How much do you hang exactly?

Purchase of spare parts of cars according to the rules of Law No. 223-FZ

Purchase of spare parts is an urgent question for each organization, on the balance of which there is vehicles. Customers working under the law No. 223-ФЗ should be especially attentive at the same time, since such a purchase implies three additional questions: the wording of the procurement subject, the exact definition of the method and form of procurement and the establishment of the purchase volume.

What are you buying?

If there is an acquisition of one separately taken part or a set of such parts on the agenda, then with the subject of purchase, more or less clear is a product of a certain name with certain technical specifications.

But usually spare parts appear as part of more complex contracts. So, contracts for maintenance of cars are concluded, which in addition to the delivery of the necessary parts imply work on their installation. These same agreements may include a condition for the provision of troubleshooting services. In this case, the wording of the subject of purchase will be repelled not from the description of spare parts to be installed, and on the description of that car, the maintenance of which is the subject of the contract.

Simply put, the list of parts in the maintenance contract can not be given at all, and this will not be a violation of the requirements of Law No. 223-FZ - provided that in the procurement documentation and the draft contract, in particular, the car, which is subject to maintenance, and The list of works and services included in this most maintenance. If these requirements are formulated vague and uncertain, then the customer can be imputed violation of antitrust laws: the complainant will convince the anti-monopoly service that if the requirements were accurate, then in this purchase could participate a wider range of potential suppliers.

At the same time, in contrast to the State Transportation, the subject of Law No. 223-FZ is not bound by the limitation of paragraph 1 of Part 1 of Art. 33 of Law No. 44-FZ, which means it may indicate a certain trademark (brand) of the purchased parts even without justifying their compatibility. For the customer working under the law No. 223-FZ, the indication of the brand is not considered an unreasonable limitation of competition - such a limitation is substantiated by the technological needs of this customer, and this is enough to meet the norm of paragraph 2 of Part 1 of Art. 3 of Law No. 223-FZ. Initially, the antimonopoly service was against such an approach, demanding a reservation about analogue in the procurement documentation by analogy with the system of state order. However, since 2013, the customers have been able to defend their right to instruct the brand in court. According to the court, Law No. 223-FZ does not contain a direct ban on an indication of the procurement documentation for trademarks or the name of the manufacturer, and such an indication of the Customer places a restrictive requirement not to procurement participants, but to the goods of certain manufacturers, which indicates that The participant who submitted an application is not limited to the right to conclude a supply contract, and such an opportunity is provided for an unlimited number of suppliers (this position is formulated, in particular, in the decrees of the seventeenth Arbitration Court of Appeal No. 17AP - 213/2013 dated 12.02.2013 and No. 17AAP-1205/2013-AK dated 03/01/2013).

Purchase in electronic form

If, when setting the requirements for purchased products and participants, the Customer is limited by the norms of antitrust laws, then when choosing a method for the purchase of spare parts, it is still limited only by the norms of his own procurement provisions. At the same time, it is not necessary to ignore the norms of the ruling of the Government of the Russian Federation of 21.06.2012 No. 616 - even if the purchase is positioned as a contract for carrying out works or services for the maintenance of cars, the presence of such maintenance of the supply and accessories of the car automatically relates such purchases to the list of goods , works and services, the purchase of which is carried out in electronic form. Of course, it is possible to challenge the spread of this norm on the maintenance contract, but in this case, it is hardly argued that not only spare parts are being purchased - in this case it is important that they are purchased too.

In this situation, the customer needs only not to forget that the procurement method chooses himself according to his procurement provisions. After all, Resolution No. 616 requires from the Customer to purchase details of the car through electronic purchases, but this purchase does not require an electronic auction. Especially if the subject of purchase is not a separate item, but it is maintenance, then it is advisable to choose the customer to choose an electronic request for proposals as a method, which can be spent operational, but at the same time compare not only prices, but also the quality of the work of potential suppliers. Even the antimonopoly service recognizes that Law No. 223-FZ does not establish minimal deadlines Publications of publishing a procurement using non-trap methods (price requests, proposals requests, etc.) is confirmed, for example, by the decision of St. Petersburg FAS in case No. T12-43 / 13 of 03/28/2013.

When choosing a procurement method, the customer must submit, according to which principle it will eventually determine the winner. When auction or requests for quotations, the only criterion for choosing the winner will be the price: for the part, per batch of parts or for the maintenance of the car, depending on what is defined as the subject of purchase. If the customer risked to choose this method, then it is necessary to describe the requirements for the details or a list of works as much as possible, and with the detail that it means each item of this list. If such requirements are not formulated enough for sure, the unfinished supplier will be able to dump, simply looking for in the procurement documentation "Lazakes", allowing it to save on quality (during the action of the Law of Law No. 94-FZ, this scheme has been repeatedly worked out). At the same time, if the customer permits in the wording of detailed requirements of subjectivism, he risks to be accused of "sharpening" of documentation under a specific supplier.

Conducting procurement with the help of a competition or request for proposals allows you to navigate not only on the prices of potential suppliers, but also on the quality of spare parts or works. It is already important here not so much to formulate comprehensive requirements for quality, how much to identify the criteria and the procedure for comparing the proposals of potential suppliers. To do this, the customer first will need to establish those key aspects on which a comparison will be compared: warranty period Details services, country of its production, repair speed and willingness to ensure long work Repaired car node. The price in these criteria may not appear at all - in this case, the initial price will indicate only the limit of financing laminated by the customer for the annual maintenance of the car, which will be said below. By installing the comparison criteria, the Customer must determine the proportion of each of them and the procedure for assigning points when evaluating the criterion (for example, 1 point may be assigned for a warranty for six months, for the annual guarantee - 5 points, etc.). A procurement participant who scores the largest total number of points becomes the winner. Of course, the criteria and procedure for assessing are mandatory indicated in the procurement documentation (part 10 of Art. 4 of Law No. 223-FZ).

