Which purchase is considered to be carried out electronically? Which purchase is considered carried out in electronic form Electronic list under Federal Law 223

Customers operating under Law No. 223-FZ are increasingly conducting electronic procurement. However, the electronic procurement procedure for certain types of legal entities has not been fully regulated. We’ll tell you what points you should pay attention to in order to avoid mistakes during e-procurement.

From this article you will learn:

• what to consider when choosing e-procurement;
• Law No. 223-FZ and the use of an electronic trading platform;
• right choice electronic trading platform;
• the future of e-procurement.

The current version of Law No. 223-FZ does not contain strict instructions on the choice of procurement methods. The customer establishes the procurement methods and conditions for their use in the procurement regulations. However, what about the procurement form? How obligatory is it for customers to conduct purchases electronically? Are there any restrictions when choosing an ETP and, most importantly, what should you prepare for in the near future? Let's answer these questions.

Electronic procurement under 223-FZ

What to consider when choosing e-procurement

Electronic procurement must be carried out if you need to purchase products included in the so-called electronic list.

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For the procurement of other goods, works, and services, the electronic form can be used at will. Electronic procurement can be carried out in any way provided for by the procurement regulations. The Government of the Russian Federation has established a list of goods, works, and services, the purchase of which is carried out in electronic form. This electronic list is given in the Decree of the Government of the Russian Federation dated June 21, 2012. Customers subject to Law No. 223-FZ are required to purchase everything that is listed in Resolution No. 616 in electronic form. If customers ignore this requirement, they face the risk of cancellation of purchases and administrative fines.

However, a significant number of customers, subject to Law No. 223-FZ, use the electronic form without the threat of fines. After all, the electronic list includes goods and services that are widely used in procurement practice.

For example, stationery, printing products, vehicles, cleaning services. Customers determine the specific method of electronic procurement (auction, competition, request for quotations, etc.) and the procurement procedure independently (letter of the Federal Antimonopoly Service of Russia dated December 24, 2012 No. IA/44025/12).

Law No. 223-FZ does not strictly imply the use of ETP

Law No. 223-FZ does not establish a categorical requirement to use an electronic trading platform, as Law No. 44-FZ does. But it’s still better to work on the ETP.

One of the largest fines is provided for non-electronic procurement, which must be carried out only in electronic form (in accordance with the Decree of the Government of the Russian Federation No. 616). Fine for an official - from 10 to 30 thousand rubles, for a legal entity - from 100 to 300 thousand rubles. If such a violation is repeated more than twice, the official will be fined from 40 to 50 thousand rubles, or disqualified (by a court decision).

If the procurement procedure must comply with 44-FZ, but the customer did not conduct it in accordance with 44-FZ, then executive a fine of 20 - 30 thousand rubles is imposed, for legal - from 50 to 100 thousand rubles.

There are also fines for:

Violation of publication deadlines and failure to place mandatory information in the Unified Information System;

Violation of publication deadlines and failure to place changes to the Procurement Regulations in the Unified Information System;

Failure to comply with notice and documentation requirements;

Presentation of requirements to the participant that are not specified in the documentation;

Failure to comply with a lawful order or decision;

Failure to provide or violation of deadlines for provision, or provision of knowingly false information about unscrupulous suppliers(if the participant avoids concluding an agreement, or the agreement with the participant is terminated by a court decision due to improper execution).

Procurement methods implemented on the OTC-tender electronic platform:

• Auctions (open, closed);
• Reductions;
• Competitions (open, closed, price, for concluding a framework agreement, with prequalification, with rebidding);
• Requests for prices/proposals (open, closed, with pre-qualification, two-stage, multi-criteria, with rebidding);
• Competitive negotiations (open, closed, with pre-qualification, multi-stage);
• Purchasing from a single source.

Why is e-procurement better than traditional procurement?

Conducting purchases electronically is more profitable and easier. They can be carried out not only in relation to GWS specified in Resolution No. 616.

When conducting procurement in non-electronic form, the customer must accept applications, keep a log of applications, and ensure their proper storage.

