Article 84. Features of the use of closed methods for identifying suppliers (contractors, performers)

Purchases of goods, works, services from a single supplier - small volume purchases (hereinafter referred to as LPO) are becoming more and more interesting and popular among Customers, this is due to the fact that:

Firstly, the procedure itself is extremely simple:

• short deadlines,
• no need to place documents in the Unified Information System,
• the risk of violation in such procurement is minimal

secondly, the “threshold” for small purchases is growing every year, which makes it more attractive for Customers:

• Initially, the “threshold” of public health protection was set at 100 thousand rubles (limitations on the annual volume - 2 million rubles or no more than 5% of public health protection and 50 million rubles),
• in May 2021 it was increased to 300 thousand rubles (the annual volume limits did not change),
• in April 2021, it was increased to 600 thousand rubles (restrictions on the percentage annual volume also increased - 2 million rubles or no more than 10% of the state public health reserve and 50 million rubles).
• from October 01, 2021. Customers will be able to carry out maintenance in the amount of up to 3 million rubles using a special mechanism, the features of which we will consider in this article.

It is worth noting that small-volume purchases, like all purchases carried out under Law No. 44-FZ, were affected by the “electronization” trend, so, from March 01, 2021, federal-level Customers were required to use the Unified Trade Aggregator “Berezka”. At the level of the constituent entities of the Russian Federation, the procedure for making small purchases in electronic form is established by regional regulatory legal acts; purchase orders are carried out using “electronic stores”.

In what cases and who can apply the new mechanism of ZMO up to 3 million rubles?

Now (from October 01, 2021) for the purchase of goods under clause 4, clause 5, part 1, article 93 of Law No. 44-FZ, it will be possible to increase the limit from 600 thousand to 3 million rubles, but with a mandatory condition is that such purchases will be carried out using an electronic platform (Article 93 of Law No. 44-FZ is supplemented by Part 12).

It is important to pay attention to two points here:

1. The new mechanism will only be applicable when purchasing goods, i.e. Only goods can be purchased in the amount of up to 3 million rubles. Works, services, as before, up to 600 thousand.
2. Restrictions on the annual volume of purchases remain unchanged,
   — 2 million rubles or 10% SGOZ, but not more than 50 million rubles. (clause 4, part 1, article 93),

   — 5 million rubles or 50% of SGOZ, but not more than 30 million rubles. (clause 5, part 1, article 93).

Mechanism for implementing ZMO up to 3 million rubles:

For clarity, we will consider the procurement mechanism in the diagram.

1.

The procedure begins with the placement of preliminary proposals by participants on any electronic platform (hereinafter referred to as EP) included in the list approved by Order of the Government of the Russian Federation dated July 12, 2018 No. 1447-r.

! The choice of electronic platform is at the discretion of the customer. Regardless of the platform chosen by the Customer, during the procurement, the availability of information about all preliminary proposals placed by procurement participants on all electronic platforms will be ensured through information interaction with the Unified Information System (Part 13 of Article 93 of Law No. 44 - Federal Law, this norm will come into force a little later from 07/01/2021, until this moment information about preliminary offers will only come from the site on which the notice is posted).

The participant's preliminary proposal contains:

a) name of the product and its characteristics using KTU; b) trademark (if any); c) name of the country of origin of the goods; d) a document confirming the country of origin of the goods, if restrictions on the national regime are established; e) unit of measurement of the product; e) price(s) of a unit of goods, taking into account the cost of delivery, taxes, fees and other mandatory payments ( the participant price for different delivery regions may vary

);
g) the minimum and (or) maximum quantity of goods offered by the participant for delivery ( the quantity of goods may vary depending on the region of delivery
);
h) the delivery region within which the procurement participant offers the goods for delivery; i) the validity period of the preliminary proposal ( cannot be more than one month from the date of its placement on the electronic signature
);
j) information about the participant and documents ( decision on approval of a major transaction, documents confirming the participant’s compliance with clause 1.1. article 31 of Law No. 44 - Federal Law, declaration of conformity clauses 3-9, 11 part 1. art. .31 of Law No. 44 - Federal Law
);
k) the minimum period and (or) the maximum period for delivery of goods in calendar days ( delivery times for different delivery regions may be different
);

2.

