Attracting small businesses 44 Federal Laws. How to correctly generate a report on purchases from SMP and Sonko
17.03.2017
speaker: Tatyana Leontyeva
The report form is contained in the Decree of the Government of the Russian Federation dated March 17, 2015 N 238 “On the procedure for preparing a report on the volume of purchases from small businesses and socially oriented non-profit organizations, its placement in a unified information system and amendments to the Regulations on the Interdepartmental Commission for the Selection of Investment Projects, Russian credit institutions and international financial organizations to participate in the Program for Supporting Investment Projects Implemented in the Territory Russian Federation based on project financing."
The procedure for purchasing from SMP and SONKO
Customers under 44-FZ are required to purchase from SMP and socially oriented non-profit organizations in an amount of no less than 15% of the total annual volume of purchases, calculated taking into account part 1.1 of Art. 30 of Law No. 44-FZ.
Only those purchases that are carried out through competitive procedures are considered:
- Competitions
- Electronic auctions
- Quote requests
- Requests for proposals
In this case, the initial (maximum) contract price should not exceed 20 million rubles.
Criteria for inclusion in the SMP
In order to competently conduct such purchases, it is necessary to understand which companies are classified as small businesses. New criteria for classification as an SMP are established by law dated June 29, 20145 No. 156-FZ. So, such companies must simultaneously meet the following conditions:
- The amount of revenue for the previous year from the sale of goods, works or services (excluding VAT) does not exceed 800 million rubles (RF RF dated July 13, 2015. No. 702).
- The average number of employees is no more than 100 people.
- Share of third parties in authorized capital companies no more than 49 percent.
SONCO classification criteria
The definition of a socially oriented non-profit organization is spelled out in clause 2.1, part 2, art. 2 of Law No. 7-FZ “On Non-Profit Organizations”:
SONO- these are non-profit organizations created in the forms provided for by law (with the exception of state corporations, state companies, public associations that are political parties) and carrying out activities aimed at solving social problems, developing civil society in the Russian Federation, as well as the types of activities provided for by law 1 tbsp. 31.1 of Law No. 7-FZ
Features of procurement from SMP and SONKO
In August 2016, the Register of Small Business Entities appeared, the compilation of which is regulated by Federal Law No. 408-FZ of December 29, 2015 “On Amendments to Certain Legislative Acts of the Russian Federation.”
The register is maintained by the Federal Tax Service and is formed annually on August 10. The register is updated (entering data on newly registered organizations and removing them from the register) is carried out monthly. The information is posted on the official website of the Federal Tax Service of Russia and is publicly available. Thus, the declaration provided by the procurement participant can be checked using the SMP Register.
Information entered into the NSR Register:
- name of the legal entity, first name, last name, patronymic of the individual entrepreneur;
- location of the legal entity, place of residence of the individual entrepreneur;
- date of entry of information into the register;
- category of SME subject (medium enterprise, small enterprise, micro enterprise);
- an indication that the person is newly created;
- information about OKVED codes;
- information about licenses received by the SME;
- information about manufactured products (in accordance with OKPD);
- information on the inclusion of a person in the registers (lists) of SMEs - participants in partnership programs;
- information about whether the SME has concluded state or municipal contracts and (or) agreements concluded in accordance with the Federal Law “On the procurement of goods, works, services by certain types of legal entities.”
Procurement participants confirm that they are SMEs using a declaration, so customers are not required to check such declarations. A declaration containing all the necessary information on this moment sufficient to allow the participant who provided it to participate in the procurement, which is marked “for small and medium-sized businesses.”
The situation with the Register of SMEs is ambiguous. It happens that an organization that is actually an SME is not included in the Register for some reason, and rejecting the application of such a company can be fraught.
It should be noted that when purchasing from SMP and SONKO, the contract includes a mandatory condition that the customer pay for the goods supplied, work performed, services rendered (their individual stages) within no more than 30 days from the date of signing the acceptance documents.
Unilateral refusal to enter into a contract
In 2016, the norm underwent changes.
Clause 1 part 15 art. 95 of Law No. 44-FZ:
The customer is obliged to make a decision on unilateral refusal to fulfill the contract in the following cases:
if during the execution of the contract it is established that the supplier and (or) the supplied goods do not comply with the requirements for procurement participants established by the notice of procurement and (or) the procurement documentation and (or) the non-compliance of the supplied goods with such requirements, which allowed him to become the winner of the supplier determination (contractor, performer).
