New changes to Law No. 44-FZ on the contract system. Effective from July 1, 2021. Purchase from a single supplier up to 3 million (clause 4 of Article 93)

Let's figure out step by step what is needed to conclude a contract with a single supplier under Federal Law 44, when it is necessary to publish a notice, when a report is required - justification. Mandatory rules that must be taken into account when purchasing from a single supplier, both for the customer and the supplier or contractor. The customer has the right to conclude a contract with a single supplier only on the grounds provided for in Part 1 of Article 93 of Law No. 44-FZ. Before signing a contract, regardless of the selected paragraph of Article 93 of Federal Law 44, procurement must be included in the procurement plan and schedule plan.

Concluding a contract with a single supplier is a right, not an obligation, of the customer, but there is an exception.
According to parts 1 and 5 of Article 24 and part 1 of Article 93 of Law No. 44-FZ, in cases where an open competitive procurement has not taken place and there is one application that meets the requirements of the documentation, the customer is obliged to conclude a contract with a single supplier. The position is confirmed by the Ministry of Finance in letter dated September 12, 2017 No. 24-02-08/58934 and the Ministry of Economic Development in letter dated March 31, 2017 No. OG-D28-4021 How to purchase from a single supplier?

Entering purchases into the procurement plan and schedule

Uniform rules for all purchases under Federal Law 44: you cannot carry out purchases that are not included in the procurement plan and schedule. This rule also applies to purchases from a single supplier, in accordance with Part 11 of Article 21 of Law No. 44-FZ and letter of the Ministry of Economic Development dated March 31, 2017 No. OG-D28-4021. If a contract is concluded that is not in the schedule, the contract service employee or contract manager will pay a fine of 30,000 rubles. The punishment is provided for in Part 1.6 of Article 7.30 of the Code of Administrative Offences. There are special purchases for which simplified planning is provided: not each contract is written in the schedule, but the total annual amount of purchases by type of expense (subparagraph “a” of paragraph 2 of the Requirements for the form of the schedule from Government Decree No. 553 dated 06/05/2015 and in subparagraph “a” of paragraph 2 of the Requirements for the form of the schedule, which the Government approved by Resolution No. 554 dated 06/05/2015). Such special purchases include information about purchases that are planned to be carried out in accordance with clause 7 of part 2 of Article 83 and clauses 4, 5, 23, 26, 33, 42 and 44 of part 1 of Article 93 of Federal Law 44 in relation to each of the following procurement items :

• medicines purchased in accordance with clause 7 of part 2 of article 83 of the Federal Law;
• goods, work or services in an amount not exceeding 100 thousand rubles (clause 4 of part 1 of Article 93 of Federal Law 44);
• goods, work or services in an amount not exceeding 400 thousand rubles (clause 5 of part 1 of Article 93 of Federal Law 44);
• services related to sending an employee on a business trip (clause 26 of part 1 of Article 93 of Federal Law 44), as well as participation in festivals, concerts, performances and similar cultural events (including tours) on the basis of invitations to attend these events;
• teaching services provided by individuals;
• tour guide services provided by individuals;
• services for the maintenance and repair of one or more non-residential premises transferred for free use or operational management to the customer, water, heat, gas and energy supply services, security services, household waste removal services if such services are provided to another to a person or other persons using non-residential premises located in the building in which the premises are located, transferred to the customer for free use or operational management;
• work related to the collection and processing of primary statistical data when conducting federal statistical observation on the territory of the Russian Federation in accordance with the legislation of the Russian Federation on official statistical records, performed by individuals (clause 42 of part 1 of article 93 of Federal Law 44);
• services for granting the right to access information contained in documentary, documentographic, abstract, full-text foreign databases and specialized databases of international science citation indices (clause 44 of part 1 of article 93 of Federal Law 44);

Deadline for making changes to the procurement plan and plan - schedule This also has its own characteristics for procurement from a single supplier. From July 2021, the period of 10 calendar days for purchases from a single supplier has been canceled and a new one has been established. From July 1, 2021, change the procurement schedule from a single supplier, at least one calendar day before publishing the purchase notice. In this case, publish the notice no earlier than the day you post the changed schedule in the Unified Information System. Law No. 44-FZ does not indicate when to make changes to the schedule if it is not necessary to publish a notice of purchase from a single supplier. In this case, it is better to use the general rule to make changes 10 calendar days before you enter into a contract, rather than one calendar day. An exception is purchases under paragraphs 9 and 28 of part 1 of Article 93 of Law No. 44-FZ, when changes are made one day before the conclusion of the contract, in accordance with paragraphs 9 and 10 of the Rules from Resolution No. 553, paragraphs 11 and 12 of the Requirements from Resolution No. 554.

