FAS inspections: problems in choosing the purchase method and other difficulties under Laws N n 44-FZ and 223-FZ
Among other things, the FAS specified: what should the customer do if the types of work from the unified state register do not correspond to the object of purchase, what to pay attention to when choosing the purchase method, what requirements of the customer will burden the participants. Read more about this in our review.
According to the Law N 44-FZ
OKVED did not correspond to the object of purchase
The FAS complained that the customer illegally entered into a contract with the winner: the type of activity from the unified state register does not correspond to the object of purchase.
The controllers pointed out that the Law N 44-FZ does not require that the data match. The customer provided information to confirm that the winner meets the terms of the purchase.
Construction works of different objects were combined into one lot
The customer has included in a lot of work on the construction of medical and educational centers. For each of the objects there was a separate project documentation with a positive conclusion of the state expert examination. The construction was supposed to be on one land plot, under one cadastral number.
Supervisors considered this a violation: objects and work on them are not related to each other. This may limit competition.
Entangled in the ways of procurement
The control body pointed out that customers often choose the wrong purchasing method because they incorrectly correlate the OKPD2 codes. For example, use generic code.
In one case, the customer purchased services for complex maintenance of premises. He chose a generalized code for OKPD2, which is not in the auction list. In this regard, held an open competition in electronic form.
The controllers found out that the contract provides services with codes from the above list. So they had to be purchased through an electronic auction.
In another case, the customer purchased services for organizing and conducting the event. He also chose a generic code for OKPD2, which was not in the auction list. An open tender in electronic form was chosen as the purchasing method.
In the terms of reference set out the requirements to the goods from the auction list. The customer explained that they are only needed for the event. After its completion, the products are not transferred to the customer's ownership, and they are not put on the balance sheet. The choice of the purchase method was recognized as legitimate.
Required specific indicators of the product
The amended regulation on the composition of the first part of the application for participation in an electronic auction, as well as an open tender in electronic form, is valid from the beginning of 2020. However, customers still use it incorrectly: they require participants to provide specific product indicators instead of consent.
The Antimonopoly authority reminded that specific indicators of the product are not needed if it is used in the performance of work (provision of services). In this case, consent to work (services) is required.
For more information on how to distinguish the product used from the delivered one, read our article.
According to the Law N 223-FZ
They demanded too much
In one case, the requester required participants to have the necessary material and technical resources and supporting documents at the time of submitting the application.
The supervisors considered this a violation: the availability of resources and documents at the time of submitting the application does not affect the proper execution of the contract. The winner can attract such resources later.
In another case the customer set the evaluation criteria among other things: the purchasing participant must be registered in a specific register. In this case, they will get the maximum number of points.
The controllers recognized this as a violation: the register is not a state one. Participants must register before the end of the application period. However, they may not have time to do this, because you need to coordinate registration with the administrator of the named resource. In addition, the registration fee is subject to payment.
Provided for an illegal condition
The documentation established the right of the customer to withdraw from the contract with the sole participant in the competitive purchase. For example, due to a significant change in the circumstances that the customer expected when declaring a competitive selection.
The controllers considered this a violation: based on the results of competitive procurement, the customer must conclude a contract, even if only 1 application is submitted.
Documents: analysis of the practice of conducting unscheduled inspections of customers when making purchases for compliance with the requirements of Law N 44-FZ (September 2020)