Involvement of SMP as a co-executor. Involvement of SMP in contract execution

Small business- a type of entrepreneurial activity that does not relate to associations. We are talking about small enterprises and small firms.

General information

Small businesses are commercial organizations and consumer cooperatives. They also include individuals who were registered in the unified state register as individual entrepreneurs and who carried out entrepreneurial activities without forming a legal entity.

Law No. 44 regulates relations that were aimed at ensuring municipal and state needs. The legislation of the Russian Federation does not contain specific information on procurement.

Procedure and rules for procurement from SMP under 44 Federal Laws

In the Russian Federation, there are standard requirements specified in Law No. 44, according to which the bulk of procurement is carried out. The minimum volume of goods purchased from small businesses should not be lower than 15%. To purchase from this type of organization, competitions of various levels are created:

• Two-stage;
• With limited participation;
• Open.

Additionally, purchases from such organizations can be carried out by:

• electronic auctions;
• requests for proposals;
• quotes.

It is a mandatory requirement when participating in competitions created by the state to be SONCO and SMP. Since such organizations perform a limited amount of work, the initial maximum contract value at auction should not be more than 20 million rubles.

In applications, procurement participants must note that they are SMEs or SONCOs (small businesses or socially oriented non-profit organizations). Otherwise, they may not be allowed to participate in procurement.

The contract also states that if suppliers do not begin to comply with the terms of the subcontractors' contract, they will be subject to civil liability.

Allowable volume

The total volume of purchases is approved for the current financial year. The calculation also takes into account payment for contracts that were concluded before the current year, but which will be valid during it. Previously, the legislation used a predetermined schedule as the permissible volume of purchases from small businesses.

However, later changes were made to Law No. 44 Federal Law, as a result of which the minimum volume of goods purchased from small businesses should not be lower than 15%.

Methods of procurement under 44 Federal Laws

According to the provisions of Federal Law 44, there are two ways to carry out procurement:

• Non-competitive procurement

These are purchases from a single supplier. The product is purchased for reasons listed in the Federal Law. Typically there are purchases that are made for the following reasons:

1. Purchases from natural monopolies. Available for any amount. Information about the purchase is published on the official website of the federal service. Without publication, the action becomes illegal.
2. In accordance with paragraph 4 of Article 93. The volume of purchases should not exceed 100 thousand rubles. The total amount for the year is no more than 500 thousand rubles. Procurement data from this category is not posted on the official website, but is entered into the contract register.

• Competitive procurement

Competitive procurement is divided into two groups:

1. Open.
2. Closed.

Open procurement is popular among participants and customers. Data about manipulations are posted on the official Internet resource. The procedure for carrying out actions is regulated by articles of Federal Law No. 44.

Closed procurement can be carried out on the basis of the requirements provided for in Article 84 - auctions and tenders. To become a participant in a closed auction or competition, you will need an invitation from the customer. In order to find out information about such an event in advance, you will need to analyze the schedule in detail or send a request to the potential organizer about the date of the competition.

What can you buy?

According to Federal Law No. 44, the following types of goods can be purchased from SMP:

• Grains;
• Vegetables and crops;
• Fish;
• Raw materials for mineral and chemical industries;
• Food products;
• Feed flour, coarse and fine grinding;
• Fats and oils;
• Drinks;
• Cloth;
• Leather and products;
• Timber;
• Industrial gases;
• Chemical components;
• Automatic data processing devices;
• Equipment;
• Appliances and consumer electronics and so on.

Before purchasing goods, services or work, they must be approved in an order that is valid from January 1, 2018.

Benefits for small and medium-sized enterprises under 44 Federal Laws

As Article 30 of Law No. 44 of the Federal Law states, government customers must place about 15 percent of the volume of annual purchases from SMP and socially oriented non-profit organizations. This volume does not include government procurement in the form of:

• issuing loans;
• ensuring state security;
• produced from one supplier;
• produced in closed competitions/auctions.

To prove that a participant belongs to the SMP, a declaration is required. Main advantages:

• When holding a competition/auction, only persons who belong to SONCO and SMP can participate in procurement;
• The initial cost of the procedure should not exceed 20 million rubles;
• When conducting a government purchase, a special condition is established for a participant in the standard procedure for attracting, in the form of a partner or subcontractor, a person who also belongs to SONCO or SMP.

