Article 104. Law No. 44-FZ of 04/05/2013

What is the register of unscrupulous suppliers?

The Register of Unfair Suppliers (RSR) is an open-access Internet resource that includes information about unreliable procurement participants, the so-called black list of suppliers.

According to Part 8 of Article 104 of the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (hereinafter 44-FZ), the information contained in the register of unscrupulous suppliers, is placed in the unified information system (UIS) and should be available for review without charging a fee.

Currently, and until the commissioning of a unified information system, the RNP under 44-FZ is located on the official website at the address - //zakupki.gov.ru/epz/dishonestsupplier/dishonestSuppliersQuickSearch/search.html

You can follow the link above and immediately get to this register, or go to the main page of the site - www.zakupki.gov.ru.

Next, in the left column of the site, find the “Registers” section.

Then in this section, click on the item “Register of Unscrupulous Suppliers”. After that, the register itself will open in front of you with information about unscrupulous suppliers located in it.

Who is involved in maintaining the RNP?

According to Part 1 of Article 104 of 44-FZ, maintaining a register of unscrupulous suppliers (contractors, performers) is carried out by the federal executive body authorized to exercise control in the field of procurement - the Federal Antimonopoly Service (in accordance with clause 2 of the Government of the Russian Federation of August 26, 2013 No. 728 “On defining the powers of federal executive authorities in the field of procurement of goods, works, services to meet state and municipal needs and on introducing amendments to certain acts of the government of the Russian Federation”). FAS website - //www.fas.gov.ru/.

What is the basis for including information about a participant in the register of unscrupulous suppliers?

According to Part 2 of Article 104 of 44-FZ, the grounds for including information about the procurement participant (supplier) in the RNP are:

Evasion of a procurement participant from concluding a contract;

Termination of a contract with a supplier (contractor, performer) by a court decision due to a significant violation of the terms of the contract;

Unilateral refusal of the customer to fulfill the contract due to a significant violation by the supplier (contractor, performer) of the terms of the contract.

What information is included in the RNP?

According to Part 3 of Article 104 of 44-FZ, the following information is included in the register:

Name of organization (for a legal entity), full name. (for an individual);

Location of the organization (for a legal entity), place of residence (for an individual);

Taxpayer Identification Number (TIN), or for a foreign person in accordance with the legislation of the relevant foreign state, an analogue of the Taxpayer Identification Number (TIN);

The name, TIN of the legal entity or for a foreign person, in accordance with the legislation of the relevant foreign state, an analogue of the TIN that is the founder of the legal entity, information about which is entered into the RNP;

FULL NAME. (if any) founders, members of collegial executive bodies, persons performing the functions of the sole executive body of legal entities, information about which is included in the RNP;

Dates of an electronic auction, summing up the results of an open tender, a tender with limited participation, a two-stage tender, a request for quotations, a request for proposals in the event that the winner of the determination of the supplier (contractor, performer) evaded concluding a contract, the date of recognition of a failed procurement in which the only procurement participant , who submitted the application, the final offer or was recognized as the only procurement participant, evaded or refused to conclude the contract, the date of conclusion of the unfulfilled or improperly executed contract;

Object of purchase, contract price and deadline;

Purchase identification code (from January 1, 2021);

The grounds and date of termination of the contract in the event of its termination by a court decision or in the event of the customer’s unilateral refusal to fulfill the contract;

Date of entering the specified information into the register of unscrupulous suppliers.

In what cases can a company be included in the RNP?

The law contains two grounds for including a procurement participant in the register of unscrupulous suppliers.

The customer can submit documents to the FAS for inclusion in the register in the following cases:

the procurement participant avoids concluding a contract;
the customer terminated the contract with the supplier (contractor, performer) - by a court decision or unilaterally within the framework of the civil legislation of the Russian Federation (in case of a significant violation of the terms of the contract).

For how long is information about the procurement participant (supplier) entered into the RNP and what are the consequences?

According to Part 9 of Article 104 of 44-FZ, information after 2 years from the date of its inclusion in the register of unscrupulous suppliers is excluded from the said register.

Those. for 2 years, procurement participants (suppliers) included in the “black list” are almost completely limited in participation in state (municipal) tenders.

According to Part 1.1 of Article 31 of 44-FZ, the customer has the right to establish a requirement that the register of unscrupulous suppliers (contractors, performers) provided for by 44-FZ contains no information about the procurement participant, including information about the founders, members of the collegial executive body, the person performing the functions the sole executive body of the procurement participant - a legal entity.

