Anatomy of Public Procurement Law

    Gradually, in the dirty cellars of the brain, information on public procurement and the famous 94 Federal Law begins to be structured. I had a chance to work on the part of the customer and on the part of the contractor, as well as study the experience of organizing interaction between the state and business in the USA.
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    In the section on the brief history of the issue of the current article, we will talk about when the law on public procurement was adopted and what was the reason for its adoption.
    In the section on the typical public procurement process, the process of buying a batch of 100 laptops will be described, the procurement procedure will be described, and some problems that may arise will be described.
    The procurement section of a complex project will describe the process of purchasing expensive medical equipment - a magnetic resonance imager, preparing a project and equipment premises, as well as problems that often arise in such complex projects, but which do not take into account legislation on public procurement.
    Small considerations will be given to improve legislation on public procurement, which stem from current problems and foreign experience.
    Some legal ways of circumventing the current legislation on public procurement will be described and some useful links will be given in the conclusion of this article.

    I’ll ask you not to watch the nerves.


    Intro (short history)


    On January 1, 2006, Federal Law No. 94-FZ of July 21, 2005 “On Placing Orders for the Supply of Goods, Performance of Work, and Provision of Services for State and Municipal Needs” came into force.

    If you do not go into details, then until 2006 there was a scheme similar to the following: there were annual budgets of state institutions (municipalities of different sizes and state enterprises), there was a need for the procurement of goods and services. Contracts were concluded with any legal entities for the supply of products (goods) and the provision of services.
    Slowly, such a scheme began to turn into feeders for especially close ones. Those who were associated with the leadership of municipalities or state-owned enterprises simply created pocket legal entities and entered into agreements with them, while such legal entities were pure intermediaries, and the amount of the mark-up depended on Random (mood, season, moon and sun phases). Assessments were made that showed that without limiting prices from above, you can go broke on office supplies.

    Next came 94 Federal Laws. I don’t know the authors of the law (and somehow it’s not customary for us to indicate the authors of the laws), but the law really helped to preserve the impressive amounts due to lower tenders and the admission to participation in the auctions of almost everyone.

    If it is thesis, then the law obliges all municipalities and state enterprises to carry out the following actions during the procurement process:
    1. Write down requirements (technical specifications) for products and services;
    2. Make a request for commercial offers with prices from at least 3 different suppliers of products and / or services to determine the upper price limit;
    3. Post all the necessary documentation (terms of reference, state contract template, requirements for suppliers) in the public domain on all known sites;
    4. Play auctions to lower the value of the state contract and allow everyone to participate.
    5. Conclude a state contract with the supplier who agrees to provide the requirements at the lowest price.

    There are many more nuances regulating the provision of guarantees, prepayment, signing of acceptance certificates (work performed), final payment and appeal procedures.
    There was a separation by the price of the contract: if it was up to 100,000 rubles, then you couldn’t write TK, but conclude contracts directly, but this was limited by the number of such contracts under the treasury expense items per quarter.

    Typical Public Procurement Process


    It is more interesting to describe the typical procurement process, worth more than half a million rubles. If, for example, it is necessary to purchase laptops for 100 teachers for the municipality (urban-type settlement), then the procedure will be approximately as follows:
    1. A technical task for the supply of equipment (requirements for laptops) is written, which describes in detail the technical characteristics (type and frequency of the processor, memory size, disk type, memory type, case color and material, screen size and processor temperature fluctuations at 100% load at an altitude of 2000 meters above sea level with an air humidity of 98.9%).
    2. Next, 3+ sellers are requested what will be the price of one laptop with such characteristics with delivery to the municipality warehouse. Suppose we get a price range of 20 thousand rubles, 21 thousand rubles and 22 thousand rubles.
    3. All auction documentation (requirements, state contract template, etc.) is posted on the procurement website. At the same time, the initial maximum price of the state contract is 2 million rubles (we multiply 20 thousand rubles by 100 laptops).
    4. Bidding takes about 1.5-2 months (all comers send offers in the form of a description of the technical characteristics of their goods with prices, the proposals are considered and won by the one who offered the lowest price for all equipment along with the supply). Another 2 weeks is given for appeal. On average, it takes 2 months. Let the company squeeze at 10% in price and win the supply for 1.8 million rubles, and competitors did not appeal anything.
    5. With the winning supplier, a state contract is concluded for the supply of 100 laptops for 1.8 million rubles, an advance payment is transferred and the goods are expected. The goods arrive at the municipality’s warehouse (4-8 weeks for unique models and 3-5 days, if the goods were in stock within a radius of 100 km from the urban settlement), the goods are checked (whether the goods, all technical specifications coincide, if there are any damages) and if all is well, then the acceptance certificate is signed, after which the remaining amount under the state contract is transferred.

    Everything is fine and wonderful, we bought 100 notebooks for teachers in urban settlements for 1.8 million rubles for 3 months (on average it happens), saving the state 200 to 400 thousand rubles (we asked for prices for laptops 20, 21 and 22 thousand rubles, respectively). It seems that everything is logical and open and there is no corruption component. If, for example, you initiate the procedure in May, then by the end of August - the beginning of the school year, teachers in schools will have laptops, it will be possible to keep electronic journals and set homework in electronic diaries.