Is there liability for non-compliance with the legislation on placing an order with SMP?

For non-compliance with the legislation on placing an order with SMP, administrative liability is provided. According to Article 7.30, the implementation of work, goods, and services to meet the municipal and state needs of small businesses must be strictly in accordance with legal requirements. In case of non-compliance, an administrative fine will be imposed on officials in the amount of 50 thousand rubles.

The article lists the main points that a supplier needs to know when participating in auctions that are placed for small businesses.

Please advise on this question: our organization is participating in an electronic auction under 44-FZ, the procurement notice states: Benefits For participants who involve small businesses as co-executors, subcontractors for the execution of a contract, and for participants who involve Socially Oriented Non-Profit Organizations as co-executors, subcontractors for the execution of the contract (in accordance with Article 30 of Federal Law No. 44-FZ). What document should we confirm this with?

Law No. 44-FZ does not establish the method in which a procurement participant can confirm the involvement of co-executors-SMP. In practice, the customer independently includes in the draft contract the participant’s obligation to attract co-executors - SMP. For example, like this: . The customer also establishes in the contract a condition for its unilateral termination if the contractor fails to properly fulfill the specified condition.

Maxim Chemerisova, Director of the Department for Development of the Contract System of the Ministry of Economic Development of Russia

Who can participate in procurement

Participation of small businesses and non-profit organizations

The main thing is that such purchases must account for at least 15 percent of the total annual volume. Moreover, such contracts must not only be concluded within a year, but also executed and paid for. This is stated in part 1 of the letter of the Ministry of Economic Development of Russia dated July 8, 2015 No. D28i-2062. The letter discusses the procedure for calculating the annual volume of purchases through quotation and from a single supplier, but it can also be applied to purchases from SMP and SONKO.

There are two ways to purchase from SMP and SONKO.

First way

Conduct procurement only among SMP and SONCO in a competitive manner. In this case, the initial (maximum) contract price should not exceed 20 million rubles. This is stated in paragraph 1 of part 1 of Article 30 of the Law of April 5, 2013 No. 44-FZ.

If the customer is identifying suppliers only among SMP and SONPO, then he must indicate this in the procurement notice (clause 2 of the letter of the Ministry of Economic Development of Russia dated May 22, 2015 No. D28i-1296). And participants, in turn, are required to declare in their applications that they belong to these categories.

In addition, the draft contract must include a requirement for payment for goods (work, services) for a separate stage of contract execution within 30 days from the date of signing the acceptance document. This is stated in parts, Article 30 of the Law of April 5, 2013 No. 44-FZ.

If the purchase among SMP and SONPO does not take place, the customer can cancel the specified restriction and carry out the purchase in the general manner. In this case, do not take into account the contract price in the annual volume of purchases from small businesses and non-profit organizations. That is, the 15 percent norm includes only those purchases that were completed exclusively for SMP and SONKO. But the remaining purchases do not need to be taken into account in the volume of purchases from SMP and SONKO, even if one of these categories of participants wins. This is stated in Part 4 of Article 30 of the Law of April 5, 2013 No. 44-FZ and explained in the letter of the Ministry of Economic Development of Russia dated February 10, 2015 No. D28i-173.

Second way

In the notice of purchase and draft contract, establish an additional condition: the winner of the purchase must involve subcontractors (co-contractors) from among the SMP and SONKO in the execution of the contract. Any organization can be a participant in such a purchase, and the NMCC has no significance in this case.*

But what if the winner of the procurement is SMP (SONKO) itself? Is there a provision in the contract for the involvement of subcontractors from SMP and SONKO? The legislation does not regulate this issue. Therefore, it is safer to leave this condition. This position is shared by the Russian Ministry of Economic Development in letter dated December 1, 2015 No. OG-D28-15247. And to avoid disputes with the winner of the purchase, fix the provisions in the procurement documentation. For example, like this: “The winner (including SMP or SONKO) is obliged to involve subcontractors (co-contractors) from among SMP (SONCO) in the execution of the contract”.*

Previously, the Ministry of Economic Development of Russia expressed the opposite opinion: winners from among the SMP (SONCO) should not involve other SMP (SONCO) in the execution of the contract (letter dated September 17, 2015 No. D28i-2812). But, if you choose this option, disputes with inspectors are possible.