When conducting procurement in electronic form without the use of electronic trading platforms (ETP), a number of problems also arise related to the receipt and storage of applications.

The largest customers strive to conduct the maximum number of purchases electronically:

• Rosatom: 100%
• Moscow metro: 100%
• Rostelecom: 75%

When working on an ETP it is also possible distant work, this requires only an electronic signature.

Cost of work on the OTC-tender site

Accreditation at the site is completely free.

All services for customers are free.

The fee is charged only to the participant who is the winner of the procedure. If the purchase cost is up to 500 thousand rubles, then the fee is 1% of the initial (maximum) price, if the cost is higher, the fee is 5 thousand rubles.

It is also possible for the supplier to pay for participation in the auction in the form of an unlimited license, which involves a one-time fee for use software for three, six or twelve months in the amount of 20,000 rubles, 35,000 rubles and 60,000 rubles, respectively.

Stages of OTS implementation.RU(transition time to the electronic platform ranges from 2 days to 2 weeks)

1. Accreditation for OTS.RU. You must apply for accreditation. A personal manager is assigned to each customer. You can find out more about your manager by calling OTS.RU.

2. Preparing for trading. Practical training for ETP users. Settings personal account carried out together with a personal manager.

3. Conducting procurement (publication of notice, consideration of applications, selection of winner)

Education

Possible training options:

Full-time practical training for employees in a computer lab

• Each employee, under the guidance of a teacher, carries out a number of purchasing procedures on educational versions of the OTS.RU sites

In-person practical training for employees in presentation format

• The teacher, in a presentation format, conducts a number of procurement procedures on the OTS.RU training site

Correspondence training in the form of a webinar

• The teacher demonstrates work on the site using conference calls (online broadcasting)

Questions from listeners

Question: Maintenance of a car worth up to 100 thousand rubles. under 223-FZ is also carried out in electronic form?

Answer: If the Regulations stipulate that purchases up to 100 thousand rubles. carried out by sole supplier, then the customer can purchase from a single supplier, including not in electronic form.

Question: If the Procurement Regulations indicate that the customer has the right to purchase GWS in the amount of up to 1 million rubles. from a single supplier, can a customer purchase GWS from the List in non-electronic form for an amount exceeding 100 thousand rubles?

Answer: In this case, the customer can purchase GWS included in the List, not in electronic form, if the cost does not exceed 1 million rubles.

Question: How is purchasing from a single supplier carried out?

Answer: On the OTC-tender site you can place a notice of purchase from a single supplier. This will not be an electronic procurement, but the data will be integrated into the Official Website.

In addition, the Group of sites has an online store for purchasing small volumes of OTC-market.

Question: It is planned to purchase works for the reconstruction of the building. What law does this purchase fall under?

Answer: If money is allocated to an autonomous institution, state unitary enterprise, municipal unitary enterprise from the budget system, then the purchase is carried out in accordance with 44-FZ, if the funds are extra-budgetary, then in accordance with 223-FZ. Article 15 of Law No. 44-FZ.

Question: What documents must be placed when purchasing food products from a single supplier in the amount of 120 thousand rubles?

Answer: If one contract for the purchase of food products is concluded for 120 thousand rubles, then such a purchase is included in the procurement plan indicating the procurement method “from a single supplier”, a notice, procurement documentation, a draft contract, and a protocol are published on the Official website. The purchase is included in the monthly report.

Question: Is the customer obliged to prepare a notice, procurement documentation and publish this information on the website if this is a purchase worth up to 100 thousand rubles?

Answer: 223-FZ states that if the purchase does not exceed 100 thousand rubles. (500 thousand rubles), then information about it may not be published.

Question: After making changes to the Procurement Regulations and the procurement plan, you can work on it only 10 days after its publication. Is it so?

Answer: 223-FZ does not establish such a norm. The amended Procurement Regulations come into force from the moment of its publication on the Official Website. In accordance with 223-FZ, the customer must publish changes to the Regulations within 10 days from the date of their adoption.

