The Customer registered requests for commercial proposals with the secretariat; responses to these requests were not registered with the secretariat. Tell me whether it is a violation that the customer did not register responses to requests, what consequences this may pose to the Customer.

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 carry out 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.

In accordance with Art. 22 of Law No. 44-FZ, the initial (maximum) contract price, the price of a contract concluded with a single supplier (contractor, performer), are determined and justified by the customer by applying the following method or several of the following methods:

1. method of comparable market prices (market analysis);
2. normative method;
3. costly method.

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In accordance with Part 2 of Art. 22 of Law No. 44-FZ, the method of comparable market prices (market analysis) consists of establishing the initial (maximum) price of a contract, the price of a contract concluded with a single supplier (contractor, performer), based on information on market prices of identical goods, works, services planned for procurement, or in their absence, of homogeneous goods, works, services.

Thus, methodological recommendations on the use of methods for determining the initial (maximum) price of a contract, the price of a contract concluded with a single supplier (contractor, performer) (hereinafter referred to as Methodological Recommendations) were established by Order of the Ministry of Economic Development of Russia dated October 2, 2013 No. 567.

Because according to Art. 22 of Law No. 44-FZ and clause 2.1 of the Methodological Recommendations, the justification of the NMCC is to calculate the specified price with the attachment of background information and documents or indicating the details of the documents on the basis of which the calculation was made. At the same time, the justification for the NMCC, which is subject to public posting on the Internet information and telecommunications network, does not indicate the names of suppliers (contractors, performers) who provided the relevant information. It is advisable to store the originals of documents used in determining and justifying the NMCC, screenshots (“screenshots”) containing images of the relevant website pages indicating the date and time of their formation, with other procurement documents subject to storage in accordance with the requirements of Law No. 44-FZ.

That is, commercial proposals that were used to calculate and justify the initial (maximum) contract price are not subject to placement in the unified information system, and the customer has the right not to disclose the names of suppliers (contractors, performers) who provided the relevant price information.

But, for example, at the request of a procurement participant, the customer is obliged to explain to him the provisions of the procurement documentation, including the procedure for calculating and justifying the initial (maximum) contract price. In this case, the customer is not obliged to provide procurement participants with commercial proposals that were used to calculate and justify the initial (maximum) contract price.

We believe that the original procurement documentation should contain, among other things, commercial proposals from potential participants; they do not need to be placed in the Unified Information System.

It is advisable to store these commercial proposals together with justification of the contract price and other procurement documents. Because they may be needed, for example, when explaining the procedure for justifying the price at the request of a procurement participant.

The procedure for registering these commercial requests is not regulated by Law No. 44-FZ. That is, Law No. 44-FZ does not oblige the customer to register them with the secretariat. This is determined by the internal operating procedures of your organization.

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By virtue of Part 2 of Art. 22 of Law 44-FZ, the method of comparable market prices (market analysis) consists in establishing the initial (maximum) price of a contract, the price of a contract concluded with a single supplier (contractor, performer), based on information on market prices of identical goods, works, services planned for procurement, or in their absence, of homogeneous goods, works, services.

Within the framework of Art. 22 of Law 44-FZ, Order of the Ministry of Economic Development of Russia dated October 2, 2013 N 567 “On approval of Methodological recommendations for the application of methods for determining the initial (maximum) price of a contract, the price of a contract concluded with a single supplier (contractor, performer)” was developed.

In accordance with clause 3.10. Order of the Ministry of Economic Development of Russia dated October 2, 2013 N 567, a request for the provision of price information sent to a potential supplier (contractor, performer), and (or) a request for the provision of price information posted in the Unified Information System (on the official website or other sites) or in printed publications, may contain:

3.10.1. a detailed description of the procurement object, including an indication of the unit of measurement, quantity of goods, volume of work or service;

3.10.2. a list of information necessary to determine the identity or homogeneity of goods, work, services offered by the supplier (contractor, performer);

3.10.3. basic conditions for the execution of the contract concluded based on the results of the purchase, including requirements for the procedure for supplying products, performing work, providing services, the expected timing of the purchase, the payment procedure, the amount of security for the execution of the contract, requirements for the warranty period of goods, work, services and (or) volume providing guarantees of their quality;

3.10.4. deadlines for providing price information;

3.10.5. information that carrying out this information collection procedure does not entail any obligations of the customer;

3.10.6. an indication that the response to the request must clearly determine the price of a unit of goods, work, services and the total price of the contract on the terms specified in the request, the validity period of the proposed price, the calculation of such a price in order to prevent deliberate overestimation or underestimation of the prices of goods, works, services.

