Imagine the situation: the organization participates in the procurement, invests in preparing for it and, it would seem, the state contract is already in your pocket, but it turns out that the competitor has preferences and advantages in the contract system that make him the winner even with the worst offer. The result is unjustified material costs and lost time. This article will focus on who is provided and to whom benefits are not provided when making purchases. Thanks to this, each potential participant will be able to assess in advance the prospects of the struggle for the contract and choose the purchase in which participation will take place on equal terms with other applicants.
Advantages in procurement under 44-FZ
One of the foundations of the contract system is to create a level playing field for procurement participants and ensure competition between them. Therefore, any privileges, as such, are an exception to the general rule. Provisions 44-FZ provide benefits for procurement only to certain categories of participants. These include:
- institutions and enterprises of the penal system (UIS);
- All-Russian public organizations of disabled people and legal entities created by them;
- representatives of small business (SMP);
- socially oriented non-profit organizations (SONO).
All other participants relate to those who are not given advantages in the procurement process.
In addition, in the contract system, for certain types of goods of foreign manufacture, conditions, restrictions and prohibitions of admission apply, which, in the terminology of 44-FZ, are not called benefits, but in fact they are.
Benefits for MIS Organizations
What are: an increase in the contract price proposed by the participant by a maximum of 15%, but at the same time it should not exceed the maximum purchase price set by the customer.
Advantage Terms:
- the procurement item is named in the list, which is contained in the Decree of the Government of the Russian Federation of July 14, 2014 N 649;
- the institution or enterprise of the penal system is the winner of the procurement;
- The winner of the purchase claims the benefits.
How they are implemented: for example, the customer holds an auction for the supply of milk (included in the list) and sets the initial price of 150 thousand rubles. One of the participants reduces the price to 120 thousand rubles, and the other (the institution or enterprise of the penal correction system) to 110 thousand rubles and becomes the winner.
In this case, the contract will be concluded with the institution or enterprise of the penal correction system, but not at the price offered by it, but at 126 thousand 500 rubles (110 thousand rubles + 15%). Thus, a supplier who does not have advantages will lose in the purchase, even despite a more favorable price offer.
Benefits for Disabled Organizations
What are: an increase in the contract price proposed by the participant by a maximum of 15%, but at the same time it should not exceed the maximum purchase price set by the customer.
Advantage Terms:
- the procurement item is named in the list, which is contained in the Decree of the Government of the Russian Federation of 04.15.2014 N 341;
- the organization of persons with disabilities is the winner of the procurement;
- The winner of the purchase claims the benefits.
How are they implemented: by analogy with the institutions and enterprises of the penal correction system.
The key criterion for the possibility of providing benefits to organizations of penal correction systems or persons with disabilities is the availability of the purchased goods, work or services in the corresponding list. This means that if the subject of procurement is, for example, dairy products (milk and cream), then the MIS organizations will be among those who are not provided with benefits when making purchases, and such tenders will be held on equal terms for all.
Benefits for NSR and SONO
First, each customer is obliged to pay 15% of the funds allocated for procurement under the NSR and SONO contracts during the year, which is an advantage in itself. At the same time, solely SMP and SONO can take part in the purchase itself, that is, representatives of medium and large businesses will simply not be allowed to attend it.
In other words, the organization may be deprived of the opportunity to participate in a particular purchase only because it is not an SMP or a SONO.
Secondly, for SMP and SONO, reduced terms of payment under the contract are provided - 15 working days instead of 30 calendar days for all other procurement participants.
Thus, the NSR and SONO, even as a whole, have advantages in procurement, but they only compete among themselves, and therefore, within the framework of specific tenders, the conditions for them, as a rule, turn out to be equal. At the same time, it is important to understand that organizations of people with disabilities with their own advantages may be among the NSR and SONO.
Conditions, restrictions and prohibitions on the admission of imported goods
As already mentioned, from the point of view of 44-FZ terminology, the indicated exceptions to the application of the national regime are not advantages. And yet, since we are talking about more favorable conditions for the participation of certain individuals in the procurement compared to others (up to the complete suspension), they can be quite justifiably considered as advantages to the procurement participants.
Advantages under the terms of admission of foreign goods
What are: evaluation of the application with the offer of domestic goods at a price reduced by 15% or the conclusion of a contract for the supply of foreign products at a price reduced by 15%.
Advantage Terms:
- the procurement item is included in the list approved by order of the Ministry of Finance of Russia dated 04.06.2018 N 126н;
- the procurement participant is ready to deliver goods produced exclusively in the countries of the Eurasian Economic Union (EAEU).
How they are implemented: for all forms of bidding, except for the auction, the evaluation of bids with the offer of products from the EAEU countries at the price of the contract is made with a reduction factor of 15%.
For example, the customer, by request of quotations, determines the supplier of furniture (included in the list). One participant offers furniture manufactured in Russia at a price of 150 thousand rubles, and another participant offers Swedish furniture for 140 thousand rubles.
In this case, the application of the first participant will be evaluated at a price reduced by 15%, that is 127 thousand 500 rubles, which will allow him to become the winner of the purchase. In this case, the contract will indicate the price offered by the participant, that is, 150 thousand rubles.
During the auction, the contract price will be reduced by 15% if the winner is the supplier of foreign products.
On the same example with the supply of furniture, it will look like this: the supplier of Swedish furniture will become the winner of the auction, because he offered a lower price, but the final figure in the contract will be reduced by another 15%, that is 119 thousand rubles.
Thus, it is unprofitable for suppliers of foreign products to participate in purchases, the subject of which are goods from the list by order of the Ministry of Finance of Russia dated 04.06.2018 N 126н.
However, a similar rule applies here: if the subject of the purchase is several types of goods, some of which are not in the list, then the benefits are not provided and the purchase is carried out on equal terms for all.
Advantages in Prohibitions and Restrictions on Procurement of Foreign Goods
For certain types of imported goods, restrictions (for example, medical products, food products) and access restrictions (for example, engineering goods, software) may be established. The meaning of both is reduced to a complete exclusion from participation in the procurement of suppliers of foreign products.
In other words, in this case, suppliers of domestic products may not be afraid of competition from foreign manufacturers who are able to offer goods with the best characteristics.
Who does not benefit from procurement (list)?
- All participants (with the exception of organizations of the penal correction system or persons with disabilities, SMP and SONO, as well as suppliers of goods produced in the territory of the EAEU).
- Organizations of penal correction institutions or persons with disabilities (if the purchased goods or some of them are not listed, or the participants did not claim the benefits).
- Suppliers of goods produced on the territory of the EAEU (if the procurement of such goods is not prohibited, limited or their admission is not accompanied by additional conditions).
Thus, as a general rule, advantages in procurement are not provided to anyone, and even to participants who have such an opportunity, they are not guaranteed in all cases.