for accepting applications (part 17 of article 3.2);
• Auction - 15 days before the deadline for accepting applications (part 19 of article 3.2);
• Request for quotations - 5 working days before the deadline for accepting applications (part 21 of article 3.2);
• Request for proposals - 7 working days before the deadline for accepting applications (part 23 of article 3.2).

When conducting a procurement with the participation exclusively of SMEs, Part 3 of Art. 3.4 other terms are established.

Due to the fact that these terms are established in Art. 3.2 dedicated general order conducting a competitive purchase, regardless of the form of such a purchase, then the control of these terms is entrusted to the customer. However, when purchasing in electronic form, the customer can set up automated timing control (if the corresponding functionality of the electronic platform is available), which does not allow announcing an electronic procurement in violation of these deadlines.

The contract based on the results of competitive procurement is concluded no earlier than ten days and no later than twenty days from the date of placement in the unified information system of the final protocol drawn up on the results of competitive procurement (part 15 of article 3.2). When conducting procurements involving exclusively SMEs, such an agreement is concluded only on an electronic platform, in all other cases - in the manner specified by the customer.

Procurement information support

In addition to the requirements for the composition of the notice and procurement documentation, Law No. 223-FZ now establishes requirements for protocols. In part 13 of Art. 3.2 establishes requirements for the composition of the protocol formed during the procurement process. This may be a protocol for opening envelopes, a protocol for prequalification, a protocol for the first stage, etc. In Part 14 of Art. 3.2 establishes requirements for the content of the final protocol.

By virtue of the instructions h. 1 Article. 3.3 when purchasing in electronic form, both categories of protocols are formed on the electronic site semi-automated based on the information uploaded to the electronic site by the customer. Protocols are signed in any case with an enhanced qualified signature of the customer.

But the procurement documentation, due to its volume and specificity, cannot be formed by filling in the fields and forms of the electronic platform, and therefore the control of its composition is not assigned to Art. 3.3 to the electronic platform. It is especially important to pay attention to the fact that part 10 of Art. 4 expands the requirements for the composition of such documentation. In particular, now the customer is obliged to indicate the timing of each stage, as well as the criteria for evaluating the application and the procedure for their application. The requirements for the composition of the notice of purchase in Part 9 of Art. four.

Formalized by amendments and clarification of documentation. The participant has the right to submit a request for clarification at least three working days before the deadline for accepting applications. Within three working days from the date of receipt of the request, the customer publishes an explanation in the EIS indicating the subject of the request, but without indicating its author. When conducting electronic procurement, the customer may ignore a request that did not come through the electronic platform. The site, for its part, rejects a request received without enhanced qualified signature. However, due to the lack of special provisions in Art. 3.3 control of the content of the request, as well as the timing of its receipt, remains with the customer.

Part 6 Art. 3.3 actually imposes on the electronic platform the obligation to integrate with the EIS and the hourly period for posting information published during electronic procurement in the Unified Information System. The norm of the article is formulated not quite clearly - "information must be posted" - without indicating the subject of the obligation.

Amendments to Part 5 of Art. 4 allow the customer by default not to post information about non-competitive procurement. Of course, the customer has the right to prescribe an exception to this rule in his Procurement Regulations.

Finally, part 12 of Art. 3.2 obliges the customer to keep at least three years the protocols, applications, documentation and other documents drawn up during the competitive procurement. Although the customer remains responsible for storage, it is logical to indicate the electronic site as the place of storage of these materials when purchasing in electronic form. Such an indication should be made in the Procurement Regulations.

Electronic signature

The electronic site does not have the right to accept documents and information from either the customer or the procurement participant that are not signed with an enhanced qualified electronic signature (part 5 of article 3.3).

Offer matching

When purchasing in electronic form, not only the applications of the participants are submitted through the electronic platform, but also the comparison of prices takes place in the same place (part 1 of article 3.3). To do this, when announcing the purchase, it is necessary to establish in the notice and the procurement documentation the obligation of the procurement participant to submit price proposals by filling out the appropriate form in the interface of the electronic platform.

The operator of the electronic site is obliged to ensure the confidentiality of information about the participant who submitted the documents before summing up the results of the procurement (part 8 of article 3.3). Simply put, not only other participants, but also the customer himself does not have the right to know the name of the applicant until the moment when he determines the place of this application in the final ranking. To do this, it is necessary to oblige the procurement participant to submit information about himself (de facto - the second parts of the application) in a separate file. Inclusion of vendor information in a quotation file should result in the quotation being automatically rejected.

