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Published: 09.09.2018
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Determining a supplier within the framework of 223-FZ often occurs in a non-competitive way: through procurement from a single supplier. Typically, the contractor purchases goods and services directly without competition, if the purchase is planned in accordance with the developed regulations and procurement plan.
- The concept and definition of procurement from a single supplier under 223-FZ
- In what cases can a customer purchase from a single supplier?
- Step-by-step purchasing instructions
What is the difference?
Last year, we already wrote a note about the difficulties suppliers face if they have to study the “standards” for procurement. Based on this, we concluded that it is not always possible to participate in a tender without a competent lawyer. And if everything is more or less clear with Law 223, then 44-FZ is a real torment, especially for small businesses.
The reason here is quite simple: public sector employees have stricter requirements for suppliers than most private sector companies. And this is not at all surprising: whatever one may say, any municipality or government agency manages not its own money, but “the people’s” money, if one can say so at all. It is almost always impossible to sell a product or service to a budget or government institution as a single supplier.
- Firstly, even for the “smallest” purchases they hold a competition.
- Secondly, it is not a fact that, even after winning the tender, the supplier will receive his money immediately after signing the work completion certificate. The state accepts money willingly, but gives it away with great difficulty.
Another criticism of 44-FZ is that this law provides for trading only on certain sites. All of them are well known (for example, Sberbank-AST, Electronic trading systems, RTS tender, etc.). For an individual entrepreneur, it may not be economically profitable to register on these sites, pay money to try to take part in the auction, and then, having received nothing, stop trying to establish relations with the “state budget.”
It is much easier to deal with large, but private businesses, focusing on the more “loyal” formulations in 223-FZ, which mainly describes the very need to hold tenders, but not as strict requirements imposed on the tender participant.
The only supplier under Federal Law 223: who is he?
In order to conduct procurement under Federal Law 223, an enterprise needs to develop its own Procurement Regulations, approve it and publish it within the specified time frame. If you want to be able to work with a single supplier in the future regarding contracts, then this aspect must be carefully spelled out in your Regulations. But this must be done in such a way that the inspection authorities do not have any questions for you. An approximate list of reasons for the services of a single supplier may be as follows:
- Purchases of services, goods or works for an amount not exceeding 30%
- The occurrence of force majeure circumstances requiring emergency procurement and not allowing time for the implementation of the regulatory tender procedure
- Additional purchase of goods if there is an agreement with a supplier providing the relevant services and there is no need to look for another
- Failed tender and lack of time to organize it again
- Supply of goods or services from monopolistic suppliers - meaning natural monopolies
- Conclusion of contracts for heat, gas, electricity, water supply
- Procurement related to ensuring the mobilization activities of the Russian Federation
- Conclusion of contracts related to professional training, business trips and hiring of operators of electronic platforms
- Conclusion of civil contracts.
My own director
Based on this, we can conclude that it is possible to sell to a public sector employee as the only supplier, but for this you need to have a “snow-white” reputation and the ability to wait for payment for about a month, or even more, for example, with Russian Railways, the deferred payment can generally reach 180 days . Which individual entrepreneur would agree to this? In turn, another law provides more real opportunities to express oneself.
Many organizations that conduct purchases through official platforms set a limit, not exceeding which they can avoid considering third-party commercial proposals. Most companies prefer to set it at 100 thousand rubles. Formally, an order is created on the site, which indicates the customer’s need to purchase products from only one company. It is clear that there will be quite a lot of people who want to receive “quick” money and, in fact, each of them will also send the CP to the customer’s representative.
He has the right not to publish these commercial proposals, but to consider them in a calm environment. After the decision is made, the most successful supplier will be notified of the intention to buy the goods from him. It does not require any paperwork, except for statutory documents (and even then not always) and bank details.
At the same time, there are quite a lot of situations when customers are not limited to one hundred rubles, but in exceptional cases increase the limit to 500 thousand or even one million. We don’t dare judge how legal this is. In any case, such an approach to the matter may arouse suspicion among the inspection authorities.
- Agree that it looks a little strange. It seems that the customer agreed with his well-known supplier and organized such an opportunity for him. Well, in our opinion, there are much safer methods of work.
It is most convenient to draw up and keep records of commercial proposals, as an integral part of tender procedures, in the 1C cloud service. The familiar interface of the program, as well as intuitive functionality, make it indispensable in the work of a commercial organization. Take a free test drive for 14 days and appreciate all its advantages!
The only supplier “in fact”, but formally – a tender
It cannot be said with certainty that only suppliers are interested in “quick” sales. Quite often it happens that the companies themselves, sincerely wanting to provide themselves with the necessary products as soon as possible, meet the sellers halfway and offer them a rather interesting deal. Those who have been working with tenders for a long time are well aware of this trick with “several commercial offers”. What does this look like in practice?
Suppose there is a certain organization called CJSC Tagilnefteprom. Their supply department is in dire need of several hundred repair kits to reconstruct a backup gas pipeline. Previously, they made several purchases from two organizations: Snabstroymash LLC and Uraltekhpodderzhka LLC.
The latter products turned out to be of higher quality and at the best price. Moreover, Tagilnefteprom has developed a trusting partnership with them. Let's reconstruct the dialogue between representatives of the two?
– I’ll take a look now... So... You need a backup, right?
"That's right."
- Well, taking into account the fact that last year you made a good purchase from us, we can offer it at a cost of 56,000 rubles per piece. How much do you need and by when?
“We need 230 sets. It is advisable to make delivery in 4 months"
– We have about half of this volume in our warehouse. We will deliver the missing ones in a few months. Will you take it?
