Customers have the right to purchase from a single supplier for a certain contract amount. Here we look at who this rule applies to and how to apply it.
Law No. 44-FZ on the contract system clearly defines that customers are given the right to purchase from a single supplier for a contract amount not exceeding 100 thousand rubles. This article looks at who this rule applies to and how to apply it.
When the purchase of 44 Federal Laws is carried out:
| New requirements for purchasing GWS from a single supplier |
| On October 22, 2021, Decree of the Government of the Russian Federation No. 1649 came into force. It provides for the opportunity to purchase GWS for government needs from a single supplier only after an examination. |
The appeal of the state customer to the Government must contain:
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Each such appeal must now be accompanied by three expert opinions:
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| Based on the presented conclusions, the Government makes a decision on the advisability of conducting the procurement in a non-competitive manner. |
| As a result of the implementation of the resolution, it is expected not only to increase the efficiency of public procurement, but also to reduce cases of selection by the sole supplier of those performers who do not have sufficient capabilities and competencies for the proper execution of the contract. |
Cases of application of Procurement from a single supplier under 44-FZ are strictly regulated by Article 93 of Law No. 44-FZ and are allowed for certain types of procurement, since with this method of determining a supplier, a number of corruption components may arise.
Pros and cons of working with a single supplier
The note “Purchase from a single supplier under 44-FZ: what needs to be taken into account” provides clear arguments for and against working according to this scheme:
Advantages:
- If the customer (region) knows the supplier well and has successful experience of interacting with him, then the sole supplier mechanism makes it possible to insure the risks of a weak and unscrupulous contractor entering the project.
- The risk of violation of the contract conclusion procedure or its delay is minimized.
- Purchasing from a single supplier is faster and easier than through competitive procedures.
- The customer does not need to allocate large resources to carry out the procedure for identifying a supplier and concluding a contract.
Flaws:
- The customer will not be able to significantly reduce the contract price, as, for example, in an electronic auction.
- It will be difficult for the customer to ensure the best conditions for fulfilling the contract, as, for example, in an open tender in electronic form, due to the lack of competition.
- The FAS pays special attention to procurement from single suppliers, as it is associated with wide opportunities for abuse when spending budget funds. The customer can reach an agreement with the supplier in circumvention of the law. By giving preference to purchasing from a single supplier, the customer must understand that on the part of the regulatory authorities, he is, in fact, guaranteed increased attention to the non-competitive procedure. In this regard, he must clearly understand his responsibilities in the event of violations.
Purchase amount under 44 Federal Laws
One of the most common cases of purchasing from a single supplier is the conclusion of a contract in accordance with clause 4 of part 1 of Article 93 of Law No. 44-FZ, which allows for a one-time purchase in an amount not exceeding 100 thousand rubles. At the same time, Law No. 44-FZ does not contain any explanations regarding the subject of procurement and the number of contracts concluded with the same contractor. The total volume of purchases carried out in this way should not exceed two million rubles or five percent of the customer’s total purchase volume and in total no more than 50 million rubles per year.
How to work with the “Sole Supplier”
It is possible to conclude a contract with a single supplier only during the period and for those procurement items that will be established by the relevant Government decree.
In order to exercise the right to purchase from a single supplier, the customer must reflect the intentions for such purchases in relevant documents, such as a procurement schedule.
A contract manager or contract service employee who makes an unplanned purchase from a single supplier may pay a fine of 30,000 rubles. upon revealing the fact of such a purchase (part 11 of article 21 of Law No. 44-FZ, part 1.6 of article 7.30 of the Administrative Code). (See the decision of the Rudnyansky District Court of the Volgograd Region dated November 21, 2017 in case 12-39/2017.)
Customers are required to correctly determine the object of purchase so that the customer’s official is not charged with an administrative offense under Part 1 of Article 7.29 (fine 30,000 rubles) or Part 2 of Article 7.29 of the Code of Administrative Offenses of the Russian Federation (fine 50,000 rubles).
There is no opportunity to include a purchase in the procurement schedule until the limits of budget obligations are reached (see the decision of the Moscow Court of Justice dated August 22, 2017 in case No. A40-17771/2017). This court decision also indicates the possibility of concluding a contract by the customer only if there is a regulatory act itself as a basis, and the obligation to contain up-to-date information regarding the name of the counterparty with whom the contract is concluded.
Procurement from a single supplier is fully subject to the provisions of Part 5 of Art. 96 44-FZ, according to which if a procurement participant with whom a contract is concluded fails to provide security for the execution of the contract within the period established for concluding the contract, such participant is considered to have evaded concluding the contract. Also, the customer must include in the contract a condition regarding the timing of the customer’s return to the supplier (contractor, performer) of funds contributed as security for the performance of the contract (if such a form of security for the contract is used by the supplier (contractor, performer) (part 27 of article 34 of Law No. 44- Federal Law).