Obviously, a multicriterial comparison is more suitable for the purchase of maintenance, and the price comparison is to purchase typical spare parts (suppliers will be traded with the price of the hotel spare parts or for the entire batch, depending on the fact that the customer has defined as a unit of purchased products). And in the first, and in the second case, the Customer besides the procedure for assessing the application (at a price or a totality of criteria), it establishes and requirements for the supplier themselves, in order not to participate in the application that these requirements do not meet. And again it will not be superfluous to recall that these requirements should not unreasonably restrict competition, but should be directed only to ensuring the effectiveness of procurement and that its winner is the best of the participants.

How much do you hang exactly?

As a rule, the maintenance of the car "eats" more than 100 thousand rubles not only for the year, but even in a few months. This means that independently of the procurement method, even if it is a purchase of a single supplier, the customer is still obliged to publish information about such a procurement according to the requirements of Art. 4 of Law No. 223-FZ. In particular, when purchasing spare parts, it is necessary to publish an appropriate line in terms of procurement, a procurement notice and procurement documentation.

When filling out these documents, the question is inevitably the question: how to formulate the subject, and even more so the volume of purchases, if it is not known in advance, what will break and how much will required to eliminate breakage?

With a plan of special problems, it does not arise: and in relation to the volume, and in relation to the initial (maximum) price according to the decree of the Government of the Russian Federation of September 17, 2012 No. 932 can not be specified, but only information. Information, in particular, the words "depending on the emergence of needs", "on the fact of breakdowns", etc. The plan requires another month and the year of the execution of the contract - but even if the maintenance contract is for the whole year, it is quite acceptable to indicate December (the last month of the contract), since this month this contract will be considered finally executed.

It is more difficult to deal with the proper wording of the procurement of parts and the procurement documentation, because in both documents it is necessary to indicate the exact amount of purchased products (paragraph 3 of Part 9 and paragraph 3 of Part 10 of Art. 4 of Law No. 223-FZ). How to specify this volume, if it is unknown in advance and is generally depends exclusively from events that still have to happen after the conclusion of the contract itself? On the norms of the new article 429.1 of the Civil Code of the Russian Federation on the Framework Agreement in this case, it will not be possible to refer, since Law No. 223-FZ is a special law with respect to Civil Code And it can specify his requirements - here it specifies, obliging the Customer to publish the amount of products you need in advance.

And yet, it is necessary to resort to the design of the framework contract, only to do this is necessary so as not to enter the direct contradiction with the imperative requirements of the Law No. 223-FZ (and the requirement of specifying the volume is operational and the norm of procurement provisions cannot be canceled). In this case, experienced customers indicate the maximum possible amount of products that may be required under this Agreement - and at the same time in the draft treaty include the conditions that, firstly, individual deliveries of this volume are carried out exclusively at the request of the customer, and secondly The contract terminates its action after the onset of a certain date without mutual claims, even if the maximum amount of the customer is not selected. Or it is prolonged, but under the same conditions: Supply on request and the possibility of completion to complete exhaustion.

Separate applications in pursuance of such a framework agreement are not considered separate procurement precisely because during the procurement to conclude this framework agreement contained all the information provided for by Art. 4 of Law No. 223-FZ. But if the currently selected volume does not coincide with the limit specified in the procurement documentation, and in practice, most often this is exactly what happens - then it is important not to forget to publish the relevant information on the official website www / zakupki.gov.ru. Compliance with this simple requirement of Part 5 of Art. 4 Law No. 223-FZ makes the change in the volume of procurement absolutely legal. By the way, the change this may be not only towards the reduction, but also towards the increase, if the real breakage suddenly exceeded all the predicted levels.

And finally, returning to the details of cars, what is better to indicate in such quasi-grade contracts as limiting volumes? It depends on how it was said at the very beginning of the article, from what is specified as the subject of procurement. If only individual spare parts are purchased, which will then be established by the customer's employees, then in the procurement documentation and the specification it is advisable to list the entire spectrum of details that may be needed during the term of the contract, and indicate the amount of needs in each species of details. To break the purchase to separate lots for each type of details, of course, it is not worth it, but to include in the contract the condition about the possibility of submitting the application to the customer for the supply of only individual items from the specification must be necessary.

If the subject of purchase is still the maintenance of cars, then when describing the purchase volume, it will be necessary to indicate the technical characteristics of each car, their number, the whole range of works, which theoretically, may be needed when they are damaged, as well as the requirements for the details that will be used when performing such works. In this case, it is the volume of work that will be the volume of procurement, but, as in the case of the product, it is necessary to provide a condition for the possibility of filing an application only to certain positions from the list of works provided for in the contract.

Although in order to formulate information about the initial (maximum) price, it is possible to limit the phrase "Initial (maximum) price is not defined", any customer has the right to specify its exact value. And in this case it is extremely important that this value corresponds to the fact that the customer determined as a unit of purchased products - a separate detail, a batch of such parts or maintenance of a particular car? If the customer points the initial (maximum) price for a separate part, then he will have to break the purchase on the lot, in order to specify the initial price in each of them, which corresponds to this species of the part. If a batch is purchased from different parts, it will be enough to indicate the starting price at exactly the party, and already in the documentation, if necessary, indicate the limit values \u200b\u200bof prices for the unit of certain parts into this batch of incoming. If the unit of purchased products is the maintenance of a single car, then as an initial (maximum) price, the most logical to indicate the limit limit set on the annual then this car: This limit will serve as the limit for the exhaustion of a quasi-factor contract, which will be signed by such a procurement.