Placement by the Customer in the Unified Information System: notices, draft contract, justification of the contract price.

The composition of the notice differs little from the notice under ordinary competitive procedures; detailed requirements for its composition are specified in clause 3, part 12, art. 93 of Law No. 44 - Federal Law, we note only some of them:

• name of the product and its characteristics using KTU,
• requirements for procurement participants under Part 1 of Art. 31 of Law No. 44 - Federal Law;
• requirement for the absence of a participant in the RNP (if any);
• the amount of security for the performance of the contract;
• information about the conditions, prohibitions and restrictions on the admission of goods originating from a foreign state in accordance with Article 14 of Law No. 44 - Federal Law;
• other requirements provided for in clause 3, part 12, art. 93 of Law No. 44 - Federal Law.

!
Please note: there is no requirement to secure applications. !
Changes to the notice are not permitted. 3.

The electronic signature operator, within one hour from the moment the notice of procurement is posted in the Unified Information System:

• determines no more than five preliminary proposals (out of all preliminary proposals) that meet the requirements established in the notice and contain the lowest prices per unit of goods;
• assigns a serial number to the specified offers (in ascending order of price);
• sends applications to the customer for participation in the procurement (with all documents attached);
• blocks the quantity of goods required by the customer in accordance with the notice ( if the participant in the preliminary offer indicated the maximum possible quantity of goods for delivery
  );

! in the case of less than two applications for participation in the procurement: The electronic signature operator sends a notification to the customer about the absence of two applications and places such a notification in the Unified Information System. Information and documents contained in a single application are not sent.

4.

The customer no later than one working day from the day following the day of receipt of information and documents from the electronic signature operator:

• makes a decision on compliance (rejection) with respect to each application (the application may be rejected if the participant fails to provide all necessary documents and information, if they do not comply with the established requirements, or if they contain inaccurate information);
• assigns a serial number to the corresponding applications;
• publishes the protocol for summarizing the determination of the supplier. The requirements for the content of the protocol are provided for in subparagraph “c” of paragraph 6 of Part 12 of Art. 93 of Law No. 44 - Federal Law.

5.

The electronic signature operator, within one hour from the moment of receiving the protocol for summarizing the determination of the supplier:

• places it in the UIS and on the electronic signature,
• stops blocking the quantity of goods for all participants except the winner (if the participant indicated in the preliminary offer the maximum possible quantity of goods for delivery);

Procedure for concluding a contract

The contract is concluded electronically with the procurement participant whose application is assigned the first number, in the manner established by Article 83.2 of Law No. 44 - Federal Law, taking into account the features provided for when concluding a contract based on the results of a request for quotations in electronic form.

! Please note: Information about contracts concluded in accordance with Part 12 of Art. 93 of Law No. 44 - Federal Law (as opposed to contracts concluded in accordance with paragraphs 4 and 5 of Part 1 of Article 93 of Law No. 44 - Federal Law) is included

to the register of contracts concluded by Customers (Part 1 of Article 103 of Law No. 44).

Appeal procedure

In accordance with Part 4 of Article 105 of Law No. 44, actions (inaction) of the customer, commission, electronic signature operator when purchasing goods from a single supplier on the basis of Part 12 of Art. 93 of Law No. 44 - Federal Law (as opposed to contracts concluded in accordance with paragraphs 4 and 5 of Part 1 of Article 93 of Law No. 44 - Federal Law) can be appealed.

The appeal procedure in this case is no different from the appeal procedures for other electronic procedures provided for by Law No. 44-FZ.

The appeal period is at any time the supplier is determined, but no later than 5 days from the date of posting the summing up protocol in the Unified Information System.

