In the course of doing business, manufacturing and trading enterprises have to purchase materials, components and goods. Often, the market is saturated with various competing sellers representing the same product, so buyers almost always have a choice.
Making a purchase from a single supplier is an economic situation in which the customer offers to conclude a contract for a specific candidate.
The purpose of these actions, as a rule, is:
- Planned product acquisition.
- An emergency solution to an unexpected problem.
- Neutralization of the result of an unsuccessful or failed competitive event.
State control: purpose and methods
The situation in which the customer is forced to cooperate with only one executor 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 impedes this state of affairs. The procurement of a single supplier in itself, of course, is not a crime, but it is regulated by Law No. 223 “On Procurement” to exclude abuse and infringement of the rights of one of the participants in trade or partnerships.
This law provides for circumstances in which the purchase of this type is allowed, the procedure for subjects, a list of dishonest buyers and sellers, as well as the documentation of such transactions (including mandatory reports). The procurement under 223- 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 bidders
First of all, the state determines who can be a customer (that is, who purchases 223-FZ from a single supplier):
- Those organizations whose activities are regulated species (related to the field of electricity, water and others).
- Enterprises that are more than 50% owned by the state.
- Natural monopolists (enterprises producing and processing gas or oil).
- Organizations that are financed from the budget, in the case when they plan to pay for the purchase with extrabudgetary funds (received grants, own profit).
The contractor (supplier) is any legal or natural person, including an individual entrepreneur.
Features of non-competitive procurement
Comparing the purchase from a single supplier with traditional business activities, you can see that it is much faster and contains fewer stages.
This is due to the lack of a complex procedure in which the customer selects participants to sign the contract. Also, there is no need to draw up regular documentation.
However, sometimes purchases under 223- from a single supplier must be justified, and the Federal Antimonopoly Service (FAS) is required to inform the parties about their consent. 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 carried out extremely quickly, but the transaction still goes through the preparation stages.
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 government agencies 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 to terminate the contract.
In what cases is it permissible to purchase from a single supplier?
The law includes a list of situations that may become the basis and justification for non-competitive purchases:
- The auction did not take place or not a single bid was made.
- The order value does not reach 100,000 rubles (or 500,000 with an annual income of the customer from 5 million rubles).
- Under the terms of the contract, the expenditure of funds occurs in accordance with a certain procedure (established by the state or investor).
- If the product to be purchased is the intellectual property of the supplier.
- The customer is in urgent need to purchase a specific product and does not consider it appropriate to conduct competitive procurement.
- When the initiator of the transaction is a company (customer, or supplier), whose leaders did not consider competitive options.
- In the event that during the auction the organizer accepted only one application or only one of the candidates was approved as a participant.
- The subject of delivery is required by the institution related to the penal system.
Atypical is the situation in which the auction is held with the participation of a single supplier. In fact, this can no longer be called an auction, since there is one bid or an application for work.
However, if only one participant showed activity (there were no other volunteers or their applications did not pass the test), the customer has to work with him. This situation allows you to make purchases under 223-FZ from a single supplier.
A good reason is also recognized as the occurrence of an emergency at the customer’s enterprise, which provoked a non-competitive purchase, as well as a lack of time to organize traditional tenders.
What does preparation for a contract include
The purpose of the preparation phase is to select the implementing organization. Under normal conditions, the customer studies the offers of several suppliers and selects the most profitable. If this is not possible, the task is entrusted to the contractor who is currently available.
According to 223-FZ, the rationale for the purchase from a single supplier should be based on the impossibility of choosing a different type of purchase. For this reason, the responsibility of the customer becomes the preparation of the following documents:
- Report that the implementation of the procurement in another way is impractical.
- Pricing and statement of justification.
- The treatment required for the procurement to be agreed.
- Draft contract.
- Single Supplier Procurement Notice
The use of all these documents is not mandatory for absolutely all cases. The specifics of specific situations may require the preparation of only some of them.
Procurement from a single supplier: justification report
In order to prove the legitimacy of the reasons that led to cooperation with one contractor, the head or authorized person of the customer company draws up and submits a report to the supervisory authority. 44- “On Procurement” does not contain an indication of the form and detailed contents of this document, therefore it often reflects the following data:
- The code assigned to the purchase.
- Who is the customer.
- The clause stating that this purchase is forced or justified for a number of reasons (justification).
- The most important points: what, in what quantity and why they plan to buy. The price and duration of the contract are also important. All of these points must be justified.
- Date of the contract.
Example to illustrate
Most often, examples of purchases from a single supplier are an order for equipment instead of a failed one or urgent hiring of contractors to eliminate damage.
If a problem with electrical wiring leads to a breakdown of electronic equipment and computers in the computer science class, the school administration will have to take measures to urgently repair or replace them. The justification for the purchase of new equipment from a single supplier may be the proximity of exams and lack of time to find the most favorable delivery conditions.
An urgent purchase can be carried out, but at the same time the report will contain data on how many new computers will be purchased (as much as suffered from a malfunction), at what price and how much their delivery, installation and configuration costs.
How to determine the value of the 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 during competitive procurement: by the method of comparable market prices, by the regulatory, tariff, design estimates or cost methods.
The legislation provides an exception:
- Purchase in order to ensure state defense orders.
- The situation when the economy becomes the object of bargaining.
In these cases, the value is formed under the influence of other factors.
Non-competitive procurement entities have the right to carry out a transaction only after the control body receives, reviews and approves the justifications set forth in the documentation.
Why do I need to publish transaction information
Legislation requires the customer to place a special document (procurement notice) in the public domain. This is necessary so that the operation can be recognized as transparent and open.
However, one should not publish information that is classified as secret. As a rule, data on the parties involved, the subject and terms of the contract are uploaded to the information portal on the Internet.
How is the conclusion of the contract
There are two forms of contracts that are used in non-competitive procurement:
- Typical (includes all conditions specified in the law).
- Simplified (requirements for its preparation are reduced).
The second option can be used by procurement entities 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 utilities.
- In situations of procurement for organizations of medicine, culture, sports or for the state apparatus.
Using a simplified form of the contract allows entities to choose almost any type of contract stipulated in the Civil Code of the Russian Federation. Moreover, the agreement may be concluded orally if the amount of purchases from a single supplier does not exceed 100,000 rubles.
Nuances related to contract execution
Persons making non-competitive purchases must understand that examination becomes an integral stage of goods acceptance. It is carried out in the vast majority of cases. To do this, invite third-party specialists or do it on their own.
Examination is not necessary in some cases:
- If the subject of procurement are services of expert organizations or private experts.
- With small volumes of delivery.
- If the result of the work has already passed the examination (a construction project or other engineering survey result must pass an expert assessment).
Upon the execution of the contract, a report is prepared and published in a single information system. Its content includes basic data and information. Also, documents used during the preparation of the transaction should be attached to it.