Download a sample request for price information under 44-FZ

The most popular way to determine the initial (maximum) contract price (ICP) is market analysis. Whether a budget organization is going to use one of the competitive procurement methods or is considering the option of purchasing a product or service from a single supplier does not matter, because, in accordance with the current legislation (Article 22 44-FZ), in any case it is necessary to provide justification for the NMCC. In order to do this without violations, the customer will need to find current price data. To do this, it is necessary to collect a number of commercial proposals from various suppliers offering the desired product or service.

To determine the NMCC, a budget organization that acts as a customer must request commercial proposals from at least five potential contractors. As a response, she must receive at least three price letters describing goods or services that meet all the conditions stated in the procurement plan.

The main goal is to collect current price information for the purpose of its subsequent analytics. Based on the results of a thorough analysis, the NMCC is derived.

1. The most accurate and detailed description of the purchased goods, works or services. This implies quantitative data, a unit of measurement, and the volume of work performed.
2. A number of main conditions from the draft contract - everything related to the specifics of delivery, provision of services or specific characteristics of the work. The points of payment and contract security and the necessary warranty information about the purchased goods, works or services are also noted.
3. Explanations that the price information provided indicates the specific real cost of the goods, works or services requested by the customer and does not constitute the basis for the subsequent conclusion of contractual relations.

Sample request for commercial proposals under 44-FZ

Providing a commercial offer

After the customer, in search of three suppliers to calculate the NMCC of the planned purchase, sends out a letter (a sample request for a commercial proposal is presented above), he receives official responses from the selected organizations.

So what is the answer? First of all, this is a document on the supplier’s official letterhead, certified by a “living” seal and signature of the manager, and in some cases the financial director or chief accountant. It includes the following information:

• full details of the enterprise;
• the current price of the product or service provided at the time of the request;
• a complete description of the services included in the price with specific characteristics and planned completion dates, if certain types of work are implied.

It is important to remember that such a document is for informational purposes only and is not a direct incentive to conclude an agreement.

It is worth noting that the received cost data does not have a validity period. This should also be noted in the answer.

3 commercial offers under 44 Federal Laws - Free!

When using this material for calculations in future periods, the current price will be indexed in accordance with the conversion factor.

Response to the CP’s request to justify the NMCC

Request for commercial proposals in accordance with 223-FZ

If a budget institution provides additional services to the population, that is, conducts business and receives official income, it has the right to withdraw part of its procurement from the strict regulations of 44-FZ and take advantage of 223-FZ, which is more loyal to budget customers.

It is worth distinguishing between the competitive method of identifying a supplier and directly requesting price information for holding a competition or auction under Federal Law-223. Data on the cost of goods, works and services are requested for the same purpose as in Federal Law-44 - to identify current prices and determine the NMCC.

A letter requesting information on prices is drawn up similarly to 44-FZ.

Based on this law, there is an additional competitive method for identifying suppliers, called a request for proposals. The customer places a notice in the system about the purchase carried out in this way and indicates in detail all the necessary information. In this case, certain performers who meet the technical criteria of the customer may be invited to participate. Any organization that meets the requirements of the procurement organizer can participate in the request for proposals. Then comes the acceptance, review and final evaluation of applications. Members of the commission take into account at least two established criteria for evaluation. As a result, based on the results of the procedure, a contract is concluded with the supplier who offered the most favorable conditions. The result of the RFP is also reflected by the customer on the official website in the public domain.

This method can also be used in the event that the customer terminates existing contracts or when competitive methods (competition, auction) are repeated and declared invalid.

Request for commercial proposal: sample according to 223-FZ

To justify the NMCC using the market analysis method, it is necessary to collect up-to-date information on prices. Let's look at the requirements for commercial proposals under 44 Federal Laws, since they are the easiest way to obtain such data.

Justification of the initial maximum contract price (IMCP) is one of the stages of procurement planning. The Contract System Law established the requirement to primarily apply the market analysis method. This leads to the need to use commercial proposals in the process of determining the cost of an object. At the same time, for errors or failure to comply with the procedure for justifying the NMCC, there is an established administrative liability in the form of a fine of up to 10,000 rubles, which is an unpleasant addition.