In addition, the condition that the winner must involve subcontractors and co-executors from SMP and SONKO should be included in the draft contract and the contract itself. Including write down:

• the volume of such attraction – as a percentage of the contract price;
• a condition on civil liability of suppliers (contractors, performers) if they do not involve subcontractors, co-executors from SMP and SONKO in the execution of contracts;
• that this requirement does not apply to the winner from among SMP and SONKO.

You can do it like this:*

This order has been established

The state provides special benefits for small and medium-sized businesses. In order to develop and maintain this area, tax, financial and administrative benefits are provided.

Small businesses are commercial organizations (legal organizations and individual entrepreneurs) that carry out their activities with the aim of making a profit. At the same time, non-profit organizations, unitary municipal or state institutions cannot be classified in this category of entities, even if they meet the requirements for SMEs in terms of annual revenue and number of employees.

Which organizations belong to the SMP?

For business entities and partnerships, at least one of the requirements of clause 1, part 1.1 of art. 4 209-FZ. If the organization meets one of the listed conditions, then indicators for revenue and the average number of employees are considered.

The Federal Law "On the Development of Small and Medium-Sized Enterprises in the Russian Federation" dated July 24, 2007 N 209-FZ regulates the basic requirements under which an organization can be classified as an SSE. In 2017, some changes were made to these requirements, thereby allowing more organizations to meet the status of a small or medium-sized enterprise.

Gradation of enterprises and limits established in each group:

Microenterprise: the amount of annual revenue excluding VAT should not exceed 120 million rubles, and the number of employees should be no more than 15 people.

Small business: the amount of annual revenue is no more than 800 million rubles, the number of employees is no more than 100 people.

Medium enterprise: revenue excluding VAT for the year is up to 2 billion rubles, and the average number of employees does not exceed 250 people.

The same rules for dividing into categories apply to individual entrepreneurs. If individual entrepreneurs do not have employees, then the criterion will be only the amount of revenue received for the year. When using the patent taxation system, individual entrepreneurs are classified as micro-enterprises.

All small business enterprises are entered into the Register of Small Business Entities, maintained by the Federal Tax Service, on the basis of:

information from the Unified State Register of Legal Entities, Unified State Register of Individual Entrepreneurs;

information provided to the Federal Tax Service on the number of employees, revenue from business activities and the application of special tax regimes, in the reporting established by the legislation of the Russian Federation;

information provided by persons specified in paragraph 2 of Art. 6 Federal Law No. 408-FZ;

information provided by legal entities and individuals included in the SME register.

More detailed information can be obtained on the Federal Tax Service website, including viewing.

Regarding government and commercial procurement, small businesses also have a number of advantages over other participants.

Purchase from small businesses 44-FZ

Government procurement under 44-FZ from small and medium-sized businesses is regulated by Art. 30 44-FZ.

For customers working in accordance with the Law on the Contract System, a number of requirements are put forward regarding procurement from small businesses and socially oriented non-profit organizations.

According to Part 1 of Art. 30 44-FZ, customers are required to carry them out in an amount of at least 15% of their annual purchases. Such trades can be carried out in the following types:

open competition;

competition with limited participation;

two-stage competition;

electronic auction;

request for quotations;

request for proposals.

At the same time, the initial maximum contract price should not exceed 20 million rubles.

Also, a positive point in procurement carried out only among small businesses is that the amount of security for an application for participation is set at no more than 2% of the NMCC. For comparison, in other procurements the customer has the right to set a bid security in the amount of up to 5% of the contract price.

Involvement of SMP or SONKO in the execution of a contract

When conducting a procurement, the customer has the right to establish in the notice a requirement for a contractor who is not an SMP or SONCO to involve a subcontractor or co-executors from the register of small businesses in the execution of the contract.