The company intends to purchase a car, the procurement method is a request for quotations in electronic form. Preferences - toyota car Corolla. How to register in the procurement documentation requirements for the procurement object so as not to limit competition and however, to avoid the delivery of a cheaper and less qualitative analog?

Answer

Oksana Balandina, chief editor of the GOSAKAZ system

From July 1, 2018 to January 1, 2019, the customers have a transitional period - electronic, and paper procedures are allowed. Since 2019, contests, auctions, quotes and requests for proposals on paper are banned, except for eight exceptions.
Read what purchases to conduct on the ETP, how to choose a platform and get an electronic signature, which rules to enter into contracts in the transition period and after.

Challenged part 1 Art. 3 of the Federal Law of July 18, 2011 No. 223-FZ "On the procurement of goods, works, services for individual species legal entities"(hereinafter - Law No. 223-F h) when purchasing goods, works, services Customers are guided by the following principles:

1. information openness procurement;
2. equality, justice, lack of discrimination and unreasonable competition restrictions in relation to procurement participants;
3. targeted and cost-effective consumption of funds for the purchase of goods, works, services (taking into account, if necessary, the value of the life cycle of the procured products) and the implementation of measures aimed at reducing the costs of the Customer;
4. the lack of restriction of admission to participate in procurement by establishing unhateable requirements for procurement participants.

For full access to the portal of Pro-Goszakaz.ru, please sign up. It will take no more than a minute. Select a social network for quick authorization on the portal:

In accordance with paragraph 1 of Part 10 of Art. 4 of Law No. 223-FZ in the procurement documentation should indicate information defined by the Procurement Regulations, including: - the quality requirements established by the Customer, technical characteristics Goods, works, services, to their safety, to the functional characteristics (consumer properties) of goods, to the size, packaging, shipment of goods, to the results of work and other requirements related to the definition of the compliance of the goods supplied, performed by the work provided by the needs of the customer.

By virtue of Part 2 of Art. 4 of Law No. 223-ФЗ Customer places in a unified information system a plan for the purchase of goods, works, services for a period of at least one year. The procedure for the formation of a plan for purchasing goods, works, services, procedures and timing of placing such a plan in unified information systems, the requirements for the form of such a plan are established by the Government of the Russian Federation.

Attention:

So, according to PP. 4 p. 1 rules for the formation of a plan for the purchase of goods (works, services) and the requirements for the form of such a plan approved by Decree of the Government of the Russian Federation of September 17, 2012 No. 932, the procurement plan of goods (works, services) is formed by the Customer in the form according to the application in the form of a single document in electronic format that ensures that it is saved to technical means Users and allowing the ability to search and copy an arbitrary text fragment by means of the corresponding program to view, and contains the following information:

• the minimum necessary requirements for purchased goods (work, services), provided for by the Treaty, including functional, technical, qualitative characteristics and performance features The subject of the contract to identify the subject of the contract (if necessary).

Thus, when describing the procurement object (when preparing documents for a quotation and electronic form), it is advisable to use information regarding this product specified in the Procurement Plan posted on the official website.

Note that Law No. 223-FZ does not contain other requirements for the rules for describing the procurement object.

However, in Art. 17 of the Federal Law of July 26, 2006 No. 135-FZ "On Protection of Competition" During the request for quotations, actions that lead or may lead to preventing, restriction or elimination of competition are prohibited.

Therefore, if in the description of the procurement object, such as brand, car model, or another indicator, which unambiguously determines that the supplier should only put a "specific" car and no other, then we propose to use the phrase "or equivalent" in relation to such an indicator. At the same time, it will be necessary to specify the equivalence parameters in such a way that 2 or more vehicles have fallen under the stated requirements.

Also, when drawing up a description of the procurement object, you can use indicators to determine the compliance of the purchased goods, work, services with the requirements established by the Customer. In this case, specify maximum and (or) minimum values Such indicators, as well as values \u200b\u200bof indicators that cannot be changed.

Also, in the preparation of the description of the procurement object, it is possible to use standard indicators, requirements, symbols and terminology relating to the technical and qualitative characteristics of the procurement object established in accordance with technical regulations, standards and other requirements provided by the legislation of the Russian Federation on technical regulation.

It is necessary to establish the requirement that the supplied product must be a new product.

For example, the customer plans to purchase a car. Significant characteristics for the customer are: type, body color, number of doors, equipment, engine volume, body length, maximum power, Ecology Fuel and Capacity fuel tankAs well as economic components - the price of the car and fuel consumption.

After analyzing open sources, or by following a request for price proposals and potential suppliers, the customer stayed by car. " Lada Priora."Sedan 4 doors, execution:

The norm is 1.6 liters. 8-CL. (Euro-4), which satisfies the requirements of the customer, both by the price and on the technical requirements and operational characteristics:

1. length, mm 4350;
2. maximum power, kW 72;
3. fuel consumption B. mixed cycle, l / 100 km 7.2;
4. fuel tank capacity, l 43;

Options Requirements:

1. air conditioning;
2. climate control;
3. approximate price of 361,500 thousand rubles.