In addition, the operator of the electronic site does not allow the customer to get acquainted with commercial offers until the end of the acceptance of applications (part 10 of article 3.3). The only exception is an auction in electronic form (clause 2 of this part). And even then only in the fact that the participants, not seeing the names and composition of each other's proposals, have the opportunity to see at least the prices submitted by competitors. This exception is necessary for the online price competition within the framework of the electronic auction. Conducting price, and even more so non-price competitions in real time when conducting electronic procurement in any other way to the customer from July 1, 2018 is prohibited.

Application security

The customer is granted the right to establish a requirement to secure an application when conducting a purchase with an initial price of more than 5 million rubles (parts 25–27, article 3.2). In this case, the size of the bid security cannot be more than 5% of the initial price.

The customer, as before, specifies the ways of securing the application in the documentation. The procurement participant himself chooses a specific method of supply from among those indicated by the customer.

Cases for the return of the application security are provided for in Part 26 of Art. 3.2. It is returned to the participant in all cases not covered by the list of this part. However, neither the right to control the return of the security, nor even the right to control its size and the fact of its payment during the electronic procurement is provided to the operator of the electronic site. Control over the fulfillment of all these requirements, therefore, remains with the customer.

Decree of the Government of the Russian Federation of 11/11/2015 No. 1217 establishes new requirements for procurement carried out in accordance with the rules of Law No. 223-FZ. These requirements come into force on January 1, 2016 and boil down to the following key changes:

1. Expansion of the list of products purchased exclusively in electronic form.
2. Introduction of new classifiers OKVED 2 and OKPD 2.

Electronic Procurement

The current version of Decree of the Government of the Russian Federation of June 21, 2012 No. 616 contains a list of 12 items of products known to everyone, which customers are required to purchase in electronic form - these are water, stationery and printed products, office and some other equipment, cars and trailers for them, services for their repair and cleaning of buildings. The changes approved by Decree No. 1217 increase this list by more than 10 times.

Even in an enlarged form, the obligation of the customer to conduct purchases in electronic form now applies to the following groups of goods:

• Medical products (dressing materials, rubber pharmaceutical products, vessels for drugs, instruments, prostheses, medical furniture, etc.).
• Container (wooden, metal).
• Computer, electronic, optical, writing, copying equipment.
• Cash registers.
• Office furniture.
• Air filters, fuel filters.
• Equipment for nuclear reactors.
• Transformers and electrical installation equipment.
• Conveyors.
• Machine tools.
• Cars, buses, trucks, trolleybuses.
• Scales and handling equipment.
• Metal structures and fasteners.
• Various types of stationery (from buttons and trays to folders and felt-tip pens).
• Printed products (including books, magazines, calendars).
• Application software.
• Audio and video recordings.
• Printing and video recording services.
• Sales, towing, vehicle inspection and repair services.
• Services for retail fuel.
• Warehousing services.
• Cleaning and cleaning services.
• Computer and equipment repair services.

Components for the equipment listed above (including internal combustion engines) are purchased in electronic form, like the equipment itself. There are additional categories not listed above, such as fitness wear, playing cards, or metal magnets. In total, the list of Decree No. 616 as amended by Decree No. 1217 contains more than 150 items.

With this approach, a correct understanding of the very essence of e-procurement becomes even more relevant. Law enforcement practice has developed an unambiguous interpretation of the requirement of Law No. 223-FZ in the sense that only a purchase conducted on an electronic trading platform can be considered an electronic purchase. At the same time, all procurement stages must be implemented at the ETP - from the publication of a notice to the publication of the final protocol (and not just its individual elements).

Exactly this understanding has been established at the legislative level since 2016 by amendments to Law No. 223-FZ. The same amendments establish the concept of an electronic platform. For more than a year, electronic procurement under Law No. 223-FZ will be carried out in the current mode at those sites that are chosen by the customers themselves. During this time, it is planned to select universal electronic platforms, to which in 2017 it is planned to transfer purchases made in accordance with the rules of 223-FZ.