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    But the devil is in the details. Suppose a specialist in the municipality who selected the configuration of laptops chose a configuration without an operating system and office software (out of habit), because such a laptop was 5,000 rubles cheaper.
    All other specialists of the municipality worked promptly. The budget was planned a year before, in late spring, money came from the federal budget to the municipal budget, in May they wrote a statement of work, requested prices from suppliers, launched all the documents on the government procurement website, won a large honest company, which had the required number of necessary laptops in stock in the regional (regional) center, 200 km from the town, and the delivery of laptops was completed before the end of August. On September 1, teachers were congratulated on the New Year (academic) and solemnly presented with new laptops in boxes wrapped in bows. The teachers came home, opened the boxes, turned on the laptops and found that there was no operating system on the laptops ...

    There are possible options (download and install Linux, install a pirated OS and office programs, buy software, do nothing). The most common option is to "do nothing", the most recommended at the first stage is to "download and install Linux" (to work on the hardware while other options are being worked on), the most dangerous is to "install a pirated OS and office programs", the most correct - buy software!
    After all, we kind of saved 200-400 thousand rubles and, in theory, you can buy this money in the framework of this year’s budget without bidding on contracts of 100 thousand rubles ... It would be logical, but there is a law besides logic! sic

    Law dictates to us the following conditions:
    1. One contract up to 100 thousand. rub. per quarter for one of the items of expenditure;
    2. The supply of equipment and the transfer of non-exclusive rights to use the software are different expense items, respectively, if we have 400 thousand rubles. on the article "supply of equipment" and lies 100 thousand rubles. on the article “services for transferring rights to software”, we cannot transfer 400 thousand rubles. to 100 thousand rubles. and buy for 500 thousand rubles. BY. The maximum that we can in this fiscal year is to buy equipment for 400 thousand rubles, including requirements for the sale of 100 sets of software licenses + for 100 thousand rubles. purchase licenses under the contract in the last quarter (non-exclusive rights to use the software). Moreover, if we can save 18% of the cost of transferring rights by not paying VAT, then when purchasing equipment together with software, we will pay these 18% for equipment, because equipment comes with software. Well, sometimes such masterpieces come out as the delivery of 100 flash cards with 512 MB with licensed software distributions :).
    3. All these dances with tambourines must be done before December 25 of this year, because the fiscal year also ends at the end of December, and the money not spent by the municipality this year goes back to the federal budget and funding is cut back on the unspent balance next year if no action is taken.

    Such nuances arise in the simplest cases of the purchase of small batches of goods. But the example with laptops is indicative in the sense that complex products or services are not always better to buy at the lowest price. Our example was ideal in terms of the fact that we make the assumption that other specialists of the municipality made no mistakes and played honest firms at the auction that value their reputation. Usually, municipalities do not spend money until the last, because they need to ensure payment of utility bills, fuel, stationery, etc. If at the end of September it is clear that money remains on the items of expenditure, then a hectic expenditure of this money begins so that funding is not cut back next year. And it turns out a stalemate situation, when in mid-December a state contract for the supply of equipment is concluded, the equipment will go on for 4-8 weeks, and the acceptance certificate must be signed no later than December 25 in order to transfer money this financial year ... If the company is honest and values ​​its reputation, then it will work honestly and deliver the goods in the best possible way. If this is Horns & Hufs LLC, created under one single transaction, then most likely, after signing the acceptance certificate and transferring money to the accounts of this company, you can forget about laptops ... In court, the maximum that can be achieved is to land some drunk the vice-chairman of this LLC and compensation of not more than 10 thousand rubles ... In this case, teachers will sit without laptops for at least a year, and everyone will ulcerate on the Internet about corruption and kickbacks. and will deliver the goods in the best possible way. If this is Horns & Hufs LLC, created under one single transaction, then most likely, after signing the acceptance certificate and transferring money to the accounts of this company, you can forget about laptops ... According to the court, the maximum that can be achieved is to land some drunk the vice-chairman of this LLC and compensation of not more than 10 thousand rubles ... In this case, teachers will sit without laptops for at least a year, and everyone will ulcerate on the Internet about corruption and kickbacks. and will deliver the goods in the best possible way. If this is Horns & Hufs LLC, created under one single transaction, then most likely, after signing the acceptance certificate and transferring money to the accounts of this company, you can forget about laptops ... According to the court, the maximum that can be achieved is to land some drunk the vice-chairman of this LLC and compensation of not more than 10 thousand rubles ... In this case, teachers will sit without laptops for at least a year, and everyone will ulcerate on the Internet about corruption and kickbacks.

    Above was a brief description of the process of purchasing ready-to-work equipment, which begins to work immediately after removal from the package without additional commissioning and installation.

    Public procurement process for a complex project


    Below I will describe the procurement process for a complex project (ordering a project (design), preparing a room for equipment, supplying communications and electricity, supplying equipment, installing equipment, commissioning of equipment, training personnel to work with equipment) and trying to push this project into one financial year .