In this case, if the Customer indicates a cargo sign in the auction documentation, then it should be specified in relation to this word "or equivalent" and establish equivalence indicators.

Therefore, the customer should analyze which cars from other manufacturers, meet the requirements of the customer, both at the price and the technical requirements and establish equivalence indicators so as not to limit the number of participants in the placement of the order and purchase the goods of the appropriate quality.

For example, the customer's price requirements fall on cars of the following trademarks:

Daewoo Nexia Sedan 1.6 liters.
Length, mm 4280 - 4482
Maximum power, kW 82.0 - 80.0
Fuel consumption in a mixed cycle, l / 100 km 6.5 - 8.9
Fuel tank capacity, l 45 - 50

the presence of the driver's airbag;
There is no air conditioning;
There is - there is climate control.
There is no gasoline AI 95 AI 92

• Car Characteristics Trademark Hyundai Accent. Sedan 1.6 liters.
• Options Requirements:
• Approximate price of 381,700 thousand rubles. - 346,000 thousand rubles.

Daewoo Nexia car, despite the lowest price, by fuel consumption, its ecology, and also due to the lack of individual options, is not suitable for the requirements of the customer. Therefore, in the future, the Customer may establish the requirements for the goods and equivalence indicators, taking into account the delivery of the goods of this brand.

We define in the auction documentation the requirements for the functional and high-quality characteristics of the car "Lada Priora" Sedan 4 doors, execution:

Length, mm 4350;
Maximum power, kW 72;
Fuel consumption in a mixed cycle, l / 100 km 7.2;
Fuel tank capacity, l 43;
Use of fuel Ai 95;

the presence of the driver's airbag;
air conditioning;
climate control.

• The norm is 1.6 liters. 8-CL. (Euro-4) and other indicators associated with the definition of the consistency of the goods needs of the customer:
• Options Requirements:
• Body color White or blue, car release - 2012.

We establish equivalence indicators, realizing which trademark can be offered.

Length, mm at least 4280;
Maximum power, kW at least 72;
Fuel consumption in a mixed cycle, l / 100 km no more than 7.2;
Capacity of the fuel tank, l at least 43;
Using fuel not lower than Ai 95.

body type - sedan;
engine volume 1.6 l;
body color - white or blue;
Year of the car - 2012.

• Minimum and maximum equivalence indicators:
• Equivalence indicators that should not change:
• options Requirements:

the presence of the driver's airbag;
air conditioning;
climate control.

As a result, the auction can participate both suppliers of AvtoVAZ products and Suppliers Hyundai Accent Sedan 1.6 liters.

Based on Part 6 of Art. 3 of the Law No. 223-FZ is not allowed to present for procurement participants, to purchased goods, works, services, and also to the conditions for the fulfillment of the contract, and evaluate and compare applications for participation in procurement on criteria and in the manner that are not specified in the documentation on Purchase. Requirements for procurement participants, purchased goods, works, services, and also to the terms of the execution of the contract, criteria and procedure for evaluating and comparing applications for participation in the procurement established by the Customer, are applied equally to all participants in procurement, to the goods offered , work, services, to the terms of the contract.

At the same time, it should be noted that the practice of the application of Law No. 223-FZ showed that customers in carrying out their procurement activities conduct procurement procedures without using words "or equivalent." However, when conducting such procedures, in the event of issues from regulatory authorities, the Customer is obliged to justify this procurement.

Purchase of a car on 223 FZ can be carried out not only in the form of trading, because The price of the vehicle is not limited to a certain framework and can be any.

However, if this method is selected, the law establishes serious requirements. The customer who does not keep them, are waiting for serious fines.

In position of 223 FZ, there must be the following procurement information:

what they are distributed;

its sum;

which products are purchased;

plan.

There is one important momentThe acquisition of machines directly from the manufacturer or through direct dealers occurs only through an electronic auction.

Technical task for cars purchases

According to 223 ФЗ, the amount of goods and its characteristics should be contained in the notice of procurement, but given that this document is always published together with others, the law allows for disheaval from this rule. For example, the amount of goods and its characteristics can be spelled out in the tender documentation, namely - in the technical task. As a rule, it is in this document that contains all information about the bargaining that the participant of the competition should know.

Exemplary TK content for the purchase of a car by 223 ФЗ:

destination of transport;

terms of payment;

the price of the vehicle and its components: insurance, taxes, customs duties etc.;

specifications: exemplary sizes, weight, engine characteristics, fuel consumed, body type, etc.;

the delivery time of the car;

year of release (no earlier ... no later than ...);

supplier requirements;

delivery conditions.

An important point and for customers, and for suppliers - the price of the car, it should include all costs for the transportation of the vehicle to the place, insurance, customization, etc. This is a necessary condition, the customer decides on the choice of the supplier on the basis of the final price that it offers.

In order not to have problems with the FAS, it is necessary to properly comprise TK for a tender.

You can not specify specific characteristics, brand or machine parameters.

For example, if in the tender documentation it is to indicate that the length of the acquired vehicle should be exactly 4.5 meters, the customer may well have problems with the FAS. Why? Because if you cannot justify the requirements, most likely, the Federal Antimonopoly Service will consider it a limitation of competition.

Thus, the main thing is not to specify the exact parameters.

Tip:if you need a car, a length of 4 meters, in the technical task you need to clarify that it is allowed to extend from the norm within certain limits (for example, 20 cm in any direction). And if the purchases are carried out on a CU of a certain brand, indicate that its analogues are allowed.

The main requirement of 223 ФЗ to the technical launch is its validity. As the example has already been brought above, if the TK is drawn up under the parameters of a specific vehicle, the FAS may regard it as an artificial restriction of competition and can assign a penalty for such actions.