Calculation of the price of a contract with a single supplier

To calculate the contract price, use one or more methods:

• market analysis method;
• normative method;
• tariff method;
• design and estimate method;
• costly method.

The customer has the right to use other methods for calculating the price of a contract with a supplier if the listed methods cannot be used. In this case, in the price justification, include a justification for the impossibility of using basic methods, in accordance with parts 1 and 12 of Article 22 of Law No. 44-FZ and in the letter of the Ministry of Economic Development dated October 13, 2014 No. OG-D28-7883. If you choose the wrong method for calculating the NMCC, the contract service employee will pay a fine of 20,000 to 50,000 rubles. under Part 1 of Article 7.29.3 of the Administrative Code.

Cases of purchasing from a single supplier

Cases of procurement from a single supplier are listed in Part 1 of Article 93 of the Federal Law “On the Contract System”. Based on the provisions of this article, it is necessary to highlight the main groups of cases when the state customer has the right to purchase from a single supplier. Such cases include:

• carrying out the procurement procedure in cases where the sole contractor under the contract may be a company recognized as a natural monopoly;
• procurement procedures for those cases when we are talking about concluding a contract for a small amount (the amount of the signed contract does not exceed one hundred thousand rubles);
• the object of the procurement is goods, services or work that are necessary to meet defense needs , as well as for the needs of defense production;
• conducting procurement procedures for cases where such procurement is necessary for the sphere of culture , art and related industries;
• conclusion of state and municipal contracts, the main purpose of which is to provide various economic facilities with utilities , such as gas, water and electricity supply, as well as the supply of thermal energy;
• carrying out urgent purchases in the field of medical care or the supply of medicines and accompanying materials for those cases where such purchases are necessary to provide medical care after the occurrence of various natural and man-made emergencies.

Purchasing from a single supplier has detailed regulations under Article 93 of the previously mentioned federal law.

Drawing up a contract

When drawing up a contract, indicate the essential conditions in accordance with Law No. 44-FZ. But when purchasing from a single supplier, the following exceptions are provided:

• responsibility of the customer and counterparty;
• contract execution schedule, even if the contract is concluded for a period of more than three years and the price is more than 100 million rubles;
• the procedure and period for payment for goods, work or services, the procedure and period for acceptance;
• the condition is that you reduce the price of the contract with an individual or legal entity by the amount of taxes and other obligatory payments to budgets.

In addition, the customer is not obliged to use standard contracts. The above exceptions apply only for purchases under clauses 1, 4, 5, 8, 15, 20, 21, 23, 26, 28, 29, 40, 41, 44–46 and 51–53 of part 1 of article 93 of Law No. 44- Federal Law. When purchasing from a single supplier for other reasons, include all essential conditions, in accordance with Part 15 of Article 34 of Law No. 44-FZ. It is imperative to include calculation and justification of the price in the contract. An exception is procurement in which you do not prepare a justification for the impossibility of conducting competitive procurement, namely in cases of procurement from a single supplier (contractor, performer), provided for in paragraphs 1, 2, 4, 5, 7, 8, 15, 16, 19 - 21 , 24 - 26, 28, 29, 33, 36, 42, 44, 45, 47 - 48, 50 - 54 parts 1. In such transactions, calculation and justification of the price do not have to be included in the contract. However, if included, there will be no violation of the law - Part 4 of Article 93 of Law No. 44-FZ and the decision of the Arbitration Court of the Lipetsk Region dated August 31, 2016 No. A36-2054/2016. The customer is obliged to calculate and justify the price when he creates a schedule, so the calculation and justification must be prepared, even if there is no obligation to include information in the contract. (Clause 1 of Part 3 of Article 18 of Law No. 44-FZ and letter of the Ministry of Economic Development dated 02.11.2017 No. D28i-142 and dated 04.26.2017 No. D28i-1859)

Preparation of the report - justification

To purchase goods, works, services from a single supplier, the customer is obliged to justify in the report:

• impossibility or inappropriateness of other procurement methods;
• contract price;
• other essential terms of the contract.

Do not generate a justification report for all transactions with the supplier.

The rules are established in Part 3 of Article 93 of Law No. 44-FZ.

In what cases is it carried out?