It is also important to recall here that even after the entry into force of Decree No. 1217, the customer can independently choose for procurement in electronic form not only an electronic platform convenient for him, but also the specific method of procurement in which he will carry it out - this, like today, may not be only an electronic auction, but also an electronic tender, an electronic request for quotation or an electronic request for proposals.

New classifiers

OKVED 2 and OKPD 2 classifiers for procurement under Law No. 223-FZ came into effect on January 1, 2016. Changes approved. Decree No. 1217 provides for their use in the following cases:

• When compiling a list of products purchased from small and medium-sized businesses (clause 5 of the amendments).
• When drawing up a procurement plan (clause 3 of the amendments).
• When placing a notice of purchase (clause 2 of the amendments).
• When compiling a list of information included in the register of unscrupulous suppliers (clause 4 of the amendments).

All-Russian classifier species economic activity(OKVED2) OK 029-2014 (NACE Rev. 2) and the All-Russian classifier of products by type of economic activity (OKPD2) were approved by order of Rosstandart dated January 31, 2014 No. 14-st. By the same order, from January 1, 2016, the following were canceled:

• All-Russian Classification of Economic Activities (OKVED) OK 029-2001 (NACE Rev. 1).
• All-Russian Classification of Economic Activities (OKVED) OK 029-2007 (NACE Rev. 1.1).
• All-Russian classifier of economic activities, products and services (OKDP) OK 004-93.
• all-Russian classifier of products by type of economic activity (OKPD) OK 034-2007 (KPES 2002).
• All-Russian classifier of public services (OKUN) OK 002-93.
• All-Russian classifier of products (OKP) OK 005-93.

The new classifiers also have official websites: OKVED 2 and

Today, the law does not have an unambiguous definition of what a purchase in electronic form under 223-FZ is. FAS Russia and law enforcement agencies insist that the electronic form of procurement completely excludes paper documents. In practice, not all customers follow this definition. Let's discuss the problems and risks of customers when choosing an electronic form of procurement today.

Procurement methods in electronic form according to 44-FZ and 223-FZ

Currently, state customers have obligations to conduct procurement in electronic form (Federal Law No. 44-FZ dated April 5, 2013). They are obliged to conduct an electronic auction for the purchase of products included in the list determined by the Government. Auction list The auction list was approved by the Decree of the Government of the Russian Federation dated March 21, 2016 No. 471-R. That is, not only the form of procurement is fixed here: electronic, but it is also offered only possible way provider definitions.

There are also customers who work under Law No. 223-FZ. For them, a list of products has been established, the purchases of which they carry out in electronic form, but in what way - they decide for themselves. It may be a tender, it may be an auction, or it may be a request for quotations, a request for proposals, or something else, independently invented by the customer and enshrined in the Procurement Regulations. That is, it is the electronic form that is obligatory for them, and they choose the method themselves. Regional authorities, bodies local government may impose additional restrictions on certain categories customers to choose the method of electronic procurement.

Volunteer to purchase in electronic format can all categories of customers according to 223-FZ.

223-FZ: list of purchases in electronic form:

The list of goods, works, services that customers under 223-FZ are required to purchase in electronic form is exhaustive, approved by Decree of the Government of the Russian Federation of 06/21/2012 No. 616. It includes:

• paper yarn;
• cords, rope and rope products, not included in other groups;
• clothing for maintaining physical fitness (anti-overload, prophylactic-load, prophylactic suits) special;
• wooden container;
• pulp, paper and cardboard;
• a complete list of goods, works and services, the purchase of which is carried out in electronic form in accordance with 223-FZ.

Every time a customer needs a product, work or service from this list, he is obliged to conduct a purchase under 223-FZ in electronic form.

But what if the customer conducts a purchase, which includes both the nomenclature included in the List, and goods (works, services), the purchase of which is not regulated in any way? Purchases that must be made in electronic form are recommended to be separated into a separate lot. If this cannot be done, it is better to focus on the threshold of 5%.

By general practice regulatory authorities are allowed to include in the lot, which contains mixed products, no more than 5% of those goods, works and services, the purchase of which must be carried out in electronic form. We are talking about value terms in relation to the initial maximum price.

Procurement under 223-FZ - a remote advanced training course at the School of Electronic Trading. Training is carried out taking into account all legislative changes. The customer will learn how to correctly compose documents, and the supplier will learn how to read and understand them correctly. Additional professional program professional development is developed on the basis of the requirements professional standard"Purchasing Specialist" Certificate of professional development 72 hours.