If it is necessary to establish a period after which the amended Regulations published on the Official Website begin to apply, then this should be stated in the Regulations.

Question: Is it possible to establish in the Procurement Regulations that purchases worth up to 300 thousand rubles. are carried out from a single supplier? And can the customer not publish documentation about such purchases?

Answer: The customer may establish such a condition in the Procurement Regulations. Purchase documentation up to 500 thousand rubles. Customers whose revenue for the past year exceeds 5 billion rubles have the right not to publish. For everyone else, this threshold is 100 thousand rubles; all purchases below this amount must be published, regardless of the form and method of its implementation.

Question: How to properly justify the price?

Answer: 223-FZ does not establish the obligation to justify the price. If the customer considers it necessary to justify the price, this should be stated in the Procurement Regulations. However, for large purchases, it is advisable to display the price justification and keep it for internal use.

Question: An autonomous institution plans to purchase autonomous heating work using funds from the regional budget. What law does this purchase fall under?

Answer: If such a purchase relates to capital investments, That autonomous institution must operate in accordance with 44-FZ, if not, then - in accordance with 223-FZ. There is no single list of investments that qualify as capital, and many customers send requests to the Ministry of Economic Development for clarification.

There are no new articles that have not entered into force.

When carrying out competitive procurement in electronic form, participants in such procurement send requests for clarification of the provisions of the notice of competitive procurement and (or) documentation on competitive procurement, placement of such clarifications in the unified information system, submission of applications for participation in competitive procurement by participants in electronic form procurement in electronic form, final proposals, providing the commission for the implementation of competitive procurement with access to the specified applications, comparison of price proposals, additional price proposals of participants in competitive procurement in electronic form, the formation of draft protocols drawn up in accordance with this Federal Law, are provided by the operator of the electronic platform on electronic platform.

The operator of an electronic platform is understood to be commercial organization legal entity created in accordance with the law Russian Federation in the organizational and legal form of a company with limited liability or non-public joint stock company, V authorized capital of which the share of foreign citizens, stateless persons, foreign legal entities or the number of voting shares owned by the specified citizens and persons is no more than twenty-five percent, owning the electronic platform, including the equipment and software and hardware necessary for its operation (hereinafter also referred to as the software and hardware of the electronic platform), and ensuring the conduct of competitive procurement in electronic form in accordance with the provisions of this Federal Law. The functioning of the electronic platform is carried out in accordance with the rules in force on the electronic platform and the agreement concluded between the customer and the operator of the electronic platform, taking into account the provisions of this article.

To participate in competitive procurement in electronic form, a participant in competitive procurement in electronic form must obtain accreditation on the electronic platform in the manner established by the operator of the electronic platform.

The exchange of information between the participant in competitive procurement in electronic form, the customer and the operator of the electronic site, information related to obtaining accreditation on the electronic site and the implementation of competitive procurement in electronic form, is carried out on the electronic site in the form of electronic documents.

Electronic documents of a competitive procurement participant in electronic form, a customer, an operator of an electronic site must be signed with an enhanced qualified electronic signature (hereinafter referred to as the electronic signature) of a person who has the right to act on behalf of, respectively, a competitive procurement participant in electronic form, a customer, an operator of an electronic site.

Information related to the implementation of competitive procurement in electronic form must be posted in the manner established by this Federal Law. Within one hour from the moment of posting, such information must be posted in a unified information system and on an electronic platform. Such information should be available for review without charge.

Within one hour from the moment of posting in the unified information system a notice of refusal to carry out a competitive procurement in electronic form, changes made to the notice of a competitive procurement in electronic form, documentation on such a purchase, clarifications of the provisions of the documentation on such a purchase, customer requests for clarification of the provisions of the application for participation in competitive procurement in electronic form, the operator of the electronic site places the specified information on the electronic site, sends a notice of these changes, clarifications to all participants in the competitive procurement in electronic form who submitted applications for participation in it, a notification of the specified clarifications also to the person who sent a request for clarification of the provisions of the documentation on competitive procurement, notification of these requests for clarification of the provisions of the application of the participant in such procurement to customers at the addresses Email indicated by these participants when accrediting on the electronic platform or by this person when sending a request.

