LawState and Law

Procurement of 223 FZ from a single supplier (non-competitive purchase)

During the conduct of economic activities, production and trade enterprises have to purchase materials, components and goods. Often the market is saturated with various competing sellers, representing the same type of product, so buyers almost always have a choice.

Procurement from a single supplier is an economic situation in which the customer proposes to conclude a contract for a particular candidate.

The goal of these actions, as a rule, is:

  1. Scheduled product purchase.
  2. An emergency solution to an unexpected problem.
  3. Neutralization of the result of an unsuccessful or failed competitive event.

State control: the purpose and methods

The situation in which the customer is forced to cooperate with only one performer is approaching such a phenomenon as a "monopoly" with all its dangers and risks. With the help of a large number of different measures (legislative acts, regulations, rules, sanctions), the state in every way prevents such a state of affairs. The procurement of a single supplier is not in itself a crime, but it is regulated by the Law No. 223 "On Procurement", in order to exclude the abuse and infringement of the rights of one of the participants in trade or partnership relations.

This law provides for the circumstances under which the purchase of this type is permitted, the procedure for the actions of subjects, the list of unfair buyers and sellers, and the documenting of such transactions (including mandatory reports). The purchase of 223-FZ from a single supplier is regulated by other laws that describe similar procedures. Their effect extends to most situations in which participants in trade relations resort to non-competitive supplies. Along with the norms, these acts formulate cases that are regarded as exceptions.

Non-competitive purchase subjects

First of all, the state determines who can be the customer (that is, who purchases at 223-FZ from a single supplier):

  1. Those organizations whose activities are related to regulated species (related to the sphere of electricity supply, water supply and others).
  2. Enterprises that are more than 50% owned by the state.
  3. Natural monopolists (enterprises that extract and process gas or oil).
  4. Organizations that are financed from the budget, in the event that they plan to pay for the purchase with extrabudgetary funds (received grants, own profit).

Any legal entity or individual, including an individual entrepreneur, is considered to be an executor (supplier).

Features of non-competitive purchases

Comparing the purchase from a single supplier with traditional business activities, you can see that it runs much faster and contains fewer steps. This is explained by the absence of a complicated procedure, in which the customer selects participants for signing the contract. Also, there is no need to compile the usual documentation.

However, sometimes the purchase of 223-FZ from a single supplier should be justified, and the consent of the parties is required to inform the Federal Antimonopoly Service (FAS). In addition, there is a list of situations that require participation in the acceptance of goods by an expert organization.

As a rule, non-competitive purchases are held extremely quickly, but the deal still goes through the stages of preparation.

The sequence of planning and implementation of such commodity relations is regulated by Law No. 44-FZ "On Procurement". It describes the sequence of actions of state institutions that resort to procurement on a contract basis.

Supervisory authorities have the right to verify the correctness of this type of procurement and in case of violation of the law, terminate the contract.

In what cases is it possible to purchase from a single supplier

The law includes a list of situations that may become the basis and justification for non-competitive purchases:

  1. The auction did not take place or no bids were made.
  2. The cost of the order does not reach 100 000 rubles (or 500 000 with the annual income of the customer from 5 million rubles).
  3. Under the terms of the contract, expenditure of funds occurs in accordance with a certain order (which was established by the state or investor).
  4. If the product to be purchased is the intellectual property of the supplier.
  5. The customer has an acute need to purchase a specific product and does not consider it expedient to conduct a competitive purchase.
  6. When the initiator of the transaction is the company (the customer, or the supplier), the leaders of which did not consider competitive options.
  7. In the event that during the auction the organizer accepted only one application or only one of the candidates was approved as a participant.
  8. The object of delivery is necessary for the institution related to the penal system.

Atypical is the situation in which the auction takes place with the participation of a single supplier. In fact, this can no longer be called an auction, since there is one proposal of price or an application for work. However, if only one participant showed activity (there were no other applicants or their applications were not checked), the customer has to work with him. This situation makes it possible to purchase at 223-FZ from a single supplier.

A respectable reason is also recognized by the emergence of an emergency situation at the customer's enterprise, which provoked non-competitive purchases, as well as a lack of time for organizing traditional trades.