In Art. 93 of Law No. 44-FZ presents cases in which procurement is carried out from a single potential contractor. This:

• A company acting as the sole supplier is a monopoly in its market segment. The state customer has no choice of another contractor without causing damage to the quality of contract execution;
• the value of the transaction does not exceed 100 thousand rubles;
• subject of procurement - items that are necessary to meet and ensure defense needs;
• it is necessary to provide the necessary goods to the spheres of culture or art, the industries that come into contact with them;
• it is necessary to provide utility facilities with utilities;
• the need for urgent purchase for medical care or supply of medical supplies, related materials necessary to provide assistance in the event of natural or man-made disasters.

Note! You need to rely on Art. 93 governing laws. Other regulations do not provide a detailed step-by-step description of procurement when a single potential contractor is identified. To avoid FAS inspection, you must conduct the transaction legally.

Coordination of purchase with the control body

When competitive procurement does not take place and you enter into a contract with a single supplier, agree on the deal with the control body. Agree on a contract with a single supplier based on the results of a failed closed procurement in any case. It is also always necessary to agree on a deal with a single supplier based on the results of an open procurement, with three exceptions:

• an autonomous institution conducts procurement under Part 4 of Article 15 of Law No. 44-FZ;
• the legal entity is conducting a procurement under Part 5 of Article 15 of Law No. 44-FZ;
• The request for quotation did not take place.

Contracts with single suppliers based on the results of electronic procurement do not need to be agreed upon. (clause 24–25.3 of part 1 of article 93 of Law No. 44-FZ)

Procurement procedure

To understand how a transaction occurs, you need to define it. The only supplier under 44-FZ is the only one who submitted an application to participate in the competition, or the only one whose application was found to comply with the law and the competition documentation. This is a non-competitive way of conducting government procurement. There is no formal selection procedure.

Purchasing from a single supplier under 44-FZ is a right, not an obligation, of the customer. You can carry out such a transaction simply and without special expenses. This is its attractiveness! But such an operation can be carried out if certain conditions are met.

The contract with the sole supplier is carried out in the following order:

• determine whether there is a need for the item being purchased. You need to focus on the norms prescribed in Art. 18 regulated law;
• preparation of tender documentation. It is also necessary to prepare a justification for choosing a non-competitive procurement method;
• placement of all necessary information on the World Wide Web on an electronic platform on which the selection of a contractor will take place;
• if the maximum contact price does not exceed 500 thousand rubles, then the customer places a notice. This must be done no later than a week before the deadline for accepting applications for participation in procurement. The period may be more than 5 working days, but not less. If the purchase amount does not exceed ¼ million rubles, then a notice may be published no less than 4 calendar days in advance;
• all applications that are submitted within the specified period must be registered;
• Until the information is made available to all participants, it is the customer's responsibility to maintain its confidentiality. Open access to all information will appear at the time indicated in the notice. All applicants must be present. It is the responsibility of the customer to ensure that all applicants are notified in good faith. In addition, he is obliged to provide an audio recording of the discovery of information contained in applications;
• control check of all submitted applications for compliance. If it is discovered that any of them does not comply, it will be rejected. All compliance conditions are specified in the notice;
• all actions carried out by the state customer must be reflected online on an electronic platform. Based on these publications, a final report of the competition will be generated. This is necessary for the FAS to be convinced of the legality of the choice of a single supplier;
• signing a contract and registering it in a unified information system;
• execution of the transaction. The result will also be reflected in the system. If fines or other sanctions are not assessed under the government order, it will be possible to rely on it in the future (for example, when setting prices for upcoming transactions), as if the transaction was executed in good faith. The rating of the contractor who performed it will rise significantly among competitors.

Note! The customer’s responsibilities include mandatory notification of the regulatory authority about the conclusion and execution of a government contract.

Recommendations for purchasing from a single supplier:

Advantages

When concluding a contract with a single supplier, the government customer must remember that there are positive and negative aspects of such a transaction. Strengths:

• if the government customer has already worked with this supplier, the execution of previous orders was successful, then the likelihood of re-entering into a government contract with him increases;
• the risk of procurement disruptions due to technical failures is minimized;
• The procedure itself is quick, all its stages are reduced to a minimum in the time period. When compared with other competitive methods of choosing a contractor, the time savings are obvious;
• saving resources - labor, economic, material.

Don't forget about the shortcomings.

