VAT deduction, purchases from SMP under 223-FZ, dismissal of pregnant women

How will purchases from SMP change from 04/01/2021

The law on ordering certain types of legal entities establishes what SMEs are in procurement - these are small and medium-sized businesses. Federal Law No. 223 defines the specifics of the participation of SMEs in the procurement activities of customers and fixes the annual volume of purchases that organizations conduct only among representatives of small businesses (clause 2, part 8, article 3, 223-FZ).

From April 1, 2021, the procedure for conducting electronic competitive procedures among SMEs will change. The main changes are as follows (452-FZ dated December 22, 2020):

1. In electronic competitions, there is no longer a qualifying selection of participants. The timing of each stage must be indicated in the procurement documentation, and not in the notice.
2. An electronic request for proposals is carried out in the manner prescribed for an electronic competition. The final and additional price proposals are no longer submitted.
3. The composition of the application depends on the method of determining the supplier. To participate in the electronic auction, two applications are submitted. The first indicates the proposal for the object of the order, the second contains all the required documents (if they are required), but not the price proposal. As part of the application for an electronic request for quotations, documents and information on the requirements of the procurement documentation are submitted.
4. An exhaustive list of information about the participant that the customer has the right to request has been determined. For organizations, this is the name, address, constituent documents, TIN or an equivalent (for a foreign participant). For individual entrepreneurs - full name, passport, residence address, TIN. In addition, it is allowed to request information about the security of the application (details of a special account, a copy or original of a bank guarantee) and a proposal for the subject of the order and the price of the contract (for an electronic auction, you cannot request a price).
5. It is permissible to require declared information about the non-suspension of the participant’s activities as of the date of filing the application. Such a declaration is posted on an electronic platform; there is no need to submit a separate document. If the procurement documentation defines the criteria and procedure for evaluating applications, then customers are allowed to indicate what information is required. But if the potential supplier did not provide this information as part of the application, then his request cannot be rejected. It is prohibited to require other documents that are not included in the list.

IMPORTANT!
Changes come into force on 04/01/2021. After this, customers are given 90 days to adjust the procurement provisions in accordance with the innovations of Law No. 452-FZ. Read more: Table of changes in procurement under 223-FZ in 2021.

Report on SMP 223 FZ instructions

In July 2021, 44-FZ changed a lot. The amendments also affected the sample of the new declaration of compliance of the participant with the requirements of 44 Federal Law, since part 1 of Article 31 of 44-FZ was supplemented with another paragraph 11. A condition appeared that the supplier has no restrictions on participation in government procurement.

From 07/01/2018 it was allowed not to draw up the document on paper. Now a special checkbox has appeared in the application form on the trading platform. Insert it to declare compliance with the requirements and not to create a separate document.

quoted1 > > That is, in this case, the purchase should be reflected in the report for November. There are no sanctions for providing false information in the report under consideration.

However, if an error is identified, it is advisable to correct the document.

Thus, even if there is a suspicion that the report may contain errors, it should be published within the prescribed period “as is”. And then make corrections to it.

If the deadline for posting the report is violated, the official who committed this violation will be punished with a fine of 2–5 thousand rubles. The customer himself will be fined 10–30 thousand rubles. If the report is not posted at all, then the official may pay a fine in the range of 30–50 thousand.

rubles, and the customer - 100-300 thousand. Additionally, you have the opportunity to upload the report in electronic or graphical form.

If your annual report is subject to monitoring of compliance with legal requirements on the participation of SMEs in procurement, when it is posted in the Unified Information System, a notification will be sent to the inspection body automatically.

Sign the entered information with an enhanced qualified electronic signature of the customer’s representative.

Only after this they are considered placed in the Unified Information System (clause

4 Important Provisions on placement in the EIS).

If the posting deadlines were violated, including “zero” reporting, a fine of up to 30 thousand rubles may be imposed on the customer, and up to 5 thousand rubles on the official. For failure to post this information, the fine can range from 100 to 300 thousand.

rub. per customer and from 30 to 50 thousand.

1. Reports under 223-FZ for the customer on the total cost of contracts signed with small and medium-sized businesses. For customers with revenue of 2 billion rubles and above, the legislative norm for procurement from SMEs is established - 18% of the total value of purchases. The Unified Information System contains a final statement of purchases made from SM and JV.