Exceptions to the rules

Are there exceptions when the purchase of products from the List No. 616 is allowed to be carried out in a non-electronic form? It turns out there is:

• the transaction amount does not exceed 100,000 rubles;
• a transaction or a product (a group of products) is included in the approved list, information about which is not subject to placement on the official website;
• the information contained in the notice, procurement documentation or draft contract contains information related to state secrets;
• the need for the purchase arose due to an emergency, force majeure, the need for urgent medical intervention, natural or man-made emergencies, as well as in order to prevent the threat of their occurrence. In this part, customers are advised to have documentary evidence that circumstances of unforeseen force that could not have been predicted really developed. If an accident occurs, it is better to draw up a confirming act. Ideally, such an act should be signed not only by the customer's employees, but also by third disinterested parties. But if the customer has too many emergency and unforeseen situations, this is a reason for controllers to think about whether these acts correspond to reality. Perhaps the acts are forged;
• the purchase is subject to the conditions of purchase from a single supplier in accordance with the Procurement Regulations approved by the customer. This rule means that, in fact, the customer may not purchase from List No. 616 in electronic form at all, but can get by with the purchase from a single supplier. If he prescribes such a right in his Procurement Regulations, of course. But such resourcefulness of the customer is actually an abuse, because “in its pure form” does not correspond to the goals and principles of the legislation on contract system. Most likely, as the amendments to 223-FZ come into force, this practice will become impossible. Therefore, customers are advised to adapt to electronic forms of procurement procedures and learn how to work on electronic trading platforms.

The customer, by his Regulations, can expand the list of goods, work, services that he will purchase in electronic form. Assuming voluntarily such a duty, the customer is also responsible for the performance of these duties.

How can a customer organize an electronic procurement form under 223-FZ

As soon as the customer has decided that goods, works, services are subject to electronic procurement, he must understand how to organize this form of procurement. To date, there is no unambiguous definition of what an electronic procurement is and how to conduct it. The customer is obliged in his Regulations to establish the rules and procedures for such a purchase.

You can focus on intergovernmental agreements and be guided by similar norms of the Contract System:

• "Electronic form (format) of procurement" - a procurement procedure carried out using Internet networks, web portal and (or) electronic trading platform (electronic platform), as well as software and hardware (Agreement on state (municipal) procurement, concluded on 09.12.2010).

There is a similar definition in 44-FZ:

• Within the framework of relations aimed at ensuring state and municipal needs, exchange allowed electronic documents provided for by the legislation of the Russian Federation and other legal acts on the contract system in the field of procurement, between participants in the contract system in the field of procurement, including filing applications for participation in determining the supplier (contractor, performer), final proposals(part 1 article 5
• An auction in electronic form (electronic auction) is understood as an auction, the conduct of which is provided by on the electronic site by its operator(Part 1, Article 59 of the Law on the contract system).

But these approaches are not enshrined in the framework of 223-FZ. So, they cannot be the ultimate truth. The only regulator that gave clarifications on the electronic form of procurement under 223-FZ is the antimonopoly service.

The letter of the Federal Antimonopoly Service of Russia dated 02.07.2014 No. АЦ/26473/14 says: “… electronic document exchange between the customer and the procurement participant in accordance with the requirements for a particular procurement method, set out in the procurement regulations". Some customers interpreted this explanation subjectively and broadly: they did not disdain to request paper documents in parallel with the electronic form, they obliged the procurement participant to appear at one or another stage of the procurement procedure. There were cases when customers collected bids electronically, but participants had to appear in person to submit quotations.

In order to eliminate such misinterpretations, the FAS Russia clarifies: “... a procurement procedure in which excluded exchange of paper documents between the customer and the procurement participants in accordance with the requirements for a particular procurement method, as well as the obligation of the procurement participant to be present at various stages of the procurement procedure. Customers are advised to follow this clarification of the FAS until the amendments to 223-FZ come into force, and an unambiguous wording of the concept of "purchase in electronic form" appears.

The position of the FAS is reflected in practice

Let's look at a few examples.