Due to the fact that the contract price for such purchases is limited only by the availability of financing, it is also worthwhile when drawing up a draft contract by customers to take into account the norm of Part 23 of Art. 34 44-FZ. If the initial (maximum) contract price for the purchase of goods, work, or services exceeds the amount established by Decree of the Government of the Russian Federation of September 4, 2013 N 775, the contract must indicate the obligation of the supplier (contractor, performer) to provide information about all co-contractors and subcontractors who have entered into an agreement or agreements with a supplier (contractor, performer), the price of which or the total price of which is more than ten percent of the contract price.
By signing a contract, the counterparty is duly aware of the terms of the contract being concluded, including liability for non-fulfillment or improper performance, as well as delay in fulfilling the obligations stipulated by the contract, and agrees with them. By virtue of Articles 309 and 310 of the Civil Code of the Russian Federation, obligations must be fulfilled properly and a unilateral refusal to fulfill an obligation, as well as a unilateral change in the terms of an obligation, are unacceptable (Resolution 9АСС dated 06/08/2017 in case No. A40-200720/2016).
When purchasing from a single supplier in the case provided for in clause 2, part 1, art. 93 44-FZ, the customer places a notice of such a purchase in the unified information system no later than five days before the date of conclusion of the contract. The notice can be posted more than five days before the conclusion of the contract; the minimum period between the notice and the conclusion of the contract is legally established.
The notice of procurement from a single supplier must contain the information specified in paragraphs 1, 2, 4 of Article 42 of 44-FZ, as well as in paragraph 8 (if the establishment of a contract security requirement is provided for in Article 96 of the Law). Notification of a purchase from a single supplier is not required if information about it constitutes a state secret.
The notification is provided in an electronic form in the Unified Information System.
Customers should be extremely careful when placing notices on purchases from a single supplier due to the fact that for such purchases Art. 36 44-FZ does not provide for the cancellation of notices by decision of the customer. If erroneous or inaccurate information is entered, the customer will be forced to contact the antimonopoly authorities with a request to cancel the procurement notice (for example, the decision of the Federal Antimonopoly Service for the Tambov Region dated December 7, 2017 in case No. VP-103/17).
Please note that there is judicial practice when a contract with a single supplier had to be concluded strictly in accordance with the terms of the procurement and the terms of the notification and that the counterparties of the sole supplier are determined on the basis of the Decree of the Government of the Russian Federation and they do not have the opportunity to refuse to enter into a contract and (or) change its terms.
In this regard, in order to avoid future conflict situations, customers should competently draft a contract, taking into account all possible deadlines for concluding a contract and fulfilling contractual obligations by the parties.
When making such purchases, the preparation of a documented report on the impossibility or inexpediency of using other methods of determining the supplier (contractor, performer), as well as justification of the price and other essential terms of the contract, is not provided for by law (Part 3 of Article 93 of Law No. 44-FZ).
Before concluding a contract, the customer checks the security provided by the sole supplier only if the contract security requirement is established in the notice (draft contract).
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Application of procurement from a single supplier within the framework of 44-FZ
The possibility of purchasing from a single supplier is provided for by law primarily in order to give customers the right to enter into a direct contract where competitive procedures are impossible or for some reason inappropriate.
For example, this procurement method is allowed in the following cases.
procurement of works and services in the field of capital construction and repair of real estate (including author’s control at the stages of development of project documentation and construction);
contracts for the purchase of unique cultural property, works of art, music;
purchase of utilities, electricity and heat supply services;
purchase of goods and services from companies classified as natural monopolies in accordance with current legislation;
contracts for the purchase of land and real estate;
concluding real estate lease agreements to meet government needs;
procurement in the field of the military sphere and the sphere of ensuring the country's defense capability (due to the need to comply with the regime of maintaining state secrets and the lack of a competitive environment in this segment);
procurement in the field of ensuring visits of foreign delegations and representative offices;
some types of procurement in the field of culture and sports;
procurement of medicines? intended for administration to a patient if there are medical indications.
Basic information about the “Sole Supplier”
Let's start with a graphomaniac comment that the term most often heard is not “Sole Supplier”, but “Sole Performer”. This is incorrect - the federal law “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” dated 04/05/2019 No. 44-FZ (https://www.consultant.ru/document/cons_doc_LAW_144624/) provides the term is “sole supplier (contractor, performer),” which, unfortunately, is not defined by law. Therefore, hereinafter we will use the term “Sole Supplier” and not “Sole Contractor”.
By single supplier we will mean an individual or legal entity with whom a government contract can be concluded without a competitive procedure, in other words, without a competition. We base this definition on clause 1 of Art. 24, which allows procurement to be carried out in only 2 ways: “competitive” or by “... purchasing from... a single supplier (contractor, performer).” This phrase means exactly a legal opportunity, nothing more.
According to clause 2, part 1, art. 93 No. 44-FZ purchase from a single supplier (contractor, performer) can be carried out by the customer if he (the supplier) is determined by a decree, order or instruction of the President of the Russian Federation or a decree / order of the Government of the Russian Federation.
According to the letter of the Ministry of Economic Development of the Russian Federation No. OG-D28-1522 dated February 14, 2017, in the presence of a corresponding resolution or order of the Government of the Russian Federation, procurement from a single supplier (contractor, performer) on the basis of clause 2 of part 1 of art. 93 of Federal Law N 44-FZ is the right of the customer, and not his obligation.