In order to publish a report on 223-FZ before

Customers must submit a monthly report under 223-FZ.

Read further in our material about what information needs to be included in this report, as well as what other types of reporting exist within the framework of 223-FZ. Reporting under 223-FZ: how to fill out, what to include? We will answer this question further.

So, customers working within the framework of 223-FZ submit the following types of reports:

1. information on the purchase of mechanical engineering products necessary for the implementation of investment projects and included in the list of prospective needs (made by customers implementing investment projects specified in Part 1 of Article 3.1 of 223-FZ until February 15 of the following reporting year).
2. monthly report under 223-FZ by the 10th day of the month following the reporting month (by virtue of Part 19 of Article 4 of 223-FZ, all customers submit this report);
3. annual report on purchases 223-FZ from small businesses (submitted by legal entities specified in clause 2 of Decree of the Government of the Russian Federation of December 11, 2014 No. 1352);
4. annual report on the acquisition of innovative products (prepared by legal entities included in the list approved by order of the Government of the Russian Federation dated March 21, 2016 No. 475-r, submitted by February 1 of the following reporting year);

Next, we will tell you how to make a report under 223-FZ in the first 2, most common cases. What to include from July 01, 2021? On July 1, 2018, the new version of Part.

19th century 4 223-FZ, in accordance with which the report indicates:

1. data on the number of contracts executed during the reporting period and their total cost. It is necessary to indicate, among other things, the data of those contracts, information about which is not subject to inclusion in the register;
2. data on contracts concluded with the supplier;
3. data on contracts concluded with the supplier based on the results of a failed competitive procedure.

We report under Law No. 223-FZ according to the new rules. Read about what information to publish now, what purchases you don’t have to report on, and see how to generate reports in the Unified Information System. Let's look at the report on concluded contracts under 223-FZ using a specific example.

GRU for SMEs, make adjustments to it

1. Include in the Procurement Regulations a declaration form on the participant’s compliance with the SMSP criteria under PP 1352
2. Carry out procurement in the required volume (18% (15 among SMEs)
3. Keep records of purchases from SMEs with detailing for small and medium-sized enterprises
4. Post a report on SMSP (no later than 01.02).
5. Include purchases from SMEs in the Procurement Plan

Customers who do not fall under the scope of Resolution No. 1352 are not required to create lists of technical and technical requirements for small and medium-sized enterprises and prepare a report. Customers not subject to Resolution No. 1352 do not have the right to conduct a procurement with an indication in the procurement documentation of the requirement that only a SME can be a participant, and also require procurement participants to submit declarations confirming the status of an SME.

Important: Or a requirement has been established to attract co-executors from among SMPs in the amount of at least 18% of the total annual value of contracts.

To conduct bidding only among small medium-sized businesses, customers are required to approve the list.

You can get acquainted with goods, works, services, the purchases of which are carried out by specific clients among SMEs, on the EIS website.

If the NMCC of the contract is no more than 200 million rubles.

and the specified goods are included in the list, the customer is obliged to purchase them from these entities. The maximum NMCC when carrying out an order is 400 million rubles. Let's take a closer look at creating an annual report for certain categories of customers, which consists of two sections.

Part 4 Violation of the deadlines for posting in the Unified Information System in the field of procurement of information on the procurement of GWS, the placement of which is provided for by the legislation of the Russian Federation, by certain types of legal entities, provided for by the legislation of the Russian Federation in the field of procurement of GWS, except for the cases provided for in Part 6, fine

1. for officials - from 2 thousand to 5 thousand rubles;
2. for legal entities - from 10 thousand to 30 thousand rubles.

Review of prosecutor's inspections (author - Trefilova.T.N.)

How to check the status of the SMP

Legislative regulations stipulate who belongs to SMEs under 223-FZ - these are representatives of small and medium-sized businesses (SMMEs) and the self-employed. The government has revised the procedure for checking the status of participants for purchases from small businesses and tenders with the mandatory involvement of subcontractors from among small businesses (Government Decree No. 1909 of November 24, 2020).

ConsultantPlus experts discussed how to conduct procurement among SMEs and self-employed people without fines or violations. Use these instructions for free.

