The authorities proposed to remove part of public procurement from public access

The opportunity to purchase goods and services in 2022 without bidding is proposed to be given to state-owned companies (regulated by law 223-FZ) and government agencies (44-FZ).

It follows from the plan of anti-crisis measures that the government, at its discretion, will be able to determine:

• groups of goods, works and services that can be purchased without a tender;
• amounts of advances;
• cases of changing the terms of the contract by agreement of the parties without the application of penalties;
• features of establishing requirements to ensure the execution of the contract;
• cases of non-placement of contracts in the open (public) part of the procurement system. This is about portal public procurement, access to which is now open to everyone.

In addition, the government is invited to give the opportunity to change the essential terms of the contract for government contracts concluded before January 1, 2023. Thus, the authorities will be able to determine cases when, by agreement of the parties, it is allowed to change the term for the execution of the contract, price, exemption from punishment and fines for violations of the terms of the contract, and reduce the requirements for securing an application for participation in the purchase.

RBC sent inquiries to the Ministry of Economic Development and the Ministry of Finance.

The law already adopted by the State Duma also contains rules that expand the government’s rights in regulating public procurement of medicines, including for procurement from a single supplier. In particular, from 1 million to 1.5 million rubles. the amount of purchases without competition of medicines for one patient is increased.

The possible restriction of access to the public part of the system of government contracts is most likely dictated by the desire to secure the information system “from prying eyes,” explains Sergey Serdyukov, director of special projects at the OTC.ru electronic trading platform group, who is familiar with the discussion of new measures by the expert group.

“It is possible that the right to access the EIS of public procurement will be left only to customers and registered suppliers who have been verified by the Federal Tax Service of Russia. Under the new current conditions, openness and transparency as principles of procurement law are likely to be reinterpreted in terms of national economic security,” he says.

Power departments, including the Ministry of Defense, the FSB, the Foreign Intelligence Service, as well as institutions and enterprises controlled by them, are already conducting purchases in a closed way. Since 2022, this list includes the Russian Guard and the FSO.

Beginning in 2018, when the US imposed a tough round of sanctions targeting billionaires Oleg Deripaska and Viktor Vekselberg, the government issued a series of regulations that provided companies with the legal basis to classify normally disclosed information if sanctions were or could be imposed against such a company.

With regard to purchases from a single supplier by decision of the government, here Serdyukov allows the use of the practice used in the construction of the Crimean bridge. Then the construction of the facility was removed from the scope of 44-FZ by a separate government decree under the pretext of speeding up and simplifying the implementation of the project.

According to Serdyukov, the prospect of expanding purchases from electronic stores and regional manufacturers is also being considered, which should help import substitution. “It is possible that a list of nomenclatures of goods, works and services will be formed, the purchase of which will be allowed through electronic stores without restrictions or with a significant increase in the current limits,” the expert suggests.

At the same time, purchases from a single supplier are fraught with the risk of abuse by the customer, who can arrange a deal with an affiliated company, Aleksey Matyukhov, managing partner of BMS Group, warns.

Last year, the Accounts Chamber estimated the share of non-competitive purchases for government agencies at almost 75%: this is 6.6 trillion rubles. of the total volume of public procurement under 44-FZ by 8.9 trillion rubles. The auditors did not analyze purchases from one supplier under 223-FZ. In general, state-owned companies purchased goods, works and services in 2020 for 19.9 trillion rubles. Data for 2021 on the volume of public procurement is not yet available.

The possibility of adjusting the parameters of the contract by agreement, Elena Ezhova, expert of the Kontur.Torgi service, called it a “vital measure” for suppliers and customers. “In the context of sanctions shocks, the parties to the order should be able to quickly respond to risks and change the terms of transactions. Otherwise, we would see a negative dynamics of participation in the auctions and an outflow of companies from the state order market, which is fraught with an increase in the burden on the budget due to reduced competition,” she explains.

Among the important novelties in the innovations for the contract system is the ability to write off fines in case of non-fulfillment of the order. With the imposition of sanctions, many contracts are at risk of delays due to supply disruptions. At the same time, for each day of delay, the supplier company pays penalties to the customer, which are calculated according to the formula associated with the key rate of the Central Bank, follows from 44-FZ. With an increase in the rate from 9.5 to 20% and difficulties with deliveries, the amount and number of cases of accruing penalties under contracts can significantly increase, Yezhova fears. “Procurement participants want to be protected from those risks that they cannot influence on their own, and exempting them from fines and penalties should work here,” she concluded.