In this case, it is indicated what percentage of the work (of the contract value) was carried out with the involvement of a subcontractor from among the SMP, and this part is counted to the customer in the volume of purchases for the reporting period made from small businesses and SONPOs.

The contract of such a tender must include a clause on the civil liability of the contractor for failure to fulfill the conditions for attracting a contractor from among the SMP or SONCO to work.

The Government of the Russian Federation may establish standard terms of contracts providing for the involvement of SMEs (small and medium-sized businesses) in execution.

Since October 18, 2017, changes have been made to the legislation, which affected the following points:

1. the contractor must pay subcontractors and co-executors involved from among the SMP and SONCO within 15 workers days from the date of signing the document on acceptance of services, work or goods from the subcontractor. Previously this period was 30 calendar days.
2. the changes affected clause 1 of Government Decree No. 1466 of December 23, 2016, now the customer sets a fixed percentage of the contract price to indicate the volume of attraction of SMP or SONCO.

Calculation of the volume of purchases 44 Federal Laws

OOO ICC"RusTender"

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In accordance with Part 7 of Article 30 of the Federal Law "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" the Government of the Russian Federation decides:

1. Approve the attached contracts providing for the involvement of subcontractors, co-executors from among small businesses and socially oriented non-profit organizations in the execution of contracts.

2. The federal executive authorities, the State Atomic Energy Corporation "Rosatom" and the State Corporation for Space Activities "Roscosmos", which carry out regulatory and legal regulation in the relevant field of activity, shall, within 3 months, bring their regulatory legal acts into compliance with this resolution .

Standard conditions
contracts providing for the involvement of subcontractors, co-executors from among small businesses, socially oriented non-profit organizations in the execution of contracts
(approved by the Government of the Russian Federation dated December 23, 2016 No. 1466)

I. Conditions on the obligations of the supplier (contractor, performer)

1. Involve subcontractors, co-executors from among small businesses, socially oriented non-profit organizations (hereinafter referred to as subcontractors, co-executors) in the execution of the contract in an amount of at least 5 percent of the contract price.

2. Within no more than 5 working days from the date of conclusion of the contract with the subcontractor, co-contractor, provide the customer with:

a) a declaration on the affiliation of the subcontractor, co-executor with a small business entity, a socially oriented non-profit organization, drawn up in simple written form, signed by the head (other authorized person) of the small business entity, a socially oriented non-profit organization and certified by a seal (if there is a seal);

b) a copy of the agreement (agreements) concluded with the subcontractor, co-executor, certified by the supplier (contractor, performer).

3. In case of replacement of a subcontractor, co-executor at the stage of execution of the contract with another subcontractor, co-executor, provide the customer with the documents specified in this section within 5 days from the date of conclusion of the contract with the new subcontractor, co-executor.

4. Within 10 working days from the date of payment by the supplier (contractor, performer) of the fulfilled obligations under the contract with the subcontractor, co-contractor, provide the customer with the following documents:

a) copies of documents on acceptance of goods delivered, work performed, services rendered, which are the subject of an agreement concluded between the supplier (contractor, performer) and the subcontractor or co-contractor engaged by him;

b) copies of payment orders confirming the transfer of funds by the supplier (contractor, performer) to the subcontractor, co-executor - if the agreement concluded between the supplier (contractor, performer) and the subcontractor, co-executor engaged by him, provides for payment of fulfilled obligations before the payment deadline for the goods supplied , work performed, services provided, provided for in the contract concluded with the customer (otherwise, the specified document is presented to the customer additionally within 5 days from the date of payment by the supplier (contractor, performer) of the obligations fulfilled by the subcontractor, co-contractor).

5. Pay for goods supplied by a subcontractor, co-executor, work performed (its results), services rendered, individual stages of execution of the contract concluded with such a subcontractor, co-executor, within 30 days from the date of signing by the supplier (contractor, performer) of the document on acceptance of goods completed work (its results), services provided, individual stages of contract execution.

6. Bear civil liability to the customer for non-fulfillment or improper fulfillment of the conditions for involving subcontractors and co-executors in the execution of contracts, including:

a) for the submission of documents specified in this section containing false information, or their failure to submit or the submission of such documents in violation of the established deadlines;

b) for failure to involve subcontractors and co-executors to the extent established in the contract.