Concept

For a supplier whose field of activity is related to the customer’s needs, a commercial proposal is an official document that confirms the cost of his goods, work, services with certain characteristics for a specific period, but does not entail an obligation to conclude a contract.

We prepare commercial proposals under 44-FZ

Part 2-6 art. 22 44-FZ describes the rules for applying the market analysis method and indicates that when justifying the cost of a contract using this method, it is necessary to compare prices for goods or services that are similar to the object of the planned purchase. To do this, you need to obtain up-to-date information on market prices. And the easiest way to do this is to request quotes from companies that supply such goods or provide similar services.

Procedure for obtaining information about prices

Methodological recommendations have been developed for the use of methods for determining the NMCC (Order of the Ministry of Economic Development of Russia dated October 2, 2013 N 567). To collect data on prices, it is recommended that the customer send requests for price information to at least five suppliers, and in determining the NMCC use at least three prices that are provided by different suppliers (clause 3.19).

The algorithm for submitting such a request is as follows:

1. Write a description of the procurement object, indicating its quantitative and qualitative characteristics (read the article “How to write a technical specification for a tender”).
2. Indicate the essential conditions for the supply of goods and performance of work that affect their cost: territorial location, delivery time, completion of work, availability of a guarantee, the need for adjustment, installation, training of persons, etc.
3. Select the target audience of the newsletter. At the same time, according to the recommendations of the Ministry of Economic Development, suppliers must have experience in similar supplies, including experience in executing contracts without the use of penalties over the past three years. At this stage, the customer can use information retrieval systems or publicly available directories of organizations. You can check how the supplier performed contracts within the framework of 44-FZ and 223-FZ on the website of the Unified Information System (EIS) in the register of contracts. To do this, you need to enter the name or TIN of the winner.
4. Fill out a request and send it to potential partners. At the same time, according to the Ministry of Economic Development (Letter dated May 10, 2016 N D28i-1308), in order to justify the NMCC, it is considered acceptable to use fax or email to submit requests and receive responses.
5. Get an answer, analyze the data and draw up a rationale.

Please note that the validity period of the commercial offer under 44 Federal Laws has not been established. This information must be included in the response document. This is done to eliminate justification based on irrelevant prices.

Prices from previous periods (more than six months from the period when the NMCC was determined) must be brought to the current level by applying a conversion factor.

In addition to sending requests to suppliers, the Ministry of Economic Development recommends carrying out several more procedures: searching for prices in the EIS contract register, collecting and analyzing publicly available price information (advertising, catalogues, statistical reporting, etc.).

Sample request for commercial proposal under 44 Federal Law

Sample commercial proposals under 44 Federal Laws

Request for proposals as a way to identify a supplier

Do not confuse the request for commercial proposals, which are collected in order to determine the NMCC for further implementation of the order, and the request for proposals, as a competitive method of procurement, provided for in Art. 83 44-FZ or the Procurement Regulations under 223-FZ.

This method of procurement is similar to a competition, where there are criteria for evaluating applications, and participants submit data on the price and other terms of the contract in envelopes.

(NMCC) - one of the stages of procurement planning. The Contract System Law established the requirement to primarily apply the market analysis method. This leads to the need to use commercial proposals in the process of determining the cost of an object. At the same time, for errors or failure to comply with the procedure for justifying the NMCC, administrative liability is established in the form of a fine of up to 10,000 rubles, which is an unpleasant addition.

Concept

For a supplier whose field of activity is related to the customer’s needs, a commercial proposal is an official document that confirms the cost of his goods, work, services with certain characteristics for a specific period, but does not entail an obligation to conclude a contract.

Part 2-6 art. 22 44-FZ describes the rules for applying the market analysis method and indicates that when justifying the cost of a contract using this method, it is necessary to compare prices for goods or services that are similar to the object of the planned purchase. To do this, you need to obtain up-to-date information on market prices. And the easiest way to do this is to request a commercial proposal (a sample can be seen below) from companies that supply such goods or provide similar services.

Procedure for obtaining information about prices

Methodological recommendations have been developed for the use of methods for determining NMCC (). To collect data on prices, it is recommended that the customer send requests for price information to at least five suppliers, and in determining the NMCC use at least three prices that are provided by different suppliers (clause 3.19).