    The best way to present the process is to parse a specific example in stages. Then it’s easier to understand the details and scale to other projects, judging their complexity.
    The previous example was with the purchase of laptops for the municipality. For a complex multi-component project, we choose the purchase of expensive medical equipment - an MRI (magnetic resonance imager or just a tomograph). The series “House MD” should have been watched by everyone, and there, in almost every episode, MRI was used. And in Russia, there is now a federal program for the modernization of health care. Yes, and the topic of health and medicine concerns everyone, so it will be closer to the body.

    Take for example the SIEMENS Espree 1.5T WIDE BORE 2005 tomograph with a price of about $ 1 million from a warehouse in Moscow (let us omit the customs clearance procedure for now). Good equipment of a well-known German company, with an extensive set of diagnostic functions. In the picture from the manufacturer’s website, it looks like this:
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    Brief introduction: there is a federal program for the modernization of medicine, this program includes money in the federal budget, the equipment is really necessary for an accurate diagnosis and monitoring the progress of treatment, everyone agrees to purchase this equipment, the price is reasonable for the city budget with a good healthcare institution. We understand what is necessary to ensure the functioning of the equipment and we want to meet one financial year, while doing all the engineering systems and installation, in accordance with applicable law and industry standards.

    Since the equipment is complex, it requires the following conditions to be met ( according to the technical characteristics of the equipment ):
    Electricity consumption at full load - 30 kW.
    Heat generated at full load - up to 30 kW.
    The total mass of the installation is 8000 kg.
    Noise level at full load - up to 115 dB.
    The required operating room temperature is + 18 ° C to + 22 ° C.
    The required operating humidity in the room is 40-60%.
    Full on / off time - 7 minutes.
    The superconducting magnet of the installation requires cooling with liquid helium.
    The coil and amplifier are water cooled.
    It is required to screen the room in which the tomograph is located with sound-absorbing partitions according to the requirements of SanPiN.
    Requires the installation of air conditioners in the room to control temperature and humidity.
    The installation of a UPS is required to maintain the operability of the equipment (30 kW for 15 minutes) until it is completely turned off, in the event of a power outage to the building of the medical facility.
    It requires the installation of new electric cables, the installation of alkali-metal core, equipment grounding.
    Low-current cables are required to connect the tomograph to the operator's workplace.
    Engineering calculation and preparation of the ceiling (floors in the room) that can withstand the load of the equipment is required.
    Repair is required from non-combustible materials that prevent the formation of dust.
    It is required to create a ventilation system in the room, according to SanPiN.
    It is required to create a fire alarm system in the room and a gas fire extinguishing system, as the equipment is expensive.
    It is required to create separate rooms for cooling systems (water and liquid helium).
    It is required to create a waiting room, a dressing room, an operator’s room, and equip the premises with furniture, partitions and doors.
    It is required to develop regulations for scheduled maintenance and replacement of parts with a budget for personnel and spare parts.

    Something like this should look like: The
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    technical requirements for the equipment are clear to us, therefore, we will begin in stages, according to the requirements of the legislation, to carry out work on the project for the procurement, delivery and commissioning of MRI.
    The law dictates to us that it is necessary to develop a project. Designing requires that experienced professionals spend their time and create the following project documentation:
    1. For the repair of the premises and the strengthening of the ceilings;
    2. On coordination of electric capacities and laying of power cables with ЩГП;
    3. To equip the premises with air conditioning and ventilation systems, a fire alarm system and gas fire extinguishing;
    4. On the liquid helium cooling system;
    5. On the water cooling system;
    6. To calculate the required type and capacity of the IPB with its installation;
    7. On the shielding of a room with a tomograph to reduce noise and reduce the influence of spurious electromagnetic radiation;
    8. On furniture, doors and partitions;
    9. On low-voltage communication systems (telephone, computer connection);
    10. Installation, commissioning and verification procedure along with acceptance of all systems.

    The manufacturer in the documentation for the tomograph recommends a minimum area for equipment - 30 square meters. m. Really necessary, at least 60 square meters. m for the comfortable placement of all systems, the workplace of the MRI operator and a waiting room for patients.
    Usually, up to 10% of the cost of the entire project (including work, materials and equipment) is taken for design. We assume that we only design the preparation of premises for the placement of equipment. It is necessary to estimate the cost of all work, systems and materials without taking into account the cost of the MRI itself (very roughly):
    1. The turnkey repair cost is taken at the rate of 5000 rubles per sq. m (including floor, ceiling and walls, together with materials) - in the amount of 300,000 rubles.
    2. For electrical systems, roughly, cable 5x35 (100 meters) plus SHGP, coordination, installation, sockets, automation, lighting - in the amount of 300,000 rubles;
    3. Fire alarm and gas fire extinguishing on such an area - 1,300,000 rubles;
    4. Air conditioning and ventilation system (we need to divert 30 kW of heat from the tomograph, plus more heat in the room itself) - 2,000,000 rubles;
    5. UPS for the required power (30+ kW for 15 minutes) - 3,000,000 rubles;
    6. Low-current systems - 100,000 rubles;
    7. Cooling systems with water and liquid helium are included in the price of the tomograph, but a calculation is required to fill them with helium and water (the cost of refueling with liquid helium) - 300,000 rubles.
    8. Screening of a room with a tomograph - 500,000 rubles;
    9. Furniture, doors and partitions - 300,000 rubles;
    10. Commissioning and installation works - 500,000 rubles (no less).
    Total, excluding the cost of the tomograph itself, we get: 8.6 million rubles. Roughly 9 million rubles is the money that will need to be spent on equipping the premises before installing the tomograph itself. We do not consider here a service agreement, staff training and the purchase of spare parts (helium, heads, coils).