“Yes, we want to make a purchase from you. Your competitors are quoting a much higher price. The point is that we will have an open tender, but we would like to work with you. Please be so kind as to send us your commercial proposal and a few more proposals from other companies with a slightly higher cost. In about a month you will win this tender.”
- Yes, of course, we will organize it. Expect within a week.
This is a fairly popular way of circumventing the requirements of 223-FZ, when the customer himself becomes the initiator of a not entirely honest “scheme” - this can be seen all the time. Its existence and widespread use can be partly explained by the fact that the two companies have a very “warm” relationship.
This may also be due to the fact that the customer simply does not want to bother with conducting tender procedures, studying proposals and compliance of the declared products with the technical specifications. This is only to the advantage of suppliers, because... it turns out that it is an officially tender, but in reality it turns out to be a purchase from the same single supplier - no more and no less.
27% of the total number of purchases in Russia is carried out from a single supplier. We can conclude that the maximum tender amounts vary on average up to 100 thousand rubles, not counting auctions, the share of which is 56%.
Purchase of goods of the same name that were previously purchased under 223-FZ
How to work with electronic trading platforms
Oksana Balandina, chief editor of the State Order System
From July 1, 2021 to January 1, 2021, customers have a transition period - they are allowed to carry out both electronic and paper procedures. Starting from 2019, tenders, auctions, quotations and requests for proposals on paper will be prohibited, with eight exceptions. Read what kind of purchases to carry out on the ETP, how to choose a site and obtain an electronic signature, what are the rules for concluding contracts during the transition period and after.
To learn more
Law No. 223-FZ does not limit the Customer in terms of procurement for any period or “identity” of goods, works, services. If this does not contradict the Customer’s Procurement Regulations, then we believe that he has the right to enter into “direct” contracts (with a single supplier), including for goods, works, and services that have already been purchased based on competitive procedures, if they are needed.
The grounds for non-competitive procurement are only cases expressly provided for in the procurement regulations. An unjustified purchase from a single supplier may be considered by the antimonopoly agency as providing preferential conditions for participation, which, in turn, is a violation of the provisions of Federal Law No. 135-FZ of July 26, 2006 “On the Protection of Competition.”
Attention:
Unreasonable purchase from a single supplier (contractor, performer) is also interpreted as a violation of Law No. 223-FZ.
The requirement for the validity of purchases from a single supplier can also be correlated with the norm of Part 1 of Art. 3 of the Federal Law of July 18, 2011 No. 223-FZ “On the procurement of goods, works, services by certain types of legal entities” (hereinafter referred to as Law No. 223-FZ), establishing as one of the principles of the procurement of goods, works, services by certain types legal entities targeted and cost-effective spending of funds and implementation of measures aimed at reducing customer costs. After all, competitive procurement is, in its essence, designed to satisfy needs in the best possible way at the best price offered. If the customer is found to have violated the principles of Law No. 223-FZ, the antimonopoly authority has the right to issue an order to cancel the results of the procedure.
The risk of such claims from the antimonopoly service will be minimized by fixing in the regulations on the procurement of goods, works, and services an exhaustive list of grounds for procurement from a single supplier (contractor, performer) and the economic feasibility of each of these grounds.
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The procedure for purchasing up to 100 thousand according to 223-FZ
Organizations operating under 223-FZ create their own regulations for small procurements. The customer needs:
- Send a transaction proposal to a specific supplier or contractor.
- Obtain consent and draw up an agreement.
Conclude an agreement with the winner of the purchase or with the only supplier. From the recommendations of the State Finance System, you will learn in what time frame to conclude an agreement, what to include in the conditions, what rules to provide for in the procurement regulations.
By order of the Government of the Russian Federation dated April 28, 2018, a single aggregator was created, which contains data about suppliers and performers, as well as information about their goods and services. Recipients of federal budget funds must select the only suppliers from the list presented on the aggregator:
- from November 1, 2018 – for the purchase of office supplies;
- from 03/01/2019 – for the purchase of all works and services.
This is another step towards making the procurement process more transparent. There are no such requirements for those who work under 223-FZ; they can use the aggregator on a voluntary basis. What information about contracts should be placed in the UIS, see the recommendations
Several purchases costing no more than 100 thousand rubles. from a single supplier according to Law N 223-FZ
Situation: Is it possible to make several purchases worth no more than 100 thousand rubles. from a single supplier according to Law N 223-FZ (Prepared for the ConsultantPlus system, 2017) {ConsultantPlus}
It is possible if procurement costs no more than 100 thousand rubles. from a single supplier is provided for in the procurement regulations.
However, it is not recommended to carry out several such purchases in relation to goods (works, services) of the same name over a short period of time, since this may lead to negative consequences for the customer.
Law No. 223-FZ does not limit the number of purchases worth no more than 100 thousand rubles, which can be made from a single supplier. Accordingly, when conducting them, you should be guided by the terms of the procurement regulations.
We do not recommend concluding several contracts worth up to 100 thousand rubles. with a single supplier, if two conditions are simultaneously met:
- the customer purchases goods (works, services) of the same name or makes interrelated transactions over a short period of time (for example, within one month he enters into several contracts for the supply of the same goods);
- the total cost of such goods (works, services) or transactions exceeds 100 thousand rubles.
In this case, the procurement may be considered a violation of Part 1 of Art. 17 of Law N 135-FZ (see, for example, Letter of the Ministry of Economic Development of Russia dated February 11, 2015 N D28i-205). This may entail:
- imposing a fine on the customer;
- invalidation of contracts at the request of regulatory authorities or interested parties (for example, other suppliers).