But, as practice shows, this requirement is included in almost every tender documentation. Even many commercial companies stipulate this requirement in their Procurement Regulations. Thus, it becomes obvious that the inclusion of information about the procurement participant (supplier, etc.) in the RNP imposes serious restrictions and can negatively affect the image and business reputation of the organization.

How to confirm the absence of information about the procurement participant (supplier) in the RNP?

certificate confirming the absence of unscrupulous suppliers in the register

I repeat once again that in accordance with Part 1.1 of Article 31 of 44-FZ, the customer has the right to establish a requirement that the RNP contains no information about the procurement participant (supplier). Those. as you understand, the customer may not establish this requirement in his documentation, which in practice is very, very rare.

And so, the customer has established a requirement for the absence of information in the RNP in its documentation, what should the participant do in this situation, what supporting document must be provided?

Part 8 of Article 31 states that the procurement commission does not have the right to impose on procurement participants the obligation to confirm compliance with the specified requirements. Those. the customer must independently check the presence or absence of information about the participant (supplier) in this register. However, the participant may, on his own initiative, prepare a certificate confirming the absence of unscrupulous suppliers in the register.

Previously, such a certificate could be generated in the registry itself.

Now, instead of such a certificate, you can provide the customer with an ordinary letter on the organization’s letterhead signed by the head, which indicates in any form that information about the procurement participant, including information about the founders, members of the collegial executive body, the person performing the functions of the sole executive body of the participant purchases are not included in the RNP.

Or you can prepare a declaration on the absence of unscrupulous suppliers in the register, either separately or as part of a declaration of compliance of the procurement participant with paragraphs 3-5, 7, 9 of part 1 of Article 31 of 44-FZ. You can download a sample of such a declaration on my website in the “Forms and Templates” section - paragraph 24.

Procedure for entering information about the procurement participant (supplier) into the RNP

If the contract is concluded with a procurement participant whose application is assigned the second number, if the winner evades concluding the contract, the customer, within 3 working days from the date of conclusion of the contract with the specified participant (second number), sends to the FAS the information provided for in paragraphs 1 - 3 parts 3 of Article 104, as well as an extract from the protocol of consideration and evaluation of applications or from the protocol on the results of the procurement, and other documents indicating the winner’s refusal to conclude the contract.

In the event that the only procurement participant with whom the contract is concluded in the cases provided for in paragraphs 24 and 25 of part 1 of Article 93 44-FZ, has evaded concluding the contract, the customer, within 5 working days from the expiration date specified in the procurement documentation deadline for signing the contract, sends to the FAS, the information provided for in paragraphs 1 - 3 of part 3 of Article 104, as well as an extract from the protocol of consideration and evaluation of applications or from the protocol on the results of the procurement, the application or proposal of which was assigned a second number, and other evidence of the winner’s refusal contract conclusion documents.

In the event of termination of a contract by a court decision or in the event of a unilateral refusal by the customer to fulfill the contract, the customer, within 3 working days from the date of termination of the contract, sends to the FAS the information provided for in Part 3 of Article 104, as well as a copy of the court decision on termination of the contract or in writing form justification of the reasons for the customer’s unilateral refusal to fulfill the contract.

Within 10 working days from the date of receipt of the above documents and information from the customer, FAS verifies the facts contained in the specified documents and information. If the accuracy of these facts is confirmed, the FAS includes the information provided for in Part 3 of Article 104 in the register of unscrupulous suppliers within 3 business days from the date of confirmation of these facts.

Administrative responsibility of the customer for failure to submit or untimely submission of information and documents to the FAS

According to Art. 19.7.2 of the Administrative Code, failure to submit or untimely submission of information and documents to the FAS, if the submission of such information and documents is mandatory in accordance with 44-FZ, entails the imposition of an administrative fine on officials in the amount of 15,000 rubles; for legal entities - in the amount of 100,000 rubles.

Procedure for entering data into the RNP

Let us consider individual aspects of the procedure for entering the register of unscrupulous suppliers under 44-FZ and 223-FZ in more detail.

Grounds for inclusion in the RNP

The grounds for inclusion in the register of unscrupulous suppliers under 223-FZ and 44-FZ are similar:

evasion of a participant in organized trading from concluding a contract;
termination of a contract with a supplier by court decision;
unilateral refusal of the organizer of the procurement procedure (customer) to fulfill its part of the contract due to a significant violation by the contractor of the terms of the contract (only under 44-FZ).