Now, to confirm the status of a self-employed person, separate documents are not required; information on the Federal Tax Service website is sufficient. In a similar way, the affiliation of a company or individual entrepreneur with a small business entity is verified in the unified register of the Federal Tax Service.

The verification is carried out by the customer; the participant does not submit documents to confirm the status of self-employed or SME. The customer enters the participant’s TIN into one of the special services of the Federal Tax Service, starts a search and checks the result with information about the participant. The absence of a potential supplier in the registers of the Federal Tax Service is a direct basis for rejecting an application in tenders only for SMEs and self-employed persons equivalent to them. The same rules apply to orders with the mandatory involvement of subcontractors from among SMEs.

Advance payment under contract

An advance under 223-FZ is a transfer of money to the contractor before he fulfills his obligations under the agreement. Advances are introduced for those contracts, the execution of which requires some costs from the customer's counterparty.

Advance rules are not provided for by law, so customers must rely on their own procurement regulations and the needs of a specific purchase. The provision and the contract itself regarding the advance payment must provide for:

• the maximum amount of the advance, calculated as a percentage of the total amount of the contract;
• conditions under which an advance is possible or, conversely, under which it is excluded. For example, by analogy with 44-FZ, they prescribe the rule that if there is a significant reduction in the price of the agreement relative to the initial purchase price, no advance payment is established;
• advance payment deadline.

How much is purchased from SMP under 223-FZ

According to the rules of government decree No. 1352 of December 11, 2014, the annual volume of purchases from SMEs is set at a minimum of 20% of the total value of contracts that are concluded based on the results of tenders (clause 5 of decree No. 1352). The share of agreements that were signed as a result of procedures only for the NSR is at least 18% of this. A similar volume is indicated when a procurement plan is drawn up. The list of tenders that are not taken into account is indicated in paragraph 7 of Resolution No. 1352. It has 36 points, here are the main ones:

1. Ensuring the defense and security of the state.
2. Services for water supply, sewerage, heat supply and gas supply.
3. Carrying out scheduled repairs, maintenance and modernization under warranty or license obligations.
4. Mobile radiotelephone communication services.

The annual percentage of the volume of purchases from small businesses 223-FZ includes contracts that were signed based on the results of purchases:

1. Exclusively among SMP.
2. For all participants, including among emergency medical workers.
3. For suppliers who engage small companies as subcontractors to fulfill a contract.

Separate rules have been established for customers who buy innovative and high-tech products, including from SMP. The annual volume of such purchases is equal to the total cost of similar transactions for the previous year + 5%. This quantity must be taken into account when planning purchases.

How to approve the list of GWS for tenders at SMP

Approve the list of goods, works and services and carry out purchases from small businesses under 223-FZ according to the approved list. Purchase GWS from the list from other categories of participants only in exceptional cases, if:

• SMP are not involved in the procurement;
• applications of procurement participants that relate to SMP are withdrawn or do not comply with the requirements of the procurement documentation;
• the application submitted by a single participant from among small companies does not meet the requirements of the procurement documentation;
• The customer, according to the procurement regulations, decided not to conclude a contract based on the results of the tender.

These are all exceptions if the placement is not among SMP according to 223-FZ for orders from the list. They are indicated in paragraph 21 of resolution No. 1352. In all other cases, purchase goods, works and services from the local list only from small and medium-sized businesses.

Include information from OKPD-2 in the list:

1. Name.
2. Code, sections, classes, groups, etc.
3. Categories and subcategories.

Place the document in the Unified Information System and on the customer’s website. If the subject of the transaction is products from the List, and the initial (maximum) price of the contract is not more than 200,000,000 rubles, then it is the responsibility of the customer to hold tenders for small companies. If the contract price is from 200 million rubles to 400 million rubles, this is his right.

Changing the report on purchases from SMEs

From 2021, the report on purchases from small and medium-sized businesses has received a new form. What exactly has changed?

1. Information on contracts for each category of SMEs is now indicated separately.
2. Agreements concluded for a period of more than 5 years constitute a separate category.
3. The number of contracts that were paid for in the current year, but will be executed after its end, is separately indicated.

We remind you that the report on purchases from SMEs made in 2017 must be published in the Unified Information System before February 1, 2018 .

Read briefly about other changes to 223-FZ that will come into force in 2018 in this material.