When the operator of an electronic site sends to the customer electronic documents received from a participant in a competitive procurement in electronic form, before summing up the results of a competitive procurement in electronic form, the operator of the electronic site is obliged to ensure the confidentiality of information about this participant, except for cases provided for by this Federal Law.

When carrying out competitive procurement in electronic form, negotiations between the customer and the operator of the electronic site and the operator of the electronic site with the participant in competitive procurement in electronic form are not allowed if, as a result of these negotiations, preferential conditions are created for participation in competitive procurement in electronic form and (or) conditions for disclosure of confidential information.

The operator of the electronic platform ensures the confidentiality of information:

• 1) on the contents of applications for participation in competitive procurement in electronic form, final proposals until access to them is opened to the customer within the time limits established by the notice of competitive procurement in electronic form, documentation on competitive procurement in electronic form;
• 2) on the content of price proposals of participants in competitive procurement in electronic form, with the exception of holding an auction in electronic form, as well as additional price proposals (if the submission of additional price proposals is provided for by the notice of competitive procurement in electronic form and documentation of competitive procurement in electronic form) before the final protocol is formed. Comparison of price proposals is carried out using software and hardware of the electronic platform when generating the final protocol.

A participant in a competitive procurement in electronic form who has submitted an application for participation in such a procurement has the right to withdraw this application or make changes to it no later than the deadline for filing applications for participation in such a procurement, by sending a notice to the operator of the electronic site.

The operator of the electronic platform is obliged to ensure the continuity of competitive procurement in electronic form, the immutability of electronic documents signed with an electronic signature, the reliability of the functioning of software and technical means, used for competitive procurement in electronic form, equal access of participants in competitive procurement in electronic form to participate in it. For violation of these requirements, the operator of the electronic platform is liable in accordance with the legislation of the Russian Federation.

We are working according to Federal Law 223, and an issue has arisen with electronic procurement. When making purchases from the list approved by the Government, we select a simple request for prices in the Unified Information System, indicating in the documentation that the purchase is in electronic form and applications are accepted by email. We also place the purchase on the site, indicating a simple request for prices and the method for accepting applications - by email. Will this purchase be considered carried out electronically?

Answer

Oksana Balandina, chief editor of the State Order System

From July 1, 2018 to January 1, 2019, customers have a transition period - they are allowed to carry out both electronic and paper procedures. Starting from 2019, tenders, auctions, quotations and requests for proposals on paper will be prohibited, with eight exceptions.
Read what kind of purchases to make on the ETP, how to choose a site and obtain an electronic signature, what are the rules for concluding contracts during the transition period and after.

Carrying out procurement in electronic form involves the exchange of electronic documents using computers, information and telecommunication networks or information systems.

The letter of the Federal Antimonopoly Service of Russia dated July 2, 2014 No. ATs/26473/14 states: “... an exchange can be considered as a procurement in electronic form electronic documents between the customer and the procurement participant in accordance with the requirements for a specific procurement method established in the procurement regulations.”

If control measures are carried out in relation to a specific procurement, violations may be identified in terms of non-compliance with the electronic form.

Choose the method of open request for prices in electronic form when purchasing products included in the list.

What purchases under 223-FZ should be carried out electronically?

The customer is obliged to conduct a purchase in electronic form if he purchases products from a special list, which the Government of the Russian Federation approved by Resolution No. 616 of June 21, 2012, hereinafter referred to as Resolution No. 616. This is stated in Part 4 of Article 3 of Law No. 223-FZ.

There are three exceptions for customers, when products from the list approved by Resolution No. 616 do not need to be purchased electronically.

Exception 1. The customer purchases products, information about which does not need to be placed in the Unified Information System (Part 15, Article 4 of Law No. 223-FZ).

Exception 2. The customer needs the product because:

• an accident occurred;
• an act of force majeure occurred;
• urgent medical intervention is required;
• a natural or man-made emergency has occurred;
• it is necessary to prevent the threat of an accident, force majeure, emergency, or urgent medical intervention.