Flaws

Weaknesses of purchasing from a single contractor:

• Due to decreased competition, the risks of obtaining low-quality results are high. There is no possibility to reduce the price, there is no choice of a suitable price, or to achieve improvements in the terms of the contract;
• there is a high risk of additional inspections from regulatory authorities. In particular, from the FAS. There is a high probability that the government customer will be suspected of misappropriating funds from the budget. This is fraught with fines and inclusion in the register;
• if there is a need to divide one large purchase into several small ones, then the volume of paper document flow increases several times. Mandatory information must be entered in full into the Unified System.

Note! Before deciding to place an order with a single supplier, you need to carefully weigh the pros and cons of such actions and make sure that they are appropriate.

Publication of the notice

When purchasing from a single supplier, publish a notice in the Unified Information System. The obligation is provided only for transactions under paragraphs 1–3, 6–8, 11–14, 16–19 of Part 1 of Article 93 of Law No. 44-FZ. When purchasing for other reasons, the notice does not need to be published. Mandatory information is indicated in the notice:

You must place a notice in the Unified Information System at least five calendar days before the date you enter into the contract. When purchasing with state secrets, there is no need to publish a notice. The requirement to publish a draft contract with a single supplier along with the notice is not established in Law No. 44-FZ. (Clause 1, 2, 4, 8 of Article 42 and Part 2 of Article 93 of Law No. 44-FZ) If you violate the deadline for publishing a notice by one working day, the contract service employee will pay a fine of 3,000 rubles, the organization - 10,000 rubles. In case of violation for more than one working day, the fine for an official is 15,000 rubles, for an organization - 50,000 rubles. If you violate the procedure for publishing a notice, the fine will also be 15,000 and 50,000 rubles. The punishment is provided for in parts 1.2–1.4 of Article 7.30 of the Code of Administrative Offenses. In addition, controllers may fine for violating the deadlines for concluding a contract.

What documents are needed

Procurement from a single contractor is regulated by Art. 93 according to Law No. 44-FZ. This article states that every government order carried out in a non-competitive environment must be justified by documents. To avoid any questions from regulatory authorities, the government customer must prepare the following documents:

• order on public procurement. It is needed to make changes to the schedule. Based on it, a written justification for purchasing from a single supplier is formed;

  

• calculation of NMCC and preparation of written calculations. The government customer has several methods for creating the value of a government contract that he can use. But this happens with a written justification for each step and calculation;
• a report on why the purchase will be made from a single supplier. That is, the customer must provide a written justification for the impossibility and inexpediency (from an economic point of view) of procurement in a competitive manner;
• terms of reference with a detailed description of the subject of the future transaction. The task must include a description of technical and functional features, additional requirements that will allow the potential contractor to efficiently fulfill his obligations;
• draft contract. It is compiled on the basis of all the above documents and includes information from orders, technical specifications and other things. All these documents are attached to it. This is necessary to ensure that there are no questions or misunderstandings when signing the contract.

Note! The responsibilities of each government customer include preparing a notice that describes all the nuances of the future transaction. This paper must be prepared for each purchase.

The notice is subject to mandatory publication when concluding transactions under Art. 93 governing laws. There is a legally approved form that contains the following information:

• detailed description of the procurement object;
• information about the participant in the transaction;
• the requirements that the government customer places on him;
• information about the calculated value of the contract and its justification;
• the procedure for concluding a contract, the procedure for its payment, acceptance of the results of execution;
• if there are controversial issues that require additional clarification, the notice must indicate the regulatory procedure for resolving these situations;
• the procedure for considering submitted applications for participation, despite the fact that the procurement is carried out in a non-competitive manner;
• procedure for signing an agreement with a single supplier under 44-FZ.

Note! If the subject of the procurement is information or technical means that are directly related to state secrets, then publication of the notice is not required.

A sample notice for a purchase that will be carried out from a single supplier looks like this:

FAS notification

If you have entered into a contract with a single supplier under clauses 6, 9, 34 or 50 of part 1 of Article 93 of Law No. 44-FZ, notify the procurement control body about this. To do this, send a notification to one of the organizations:

• FAS - for procurement for federal needs;
• control body in the field of state defense procurement - for procurement within the framework of the state defense order;
• executive body of a constituent entity of the Russian Federation that controls procurement - for procurement for regional needs;
• local government body that controls procurement - when purchasing for municipal needs.

Attach a copy of the contract and the rationale for its conclusion to the notification. Send the documents to the control body no later than one business day from the date of conclusion of the contract. Such rules are established in Part 2 of Article 93 of Law No. 44-FZ. If you do not send the documents to the controllers on time, the contract service employee will be fined 15,000 rubles, and the organization – 100,00 rubles. under Part 1 of Article 19.7.2 of the Administrative Code.