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    So, we are laying 900,000 rubles for the design phase. This is more than 100,000, therefore, it is necessary to write a technical task and put the lot up for auction, according to 94 Federal Laws.
    Опять будем рассматривать идеальный сценарий: мы тесно сотрудничали с поставщиком томографа, он помог нам написать требования для проектировщиков, совместно со специалистами муниципалитета (какое-нибудь управление здравоохранения). С первых чисел нового года мы разместили на торги лот на проектирование помещений под размещение томографа. Подождали 2 месяца, и у нас выиграла опытная проектная контора, которая уже делала подобные проекты для нашего региона, и она все нюансы учитывает. Проектирование заняло 2 недели, плюс 2 недели заняло согласование проекта. Это уже будет конец марта, начало апреля. Мы тесно сотрудничали с этой фирмой, и она нам помогла написать требования к каждой подсистеме (ремонт, электрика, кондиционирование, пожаротушение, шумоизоляция, охлаждение жидким гелием и водой), чтобы мы смогли сразу, не теряя драгоценное время, в начале апреля запустить следующие этапы проекта: размещение аукциона на подготовку помещения и на закупку томографа с его поставкой и пуско-наладкой. Плюс аукцион на обучение специалистов работе на томографе (считаем, что специалисты у нас уже есть, готовые к тому, чтобы быстро учиться и качественно работать). Опять подождали 2 месяца, и у нас выиграла лот на подготовку помещения крупная компания, которая имеет опыт подготовки помещений под томографы, у неё грамотные специалисты по кондиционированию, пожаротушению, гарантированному электроснабжению и ремонту, плюс хороший дизайнер, который подобрал приятную для работы цветовую гамму для помещения (в качестве бонуса дали флориста, и подарили растения). Все материалы были на складе, и не пришлось ждать доставки, плюс работы заняли всего 2 месяца. Второй лот выиграла компания, которая является официальным представителем Siemens в России, имеет опыт поставки томографов, опыт монтажа и пуско-наладки. Томограф поставлялся в течение 8 недель с завода в Германии специально по нашему заказу, и оборудование пришло к нам как раз к моменту завершения подготовки помещения и оснащения его необходимыми инженерными системами. Ещё около 2 месяцев занял монтаж оборудования и его пуско-наладки. В это время фирма, выигравшая лот по подготовки наших специалистов работе на томографе, вывезла специалистов в Германию, где они прошли стажировку на заводе-изготовителе, познакомились с материальной частью оборудования, поняли принципы работы, далее прошли стажировку в медицинском центре, освоили режимы работы оборудования для диагностики различных тканей, и через 4 месяца вернулись обратно на родину, готовые к работе. Всё прошло гладко и идеально, и уже в конце ноября у нас было готовое помещение, поставленный, смонтированный и запущенный в работу томограф, подготовленные специалисты и ещё месяц времени для того, чтобы выявить возможные погрешности в настройках до окончания финансового года. К концу декабря по всем работам были подписаны акты приемки-передачи, оборудование полностью работоспособно, специалисты обучены и накопили определённый опыт работы с томографом, запланирован бюджет на расходные материалы и сервисное обслуживание на следующий год. Деньги переведены фирмам, выигравшим торги, все довольны. И тут уже можно просыпаться, и снимать розовые очки…

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    In reality, this does not happen.