Attention! If the contract was terminated, albeit in court, but on the basis of a settlement agreement (between the Customer and the Contractor) or as a result of circumstances not related to violations by the Contractor of the terms of the contract, then this is not considered a basis for including the organization in the register of unscrupulous suppliers.

Application to the FAS

Information is entered into the RNP on the basis of a corresponding application, which is submitted by the customer-organizer of the auction to the territorial bodies of the FAS based on the results of unsuccessful interaction with the counterparty. The application (application for inclusion of the supplier in the register) is required to set out the circumstances of the customer’s interaction with the unscrupulous counterparty (all stages with dates) in connection with the published conditions of the organized auction. The application should be accompanied by copies of documents accompanying the procurement procedure and a copy of the summary protocol.

You should also provide the following information:

the name of the supplier who committed the violation (claiming the “title” of dishonest);
date of procurement activities (bidding).

A sample of this application can be downloaded on our website in docx and rtf formats.

The deadlines for submitting an application to the FAS for laws 44-FZ and 223-FZ differ.

For 44-FZ this is:

3 working days from the date of conclusion of the contract with the second participant in the competition.
5 working days from the date of expiration of the period specified in the procurement conditions for signing the contract with the only bidder.
3 working days from the date of termination of the contract by court decision or unilateral refusal of the customer.

For 223-FZ:

30 calendar days from the date of conclusion of the contract with the second participant or from the date of expiration of the period for signing the contract specified in the terms of purchase.
30 calendar days from the date of expiration of the period for signing the contract specified in the terms of purchase with the only participant in the tender.
10 working days from the date of termination of the contract by court decision.

Responsibility for failure to submit an application

It should be remembered that if facts of dishonest attitude towards the fulfillment of obligations for deliveries within the framework of organized tenders with state participation are revealed, the customer has a responsibility to necessarily inform the FAS authorities about this (so that any other government body, using the register, will be warned in the future about irresponsible faces).

For non-sending and untimely sending of documents for inclusion of the counterparty in the RNP in accordance with Art. 19.7.2 of the Code of Administrative Offenses of the Russian Federation dated December 30, 2001 N 195-FZ (as amended on April 23, 2018, with amendments and additions that entered into force on May 14, 2018) provides for the imposition of an administrative fine in the amount of 15 thousand rubles on officials, and on legal entities persons – 100 thousand

The law is harsh, but this measure is necessary so that the interested party has the opportunity to check on the official website of the RNP of the potential supplier of interest to him.

Terms of consideration

The information provided (appeal) is considered by the territorial body of the FAS within 10 calendar days. During this time, the procurement control commission analyzes all submitted documents and makes a decision to include this supplier in the RNP, or refuses it based on the reasons stated above.

If the information provided about the dishonest supplier is incomplete, then the territorial body of the FAS, within 3 working days, returns this set of documents to the customer listing the reasons for the return. The customer is obliged to correct these shortcomings and re-submit the documents to the FAS (otherwise penalties will apply). All this time, information about the counterparty is not entered into the register of unscrupulous suppliers.

Register of unscrupulous suppliers under 223-FZ

Maintaining RNP within the framework 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 223-FZ) is regulated by Article 5 of this law.

RNP under 223-FZ is also located on the official website www.zakupki.gov.ru at the following address - //zakupki.gov.ru/223/dishonest/public/supplier-search.html.

RNP according to 223-FZ

The Federal Antimonopoly Service is also responsible for maintaining the register. The period for including information about the participant (supplier) in the register under 223-FZ is 2 years. The grounds for including information in this register are similar to the grounds under 44-FZ.

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

list of information included in the register of unscrupulous suppliers;

rules for customers to send information about unscrupulous procurement participants and suppliers (performers, contractors) to the federal executive body authorized to maintain a register of unscrupulous suppliers;

rules for maintaining a register of unscrupulous suppliers;

requirements for technological, software, linguistic, legal and organizational means of ensuring the maintenance of a register of unscrupulous suppliers.

Register of dishonest procurement participants 223-FZ

223-FZ applies to certain types of legal entities. As a rule, these are state corporations, monopolies, organizations involved in industries such as electricity, gas, water and heat supply, autonomous contractors in which government participation exceeds 50%.

The legislative act establishes the basic rules for conducting tenders - regulations for electronic trading and closed procurement, rules for departmental control over the actions of participants. More detailed procurement conditions are formulated by the customer. Methods for implementing orders can be different - auction, competition, requests for quotations from participants.