Extra details. how Moscow UFAs eliminates violations in customer documentation. Conditions and mechanisms for enhancing the use of the resource potential of the development strategy of the municipality Gatov Mikhail Sergeevich. Doubtful conditions

Public procurement is a competitive process, which guarantees increased attention to them from the antimonopoly authorities. Mikhail Gatov, Deputy Head of the Office of the Federal Antimonopoly Service (UFAS Moscow), tells how the capital's antimonopolists coped with their tasks in 2015.

- Mikhail Sergeevich, how often did bidders apply to the Moscow OFAS in 2015, did the number of applications decrease or increase? How many of these appeals were justified?

Since 2010, there has been a steady increase in the number of complaints received. So, if in 2010 there were only 3,000 such complaints, then by the end of 2014 we received 10,000. As of December 1, 2015, we already have more than 10,000 complaints, that is, annually is growing. With regard to the validity of these appeals, there is a more or less stable situation. As a rule, justified complaints are about half. To be more precise, at the beginning of December, 48% of all complaints received were recognized as such, while last year there were 59%. In this regard, we can say that there is still a tendency, albeit insignificant, to reduce the number of justified complaints.

- And what is it connected with?

This is mainly due to the fact that following the results of 2014, the Moscow Department of the FAS Russia repeatedly issued orders to amend the tender documentation. This was done because the customers abused their right to generate needs. They included in the auction documentation technical requirements that were not related to the subject of the auction. Accordingly, this year, among the justified complaints about excessive requirements in the terms of reference, only 1% of those who applied complained, while in 2014 we had more than 50% of such complaints.

- Does the OFAS independently check the tenders or does it work only at the request of one of the parties to public procurement?

The fact is that we have two directions. Firstly, this is the control department, which considers only the complaints of the participants who filed them themselves. Secondly, this is the inspection department, whose task, as the name implies, is to conduct scheduled and unscheduled inspections, based on the results of which the issue of including participants in the register of unscrupulous suppliers is being considered. We also conduct joint inspections with law enforcement agencies upon receipt of relevant requests from them.

In 2015, we carried out 405 inspections, including two scheduled field inspections. As a result of this work, 532 violations of the law on the contract system were identified.

During the same period, OFAS employees considered 3,200 requests to include information about suppliers who evaded the conclusion of a contract, as well as about suppliers with whom contracts were terminated, and they themselves were included in the register of unscrupulous suppliers. At the same time, more than 700 appeals were considered during the first and second quarters of 2015.

- How many materials based on the results of inspections are transferred to law enforcement?

Based on the results of justified complaints, we issue orders that are executed by customers in almost the vast majority of cases, so materials are not transferred to law enforcement agencies on their own initiative. However, it happens that during joint inspections, law enforcement agencies reveal information that theft occurred during the auction Money or there was collusion between customers and participants. In this case, all materials are transferred to law enforcement agencies.

- What offenses are most often committed by customers?

About 60% of the identified violations are violations committed in the actions of the auction and tender commissions of customers when considering submitted applications. In other words, more than half of the complaints received are complaints from participants that they were illegally denied admission.

The fact is that the commissions, when considering applications, are guided by the requirements of approved procurement documents, which are often drawn up in such a way that they do not allow unequivocally determining the needs of the customer. It should be noted that in order to prevent negative socio-economic consequences as a result of a failure to meet the deadlines for procurement, when violations are detected in the approved provisions of the documentation, the management issues mandatory instructions not to take into account the conflicting requirements of customers. This makes it possible to maintain the competitiveness of such purchases and achieve efficient spending of budget funds.

- Is there still such a violation when one letter is replaced by another in the documentation?

Now the functionality of the site has already been finalized and regardless of how the customer will state the subject of the auction - using letters, numbers, Latin, anyway, the participant, conducting a search in Russian, will find all these orders. So this problem is solved.

- But there are different violations, some - deliberate, others - out of ignorance. What more?

