The Ministry of Finance clarified the application of the national regime in public procurement under 44-FZ and 223-FZ
The Russian Ministry of Finance has issued clarifications on the application of the national regime in procurement regulated by Laws No. 44-FZ and No. 223-FZ. The Agency clarified which customers are subject to prohibitions, restrictions and advantages, as well as which procurement methods should take them into account. In addition, the nuances of the description of the object of purchase and the justification of the initial maximum contract price (NMCC) are explained.
Who needs to comply with prohibitions, restrictions, and benefits
Measures of the national regime (prohibitions, restrictions, advantages) are applied by:
- all customers working within the framework of Law No. 44-FZ;
customers under 223-FZ, including:
- state corporations, state-owned companies, publicly-owned companies, autonomous and budgetary institutions, unitary enterprises;
- subjects of natural monopolies, regardless of their organizational and legal form;
- organizations engaged in regulated activities (electricity, gas, heat, water supply, sanitation, MSW management and wastewater treatment);
- enterprises from the consolidated register of defense industry organizations.
In some cases, the measures also apply to individual business entities (JSC, LLC) that do not belong to the last three categories.
In which procurement methods are measures established?
The ban applies to all procurement methods, including purchases from a single supplier.
Limitations and advantages are taken into account:
- for competitive and electronic small purchases (under 44-FZ);
- for competitive and some non-competitive purchases (under 223-FZ), if the procurement regulations provide for the participation of several suppliers.
Description of the purchase object
The name of the object to be purchased does not necessarily have to completely match the wording in the lists containing national treatment measures. However, if restrictions are set, customers are required to specify the characteristics of the Russian product, regardless of whether the measure is applied in a particular purchase.
If the product is not produced in Russia or its release has been discontinued, the agency recommends that the purchase description indicate the impossibility of bringing the characteristics of the domestic equivalent.
Features of the NMCC justification
When calculating the initial maximum contract price (NMCC) using the market analysis method, customers are required to take into account goods produced in the countries of the Eurasian Economic Union (EAEU). If there are no identical or homogeneous products in the EAEU, it is necessary:
- to include in the justification of the price an argument about the impossibility of using the market method, taking into account the specifics of the national regime;
- use a different method of calculating prices, for example, market analysis, taking into account products from third countries.