II. Conditions on the rights of the supplier (contractor, performer)

In case of non-fulfillment or improper fulfillment by a subcontractor, co-executor of the obligations stipulated by the agreement concluded with the supplier (contractor, performer), replace the subcontractor, co-executor with whom the contract was previously concluded with another subcontractor, co-executor.

Document overview

Standard terms of contracts have been approved that provide for the involvement of subcontractors, co-executors from among small businesses (SMBs), and socially oriented NPOs.

Thus, the supplier (contractor, performer) must involve subcontractors, co-executors from among SMP, NPOs in the execution of the contract in an amount of at least 5% of the contract price; submit certain documents to the customer within no more than 5 working days from the date of conclusion of the contract with the subcontractor, co-executor, as well as within 10 working days from the date of payment by the supplier (contractor, performer) for fulfilled obligations under the contract.

Goods supplied by a subcontractor, co-contractor, work performed (its results), services rendered, individual stages of contract execution must be paid for within 30 days from the date of signing by the supplier (contractor, performer) of the document on acceptance of goods, work performed (its results), services rendered, individual stages of contract execution.

In the case of a procurement without an established advantage for small businesses, when the winner was SMP, can the customer require the contractor to involve subcontractors from among SMP in the execution of the contract, if this requirement was established in the documentation and the contract?

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.

Unfortunately, the provisions of Law No. 44-FZ do not answer the question of the procedure for attracting subcontractors, subcontractors from among SMP, SONO in the event that the winner of the procurement is SMP or SONO.

The letters from the Russian Ministry of Economic Development indicate that if SMP or SONO win the procurement, they are not obliged to involve subcontractors from small businesses. At the same time, the contract system development department recommends that customers indicate in the draft contract that the condition for involving subcontractors does not apply if the contract is concluded with a participant - SMP or SONO. This is stated in the letters of the Ministry of Economic Development of Russia dated April 19, 2017 No. OG-D28-4676, dated December 23, 2016 No. OG-D28-15310, dated August 16, 2016 No. D28i-2105, dated November 25, 2015 No. D28i -3374.

At the same time, it is also impossible to obtain an unambiguous answer in the decisions of control bodies.

The decision of the Irkutsk OFAS Russia dated March 15, 2017 No. 153 obliges to involve subcontractors, co-executors from among small businesses, socially oriented non-profit organizations in the execution of the contract, including if the winning organization is a small business entity.

In turn, the Decision of the Omsk OFAS Russia dated July 25, 2016 No. 03-10.1/176-2016 states that the Federal Law on the Contract System does not contain legal regulation of the procedure for fulfilling the above condition in the event that the auction winner is himself a small business entity, socially oriented non-profit organization, accordingly, the involvement of subcontractors from among small businesses or socially oriented non-profit organizations in the execution of the contract, if such a condition is established in the auction documentation, is carried out by the contractor on a general basis and regardless of whether he is a small business entity or not or a socially oriented non-profit organization.

Thus, based on the above, we believe that if the notice of procurement establishes the specified requirement to involve subcontractors, co-executors from among SMP, SONO in the execution of the contract, but the winner of this procurement becomes SMP or SONO, the requirement provided for in part 5 of the article 30 of Law No. 44-FZ, is not presented to him.

How to draw up a report on purchases from SMP, SONO

Let’s say that in the contract the customer indicated that the condition of involving subcontractors from among the SMP and SONO in the execution of the contract is not applied if the winner is a small business entity or a socially oriented non-profit organization. Then fulfill the contract in full, do not involve subcontractors. Another option is that in the draft contract the customer stipulated that the winner - SMP or SONO - must attract subcontractors, co-executors from small businesses or socially oriented non-profit organizations. Then it is safer to comply with the contract requirement.

