The Federal Law No. 44-FZ “On the system of
public procurement contracts for products, work or services for state and municipal
needs” was adopted on 5 April 2013. The main provisions of the Law will come
into force on 1 January 2014. Federal Law No. 94-FZ dated 21 July 2005 “On
placing orders to supply goods, perform work or provide services for state and
municipal needs” has been repealed.
Summary of
main changes
Unlike Federal Law No. 94-FZ dated 21 July 2005
that only regulates how public orders are to be placed, the law on the system
of public procurement contracts will regulate all stages of the public
procurement process. Notable among these stages are planning, forming, placing
and executing an order. The new public procurement system is based on the
modern principles of conducting business: openness, competition, unification,
responsibility for meeting state and municipal needs and effective spending.
Besides, the Law provides for the rights and obligations of the state official
who makes purchases, which creates legal background for his area of activity to
be turned into a profession.
The Law suggests that open auctions must no
longer be used as a form of placing public orders. As a result, the main ways
for placing orders are: a tender (an open tender, a tender with a limited
number of participants, a two-stage tender, a closed tender etc.), an auction
(closed electronic auction), a request for quotations and a request for
proposals.
The system of public procurement contracts
provides for a number of antidumping measures. For instance, if a participant
with whom a contract is signed proposes a price which is lower than the
starting (maximum) price of the contract by 25% or more, then the contract is
only signed after such participant provides collateral to secure its
performance. The amount of such collateral must exceed by 1.5 times the
collateral specified in the tender or auction documents. An alternative way is
to provide information as at the application date confirming that such
participant has been acting in good faith. This includes information from the
register of contracts confirming the good-faith performance of previous
contracts over at least one year before the date of the application. At the
same time, the price of any of the previous contracts should be at least 20% of
the price proposed by the participant.
The Law provides for a unified information system
to be created to ensure information support for the system of public
procurement contracts. This system must, among other things, contain
information about the terms, prohibitions and limitations on access for
products originating from a foreign state or a group of foreign states, as well
as the work (services) performed (provided) by foreigners. The information
systems shall also include a list of foreign states that have signed
international treaties with the Russian Federation mutually to apply the
national regime for purchases, as well as the terms under which the national
regime is applied.
Public control over compliance with legislation
about the system contracts for purchasing products via public associations and
associations of legal entities that have a number of powers in this area vested
in them.
The client in a public procurement contract may
unilaterally withdraw from the contract. The client must take a decision to
withdraw from such contract unilaterally if it is established in the course of
the contract being performed that the products (work, services) being supplied
do not comply with the requirements for a public procurement contract. The
client may also withdraw from the contract that has been partially performed by
the supplier (contractor, client). The information about such supplier
(contractor, service provider) is entered into the register of bad faith
suppliers.
The supplier (contractor, service provider) may
withdraw from a state contract unilaterally if it is granted such a right under
the state contract.
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