Decision No. 223FZ-119/15 based on the results of consideration of the complaint of the Federal State Unitary Enterprise "Spetsstroyservis at Spetsstroy of Russia" against the actions (inaction) of the customer JSC "CIUS UES". The customer demanded to submit paper envelopes to the address and location of the customer. Considering the complaint, the commission of the FAS Russia recognized the actions of the customer as unreasonable, unlawful, inconsistent with the Procurement Regulations and revealed a violation of Part 1 of Article 2 of the Procurement Law.

The situation in the Moscow metro. The customer purchased a video surveillance system for the Moscow metro. A competition was held. In terms of price parameters and other characteristics, the competition was really appropriate. But a contradiction was found in the Procurement Regulations: the customer prescribed the conditions for holding an electronic auction, having compiled an electronic list, which included goods, work, services that are part of the lot in respect of which the complaint was filed. On the one hand, it is more expedient and efficient for the customer to hold a tender, on the other hand, the direct provision of the Regulations on Procurement obliged him to conduct an electronic auction. The procurement process has been cancelled. The customer changed the Procurement Regulations and nevertheless carried out a competitive procedure that reflected his objective needs.

On the basis of these two decisions, it cannot be concluded that controllers are always on the side of the participant in the procurement procedure. No. If the customer correctly prescribed the procedure for conducting the electronic procurement form and strictly observes it, any regulatory body will be on the side of the customer. Here is an example.

Decision No. 223FZ-137/14 based on the results of consideration of the complaint by UVZ-Service LLC, GTR LLC, BT (Rus) LLC. The customer made the purchase in electronic form. The participant was too lazy or did not want to be accredited on the electronic platform and brought an application on paper. The application was completed in full accordance with the documentation, contained all required documents, but the participant violated the procedure for submitting the application. The customer did not wait for the application in electronic form before the deadline for submitting applications. The application in paper form was returned to the participant without consideration. The participant filed a complaint, which was found to be unfounded. The customer was reasonably guided by the Regulations and observed the principles of the electronic form of procurement. He was not required to accept a paper application.

Some courts support this position. Generally arbitrage practice contradictory, but is gradually approaching the understanding formed by the antimonopoly service. In particular, the Federal Antimonopoly Service of the Moscow District in its decision dated 02.12.2013 No. F05-14297 / 2013 in case No. A40-4091 / 13-152-41 noted: "On approval of the list of goods, works and services, the procurement of which is carried out in electronic form" the electronic form implies the implementation by persons participating in the procurement, including the customer of all actions with the help of electronic means and thus eliminates the possibility of using paper documents". It is interesting that the Moscow courts also made the opposite decisions, allowing the submission of a part of the application on paper. But such a position is not to be taken for granted. It will not be supported by the antimonopoly service or the prosecutor's office. FAS Russia and law enforcement agencies insist that the electronic form of procurement completely excludes paper documents.

Electronic procurement under 223-FZ in the Procurement Regulations

Consider two possible options for the customer. Both are risky, but it is not yet possible to organize the process otherwise.

Option 1: Accept applications by email

Suppose the customer has established in the Procurement Regulations that for him the electronic form of procurement is an exchange of letters through an electronic box. Equality and fairness will have to be ensured from the application stage. The customer assumes obligations, the fulfillment of which, in fact, does not depend on him. It must ensure the uninterrupted operation of the electronic mailbox, which may stop working due to technical reasons of the provider.

It is possible that the participant submitted an application from a person who does not have the right to submit an application. In this case, the customer bears the risk of non-fulfillment of obligations under the contract.

Let's say everything went smoothly, and all applications came in the right form. The question remains open: how does the customer guarantee the simultaneous opening of access to applications? It is highly likely that the customer will open the applications before the date indicated in the documentation, creating preferential conditions for participation by one or another person.

At the stage of filing applications and opening them, there are the greatest corruption risks. There is a high probability of violating Part 1 of Article 17 of the Law on Protection of Competition, when the customer can coordinate the actions of the participants in the procedure, provide information about the content of the participants' applications to other persons, including competing ones.

Another problem is in the procurement procedure. How can a customer organize an auction or rebidding using an electronic mailbox? Possibly, but not transparently.

Conclusion: it is too risky for the customer to carry out the purchase in electronic form by exchanging e-mails via e-mail. It's possible, but it will create more complexity than it makes the job easier.