In our opinion, the establishment of excessive requirements in the terms of reference in most cases is aimed at making it difficult to submit an application and deliberately limiting the potential circle of participants. Therefore, here we can unambiguously speak about the presence of intent in the actions of the violator. There are, of course, cases when the customer, out of ignorance, has set some kind of requirement, for example, about having a license that is not needed, or some other restrictions, but this is rare. To reiterate, in most cases, when requirements are set that are in no way related to the subject of the bidding and, moreover, cannot be verified upon acceptance of the goods or services, they are aimed at limiting the number of bidders. And if at the time of consideration of the complaint, the preliminary results of the consideration of the first parts, and sometimes the results of the auction, are already known, this also happens, then if the complaint is filed on the last day of receiving applications, you can see an interesting picture. 2 - 3 bidders are allowed to trade, and the percentage of the initial price reduction is only 3 - 5%, while bids of 10 or more other bidders are rejected. In this case, we can conclude that the actions of the commission and the actions of the customer, who included excessive requirements in the auction documentation, were nevertheless aimed at reducing the circle of potential participants.

- Which organizations break the law more, which less?

It is difficult to say about certain organizations. It is easier to say about the areas and directions in which the main violations occur. According to our data, the most violations of procurement procedures occur in the field of procurement of services for motor transport and maintenance, that is, in those areas where there is no need to make requirements for goods, because we are talking about the provision of the service. True, nevertheless, the law allows customers to make certain requirements for those goods that will be used in the provision of services. Here the "creativity" of the customer is practically unlimited.

For example, we have met the requirements for the height of the pedal assembly in a car that must carry out transportation. Some customers include in the documentation parameters that determine the tension force throttle valve or the composition of the washer fluid. Moreover, the liquid is laid out at the molecular level. In this case, even if the supplier of washer fluid of some well-known manufacturers, it may not contain such a number of components that the customer requires. To meet these requirements, it is necessary to conduct an examination of each batch of goods. And it is not a fact that each batch of the same coolant will satisfy the exact requirements of the customer. At the same time, even GOST provides for ranges of values.

As for maintenance, the situation is similar. For example, they make demands on rags that will be used to wipe car surfaces. The customer specifies what color it should be, what shape its edges should be, how many teeth they should have, etc. On this basis, the customer tries to find a discrepancy in the applications and refuse the participant.

At the end of the year we traditionally receive a large number of complaints about the bidding for the removal of snow from the streets of Moscow. As in the past year, the customer makes demands on the participants that they bear the full liability for the safety of road infrastructure facilities and must carry out repairs at their own expense in case of damage to it. We consider this requirement to be justified.

However, at the same time, the customer also imposes requirements on asphalt concrete mixtures, the quality of curbs and other materials that will be used in the restoration of road network facilities if they are damaged. In our opinion, and in the opinion of bidders, companies that, say, provide snow removal services are primarily engaged in road maintenance, and not major repairs, and therefore cannot know all the components of asphalt mixtures. Moreover, if damage is caused, they can involve a company that specializes in these works to eliminate it.

- As far as I know, the FAS is currently developing a single instruction for Moscow customers on the preparation of the first parts of applications. How are things going with this?

We have entered into an agreement with the Government of Moscow on cooperation. Within its framework, OFAS, together with the Main Control Department, the Tender Committee and the Department of Economic Policy and Development of the City of Moscow, is working on the creation of a standard instruction that will explain to customers how to write the terms of reference correctly. As you know, Moscow is now moving to a new information system, through which the customer will place the auction, - on EAIST 2.0. The new instruction, which we are currently working on, will be sewn in there, and in no case can the customer change it. We are also working on creating standard technical specifications for the main capital-intensive industries. In other words, let's limit the "creativity" of officials in regard to the description of security services, food, construction, etc. The terms of reference for the procurement of security, catering and construction services have already been approved.

After everything is ready, the customer can take standard forms contract, standard instruction, standard TOR and adjust the terms, volumes, amounts to suit your needs.