Requirements exhibited by the vendor of the vendor in the purchase of 223-FZ

He must be an official representative (dealer or distributor) of the TC manufacturer.

The supplier must provide a certificate and contract with the manufacturer, as well as similar documents.

The company must have no signs of bankruptcy.

The lack of existing legal proceedings on previously concluded contracts.

Lack of overdue debts in front of any budgets or extrabudgetary funds.

This is a list of formal requirements for suppliers, which do not limit the competition in any 44 ФЗ, no in 223 ФЗ.

Also, at its discretion, the customer may include other, more subjective conditions: for example, the experience of the supplier on a specific market sector or the availability of positive consumer feedback.

Ltd ICR"RUSENDDER"

Material is the property site. Any use of an article without an indication of the source - the site is prohibited in accordance with Article 1259 of the Civil Code of the Russian Federation

• Are the obligations of the account-owner of the account for the requirements of creditors 1-3 queues?
• The head of LLC was convicted under Art. 173.1. Criminal Code. What are the consequences for transactions concluded by this leader?
• What are the features of admission to a part-time of a foreigner, with a patent to work on a particular profession?
• Is it necessary in the institution to approve the provision on the bandwidth mode?
• Is the government of GBU to provide public services to buy other services if their use is not provided for by the technical flamber?

Question

The state autonomous institution plans to purchase a car for 223-ФЗ. According to the Decree of the Government of the Russian Federation of 21.06.2012 No. 616, this purchase is carried out in electronic form. But according to para. 3 of claim 2 of the rulings, in addition to the implementation of this procurement at the uniqueness of the supplier.
1) Consequently, if the institution buys a car at a single supplier (in accordance with the Procurement Regulations), the purchase is carried out not in electronic form? Right?
2) if preferences of Russian origin goods during the purchase of a car (specify the regulatory framework) on 223-ФЗ?
3) Specify the regulatory documents regarding the purchase foreign cars or assembling cars in the Russian Federation.
4) What nuances of this procurement should be taken into account in the establishment so that there is no offenses. Requirements for any regulatory documents It is necessary to take into account when preparing documentation, except for the procurement provision and 223-FZ.

Answer

First. Yes, if, in accordance with the provision, the purchase is carried out at the only supplier, then it is not necessary to carry out the purchase in electronic form (Decisions of the Government of the Russian Federation of 21.06.2012 No. 616).

Second. Preferences within the framework of the Federal Law of 07/18/2011 are currently not provided.

Third. There is no ban on purchasing foreign cars. Special acts governed by purchasing foreign cars, no.

Fourth. It is necessary to take into account antitrust requirements that are often violated. So, for example, the customer is striving to purchase a car concrete brandThan limit competition. When carrying out procurement, you can additionally be guided by the standard of procurement activities of the FAS RF.

The rationale for this position is given below in the materials of the lawyer system. .

Professional reference system for lawyers in which you will find an answer to any, even the most difficult question.

Date: 08/09/2016

Purchase of lease (financial lease) on 223-ФЗ is one of the most complex procurement procedures.

According to Art. 2 of the Federal Law of 29.10.1998 No. 164-FZ "On financial lease (Leasing) "(hereinafter - the Law on Financial Rental) Leasing is a combination of economic and legal relations arising in connection with the implementation of the lease agreement, including the acquisition of the leased object. Under the lease agreement, the landlord (leaser) undertakes to acquire the property of the property specified by the tenant (lessee) property from a certain seller and provide the lessee this property for a temporary possession and use fee. However, the lease agreement may be provided that the choice of the seller and the acquired property is carried out by the lessor.

Financial Rental (Leasing) and 223-FZ

At the moment, there is no single approach about the regulation of 223-ФЗ leasing procurement (financial lease). Some procurement specialists believe that rental (leasing) is an independent type of contractual obligations, which cannot be directly related to goods, work or services directly. Consequently, the norms 223-FZ are not applicable to procurement procedures with such a subject. However, there is another point of view according to which the procurement of lease (financial lease) should be carried out in accordance with 223-FZ.

According to Art. 4 of the law on the financial lease of the leaser at the expense of attracted and (or) own funds acquires the property during the implementation of the lease agreement and provides it as a leased to the lessee for a certain period of time and under certain conditions for temporary possession and use with the transition Or without moving to the lessee ownership of the right to lease. In art. 1 of the procurement law states that it does not apply to relations related to the implementation of the credit institution of leasing and interbank operations (including with foreign banks). In other words, 223-ФЗ cannot apply to the procurement procedures of customers - credit organizations serving as a lessor (at the expense of own funds (or attracted) under the lease agreement, it acquires the subject of leasing and provides it for certain conditions to the lessee).

It should be noted that customers who are not credit institutions acquiring the subject of leasing for their own needs should also be purchased in accordance with 223-FZ. Otherwise (the conclusion of contractual lease relations without relevant procurement procedures) may cause issues from regulatory bodies, and can also serve as a basis for recognizing the court of such a contract invalid.