Option 2: organize an electronic procurement form through an electronic site operator

If the Procurement Regulation states that the electronic form of procurement involves the use of the services of an operator of an electronic trading platform, the customer is fully responsible for the actions of this operator. After all, while there are no amendments to 223-FZ, there is no such entity as an "Operator of an electronic platform": neither a subject as a participant in the procurement cycle, nor a subject of responsibility within the framework of 223-FZ.

Unfortunately, not all sites guarantee proper and uninterrupted operation. Possible failures and violations in the work of the operator will be attributed to the fault of the customer. In the event of a complaint, it is the customer, and not the site operator, who will receive the appropriate order. And if the site operator does not meet the needs of the customer and does not allow the actions prescribed by the antimonopoly authority, the customer may be fined for failure to comply with the instructions of the regulatory authority. The amount of such a fine is up to 500,000 rubles!

Advice to customers: choose your operator wisely. Write down how you will share the responsibility.

We recommend that customers make the following reservation in the Procurement Regulations. Indicate that the procedure for conducting a specific procurement method, which is prescribed in your Regulations, and the procedure for conducting it on the ETP, may differ, taking into account the functionality of the ETP operator.

Otherwise, if the site operator does not guarantee 100% compliance with your Procurement Regulations, then any actions within the framework of this procurement procedure can be considered unreasonable, inconsistent with the Procurement Regulations, and the customer’s actions will be qualified as a violation of Part 1 of Article 2 of the Procurement Law . This violation does not entail administrative consequences, but on the basis of such a decision, the customer may receive an order forcing him to make changes to the procedure for conducting the procurement procedure, to replay one or another stage of the procurement.

How should it be?

Amendments have been prepared in 223-FZ, which will finally give an understanding of what an electronic form of procurement is and how to carry it out. The site operator should become a full-fledged subject of the procurement process, his actions can be appealed, he will be held accountable in the Code of Administrative Offenses of the Russian Federation.

Legislators have put forward a number of initiatives that regulate the electronic form of procurement. First of all, this will allow you to track every action of any participant in the procurement process.

Today, it can be difficult for participants to understand how to apply, in which place, and it is also difficult to prove later that the customer obstructed the application. If the amendments are adopted, all stages of the procurement procedure will be clear, the same for everyone and easy to control.

From October 1, 2018, the UIS will implement the functionality provided for by Federal Laws No. 44-FZ of April 5, 2013 “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (as amended by federal law dated December 31, 2017 No. 504-FZ) (hereinafter referred to as the Law
No. 44-FZ) and No. 223-FZ dated July 18, 2011 “On the Procurement of Goods, Works, Services certain types legal entities”(as amended by Federal Law No. 505-FZ of December 31, 2017) (hereinafter referred to as Law No. 223-FZ).
User guides and training materials are located in the "Tutorials" subsection of the "Documents" section of the ENI.
Detailed information on new functionality, as well as links to user manuals and additional videos are presented in the relevant sections of the news.
We draw the attention of developers of external ordering systems and electronic platforms to the fact that the current requirements for the procedures for receiving, transmitting information and exchange formats are set out in and posted in the "Documents" section of the open part of the EIS.
In addition, we inform you that from 13-00 September 29 to 00-00 October 01, 2018 Moscow time on the Official website of the EIS will be held maintenance work. During the work, the functions "Personal account" and "Open part" will be unavailable.