For metropolitan customers, the use of standard TK is mandatory. They simply won't have another opportunity. But on the territory of Moscow there are also federal customers - these are territorial bodies executive power federal bodies, federal government agencies, budget institutions. How to deal with them is not yet clear, at this level the issue has not yet been resolved.

As before, Moscow set uniform procurement standards for state-owned companies by approving government decree No. 441, in the same way it is working to create standard technical specifications, that is, it independently limits customers in the possibility of some kind of abuse.

- What are the main achievements of the Moscow OFAS this year?

A great achievement of our work is the reduction in the number of mandatory orders issued by customers to eliminate violations of the law. So, in 2013, 2761 such prescriptions were issued, in 2014 - 3446 such prescriptions, and as of the beginning of December 2015 - only 3197.

During 2014, the number of complaints about the provisions of the procurement documentation for the first time exceeded the number of complaints about the actions of the tender commissions of customers, while most of them revealed violations of Art. 33 of the Law on the contract system. The result of the current control in 2014 with the repeated issuance of orders to eliminate violations is that in 2015, only in one of 100 cases there are violations in the documentation.

With the adoption of the Law on the contract system, the list of procurement items was expanded, for which the customer has the right to select a supplier in a competitive form, taking into account not only the price criterion, but also the proposal itself, as well as the qualifications of the participant. It should be taken into account that the significance of non-monetary criteria can reach up to 80%. This situation has created considerable potential risks in the abuse of tender commissions and the limitation of the competitiveness of procedures. However, we are closely monitoring this situation and suppressing such encroachments, which we plan to continue to do.

OFAS Moscow urges customers to set adequate requirements for suppliers

Among the requirements in the tender documentation, there are sometimes those that cause extreme surprise. Either it is required to put concrete not just of such and such a brand, but, for example, "heavy", then the parking column must be "highly decorative" and the like. Such conditions become the subject of consideration of the antimonopoly service. How it happens, - says Mikhail Gatov, Deputy Head of the Moscow Department of the FAS Russia.

- Mikhail Sergeevich, how often do you encounter “strange” requirements in technical specifications?

For the period from the beginning of 2015 to the present, the Moscow OFAS Russia has received more than 2.5 thousand complaints from participants in state and municipal procurement. It should be noted that in 30% of cases, the subject of consideration are the requirements established by state customers that violate the procurement legislation, namely, excessive requirements for the goods supplied, terms of reference that limit the number of procurement participants.

- Give, please, some examples of such purchases.

Thus, when conducting an auction for the overhaul of a building, the customer puts forward requirements for chemical composition tap water, steel pipe, soil and mineral fertilizer. The indicated characteristics cannot be known to the procurement participants or will become known only after testing a certain batch of products. Sometimes customers get so carried away with setting such requirements that they forget about the really necessary purchase parameters.

So, the customer, when purchasing playgrounds, presented requirements for a variety of materials that are not the object of purchase, such as rolled steel, steel, aluminum pigments and many others. At the same time, there are no requirements for the playgrounds themselves (swings, sandboxes) in the auction documentation.

As an example, one can also cite a violation during an auction for the improvement and landscaping of the territory along the Setun River, when the customer set almost 40 dubious requirements, such as that the color of the supplied artificial soil should be darker than brownish-gray.

- How does the FAS know that someone has decided to overstate the requirements? Maybe you are monitoring or processing bidders' applications? Or are social control mechanisms at work?

Procurement legislation provides for leverage against unlawful actions of the customer - this is an appeal against such actions to the control body of the FAS Russia. At the same time, the Law on the contract system provides such an opportunity not only to procurement participants (legal entities and individual entrepreneurs who directly submit applications, price offers and execute state and municipal contracts), but also to citizens, public associations and associations legal entities who have the right to point out the illegality of the procurement documentation.

- What is the reason for the occurrence of such incidents?