The algorithm for submitting such a request is as follows:

1. Compile it indicating its quantitative and qualitative characteristics (read the article).
2. Indicate the essential conditions for the supply of goods and performance of work that affect their cost: territorial location, delivery time, completion of work, availability of a guarantee, the need for adjustment, installation, training of persons, etc.
3. Select the target audience of the newsletter. At the same time, according to the recommendations of the Ministry of Economic Development, suppliers must have experience in similar supplies, including experience in executing contracts without the use of penalties over the past three years. At this stage, the customer can use information retrieval systems or publicly available directories of organizations. You can check how the supplier performed contracts under 44-FZ and 223-FZ on the Unified Information System (EIS) website. To do this, you need to enter the name or TIN of the winner.
4. Fill out a request and send it to potential partners. At the same time, according to the Ministry of Economic Development (Letter No. D28i-1308 dated May 10, 2016), in order to justify the NMCC, it is considered acceptable to use fax or email to submit requests and receive responses.
5. Get an answer, analyze the data and draw up a rationale.

Please note that the validity period of the commercial offer under 44-FZ has not been established. This information must be included in the response document. This is done to eliminate justification based on irrelevant prices.

Prices from previous periods (more than six months from the period when the NMCC was determined) must be brought to the current level by applying a conversion factor.

In addition to sending requests to suppliers, the Ministry of Economic Development recommends carrying out several more procedures: searching for prices in the EIS contract register, collecting and analyzing publicly available price information (advertising, catalogues, statistical reporting, etc.).

According to Federal Law No. 44-FZ dated April 5, 2013 “On the contract system in the field of procurement of goods, works, and services to meet state and municipal needs,” requests are sent to organizations to determine the contract price. Requests for pricing information are sent by the customer via email. Commercial offers are received by reply letters. The customer sends requests to determine prices using competitive procurement methods.
Is it possible to accept responses from organizations on letterhead, but without the organization’s seal?

According to Part 1 of Art. 22 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”, the initial (maximum) price of the contract and, in cases provided for by this Law, the price of the contract concluded with a single supplier , contractor, performer, are determined and justified by the customer through the use of one or more methods listed in this part, of which the priority, default method is the method of comparable market prices (market analysis). Law No. 44-FZ does not establish any rules regarding documents containing information on the basis of which the NMCC is calculated.

Methodological recommendations on the use of methods for determining the initial (maximum) price of a contract, the price of a contract concluded with a single supplier (contractor, performer), based on Part 20 of Art. 22 of Law No. 44-FZ were approved by order of the Ministry of Economic Development of Russia dated October 2, 2013 No. 567. It should be borne in mind that the Methodological Recommendations only explain possible ways to determine and justify the NMCC using the methods provided for by law (clause 1.2 of the Methodological Recommendations). They are applied taking into account the characteristics of markets for specific goods, works, services purchased to meet state or municipal needs (clause 1.3 of the Methodological Recommendations). Therefore, as a rule, they are of an advisory nature, which is reflected in their standards themselves (see, for example, paragraphs 3.3, 3.7 of the Methodological Recommendations). In particular, clause 2.1 of the Methodological Recommendations states that the originals of documents used in determining and justifying the price, screenshots (screenshots) containing images of the corresponding website pages indicating the date and time of their formation, it is advisable to store with other procurement documents subject to storage in accordance with the requirements of Law No. 44-FZ. Obviously, the word “expedient” is not equivalent to the word “necessarily”.

Please note that a document received by email cannot, in principle, have an original (in the generally accepted sense) “with a blue seal,” so we believe that the recommendation to store screenshots also applies to documents received by email. Although it is obvious that if such a document occupies a large volume (many “screens”) or is sent as a document attached to an email, which opens in the interface of a utility program that does not show the connection with this email, the implementation of this recommendation may be difficult. Therefore, we believe that the mere use by the customer, when calculating the contract price, of copies of commercial proposals, simple printouts of documents received by e-mail, is not a violation of the law. The fundamental possibility of using commercial proposals received by email to determine the NMCC is also evidenced by law enforcement practice (see, for example, Resolution of the Eighteenth Arbitration Court of Appeal dated July 24, 2014 No. 18AP-6753/14). The regulations do not contain requirements according to which, for the purpose of determining the NMCC, only commercial proposals that have a seal can be used (including in relation to commercial proposals on paper).

Please note that law enforcement practice on this issue has not been developed to date, and therefore what has been said is our expert opinion. For official clarifications, you can contact the Ministry of Economic Development of the Russian Federation or the Federal Antimonopoly Service of the Russian Federation.

Ivan Morozov, Alexey Alexandrov,
experts from the legal consulting service GARANT

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