1. Changes regarding the conclusion of contracts based on the results of electronic procedures (with the exception of an electronic auction) in accordance with Law No. 44-FZ:
In accordance with the requirements of the Decree of the Government of the Russian Federation dated 08.06.2018
No. 656 provides for the conclusion of agreements on the functioning of an electronic platform, a specialized electronic platform (hereinafter referred to as electronic platforms) by the Ministry of Finance of Russia and the Federal Antimonopoly Service of Russia with electronic platforms that have passed the selection, before October 1, 2018. The date of conclusion of such an agreement shall be considered the date of commencement of the functioning of the relevant electronic marketplace operators.
Based on part 10.1 of article 112 of Law No. 44-FZ, the procurement of goods, works, services through electronic procedures is carried out on selected electronic sites. The conclusion of contracts based on the results of electronic procedures is carried out in the manner prescribed by Article 83.2 of Law No. 44-FZ (with the exception of an electronic auction) from the date of commencement of the operation of electronic marketplace operators.
Clarifications of the Ministry of Finance of Russia regarding the procedure for conducting electronic procedures provided for by Law No. 44-FZ, and concluding contracts based on the results of such electronic procedures, are available at.
In order to implement the above norms of Law No. 44-FZ, from October 1, 2018, the functionality of the UIS is put into operation, providing the possibility of concluding contracts based on the results of electronic procedures (with the exception of an electronic auction) in the manner prescribed by Article 83.2 of Law No. 44-FZ, and exactly:
-According to the results electronic procedures (with the exception of an electronic auction), notifications of which are posted in the EIS from October 1, 2018, the conclusion of contracts is ensured in the interaction of the EIS and the electronic platform in the following order:
1) Customer from personal account in the EIS sends to the electronic platform, and also places in the open part of the EIS a draft contract for signing by the winner of the electronic procedure;
2) the winner of the electronic procedure sends from the personal account on the electronic site to the EIS, and also places in the personal account on the electronic site a signed draft contract and documents provided for by the provisions of Law No. 44-FZ, or a protocol of disagreements (if there are disagreements);
3) the customer from his personal account in the EIS sends a contract signed on his part to the electronic platform and the concluded electronic contract is placed in the open part of the EIS.
In addition, we inform you that when the winners sign the electronic procedure of draft contracts, verification of certificates electronic signature provided on electronic platforms.
-Based on the results of electronic procedures (with the exception of the electronic auction), notifications of which were posted in the EIS before October 1, 2018, contracts are concluded in the current order (on the electronic site).
-For electronic auctions, notices of which were posted in the EIS before January 1, 2019, the current procedure for concluding contracts (on the electronic platform) remains.
The conclusion of contracts based on the results of electronic auctions, notices of which are posted in the EIS starting from January 1, 2019, is carried out in the manner prescribed by Article 83.2 of Law No. 44-FZ. This functionality will be implemented in version 9.0.
At the same time, please note that when concluding a contract (including when placing a draft contract signed as a result of the electronic procedure in the EIS), it is necessary to take into account the requirements of the law Russian Federation in the field of personal data in terms of depersonalization of personal data (by analogy with the requirements of paragraph 39 of the Procedure for generating information, as well as the exchange of information and documents between the customer and the Federal Treasury in order to maintain a register of contracts concluded by customers, approved by order of the Ministry of Finance of Russia dated November 24, 2014 No. 136n ).
Detailed information on the specified functionality presented in Quick Guide user by and in .

2. Changes in terms of procurement in accordance with Law No. 223-FZ.
In accordance with the requirements of Art. 3.4 of Law No. 223-FZ, version 8.3 of the EIS implements the possibility of using competitive procurement methods, the participants of which can only be small and medium-sized businesses (hereinafter referred to as SMEs), which should be carried out in electronic form on electronic platforms selected by the Government of the Russian Federation with the dates of commencement of the functioning of the respective operators of electronic platforms.
At the same time, according to part 3 of Art. 4 of Law No. 223-FZ, by January 1, 2019, the provisions on the procurement of customers must be brought into line with the norms of Law 223-FZ (as amended by 505-FZ) and provide for competitive procurement methods, the participants of which can only be SMEs that meet the requirements of Art. 3.4 of Law No. 223-FZ.
Customers whose procurement provisions have already been brought into line with the norms of Law 223-FZ in terms of competitive procurement methods, in which only SMEs can participate, must use the four standard competitive procurement methods implemented in the Unified Procurement Information System (hereinafter referred to as the UIS) (“Electronic tender open only to SMEs”, “Electronic auction open only to SMEs”, “Electronic quotation request open only to SMEs”, “Request for proposals in electronic form, the participants of which can only be SMEs”) and carry out such purchases only on electronic platforms that have concluded an agreement on their functioning with the Ministry of Finance of Russia and the FAS Russia.
Customers whose procurement provisions are not brought into line with the norms of Law 223-FZ, until the procurement provisions are brought into line with the requirements of Art. 3.4 of Law 223-FZ (as amended by 505-FZ), but no later than January 1, 2019, they have the opportunity to make purchases in the UIS, the participants of which can only be SMEs, in accordance with the procurement procedure, which was in effect before the entry into force of the provisions of Art. 3.4 of Law No. 223-FZ.
Detailed information on these functionalities is presented in clarifications on