Exception 3. The customer purchases from a single supplier. At the same time, in the Procurement Regulations, stipulate what goods, works or services you have the right to purchase from a single supplier. Whether the products are included in list No. 616 or not is not important.

Such exceptions are provided for in paragraph 2 of Decree No. 616.

Provide for electronic procurement in the Procurement Regulations. Choose your own purchasing method. For example, electronic auction, competition with the ability to submit applications in electronic form, electronic request for quotations.

Have you purchased products from the list approved by Resolution No. 616, not in electronic form? Controllers will punish you with a fine.

For an organization, the fine will be from 100,000 to 300,000 rubles, for an official - from 10,000 to 30,000 rubles. (Part 1 of Article 7.32.3 of the Code of Administrative Offenses of the Russian Federation).

If an official violates Resolution No. 616 twice, the punishment will increase to a fine of 40,000-50,000 rubles. or disqualification for a period of 6 to 12 months (part 2 of article 7.32.3 of the Code of Administrative Offenses of the Russian Federation).

Purchase in electronic form according to Law No. 223-FZ

Federal Law of July 18, 2011 No. 223-FZ “On the procurement of goods, works, services certain types legal entities" (hereinafter referred to as Law No. 223-FZ) does not clarify what "electronic form" of procurement means.

In accordance with Part 4 of Art. 3 of Law No. 223-FZ The Government of the Russian Federation has the right to establish a list of goods, works, services, the purchase of which is carried out in electronic form. On June 21, 2012, Government Resolution No. 616 “On approval of the list of goods, works and services, the procurement of which is carried out in electronic form” (hereinafter referred to as Resolution No. 616) approved the said List.

The resolution also established exceptions. In particular, the purchase of goods, works and services included in the list approved by this resolution is not carried out in electronic form:

• if information about the purchase in accordance with Part 15 of Art. 4 of Law No. 223-FZ is subject to placement in the Unified Information System;
• if the need for procurement arose as a result of an emergency situation, force majeure, the need for urgent medical intervention, natural or technogenic nature, as well as in order to prevent the threat of their occurrence;
• if the purchase is carried out from a single supplier (performer, contractor) in accordance with the procurement regulations provided for in Art. 2 of Law No. 223-FZ.

The procedure for procurement in electronic form

So what is an “electronic form” and what is the procedure for conducting electronic procurement?

In accordance with clause 11.1 of Art. 2 of the Federal Law of July 27, 2006 No. 149-FZ “On information, information technology and on the protection of information" "electronic document - documented information presented in electronic form, that is, in a form suitable for human perception using electronic computers, as well as for transmission over information and telecommunication networks or processing in information systems."

In accordance with Art. 6 of the Federal Law of April 6, 2011 No. 63-FZ “On Electronic Signature” (hereinafter referred to as Law No. 63-FZ) “information in electronic form signed with a qualified electronic signature is recognized as an electronic document equivalent to a document on paper signed in hand signature."

Consequently, procurement in electronic form involves the exchange of electronic documents using computers, information and telecommunication networks or information systems. Neither Law No. 223-FZ nor Resolution No. 616 stipulates that electronic procurement must be carried out on electronic trading platforms.

Consequently, customers, in accordance with this resolution, have the right to independently conduct procurement in electronic form, without involving an electronic trading platform, provided that all documents related to the procurement are signed, including applications from procurement participants and contracts concluded as a result of the procurement procedure, electronic digital signature.

Resolution No. 616 does not define which procedure can be considered as procurement in electronic form, and does not establish requirements for the mandatory conduct of such procurement electronically trading platform. There is also no established list of electronic trading platforms on which purchases of goods, works, and services can be carried out in electronic form.

The exchange of electronic documents between the customer and procurement participants in accordance with the requirements for a specific procurement method can be considered as electronic procurement.

Thus, the customer independently determines the procedure for conducting a purchase in electronic form, the need for such a purchase on the electronic trading platform, as well as the specific platform for carrying out the specified purchase.