... from judicial practice:

1. The prosecutor's office appealed to the arbitration court with a claim for invalidation of a lease agreement concluded between the leasing company A "A" and OJSC B ", on the application of the consequences of the invalidity of a negligible transaction in the form of obligations of OJSC B" to transfer the leasing company (OJSC A " ) Buses in the amount of 20 pcs. The decision of the court of first instance in the claim was denied. Disagreeing S. adopted decisionThe plaintiff filed an appeal, which indicated that the court of first instance was incorrectly applied the norms of substantive law, therefore was made an erroneous conclusion about the non-proliferation of 223-ФЗ for legal relations related to the rental of vehicles under the lease agreement. The plaintiff pointed out that the prisoner agreement does not comply with the current legislation in the sphere of procurement and is a negligible transaction. The Court of Appeal considered an erroneous conclusion of the court of first instance on the option of compliance with the public procedure for the conclusion of a disputed contract, provided by law. OJSC B "does not apply to the category of customers specified in parts 5 - 8 tbsp. 8 of the Law 223-FZ, therefore was obliged to approve the provision on procurement within 3 months from the date of entry into force of the NPA. However, this fact was not confirmed in court. Given that the lease agreement was signed on June 29, 2012, i.e., after a three-month period specified in Part 4 of Art. 8 of the Law 223-FZ, when concluding this agreement, JSC "B" should not be guided by the norms of 94-ФЗ. When considering the materials of the case, the appellate court came to the conclusion that the improper application of the court of first instance of the norms 223-ФЗ did not affect the adoption of an incorrect decision on the merits and in accordance with the current legislation the appealless decision is not subject to cancellation. The applicant's argument on the conclusion of a controversial lease agreement with a violation of 94-FZ is a new argument that was not given in the court of first instance, and therefore the appellating court was not considered 1.

2. LLC "A" (the lessee) appealed to the arbitration court with a claim to OJSC B "(the lessor) on the obligation to acquire the subject of leasing on the relevant agreement to the ownership of LLC" B "and transfer it to leasing. The court was satisfied with the requirements specified in the claim: OJSC B "was obliged to acquire a car (subject of leasing) to the ownership of LLC" B "and transfer it to Leasing LLC" A ". The defendant, without having agreed with this decision, filed an appeal to the Higher Court. From the materials of the case, it was necessary that the financial lease agreement was concluded between LLC A and OJSC, according to the terms of which OJSC B, it was obliged to acquire the subject of leasing and convey the plaintiff to the plaintiff in temporary possession and use. The seller of the leasement is LLC "B". The defendant notified the plaintiff that on the basis of 223-ФЗ announced a competition for the choice of the supplier. In the future, OJSC B "was notified by LLC A" that the subject of leasing will be purchased until June 30, 2012, LLC "B" may be a supplier in the event of its participation in an open competition and ensure the most favorable conditions compared to others. Offers. The appellate court came to the conclusion that the court of first instance was legitimately established that since the defendant did not fulfill its obligations under the lease agreement, the claimant's claims on the obligation to acquire the subject of leasing from LLC "B" and transfer it to the leasing of the plaintiff are legitimate and are subject to satisfaction; The applicant's argument appeal about the need for a competition in accordance with 223-ФЗ is legally rejected by the court of first instance. In the decision, the Court of Appeal indicated that the execution by the Customer (defendant) contractual obligations to acquire the leased object not for the needs of the defendant does not fall into operation of 223-ФЗ. 2.

Methods of procurement

According to 223-ФЗ in the Procurement Regulations, the Customer may provide other (in addition to the contest or auction), the procurement methods indicating the procedure for their conduct. The customer in his procurement position has the right to indicate a specific way to purchase a financial lease (leasing). Analyzing the practice of procurement in Eis, the subject of which is leasing, it can be concluded that many customers prefer procurement from sole source (that is, without competitive procedures). However, for the most efficient use of funds and savings, as well as to ensure competition among counterparties providing leasing services, in order to select the most profitable partner, the Customer is preferable to conduct competitive procedures with several parameters for evaluating applications received (for example, a competition or request for proposals).

Another important task that needs to be resolved before the start of the procurement procedure is in what form purchase will pass - electronic or "paper". From the choice may depend on the final purchase result. Many customers and suppliers (contractors, performers) are registered and operate on electronic trading platforms according to their regulations. Procurement of certain types of goods, works and services listed in Government Decree No. 616, 223-FZ Customers are obliged to carry out in electronic form (currently a list of such goods is significantly expanded). The purchase of leasing services is not provided for by this act, but this does not mean that the procurement organizers should avoid electronic purchases, rather, even on the contrary: ETP will allow you to choose the most acceptable offer without paper red tape (the document flow in this case is in electronic form).

To make sure the customer must be compared to the customer oKPD code 2. The purchased goods, work, services (in this case are leasing services) with those combinations of numbers, which are indicated in the above-mentioned Resolution No. 616. In the All-Russian classifier of products by type of economic activity (OKPD 2) 3, it is necessary to find a section N "Services administrative and auxiliary", class "Rental and leasing services" and select the appropriate subclass (group / subgroup / type / category / subcategory) depending on upcoming purchases. You should also pay attention to links and reservations in this section of the classifier.

For example,

77 Lease and Leasing Services

This grouping does not include:

- Financial leasing services, see 64.91.10

In accordance with Article 4 223-FZ, the procurement organizer in the documentation indicates criteria for evaluation and comparison of applications For participation in the procurement procedure provided for by the Procurement Regulations. Each of them has its own ratio of the scores and the calculation system.

The customer conducts an open request for proposals for the selection of a leased company (the seller of goods under the conditions of this procurement chooses the lessor in coordination with the lessee).

The system is evaluating.