If the appealed actions (inactions) were committed during the consideration of applications or when concluding a contract, the appeal of these actions (inactions) is carried out before the conclusion of the contract.

Conclusions:

The mechanism for purchasing goods from a single supplier in accordance with Part 12 of Art. 93 of Law No. 44 - Federal Law is more similar to the mechanism for conducting a request for quotation and an electronic auction than to the usual mechanism for concluding a contract with a single supplier, while the main advantages of the new mechanism are:

• speed of procurement at a cost of up to 3 million rubles. ( in just 4 working days from the date of posting the notice, the Customer can conclude a contract
  );
• high savings of the Customer's funds ( the electronic signature operator generates 5 applications with the lowest price
  );
• cost limit of up to 3 million rubles, even despite the existing restrictions on the annual volume of purchases (Table 1), this mechanism will be relevant for large Customers with a large volume of public health goods (for example, public health goods - 1 billion rubles, accordingly using this mechanism Customers under clause 4. Part 1 of Article 93 of Law No. 44 - Federal Law can purchase goods worth up to 50 million rubles, i.e. conclude 17 contracts up to 3 million rubles, instead of 84 contracts up to 600 thousand . r.), and for smaller Customers who can purchase the necessary goods one-time, without creating a large number of contracts
  );
• transparency of the winner selection procedure.

There is a drawback

This procedure has a link to KTU:

• the description of the product must strictly comply with the KRU, a description of additional customer requirements for the product is not provided (unlike regular competitive procurement, in which the description of the procurement object from the KRU, if necessary, can be supplemented with the characteristics required by the customer),
• if the goods are not in KTRU, it is not possible to carry out ZMO up to three million using the considered mechanism.

However, we are confident that in most cases, Customers will be able to apply and appreciate the new mechanism for purchasing goods from a single supplier, and therefore we look forward to the early entry into force of Part 12 of Art. 93 of Law No. 44 - Federal Law - from October 1, 2021 (initially it was planned to enter into force from July 1, 2021).

Chief Manager of Center for Contract Bidding in Construction LLC Ekaterina Kosobova

Stages of a closed auction under 44-FZ

Stage 1. Coordination with the FAS

To coordinate a closed auction with the FAS, you must send an application there. There is no specific form for this. The application must be accompanied by a list of documents from paragraph 2 of the Procedure, approved by Order of the Ministry of Economic Development dated March 31, 2015 No. 189 :

Registration in the ERUZ UIS
From January 1 2020 , in order to participate in bidding under 44-FZ, 223-FZ and 615-PP, registration in the ERUZ register (Unified Register of Procurement Participants) on the EIS (Unified Information System) portal in the field of procurement zakupki.gov is .ru.

We provide a service for registration in the ERUZ in the EIS:

Order registration in the EIS

• justification that the information relates to state secrets;
• description of the procurement object;
• list of participants who will be invited to the closed auction.

The FAS has 10 days . Refusal may occur for the following reasons:

• due to unreasonable purchase;
• due to the unreasonableness of conducting a closed method of identifying a supplier (for example, it is unreasonable that information about needs constitutes a state secret);
• due to an unlawful reduction in the number of participants for customers.

The FAS refusal can be appealed pre-trial or in court.

Stage 2. Preparation of documentation

The main difference at this stage is that the documentation cannot be published in the EIS and the media . For this, a fine is provided for the official in the amount of 15 thousand rubles. And if information containing state secrets is posted in the public domain, criminal liability arises under Article 282 of the Criminal Code of the Russian Federation. The culprit can receive imprisonment for a term of four months to seven years.

Otherwise, the documentation requirements for a closed auction are standard.

Stage 3. Sending invitations

The customer must send an invitation to a closed auction to all participants included in the list approved by FAS. This must be done no later than 10 days before applications open .

If the procurement itself is not secret, but its documentation or contract constitutes a state secret, a notice about it is published in the Unified Information System. This must be done at least 30 days before applications open .