In order to comply with Government Decree No. 616, the customer can choose any procedure for exchanging electronic documents - via email, on electronic media or through special websites - their own (customer’s official website) or specialized, so-called ETP.

It is important that this procedure must be reflected in the procurement regulations.

Methods for exchanging electronic documents

Let's consider the advantages and disadvantages of each of these methods.

First, you need to decide on the rules and procedure for using an electronic signature.

In accordance with Law No. 63-FZ:

electronic signature - information in electronic form that is attached to other information in electronic form (signed information) or is otherwise associated with such information and which is used to identify the person signing the information;

electronic signature key - a unique sequence of characters intended to create an electronic signature;

In accordance with Law No. 63-FZ, an electronic signature can be simple or enhanced. There is a distinction between an enhanced unqualified electronic signature (hereinafter referred to as an unqualified electronic signature) and an enhanced qualified electronic signature (hereinafter referred to as a qualified electronic signature).

A simple electronic signature is an electronic signature that, through the use of codes, passwords or other means, confirms the fact of the formation of an electronic signature by a certain person.

Non-qualified electronic signature is an electronic signature that:

obtained as a result of cryptographic transformation of information using an electronic signature key;

allows you to identify the person who signed the electronic document;

allows you to detect the fact of making changes to an electronic document after its signing;

created using electronic signature tools.

Qualified electronic signature is an electronic signature that meets all the characteristics of an unqualified electronic signature and the following additional characteristics:

the electronic signature verification key is specified in the qualified certificate;

To create and verify an electronic signature, electronic signature tools are used that have received confirmation of compliance with the requirements established in accordance with this Federal Law.

Information in electronic form, signed with a simple electronic signature or an unqualified electronic signature, is recognized as an electronic document equivalent to a paper document signed with a handwritten signature, in cases established federal laws, normative legal acts adopted in accordance with them or an agreement between participants in electronic interaction. Regulatory legal acts and agreements between participants in electronic interaction, establishing cases of recognizing electronic documents signed with a non-qualified electronic signature as equivalent to paper documents signed with a handwritten signature, must provide for a procedure for verifying the electronic signature. Regulatory legal acts and agreements between participants in electronic interaction, establishing cases of recognizing electronic documents signed with a simple electronic signature as equivalent to paper documents signed with a handwritten signature, must comply with the requirements of Art. 9 of this Law No. 63-FZ.

Thus, the customer has the right to choose any method of certifying the documents necessary for the procurement, unless the legislation establishes special requirements for such documents.

The procurement documentation must also specify the requirements for the procedure for submitting an application by a procurement participant:

Exchange of electronic documents via email seems to be the simplest, but also the most unreliable way.

Simple - because it does not require any extra work, except for allocating a special address for receiving applications. Unreliable - because, firstly, even the most carefully written rules for confirming receipt of an application from a participant do not guarantee the absence of accusations on the part of the participant that he sent an application, but for some reason the customer did not receive it, and secondly, there is practically no way to ensure closure access to information before the date and time of opening access.

Exchange of electronic documents through the customer’s official website- a rather expensive method, and currently only the largest Russian companies can afford to create and maintain operational electronic platforms for your own needs. Advantages - the system and its functionality fully correspond to the specifics of the customer.

On such sites it is much easier to organize a system of confirmed submission of applications and restriction of access to it before the deadline for submission.

Exchange of electronic documents via ETP- perhaps the most optimal way to place orders electronically. Currently, there are more than two dozen different ETPs that are ready to offer customers the most convenient forms of work. In this case, the ETP operator acts as an intermediary and guarantor in the interaction between the customer and the participant.

It is the operator who confirms receipt of the application and who ensures that it is not available for opening until the deadline for submitting the application.

Almost all ETPs offer placing orders in all possible ways - from the simplest (request for quotes) to the most complex (two-stage with prequalification and rebidding).

In addition, many ETPs offer marketing reviews that allow the customer to prepare price justification, information on participants who might be interested in purchasing, etc.