The significance of the criteria:

• Contract price (taking into account leasing payments) - 40%
• The term of leasing - 20% (36 months. - 1 point. Another term of the points)
• Advance payment - 20% (up to 31% - 1 point, from 31% or more - 0 points)
• Redemption payment - 15% (up to 5,000 rubles- 1 point, from 5000 rubles. And more than 5000 rubles- 0 points)
• Business reputation -5%. (availability of information confirming the business reputation -1 score, the absence of - 0 points.) (Thanksgiving letters, letters, previously concluded contracts, etc.)

Ra i \u003d A MAX - A I / A MAX X 100,

A max - maximum contract price taking into account leasing payments (based on monitoring the conditions of leasing companies)

A I - the price of the contract proposed by the I-M participant;

Technical task

The technical task is an important part of the procurement documentation, since it is precisely in it contains information about the purchased product (works / services) and the necessary requirements for it, therefore the procurement procedure must be carefully considered to be prepared. The law on procurement does not contain restrictions and prohibition on the instructions in the procurement documentation of a specific type of product or the obligation of the customer to make a note "or equivalent". The procurement organizer needs to describe in detail that it is he who needs to be purchased to ensure the work of the enterprise in the effective use of funds with the necessary indicators of the price, quality and reliability (Article 1 of the Law 223-FZ).

From July 1, 2016, new formation rules came into force. technical task On the 223-FZ, according to which the Customer, in the description of the purchased products in the Procurement Documentation, it will be necessary to use the parameters that are provided for by the technical regulations in accordance with the legislation of the Russian Federation on technical regulation, as well as documents developed and used in the national standardization system adopted in accordance with the legislation of the Russian Federation on Standardization (Art. 4 of the Law 223-FZ). four

The customer in the preparation of a technical task should not be allowed to restrict competition among participants, formulating certain requirements for the product. However, in order to declare a violation by the Organizer of the Procurement of the Federal Law of July 26, 2006 No. 135-FZ "On Protection of Competition", it is necessary to establish that the use of specific product characteristics creates an obstacle to participation in procurement. As a rule, the Court accepts the position of the Customer if he may substantiate for what reason he prescribed certain requirements in the technical specifications (for example, compatibility with the equipment used).

... from judicial practice:

1.MUP "A" appealed to the Arbitration Court with a statement about the recognition of illegal decisions and prescriptions made by Ufas. By the decision of the court, the claims are satisfied. By the decision of the Arbitration Court of Appeal, the decision of the court is left unchanged. Ufas filed a cassation complaint against the decision of the Arbitration Court and the decision of the Arbitration Court of Appeal in the same case. As follows from the case materials, GUP "A" has placed a notice of an open request for prices in electronic form for the supply of vehicles in leasing (a bus 320302-08 is indicated as the name of the goods with gas equipment, and the T / C manufacturer is prescribed). No restrictions in part of the instructions in the purchase documentation as a specific type of goods and its specific manufacturer 223-FZ does not provide. In view of the foregoing, the courts decided that the use of a specific name of the goods and its manufacturer in the procurement documentation did not lead to discrimination and unreasonable limitation of competition. five

2. Reader, (leasing company) LLC "A", appealed to the arbitration court with a claim to the defendant MP "B" on the recognition of the invalid results of an open auction in electronic form, as well as a contract for the provision of financial lease services (leasing) of large-class buses For the needs of MP "B". According to the plaintiff, the documentation of the open auction was drawn up by the Customer with violations of the current legislation of the Russian Federation and aimed at the unreasonable narrowing of the circle of procurement participants. In terms of the technical specifications, the organizer of the procurement procedure established a limit at the height of the vehicle due to the material and technical equipment of the enterprise and the inability without reconstruction to operate a vehicle exceeding the specified dimensions. The appellate court came to the conclusion that the grounds allowing to cancel the contested judicial act are absent. In accordance with the documentation on the auction and the technical task, the Customer indicated technical requirements Equipment that meet its needs without direct instructions on a specific product (brand, model, manufacturer). At the same time, in the documentation there are no immeasurable requirements for procurement participants and purchased equipment. The court came to the conclusion that the establishment by the customer of the maximum height is due to both technical and economic factors. 6.

Characteristics and product parameters must be described in detail by the customer in the technical task, indicated in the draft contract and subsequently reflected in the contract concluded, allowing you to identify the subject of leasing.

... from judicial practice:

LLC "A" appealed to the arbitration court with a claim to LLC B LLC on the recovery of funds (including unjust enrichment). By the decision of the Arbitration Court, the claims are satisfied in terms of recovery from the defendant in favor of the plaintiff of unjust enrichment, as well as interest for using other people's money. By declare the Arbitration Court of Appeal, the specified decision was left unchanged. The defendant did not agree with the above judicial acts and filed a cassation complaint, in which he asks to cancel the decision and decree of the appellate instance. As follows from the materials of the case, LLC "A" (the lessee) and LLC B "(the lessor) concluded a lease agreement, under which LLC B" on the terms of the contracts agreed with LLC "A" of the contract of sale should acquire the property in the chosen lessee Seller property and present it to the lessee. According to the contract, leased is vehicle (indicating the brand of car, model and year of release). The contract does not spell any additional vehicle characteristics, such as body type, volume, engine power, gear type, body color. According to the lessee, these characteristics are essential and in absence it is impossible to uniquely identify the vehicle (leased object). The courts concluded that the lease agreement should be considered not inconclusive, and therefore the funds listed LLC "A" to LLC B "are for the latter unjust enrichment and are subject to refund of the plaintiff. 7.