    In real life, everything is more complicated.
    As a rule, planning is carried out as follows: OK, we saw that the tomograph costs 33 million rubles in a warehouse in Moscow, so we allocate 40 million rubles for its purchase and commissioning - there should be enough for everything about everything. An article on the purchase of equipment for the hospital should receive 40 million rubles. Even if we planned to buy and put a tomograph in the budget for this year, then the money will come in mid-spring, or even closer to summer. Further, while we are waiting for the arrival of money, it turns out that just like that, a tomograph cannot be put in a hospital in an empty ward, because the area is small, there is not enough space, electric cables are not designed for such loads, wooden floors and rooms need to be prepared, i.e. do construction work. We are looking for those who are ready to do such work for us. We are told that at the beginning of the project, for otherwise - anal punishment. We are looking for those who design, call the cost of the tomograph, we are told that for 3 million rubles we are ready to complete the project. We are happy to begin to initiate a bidding procedure for design and here it turns out that design is “work / services” and there is no such money in the treasury on this item of expenditure, because nobody planned for the year before, and there is no money on this item, but there’s 40 million for the purchase of equipment, there’s about 33 million worth of a tomograph there - it might be included in the terms of reference for creating project documentation for the preparation of the premises and etc. This idea seems sound to everyone, but here a lawyer appears and says that we are all stupid freaks, and that we can’t do this, otherwise - anal punishment. What to do, what to do? We mean that we need a project (agreed upon), therefore, we agree in words with the supplier of the tomograph that we do not allocate 33 million rubles for the purchase of the tomograph, but 34 and he is preparing a project for this additional million. Potentially, we got consent, we start running around, coordinating documents. Here the supplier reminds us that they say 34 million rubles is “project + tomograph + installation and commissioning”, but not “preparation of premises, summing up communications and purchasing furniture”. We scratch turnips, we run to the treasury and find out that there is no money on the article “repair”, because Last year, no one planned repairs or ordered money, but there are 40 million rubles for the tomograph, which was planned by the budget for this year. If a project is being prepared for us for 34 million rubles, then to hell with them, even if they make turnkey repairs for us, for 40 million rubles, we will also have repairs, fire fighting, as part of the commissioning air conditioning, etc. Everything seems to be logical, the supplier is not particularly opposed, so we are trying to introduce these requirements into the TK for the state contract, the lawyer appears again and says that we are hand-assed imbeciles and we can’t do this, otherwise - anal cars.
    If we turnip suppliers, we go to the supplier, please write some tricky characteristics of the tomograph (the deviation of the magnetic flux at the geographical coordinates of our Fly-Shit City is not more than 0.987 degrees per 1 Tesla), so that only he wins and no one else can reset the price. Plus, we see that we no longer take out the cost of the UPS, because the temperature regime must be observed, but about the mandatory presence of an IPB in the requirements for the tomograph is not. Yes, and you can use paint ball, partitions and furniture cheaper, sound insulation self-made (we push the felt between the partitions and there will be less noise) ... In general, we agreed, wrote a statement of work, wait 2 months, several companies filed, but we only write about the statement about purchase of equipment and its commissioning, and the price is 40 million rubles, while de jure those who reset to 33 million rubles win, because they don’t know anything about our agreements with the supplier, and our supplier can’t drop the price either, because otherwise there will be nowhere to put a tomograph and may not sign acts ... Again we get a stalemate when we are forced to either come up with reasons for refusal to several other companies that they can easily appeal to the FAS (this is called the law on protection of competition, but it would be more logical to call the law on protection for the lame, crooked and wretched), or, obeying the requirements of the law, conclude an agreement with one of these companies for the supply of a tomograph with installation and commissioning, but there will be no place to put a tomograph and it will be necessary to sign acts before the end of the year to translate money so that we don’t get cut back on financing. This is where the "scary news" comes from that they bought a bunch of equipment, and it is gathering dust in the warehouse. And where, we managed to defend the supplier,

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    But it’s worse when such a gimmick is tied at the end of the year, wins the bidding of Horns & Hufs LLC, at the same time they sign acts, transfer money and receive ears from a dead donkey, after which they run around the ships and weep bitterly ...

    This was described as an average project of medium complexity. Imagine the nuances you need to consider, and how to plan budgets for more expensive and more complex projects. And if the project cannot physically fit in 1 year (for example, the construction of any complex structures, such as a bridge to the Russky Island), then it must be divided into stages, each stage to be reduced to the previous one, to monitor the uniformity of financing and compliance with industry and state requirements standards, legal requirements. This is much more complicated than whining about the fact that “shitty rashka ...” Russia is a normal country, you just need to work on progressively improving. Plan, accustom to the project activities of people from school. Assign specific project and procurement responsibilities. Conduct outreach on the ground.

    UPD: In fact, you can transfer money from one treasury account to another, but for some reason, representatives of municipalities and state enterprises are afraid of this procedure like fire (apparently this somehow affects their karma when they knock money out for the next fiscal year). But this must be done in advance, and not at the end of December ...

    Thoughts on improving public procurement law


    Качество - это геометрия контрольных характеристик продукта или услуги.
    


    I would like to recall such a concept as quality, which is not specified by law in any way. The law was originally created to reduce budget spending, and this has already been written. At the same time, you must remember the golden rule: you can complete any project quickly, efficiently, cheaply; but only any 2 parameters converge. Those. either quickly and cheaply, but poorly. Or cheap, high quality, but not very fast. Or fast, high quality, but not cheap. Correct is the slogan of the well-known design studio .

    So, my naive proposals to amend the law on public procurement.

    94 Federal Law is almost ideally used in cases where a finished product is purchased, the quality of which is guaranteed by the manufacturer for the period of storage and transportation in the manufacturer’s packaging, and when using it, no additional work or services are required whose quality is not obvious at the lowest cost.
    Those. if we want to buy a car at government expense and write in the terms of reference: a 3-liter engine, automatic transmission, a plastic interior like that, and body color is white, mileage is without mileage, and the year of manufacture is current, while describing the technical characteristics of a particular brand and model of the car, then in the bid for lowering we will get exactly that car, but at the minimum cost, otherwise (if we find defects or a mismatch in the statement of work), we will return it back and take back the money, or we won’t pay the money at all. The manufacturer guarantees the quality of the goods, so we ultimately get a quality product, with the expected characteristics, at a minimum cost (minimum margin from the seller). As soon as we step away from the quality guaranteed by the manufacturer, we find ourselves in a stalemate situation: at the lowest price, no one can provide quality (for example, for the supply of spare parts for a purchased car and the repair of this car using these spare parts). Spare parts for technical specifications from the factory can be delivered high-quality, but with a minimum of costs for the repair work itself, you can do even worse than it was, or you will have to wait a long time. Also, we cannot guarantee quality when there is no time left, especially when the fiscal year comes to an end. That is, if we order a car with a real delivery time of 4 weeks, and we conclude a state contract on December 20 and we need to sign acceptance and transfer certificates, then we have good chances to stay with ears from a herring (a one-day company trivially reduces much price, the competition wins, a state contract is concluded with it,