It should be highlighted, firstly, the goals pursued by customers during procurement, such as reducing the number of procurement participants and, as a result, identifying a certain supplier (contractor, performer). Secondly, the imperfection of the procurement legislation, which does not contain comprehensive requirements for documentation, depending on the specifics of the procurement object. Thirdly, the incompetence of the customers' employees who are involved in the preparation of documentation, while not having the necessary qualifications regarding the subject of the purchase, whether it is construction work, the supply of various goods or the provision of various kinds of services.

- Are there any criteria according to which excessive requirements are determined?

It is not within the competence of the Moscow OFAS Russia to establish certain criteria and requirements. At the same time, the results of our consideration of complaints form a huge fund of law enforcement practice based on the norms of the Law on the contract system. Thus, when detecting violations, the commission is guided by the same rules for describing the procurement for all. This, in particular, includes the rule of objectivity of requirements, the rule of establishing requirements for goods by customers in accordance with regulatory documents Russian Federation(GOSTs, SNiPs, Technical Regulations), as well as the rule of establishing exactly standard indicators for goods that public procurement participants indicate in the application.

- How often does the court (if it comes to it) agree with the position of the FAS?

The legal department upholds the legitimacy of decisions based on the results of consideration of complaints in 85% litigation in the field of public procurement, which confirms the legitimacy of the conclusions of the Commission for the implementation of control in this area and indicates a positive result our activities and achieving the goal of increasing competition.

- Is it possible to completely exclude the appearance of excessive requirements in the tender documentation or will they always be?

The framework for the objectivity of procurement requirements is not established by law, which allows state and municipal customers to use this legal gap for their own purposes.

The Moscow OFAS strongly recommends establishing the most significant requirements for goods, the supply of which is provided for under the state contract. At the same time, when conducting purchases for the performance of work, the provision of services, the establishment of most of the requirements specified by customers cannot in any way affect the result and quality of the provision of services and the performance of work. The customer must be interested in detailed description terms of reference, the order of performance of work, the provision of services and, of course, the conditions for the execution of the contract.

06/09/2012 15:06, Moscow region, website:

Interview of Mikhail Gatov, Deputy Head of the Moscow OFAS Russia, for the Information and Analytical Publication "Bulletin of Operative Information "Moscow Trades"

The commission for control in the field of placing an order of the Moscow OFAS Russia considers more than 100 applications per week on public procurement. And only 5% of them are submitted by public organizations. What is the reason for such statistics, - Mikhail Gatov, deputy head of the Moscow OFAS, answers this question.

MIKHAIL SERGEYEVICH, NOT ONLY PARTICIPANTS OF ORDER PLACEMENT, BUT ALSO PUBLIC ORGANIZATIONS, NOW HAVE THE RIGHT TO FILE COMPLAINTS TO THE FAS. DO THEY HAVE MANY COMPLAINTS IN THE “GENERAL STREAM”?

The mechanism of public control is an integral part of the legislation on placing orders. federal law dated 04/21/2011 FZ-79, amendments were made to Part 1 of Art. 8 of the Law on placing orders, significantly expanding the circle of potential applicants for the actions of the state customer. The proposal that “participants in the placement of an order are persons applying for the conclusion of a contract” was excluded from this norm. As a result, now any person or organization can file a complaint about possible violations of state customers.

In addition, the development and implementation of a public procurement website (zakupki.gov.ru) provides an opportunity to study the entire procurement procedure for any interested person, from the publication of documentation to the selection of a winner and the conclusion of a state contract. This was done to increase the responsibility of state customers and maximum transparency in the activities of all participants in the placement of the order.

As for the direct answer to your question, at the moment, applications from people who are not directly interested in concluding a state contract are less than 5%.

WHO IS THE MOST OF ANOTHER COMPLAINTS? WHICH PUBLIC ORGANIZATION IS MOST ACTIVE AND PROFESSIONAL?