How to conduct a tender among small and medium-sized enterprises

In Art. 3.4 indicates the features for procurement from SMP under 223-FZ 2021. This norm defines procurement rules for small businesses and the deadlines for publishing notices of their implementation in the Unified Information System. We reflected in the table the procurement period for SMP under 223-FZ, depending on the method of determining the supplier.

Procedures are canceled before the deadline for submitting applications or before concluding a contract if force majeure circumstances arise. The customer has the right in the procurement documentation to require the supplier to provide an application if the contract price exceeds 5 million rubles. The amount of such security does not exceed 5% of the contract price.

Application security is provided in the form of a bank guarantee or money (at the participant’s choice). The money is credited to a special account, which the supplier opens in a bank from the list by government order No. 1451-r dated July 13, 2018. When the deadline for accepting applications has expired, the bank blocks this money.

223-FZ stipulates the methods by which purchases are carried out from small businesses - these are requests for quotes and proposals, auctions and competitions. Tenders for small businesses are conducted electronically. To conduct this, choose electronic platforms that are approved by government decree No. 1447-r dated July 12, 2018 and comply with additional requirements under government decree No. 657 dated June 8, 2018. There are only 8 of them, and these are the same sites where trading under 44-FZ takes place:

1. JSC "Agency for State Order of the Republic of Tatarstan".
2. JSC "Unified Electronic Trading Platform".
3. JSC Russian Auction House.
4. JSC TEK-Torg.
5. JSC Electronic Trading Systems.
6. CJSC "Sberbank - Automated trading system".
7. RTS-tender LLC.
8. LLC "Electronic trading platform GPB"

Reject applications in the first parts of which the participant indicated information about himself, about the cost, or included the price in the second part. These rules do not apply to a request for quotation.

Purchasing from SMP consists of the following steps:

1. The electronic platform sends the first and then the final parts of applications to the customer (if necessary).
2. The buyer prepares a protocol for reviewing the first parts and sends it to the operator for placement in the Unified Information System.
3. The operator compares prices, sends this information and the second parts to the customer.
4. The procurement commission determines the serial numbers of applications in descending order.
5. The customer records the results in the summary protocol.

How to conclude an agreement as a result of a tender among small and medium-sized enterprises

The agreement is signed only in electronic form on an electronic platform. Representatives of the buyer and the winner sign it with an enhanced qualified electronic signature. If disputes arise regarding certain provisions of the contract, the participant sends the customer a protocol of disagreements on the electronic platform. When the customer has reviewed the comments, he sends the supplier a draft contract revised to take into account the disagreements, or he refuses with reason to make changes.

The contract is concluded on the basis of:

1. Notices (invitations).
2. Documentation.
3. Participant's proposals.
4. Draft agreement.

IMPORTANT!

From November 27, 2021, the rules for concluding and paying for contracts based on orders from small businesses and self-employed people have changed (Government Decree No. 1909 of November 24, 2020). Now the parties enter into an agreement within 20 calendar days, not working days. The payment period is determined from the moment the customer signs the act or consignment note on acceptance of goods, work, and services.

Involvement of SMP or SONKO in the execution of a contract

When conducting a procurement, the customer has the right to establish in the notice a requirement for a contractor who is not an SMP or SONCO to involve a subcontractor or co-executors from the register of small businesses in the execution of the contract.

In this case, it is indicated what percentage of the work (of the contract value) was carried out with the involvement of a subcontractor from among SMP, SONCO, and this part is counted to the customer in the volume of purchases for the reporting period made from small businesses and SONPO.

The contract of such a tender must include a clause on the civil liability of the contractor for failure to fulfill the conditions for engaging a subcontractor from among the SMP, SONCO.

The Government of the Russian Federation may establish standard terms of contracts providing for the involvement of SMEs (small and medium-sized businesses) in execution.

Advantages:

1. the contractor must pay the subcontractors and co-executors involved from among the SMP and SONKO within 15 working days from the date of signing the document on acceptance of services, work or goods from the subcontractor. Previously, this period was 30 calendar days.
2. the changes affected clause 1 of Government Decree No. 1466 of December 23, 2021, now the customer sets a fixed percentage of the contract price to indicate the volume of attraction of SMP or SONCO.