    The law seems to work, but somehow not everywhere is good. It’s like with the laws of classical physics: they seem to describe the behavior of large objects and even some small ones, but poorly predict the behavior of elementary particles on a microscopic scale or do not work exactly on a planetary scale. Also with public procurement law. In the case of the purchase of products whose quality is guaranteed by the manufacturer and if the use of these products is not associated with additional work or services that must be completed in order to use them, then the law works perfectly. And if something starts to get complicated, then the law starts to fail, because inconsistencies in the current edition of the conflict arise.

    Again, according to the letter of the law, virtually all firms that have expressed a desire to participate in tenders are allowed. Who is calmer to work with and whose services or products will be better: a company that was created the day before or a company that has been in the market for 10-15 years with a huge portfolio of successful projects and good reviews from hundreds of satisfied customers? But for 94 Federal Laws there is no difference in these firms ...

    Based on the foregoing, we can formulate those areas in which it is necessary to change the current legislation on public procurement:
    1. Introduce the concept of quality of products and services;
    2. Submit requirements to firms that may bid;
    3. Avoid situations of time shortages (simply freeze money on the treasury accounts for projects that are not completed this year so that there is no temptation to sign acts before the completion of delivery or the provision of services in full).
    4. Keep a register of not only the black list of companies, but also the black list of individuals with whom these companies were affiliated;
    5. To develop individual requirements and by-laws for expensive and long projects.

    A little more about the proposals.

    Introducing the concept of product and service quality

    There was a very large system of state standards in Soviet times. The standards themselves have not gone away, but somehow it is now generally accepted (mainly in the ranks of lovers of fashionable clothes and white ribbons) that everything in the USSR was cocks, therefore GOSTs were cocks. At the same time, for some reason, everyone stubbornly takes condensed milk made according to GOST 2903-78, and not according to TU2005 ... In the photo below, a shelf with standards, seen personally at NIST (National Institute of Standards and Technology USA) in the fall of 2011:
    image

    A similar book on the USA doesn’t thinner ...
    Somehow, apparently, it is necessary for state purchases to indicate compliance with GOSTs for most goods. Additionally, develop new GOSTs to perform work and services. Those. create the line with which you can measure quality and severely punish for non-compliance.
    Now, of course, compliance with GOSTs is indicated in the auction documentation, but not always. Yes, and for imported equipment to develop GOSTs is somehow strange. Although compliance with national standards is a matter of course in most developed countries of the world, there is nothing wrong with that.

    Requirements for firms that may bid

    When I was a Motorola contractor, I was particularly impressed by the set of CMMI models (Capability Maturity Model Integration - a set of models (methodologies) for improving processes in organizations of different sizes and activities). If now in Russia there is a system of accreditation and verification, where the organization either passes the audit or not; then CMMI divided organizations into 5 maturity levels:
    image

    1. Initial - Processes are unpredictable, poorly controlled. processes appear in response to certain events;
    2. Managed - Processes are defined at the project level. Often processes appear in response to certain events;
    3. Defined - Processes are defined at the organization level. Processes are executed in advance;
    4. Managed quantitatively - Processes are measured and controlled;
    5. Optimizable - Focus on process improvement.

    An organization can be conditionally certified at level 1 of CMMI if it has successfully completed at least one project.

    From here, an additional zero level of maturity is often introduced (when there is no successfully completed project):
    image

    An interesting story is the emergence of this model. At one time, the Ministry of Defense of Pindostana was faced with the fact that it was not possible to physically complete projects for developing software; therefore, it was necessary to attract private subcontractors. But in defense information systems, software quality is extremely sensitive. And the question arose about how to evaluate a company that is trusted by the state contract, whether it can meet the budget, deliver the project on time and at the same time provide the necessary quality indicator for the product. The Institute of Software Engineering (at Carnegie Mellon University) commissioned the development of the assessment methodology on the order of the Ministry of Defense of the Pindostan. In general, those firms that are certified up to level 5 can safely be trusted with any budgets and projects, and those. who is certified at level 1, only small, inexpensive,
    In addition to the evaluation methods existing since the 80s for software development firms, there are now methods for assessing the maturity level of organizations for services and for procurement (CMMI for Development, CMMI for Services and CMMI for Acquisition,
    respectively).
    My suggestion is to create similar methods on the territory of the Russian Federation with assessments of the maturity of organizations. Evaluation must be done for firms wishing to sell goods or provide services to the state, say every 2-3 years. And in the requirements for auction documentation for procurements, directly indicate what level of maturity firms can participate in a particular tender. For example, if you need to quickly put paper for the municipality for 100,000 rubles, then companies of the 1st level of maturity (who have at least once completed delivery for someone). If it is necessary to work with medical equipment, the maturity level should be higher than 3. If these are military orders, then not lower than level 4, etc.
    The evaluation committee for assessing organizations at similar maturity levels, in my opinion, should consist of representatives of government agencies as well as independent experts. The rating is given by the minimum of all evaluators for each of the parameters.
    If such practice is made common, it will be calmer to engage in large projects, and firms will value their reputation.