Stage 4. Documentation for participants

Participants interested in the customer's proposal submit requests for auction documentation. If the participants were contacted through an invitation, the customer must issue documents to them no later than 2 business days after receiving the request. In cases where a notice of a closed auction was published in the Unified Information System, the customer is given 3 calendar days . If any documents contain state secrets, then they can be issued only to those participants who have the appropriate clearance.

Step 5: Clarification and modification of documentation

As with a regular auction, potential suppliers can ask the customer questions about the documentation. They must be answered no later than 2 calendar days after receipt. The deadline for receiving requests for clarification is 3 days before the end of the application deadline . Questions asked later may be left unanswered by the customer.

It is necessary to give an explanation on the merits, without changing the essence of the documentation.

The customer has the right to change the provisions of the documentation no later than 5 days before the end of applications . In this case, the procurement object must remain unchanged.

Stage 6. Sending information about participants to the antimonopoly authority

Another responsibility of the customer during a closed auction is to report information about potential suppliers to the FAS. The following information must be sent:

• a list of participants at whose requests auction documents were sent, if the notice was published in the Unified Information System;
• copies of invitations that were sent to participants.

This data must be sent to the antimonopoly authority no later than 5 days before the opening of applications.

Stage 7. Reception and consideration of applications

Applications are accepted until the date on which access to them opens. This must be indicated in the notice or invitations, as well as in the documentation for the closed auction. All applications received on time are subject to registration.

Consideration of applications should last no more than 10 days after the end of their receipt. In this case, the documents submitted by the participant are checked for compliance with the documentation requirements. At the end of the review, a protocol is drawn up indicating:

• participant data;
• the decision on who to admit or not admit to trading;
• information about which of the commission members made which decision.

If only one application or none is submitted, the closed auction is considered invalid. The same applies if more applications were submitted, but no one was allowed to bid.

Stage 8. Auction procedure

So far, the law does not regulate holding a closed auction in electronic form. Accordingly, it is held in person. On the appointed day and time, participants or their representatives appear for the auction (the place is also indicated by the customer). The auction is conducted by the auctioneer - a person selected by the auction commission by a majority vote from among its members.

First, all participants are registered - they are given cards with numbers. The auctioneer announces the start of the auction. If bidding is carried out on several lots, the beginning of the lot is announced, its number, the object of purchase, the starting price, the step (5% of the NMCC), as well as the missing participants are announced.

After this, the auctioneer invites participants to place their price bids . The contract price is announced when the auction step decreases. If one of the participants agrees to conclude a contract, he raises a card.

First of all, the auctioneer addresses the participant who raised the card first. Then the price is again reduced by one step and announced. If the auctioneer announces the last price three times and no bidder makes a lower offer, the auction step is reduced by 0.5% NMTS . Thus, first the auction step is reduced to 4.5%, then to 4%, and so on.

When the price step is reduced and no bidder makes an offer after the auctioneer announces the price three times, bidding ends. The auctioneer names the last and penultimate price offer, as well as the participants who made them. The winner of the auction is the one who offered the lowest price.

During the auction, a protocol is kept indicating the following data:

• place, day and time of the procedure;
• paragraph composition of participants;
• the size of the initial maximum contract price;
• two latest price offers;
• details of participant No. 1 and No. 2.

The protocol is signed by all members of the commission on the same day. It is drawn up in two copies - one each for the customer and the winning bidder. The protocol must be handed over to the winner within 3 working days from the date of signing the protocol. Along with it, a draft contract is submitted, into which the customer has previously entered the winner’s data and price. In addition, the auction protocol must be sent no later than the next working day to the FAS.

Stage 9. Conclusion of a contract

The contract with the winner is concluded no earlier than 10 calendar days after signing the closed auction protocol. First, the document is signed by the contractor, after which he must return it to the customer within the period specified in the documentation. The customer needs to sign the contract after he receives confirmation of payment of the contract security or a bank guarantee.