The legislator has not resolved the issue of whether small businesses should hire subcontractors. Specialists from the Ministry of Economic Development explained that if SMP and SONO win the procurement, they are not obliged to involve subcontractors from small businesses. At the same time, the contract system development department recommends that customers indicate in the draft contract that the condition for involving subcontractors does not apply if the contract is concluded with a participant - SMP or SONO. This is stated in letters of the Ministry of Economic Development of Russia dated December 23, 2016 No. OG-D28-15310, dated August 16, 2016 No. D28i-2105, dated November 25, 2015 No. D28i-3374.

Controllers do not always support the position of the Ministry of Economic Development. For example, the Federal Antimonopoly Service of Russia for the Kurgan region explained that small businesses retain the obligation to attract subcontractors, co-contractors from among the SMP, SONO to the extent established by the contract. And to establish in the draft contract that the condition for involving subcontractors does not apply if the contract is concluded with SMP or SONO is an unfounded decision. In this case, the controllers refer to the letter of the Ministry of Economic Development of Russia dated December 1, 2015 No. OG-D28-15247. The conclusion is given in the decision of the Federal Antimonopoly Service of Russia for the Kurgan region dated August 10, 2016 No. 05-02/139-16.

Decision of the Omsk OFAS Russia dated July 25, 2016 No. 03-10.1/176-2016

“...The applicant’s complaint states: “In accordance with Part 5 of Article 30 of Law No. 44-FZ, when determining a supplier (contractor, performer), the customer has the right to establish in the notice of procurement a requirement for a supplier (contractor, performer) who is not a small business entity or a socially oriented non-profit organization, on the involvement of subcontractors, co-executors from among small businesses, socially oriented non-profit organizations in the execution of the contract.

According to Part 6 of Article 30 of Law No. 44-FZ, the condition for involving subcontractors, co-executors from among small businesses, socially oriented non-profit organizations in the execution of contracts in the case provided for by Part 5 of Article 30 of Law No. 44-FZ is included in contracts indicating the scope of such attraction, set as a percentage of the contract price. The specified volume is taken into account in the volume of purchases made by customers from small businesses and socially oriented non-profit organizations in accordance with Part 1 of Article 30 of Law No. 44-FZ, and is included in the report specified in Part 4 of Article 30 of Law No. 44-FZ.

Thus, if the notice of procurement establishes the specified requirement to involve subcontractors, co-executors from among small businesses, socially oriented non-profit organizations in the execution of the contract, but the winner of this procurement is a small business entity or a socially oriented non-profit organization, the requirement provided for by Part 5 of Article 30 of Law No. 44-FZ, is not presented to him.

At the same time, when preparing draft contracts, the Customer must formulate a condition on the involvement of subcontractors, co-executors from among small businesses, socially oriented non-profit organizations in the execution of the contract, indicating that this condition does not apply if the contract is concluded with a supplier (contractor, performer ), which is a small business entity or a socially oriented non-profit organization.”

In Section 18 “Limitation of participation in determining the contractor (only small businesses and socially oriented non-profit organizations can be participants in the electronic auction)” of the electronic auction documentation, the authorized body established the provision provided for in paragraph 2 of part 1 and part 5 of article 30 of the Federal Law on the Contract System , namely: “Not established. The contractor is obliged to involve subcontractors from among small businesses or socially oriented non-profit organizations in the execution of the contract in the amount of 15% of the contract price.”

A similar provision is contained in paragraph 6.1.17 of the draft contract, namely: “Involve subcontractors from among small businesses and socially oriented non-profit organizations in the execution of this contract in the amount of 15% of the price of this contract and provide it to the Municipal customer within 10 (ten) days from the date of conclusion of the agreement with the subcontractor, a copy of such agreement. For failure to comply with this condition, the Contractor shall be liable in accordance with clause 11.9 of this contract.”

The Commission notes that the Federal Law on the Contract System does not contain legal regulation of the procedure for fulfilling the above condition in the event that the auction winner is himself a small business entity, a socially oriented non-profit organization, and accordingly, the involvement of subcontractors from among small businesses or socially oriented entities in the execution of the contract non-profit organizations, if such a condition is established in the auction documentation, is carried out by the contractor on a general basis and regardless of whether or not he is a small business entity or a socially oriented non-profit organization.

Taking into account the above, the Commission found this argument of the applicant’s complaint to be unfounded. ..."