    UPD: Comment from Alexander Kondakov, the only certified leading evaluator and CMMI instructor in Russia, on this item of proposals:
    “In general, those firms that are certified to level 5 can safely be trusted with any budgets and projects, and those who are certified at level 1 are only small, inexpensive” - there was no such task: to create a certification system (and no one to the first level “ certifies "). The tasks of developing models were different. The levels reflected (and reflect) in some way what kind of "style" of work (services) is applied. Theoretically, yes, it is also a characteristic of the predictability of the result. Hence, naturally, the customer’s desire to “get” into suppliers someone with a level with a larger number.

    The CMMI model (any) is not a "methodology for evaluation", it is a guide to the development of processes - nothing more. This is a great "clue" - what to do. For the assessment itself ("certification") there is another technique.

    “The evaluation committee should consist of representatives of government agencies as well as independent experts.” - There have never been any demands on government agencies (except for specific cases and on the part of the customer).

    “My suggestion is to create similar methods on the territory of the Russian Federation with assessments of the maturity of organizations.” - Theoretically, I agree that this would be useful (and I would like for something similar to be). However, our realities ... Once I was informed that one of our departments included in the tender conditions the requirement for a third level and higher. However, this condition soon disappeared. Formal explanation: in Russia there are no system integrators (suppliers of complex solutions, including software), with any level at all.


    UPD 2: The presence of licenses for certain types of activities, the availability of SRO approvals and other supporting documents is now practiced in auction documentation. But a direct causal relationship between the availability of licenses with tolerances and the quality of work / services has not yet been observed.

    Avoid time pressure situations

    Here it is necessary to amend the budget legislation. Somehow to freeze funds for an acceptable period (2-3 months) in order to give an opportunity to finish the projects started late and at the same time secure both the customer and the contractor.
    A precedent has been created for federal universities. They don’t transfer their money not spent at the end of the year to the treasury accounts and don’t lose funding for these amounts next year.
    UPD: The number of accountants in Russia has exceeded a huge number - there are already more than 5,000,000 people in this profession . This figure was voiced by the director of the RUSAL Corporate Center, Oksana Nazarova, as part of the Russian Business Week organized by RSPP.
    Changes in budget legislation have ripened a very long time. At least it’s already been possible to abandon the fatkura bill for a long time ...

    Keep a register of not only the black list of companies, but also the black list of individuals

    Everything is not too obvious here. But the trend is the following: if new hoof horns can be created at least 100 per day, then the people who stand behind them are usually a finite number. And the termination of the state’s activities with all legal entities associated with a particular fraudster can significantly improve the economy.

    UPD: At the moment, getting into the black list of unreliable suppliers is possible only for a maximum of 2 years and only if the company won the tender, but refused to enter into a state contract. And you have to try hard ... After signing the state contract, the Civil Code of the Russian Federation begins to operate and the state contract is considered an ordinary contract between legal entities. Even if the company has not fulfilled its promises, it will not be blacklisted, but will sue it under the current law.

    Develop separate requirements for expensive and long projects

    And here, just, everything is obvious. Different requirements and approaches should be for procurement as part of spacecraft launch projects and for procurement projects for food products for kindergartens in remote areas of Primorsky Krai.
    An example of individual requirements for expensive projects is the adoption of separate federal laws in preparation for the 2012 APEC summit in Vladivostok and preparations for the Sochi Winter Olympics. There, builders were not selected according to the results of the competition, but were appointed by decree of the President of the Russian Federation.

    UPD: Now, according to the legislation, there are separate requirements for procurement projects that exceed either the amount of 50 million rubles, or purchases are carried out for the needs of the country's defense. In this case, it is possible to write requirements for quality or more specific requirements for suppliers in the terms of reference. But somehow these things are not used much because of the advisory nature of the law.
    These are my immodest proposals for improving the legislation on public procurement.

    Legal methods of circumventing public procurement law


    In conclusion, I want to write about some completely legitimate methods of circumventing the requirements of Federal Law 94 on public procurement.
    image

    In theory, the employees of the procurement departments of the municipalities or state enterprises should independently write technical specifications for procurement. But we do not believe in superhumans, especially in the positions of civil service specialists. For people there are working quite ordinary, with vices characteristic of ordinary people.