There is often an opinion that assigning the status of a single supplier automatically means that now all customers, against their will, are obliged to give the financial resources allocated for a particular purchase to the company that was declared such a contractor. This is not entirely true: whether working with a single supplier will remain the right of the customer or will become his responsibility, one can confidently say only on the basis of the wording that the Government will write in its resolution on granting the status of “Sole Contractor” to the corresponding company.
According to current legislation, such a resolution must contain the subject of procurement (which, strictly speaking, can be purchased without competition) and the deadline during which such a contract can be concluded. This document should also define the customer’s obligation to establish a contract security requirement.
When preparing a draft Government resolution, the contractor applying for a government contract must provide justification for the price of services (clause 2, clause 1, Article 93 44-FZ).
The right to purchase from a single supplier (contractor, performer) can only be used by government customers to meet government needs and only if a number of procedural features are observed, described below.
Special cases. Purchase of 44 Federal Laws
A special case of procurement from a single supplier is the conclusion of government contracts for supplies to ensure measures to eliminate the consequences of emergency situations, when the use of auctions is impossible due to the length of the procedure (clause 9 of part 1 of article 93 of Law No. 44-FZ).
Also, this method of public procurement is carried out in the event that the procedures for competitive open or closed selection of suppliers are recognized as failed and their results are published on the public procurement portal. In this case, the government contract is concluded directly with the tender participant who meets the requirements of the notification, on the terms provided for in the procurement documentation (clauses 24 and 25 of part 1 of Article 93 of Law No. 44-FZ).
In some cases, purchases in this form are carried out in accordance with regulations and decisions of the Government of the Russian Federation, which determine a specific supplier and the list of goods and services purchased (clause 2 of part 1 of Article 93 of Law No. 44-FZ).
Who belongs to the subjects of natural monopolies:
Subjects of natural monopolies are entities that are engaged in the production and sale of goods, works or services under conditions of a natural monopoly, i.e. No one else is engaged in such production. There is an approved Register of Natural Monopolies. It includes subjects of natural monopolies in the field of water supply, in the fuel and energy complex, in transport, in the field of communications, and in the field of radioactive waste disposal. The most striking example of a natural monopoly in the field of postal services is the Federal State Unitary Enterprise "Russian Post", in the field of telecommunications - Rostelecom. In order to find the entity the customer needs, it is necessary to refer to this Register, select the area of location corresponding to the customer and see which organization in this territory is the subject of a natural monopoly.
Signatures of the members of the Acceptance Committee:
Chairman of the Acceptance Committee
Deputy Chairman of the Acceptance Committee
Secretary of the Acceptance Committee
Members of the Admissions Committee
We, the undersigned:
On behalf of the State Customer - Head of the Federal Agency for Education ————————
On behalf of the Supplier Procurement 44 Federal Law –
- The Supplier's obligations under the government contract have been fulfilled in full.
- The state customer's obligation to make an advance payment has been fulfilled in full.
As part of the fulfillment of the obligations of the state customer for final settlements with the Supplier, the amount under government contract No. ________ dated ________, taking into account addendum No. __________ dated _____________, should be transferred in the amount of: ____________________ (____________________) rubles _______ kopecks, including VAT ____%, which is _____________ (__________________) rubles _____ kopecks.
| "Government customer" | "Provider" |
| Federal Agency for Education | |
| Supervisor ______________________ | |
| M.P. | M.P. |
Purchase of 44 Federal Laws
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Notification of signing a contract with the EP
In some cases, the customer enters into a contract with the EP after notifying the regulatory authority. Let's consider these cases.
Case No. 1. Purchase of works or services from a contractor, which can only be an executive body with the appropriate powers or a subordinate unitary enterprise or institution.
Case No. 2. Purchase of goods, works or services necessary to eliminate the consequences of an accident, other emergencies of a natural or man-made nature, or to provide emergency medical care. But there is one caveat: provided that the specified GWS are not included in the list approved by the Government of the Russian Federation necessary for the provision of humanitarian assistance or emergency response, and the use of other procurement methods is impractical due to the large time costs. Case No. 3. The request for proposals for the subject of the contract is the provision of services for the treatment of a citizen of the Russian Federation outside the Russian Federation by a foreign organization for the treatment of a citizen of the Russian Federation outside the Russian Federation was recognized by the customer as invalid by the federal executive body. In this case, the customer notifies the regulatory authority no later than one working day from the date of conclusion of the contract, sending a copy of the signed contract on both sides and the rationale for concluding the contract.
Advantages and disadvantages of purchasing from EP
Advantages of purchasing from EP
- minimum time required to conclude a contract
- a trusted supplier in whom the customer is confident
- no risk of disrupting the procurement procedure and, as a result, not concluding a contract on time
Negative aspects of purchasing from EP
- increased attention and control from authorized regulatory authorities
- lack of competition and, as a result, low cost savings
- contracts are available only to “their” suppliers