What does the preparation for the conclusion of a contract include

The purpose of the preparation phase is to select the executing organization. Under normal conditions, the customer studies the offers of several suppliers and chooses the most profitable. If this is not possible, the task is assigned to the performer, which is available at the moment.

According to the 223-FZ, the justification for procurement from a single supplier should be based on the impossibility of choosing another type of procurement. For this reason, it becomes the customer's responsibility to prepare the following documents:

  • The report that the purchase is not feasible in any other way is inappropriate.
  • Price calculation and formulation of the rationale.
  • Appeal necessary for the purchase to be agreed.
  • Draft contract.
  • Notice of purchase from a single supplier

The use of all these documents is not mandatory for absolutely all cases. The specificity of specific situations may require the preparation of only some of them.

Procurement from a single supplier: justification report

In order to prove the legality of the reasons that led to cooperation with one executor, the head or authorized person of the enterprise-customer makes up and submits a report to the supervisory authority. 44-FZ "On Procurement" does not contain an indication of the form and detailed content of this document, so it often reflects the following data:

  • The code assigned to the purchase.
  • Who acts as the customer.
  • The point that this purchase is forced or justified for a number of reasons (indication of justifications).
  • The most important theses: what, in what quantity and why they plan to buy. Also the price and the term of the contract are important. All these points should be justified.
  • Date of the contract.

Example for illustration

Most often, examples of procurement from a single supplier is the order of the equipment instead of the failed or urgent hiring of performers to repair the damage.

If the problem with electrical wiring leads to the breakdown of electronic equipment and computers in the classroom of computer science, the school administration will have to take measures for their urgent repair or replacement. Justification for the purchase of new equipment from a single supplier can be the proximity of exams and the lack of time to find the most favorable terms of delivery.

Urgent purchases can be made, but at the same time, the report will contain data on how many new computers will be purchased (as many as suffered from a malfunction), at what price and in what amount will their delivery, installation and adjustment cost them.

How to determine the value of a contract

The purchase price must be correctly calculated and justified, this process is reflected in the relevant document. Often, the price is determined in the same way as when making a competitive purchase: by the method of comparable market prices, regulatory, tariff, project-estimate or cost method.

Legislation provides for an exception:

  1. Procurement for the purpose of securing the state defense order.
  2. The situation when the object of bargaining is economy.

In these cases, the value is formed under the influence of other factors.

Non-competitive procurement entities have the right to execute a transaction only after the controlling body receives, reviews and approves the justifications stated in the documentation.

Why publish information about the transaction

Legislation requires the customer to place a special document (procurement notice) in the public domain. This is necessary in order for the operation to be recognized as transparent and open.

However, you can not publish information that is classified as secret. As a rule, data on the parties-participants, the subject and terms of the contract are posted in the information portal on the Internet.

How the contract is concluded

There are two forms of contracts that apply to non-competitive purchases:

  1. Typical (includes all the conditions specified in the law).
  2. Simplified (requirements for its composition are lowered).

The second option is available to purchase subjects under the following conditions:

  • They are subjects of a natural monopoly and a central depository.
  • If the volume of purchases is very small.
  • When the subject of bargaining are utility services.
  • In situations of procurement for organizations of medicine, culture, sports or the state apparatus.

The use of the simplified form of the contract allows the subjects to choose almost any type of contract stipulated in the Civil Code of the Russian Federation. In this case, the agreement can be concluded orally, if the amount of purchases from a single supplier does not exceed 100,000 rubles.

Nuances associated with the execution of the contract

Persons carrying out non-competitive purchases should understand that the examination becomes an integral step in the acceptance of the goods. It is carried out in the vast majority of cases. To do this, invite outside experts or do their own.

Expertise is not needed in a number of cases:

  • If the subject of procurement are services of expert organizations or private experts.
  • At small volumes of delivery.
  • If the result of the work has already passed the expertise (the construction project or another result of engineering surveys is necessarily being evaluated by experts).

Upon execution of the contract, a report is prepared and published in a single information system. Its content includes basic data and information. Also, the documents used during the preparation of the transaction must be attached to it.

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