An example of a technical task of purchasing leasing services (the lessor determines the seller)

Specifications (the name of the leased object, for example, road removal vehicle)

The customer should indicate:

• all the necessary parameters of goods (height, length, width, voltage, engine, performance, frequency, etc.);
• what is included in the price (for example, VAT 18%, delivery to the specified address, installation, commissioning, etc.);
• payment schedule (for example, decreasing);
• the cost of 1 unit of equipment (for example, the cost of 1 road removal machine taking into account leasing payments not more than 2,224,170 rubles 00 kopecks. including 18% VAT);
• the amount of redemption payment (for example, not more than 3000 rubles);
• the term of leasing (for example, 36 months);

The procurement organizer should also register that the goods should be new, not used, technically good, ready for exploitation, in dispute and under the prohibition of not consisting not to be burdened by third parties.

The initial conditions for the provision of leasing services are usually formed by the Customer based on monitoring the service data market. The participants indicate their commercial offers directly in the application. In addition to the estimated criteria, the procurement procedure may prescribe in the form of a filled application that interests the conditions of the upcoming transaction, for example:

"A procurement participant agrees that:

• the property transferred to leased and its seller is determined by the lessor (according to written agreement with the lessee);
• The lessor undertakes to acquire property from the seller and provide for the temporary possession and use of the lessee property;
• The lessee receives the property by granting a financial lease of financial lease with further repurchase. "

Thus, the applicants will be familiar with all the nuances of the procurement procedure in the most detail, objectively appreciate their own opportunities to participate in it. More precisely, all the conditions for the provision of financial lease (leasing) will be indicated, the higher the probability for the customer to carry out a successful transaction on favorable conditions and receiving the necessary goods into lease.

Often the procurement organizers indicate not all procurement conditions, or prescribe them is not clear enough for the participants of the procurement procedure. In order to understand the procurement documentation, the applicants for participation have the right to send a request for an explanation of its individual items. One of the common questions asked by the Customer to the participants relates to the choice of the leased object: the lessor or the lessee will exercise it?

Selection selection

The law on leasing provides for the possibility of choosing the seller of the leased object as a lessee and the lessor (see also a letter of FAS dated July 23, 2012 No. AC / 23329). Customer, for example, may first hold a procedure for choosing a supplier necessary equipment, Select the most acceptable offer, after which it is to carry out another purchase on the provision of leasing services (the leased item will already be known). However, there is a possibility that no leasing company will respond to the conditions declared in the procurement documentation.

It is more expedient to look another option when the customer conducts a procurement procedure for the choice of a leased company, which will later select the seller of the required product (the procurement organizer has the right to make a reservation "in coordination with the lessee", thereby facilitating the work of the lessor and maximizing the correctness of its choice).

In art. 9.1. The law on leasing is the features of the lease agreement concluded by a state or municipal institution. One of them concerns the seller's choice: "In the lease agreement, if the lessee is state or municipal InstitutionIt should be provided for the obligation of the lessor to independently determine the seller of property under the lease agreement. " In this case, the main load of the transaction will fall on the shoulders of the lessor, which will select the seller. However, on the other hand, the lessor independently determines the most "convenient" and verified counterparty (with the right product), with which he will later need to work.

In accordance with Art. 22 of the Law on Leasing The risk of non-compliance with the seller of duties under the contract of sale of the subject of leasing and the associated losses is losses to the lease agreement, which chose the seller, unless otherwise provided by the lease agreement.

In the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 14, 2014 No. 17 "On individual matters related to the redemption lease agreement" is given an explanation of the above-mentioned article:

"Named norm, placed on the seller's seller, the risk of non-compliance with the seller of duties under the contract of sale does not exclude the need to adopt a lease agreement to reduce risks associated with the improper supply of leased objects, since both parties are interested in the timely receipt and use of the leased object . The presence of a law on the leasing of special rules on the risk distribution in itself does not interfere general provisions Chapters 25 of the Civil Code of the Russian Federation on liability for violation of obligations, taking into account the peculiarities of the lease agreement. So, if the seller chose the lessee, but the lessor is intentionally or by negligence (that is, with a violation of the standard of behavior of a reasonable and prudent merchant) facilitated the increase in losses caused by the improper delivery of the leased object, or did not take reasonable measures to reduce them, this is paragraph 1 of the article 404 of the Civil Code of the Russian Federation is the basis for reducing the size of the lessee. " nine

In other words, the responsibility for the choice of the seller carries both the lessor and the lessee, so both parties should think about the supply of leased object, as well as the possible risks of the transaction committed.

1 Resolution of the Fourth Arbitration Court of Appeal dated 03.06.2014 No. 04AP-6154/13

2 Resolution of the Eleventh Arbitration Court of Appeal dated 12.02.2013 in case No.A-65-20908 / 2012

3 All-Russian Product Classifier for Economic Activities (OKPD 2) OK 034-2014 (KPES 2008) (adopted and enacted by order of the Federal Agency for Technical Regulation and Metrology of January 31, 2014 N 14-st)

4 tbsp. 4 of the Federal Law of July 18, 2011 N 223-FZ "On the procurement of goods, works, services by certain types of legal entities"

5 Resolution of the Arbitration Court of the Ural District of 20.08.2015 No. F09-5639 / 15 №А 07-22653 / 2014

6 Resolution of the Eleventh Arbitration Court of Appeal dated December 28, 2015 in case No. 11AP-15510/150

7 (Resolution of the Federal Arbitration Court of the Central District of 11.03.16 in case No.A14-16240 / 2008/535 / 5)

8 Federal Law of 29.10.1998 N 164-FZ "On Financial Rental (Leasing)"

9 Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of March 14, 2014 N 17 "On individual matters related to the redemption lease agreement"