IN Lately is increasingly involved in monitoring and appealing the actions of government customers Interregional public organization promoting the protection of the rights of citizens and the security of the "Safe Fatherland" society. She has a large number of complaints filed against various activities government customers. At the same time, a large number of identified violations are of a formal nature and do not entail the issuance of an order, since they do not affect, and cannot affect the result of the auction.

Also, the Moscow OFAS Russia often receives complaints from organizations such as Young Lawyers LLC, Rollbackless Delivery OJSC, which operate on the basis of applications from citizens and legal entities, as well as on the basis of independent research and monitoring of information located on the official website of public procurement .

IT WOULD BE GOOD TO GIVE SPECIFIC STORIES WHEN PROFESSIONALISM OR, ON THE CONVERSION, AMATEUR APPROACH ON THE PART OF PUBLIC PERSONS WAS DEMONSTRATED.

Often, actions that are challenged are related to the lack of requirements for the scope of work to be performed under the contract. This deprives the participant in the placement of the order of the opportunity to reasonably formulate his proposal, for example, in the absence of design and estimate documentation for the implementation of construction work, in the event of complaints from public figures about the actions of the state customer of the Main Directorate of the UKS EMERCOM of Russia.

But there are other cases as well. For example, citizen K., using her right to unlimited filing of complaints with the regulatory authority, for many months appealed literally all the actions of the state customer - the Fund for Assistance to the Development of Small Enterprises in the Scientific and Technical Sphere during open tenders for small businesses under the program "Start-2012". As a result of consideration of her "signals", most of them were found to be unfounded.

WHAT CAN YOU SAY ABOUT THE MOTIVATIONS THAT, IN YOUR OPINION, THE LEADERS OF PUBLIC ORGANIZATIONS ARE GUIDED WHEN SUBMITTING COMPLAINTS TO THE FAS? IS CIVIL SOCIETY WAKEING UP IN RUSSIA? OR IS THE Score SET THAT WAY? MAYBE SOMETHING THIRD?

The placement of state orders in the Russian Federation has always had a sharp resonant character, which often attracted public attention. For some, filing a complaint is really a struggle against inefficient spending of budgetary funds and restricting the competitive environment, for some it is an opportunity to attract attention and make yourself known in the market for government orders. It should be noted that the Federal Antimonopoly Service in the exercise of control functions is out of politics. Regardless of the entity that filed the complaint and its motive, the FAS in any case conducts an audit for compliance with the procedures for placing state orders with the current legislation. In case of violations, takes measures to eliminate and prevent them.

WHAT WILL HAPPEN IF THE FLOW OF COMPLAINTS FROM PUBLIC PERSONS INCREASE SEVERAL TIMES? DOES THE MOSCOW OFAS HAVE THE POSSIBILITY TO CONSIDER 150 OR MORE COMPLAINTS PER WEEK?

It should be taken into account that the consideration of complaints is associated with a number of adverse consequences, including for state institutions. The procedure contains a mandatory requirement to suspend the placement of an order in the manner prescribed by Part 4 of Art. 60 FZ-94, which often causes disruption of work that is continuous.

In addition, the mechanism for appealing against the actions of a state customer does not provide for a procedure for paying a “state duty” (by analogy with a lawsuit), which serves as a kind of guarantee of the good faith of the applicant. This circumstance is conducive to the fact that among the applicants there are persons pursuing an unseemly goal - through a complaint to put pressure on the state customer or to disrupt the placement of the order. At the same time, completely different interests can be realized under the banner of combating “corruption of officials”, as a result of which the terms for concluding a state contract are delayed, obstacles are created for the implementation of economic activity customers, and sometimes there are negative social consequences.

At the moment, the Commission for Control in the field of order placement of the Moscow OFAS Russia is already considering more than 100 applications per week. And this is not the limit: there is a tendency to constantly increase the number of complaints filed. This indicates an increase in the activity of both potential participants in the placement of an order, applying to protect violated rights, and entities that independently monitor the activities of state customers. In any case, public activity in the field of public procurement is important element development of civil society.