If participant No. 1 does not provide security or a signed contract on time, the customer has the right to make a proposal to participant No. 2.

It happens that only one supplier submits an application for a closed auction, or the commission allows only one application for bidding. In this case, a contract is concluded with a single supplier in accordance with paragraph 24 of part 1 of Article 93 .

Closed Auction Documentation

According to Part 1 of Article 87 of 44-FZ, the documentation for a closed auction must contain the following information:

1) name and description of the procurement object and terms of the contract in accordance with Art. 33 44-FZ, including the rationale for the NMCC;

2) requirements for the content and composition of applications for participation in a closed auction in accordance with Part 2 of Article 88 of 44-FZ and instructions for filling it out;

3) date and time of the deadline for submitting applications for participation in the Forum;

4) the amount and procedure for providing security for applications for participation in procurement, as well as requirements for a bank guarantee;

5) the form of the contract, the amount of contract security, as well as requirements for contract security;

6) information about the Customer’s ability to change the terms of the contract in accordance with the provisions of 44-FZ;

7) information about the currency used to formulate the contract price and settlements with procurement participants;

the procedure for applying the official exchange rate of foreign currency to the Russian ruble, established by the Central Bank of the Russian Federation and used when paying for the contract;

9) place, date and time of opening of envelopes with applications for participation in the Forum, the date of consideration of such applications;

10) “auction step”;

11) place, date and time of the FOR;

12) information about the benefits provided by the Customer in accordance with Articles 28 - 30 of 44-FZ;

13) information about the possibility of unilateral refusal to fulfill the contract in accordance with the provisions of Part 8 - 26 of Article 95 of 44-FZ.

A draft contract must be attached to the closed auction documentation , since it is an integral part of the documentation.

Providing procurement participants with documentation about the closed auction

The customer, within 2 working days from the date of receipt of the relevant application, is obliged to ensure that all participants in the procurement who received an invitation to take part in it can familiarize themselves with the documentation on the procurement (part 3 of article 87 of 44-FZ).

The customer, at the request of the participant FOR, is obliged to provide this participant with documentation about the closed auction.

Documentation about the FORA is provided exclusively in written form after the participant has paid a fee for the provision of this documentation ( Note: The fee is charged only if such a fee is established by the Customer and information about this is contained in the invitation to participate in the FORA. The amount of the specified fee should not exceed the costs Customer for the production of a copy of the documentation on the WA).

Making changes to the closed auction documentation

The customer , on his own initiative or in accordance with the request of the participant for clarification of the provisions of the documentation for the procurement, has the right to decide to make changes to the documentation for the closed auction no later than 5 days before the deadline for filing applications for participation in the procurement (part. 7 Article 87 44-FZ).

Important: Changing the procurement object is not allowed.

Within 2 business days from the date of the decision to make changes, such changes are sent to all participants of the FORA who were provided with documentation about the FORE.

In this case, the deadline for submitting applications for participation in a closed auction must be extended in such a way that from the date of sending such changes to the expiration date for filing applications for participation in the closed auction, this period is at least 10 days .

Submitting a request for clarification of the provisions of the closed auction documentation

According to part 4. Article 87 44-FZ, any participant in the tender, who has received an invitation to take part in it and who has been provided with documentation about the tender, has the right to send a request in writing to the Customer for clarification of the provisions of the documentation on the closed auction.

Within 2 days from the date of receipt of such a request from the participant for participation, the Customer sends to this participant an explanation of the provisions of the documentation on the closed auction, provided that the specified request was received by the Customer no later than 3 days before the deadline for filing applications for participation in the closed auction .

Explanations of the provisions of the documentation on a closed auction must be brought in writing by the Customer to the attention of all participants for the procurement to whom documentation on the procurement was provided, indicating the subject of the request, but without indicating the participant from whom the request was received (Part 8 of Article 86 of 44-FZ) .

Important: Clarifications of the provisions of the closed auction documentation should not change its essence.