    The most common option is when representatives of the municipality or state-owned enterprise, when it becomes necessary to purchase, turn to a trusted company and ask the company to prepare a statement of work for certain goods or services.
    Moreover, any adequate company will not work for free. If you want to work for free for 40-80 hours a week, you can write to me, I will find a job for you within 60 seconds. :)
    Therefore, firms usually offer in response to enter into TK some tricky characteristics of a product or service that only this company can provide in order to have at least some guarantee that the work on writing TK will be paid.
    This gives rise to rather interesting characteristics:
    1. For example, cars with some very rare salons;
    2. Computer equipment with additional boards that are not sold anywhere in the Russian Federation, and, in general, are not affected by work, but are specified in the statement of work and it is necessary to supply equipment with these boards;
    3. Some unique building materials or technologies that most have never heard of;
    4. Works subject to compulsory licensing and tolerances of SROs ...

    The second common option is when a sufficiently large company, at the request of the municipality or state-owned company, does the work or delivers the goods in advance, then TK is compiled, and strict acceptance methods are described, and TK sets out tight deadlines that no one is able to fulfill. For example: perform repairs in an area of ​​2000 square meters. m with the dismantling of the floor, ceiling and reinstall them, while the period is indicated 48 hours. Or the manufacture of a portal of a municipality in 1 day with filling it with content and pairing, for example, with SMEV. This method is quite legal (does not contradict the requirements of 94 Federal Law), but it is very risky, because often one-day firms undertake to perform work for such a short time for little money. Moreover, litigation can last for years, without resulting in anything.

    The third option is the creation of joint-stock companies, 100% of the shares of which belong to the municipality or state-owned company. At the same time, a large authorized capital is created for the money of the municipality, and the municipality can receive profit in the form of dividends. After such a joint stock company has been created, it is already possible to carry out rather large and complex projects through it, because there is no need to follow 94 Federal Laws. For example, this is how OJSC “Our Primorye Home” works ., where 100% of the shares belong to the administration of the Primorsky Territory. Moreover, Our Home Primorye OJSC owns the land for the gambling zone, it owns two five-star hotels in Vladivostok: the Hyatt Regency Vladivostok - Golden Horn and Hyatt Burny Vladivostok. This option is more complex, but also more productive, because there is no rush, and you can safely choose a contractor and not rush designers, builders, etc. This decision is justified for large projects.
    image

    The fourth option is the adoption of special laws that make it possible not to fully comply with requirements of 94 Federal Laws. For example, the "APEC Law." As part of it, general contractors for the construction of facilities were selected by presidential decree. The bridge on about. Russian built Mostovik (Omsk), the FEFU campus on about. Russian built Crocus (Moscow).

    image

    Perhaps these are all relatively honest ways to circumvent the requirements of 94 Federal Laws.

    UPD There was another relatively honest way, practiced in 2010-2011, but then came to naught.
    Initially, the technical specifications prescribed the characteristics of the equipment, and were divided into 2 or 3 approximately equal parts by the number and cost of equipment. One part described well-known equipment to all, and the other part described equipment that does not exist in nature and is unlikely to appear in 2-3 months of trading. This is called: “Could you get something that cannot be?” Naturally, those who were not in the know were wildly perplexed, and did not participate in the bidding. Those who were in the know, applied, and won the competition. After no one appealed, they calmly delivered the equipment that was described in the first part, and in the second part the state contract was partially terminated due to the fact that it was impossible to deliver such equipment. They received money only for the first piece of equipment, but it was because of him that the whole process was started. Now they practically do not use this method.
    It is possible that there are other relatively honest ways to circumvent the limitations of public procurement law, as our citizens are inventive, especially in monetary matters.

    Useful links about public procurement and a little conclusion


    You can read the article “ In anticipation of the third reform of public procurements ” about the history and proposals on public procurement , the history is written in more detail there, but the conclusions are given purely legal and accounting, which are not applicable to real practices, because do not take into account the nuances in detail. And the most interesting thing is in the details.
    The text of the law on public procurement .
    After reading the current article, it is useful to read the original of the law itself in order to better understand the issue.
    The text of typical cries about cuts and kickbacks .
    It is also useful to read after reading the current article, as then it will be easier to filter misinformation and see an objective picture of what is happening.
    I consider it necessary to recall that some “handshake fighters against corruption and kickbacks” offer to repeal the law on public procurement. Translated into an understandable language, this means a return to the nightmare that happened before 2006, only on a much larger scale, because state financing programs have become wider, and one-day companies have already been created during this time with a large margin for offering these individuals ...
    Therefore, the only reasonable option at the moment is the recognition that the existing legislation has coped with its initial task, but we need to go further and gradually make changes to it regarding quality and responsibility. Along the way, it is necessary to make long overdue changes in budget legislation.
    PS Now it's September 2012. Most of the citizens, including employees of municipalities and state enterprises, as well as deputies, ministers and their deputies, have left the holidays. 3 months are left until the end of the fiscal year. This year it is unlikely that the legislation will be different, so now there will be a big wave of public procurement at various levels and by December the runet will be filled with a huge number of messages about how bad everything is, revealing articles of “handshakes” will appear. And the whole story can be repeated in a year or two, if we do not now make changes to the legislation on state purchases and budget legislation, taking into account those areas that the existing legislation does not regulate in a very good way.

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