Standard terms of contracts providing for the involvement of subcontractors from among the SMP and SONKO for execution
On January 4, 2017, Decree of the Government of the Russian Federation dated December 23, 2016 No. 1466 “On approval of standard terms of contracts providing for the involvement of subcontractors, co-executors from among small businesses and socially oriented non-profit organizations in the execution of contracts” came into force.
The essence of the changes is that standard contract terms were approved, providing for the involvement of subcontractors and co-executors from among the SMP and SONCO in the execution of contracts.
Important!
These conditions are mandatory only if the customer establishes in the notice a requirement for a supplier who is not an SMP or SONKO to involve subcontractors from among the SMP in the execution of the contract (Part 5 Part 30 of Law No. 44-FZ).
According to the standard contract terms approved by the Resolution, suppliers also have additional responsibilities:
- Involve subcontractors, co-executors from among SMP, SONCO in an amount of at least 5 percent of the contract price.
- Within no more than 5 working days from the date of conclusion of the contract with the subcontractor:
- submit to the customer a declaration of the subcontractor’s affiliation with SMP, SONKO;
- provide the customer with a copy of the contract concluded with the subcontractor certified by the supplier.
- Within 10 working days from the date of payment by the supplier for fulfilled obligations under the contract with the subcontractor, provide the customer with the following documents:
- copies of acceptance documents;
- copies of payment orders confirming the transfer Money supplier to the subcontractor (if the agreement concluded between the supplier and the subcontractor provides for payment of fulfilled obligations before the payment deadline for goods supplied, work performed, services rendered.
Additional responsibilities of the supplier:
Make payments under a contract with a subcontractor within 30 days from the date the supplier signs the document on acceptance of goods, work, services or individual stages of the contract.
Additional Supplier Responsibilities:
Civil liability to the customer for failure to fulfill or improper fulfillment of the conditions for involving subcontractors in the execution of contracts, including:
for the provision of documents containing false information, or their failure to provide or the submission of such documents in violation of the established deadlines;
for failure to involve subcontractors and co-executors to the extent established in the contract.
Additional rights of the supplier:
The supplier has the right to replace the subcontractor with whom the contract was previously concluded with another subcontractor, co-contractor, in the event of failure to fulfill the obligations stipulated by the contract.
All of the above regarding standard contract terms relate to the mechanism for attracting SMP and SONCO, when customers indicate the percentage of attracting subcontractors. These standard conditions cannot be changed in scope and must also be included in the draft contract in full.
The procedure for generating a report on the volume of purchases from SMP and SONKO
The report itself was approved by RF PP No. 238 dated March 17, 2015. IN standard form The report has been amended several times: the latest was in February 2016.
The report is compiled and posted in the Unified Information System annually before April 1 of the year following the reporting year. Thus, the last day for posting the report for the previous year is March 31 of the current year.
Responsibility for preparing and posting the report lies with the contract manager or an authorized employee of the contract service.
Report submission form: placed in electronic form in the Unified Information System. Due to the instability of the UIS, it is recommended to post the report in advance, without waiting last days March to avoid risks associated with system failures.
Changes 2016
The latest changes to RF PP No. 238 were made on November 19, 2016 and concerned the extension of its effect to unitary enterprises.
Until 2016, most unitary enterprises operated under 223-FZ. Accordingly, such customers did not have to comply with the requirements of 44-FZ; in particular, they did not purchase from SMP and SONKO. However, since from January 1, 2017, unitary enterprises are subject to 44-FZ, they must post reports for 2016 with zero indicators.
Changes to the report form
The main changes to the report form in 2016 affected Section II of the report:
- The section indicates the volume of contracts referred to in Part 1.1 of Article 30 of Law No. 44-FZ, and from it (all lines included in this position) the volume of procurement that constitutes a state secret was excluded.
- Also included in this section were purchases to ensure the country’s defense and state security.
- It is indicated that repeated recording of information on the volume of financial support for payment in the reference year of the same contract is not allowed. If you look at the report form, it becomes clear that the same contract can be included in two columns: for example, a contract can be concluded with a single supplier and at the same time it can be for the provision of a loan - there is no need to enter such a contract twice.
Report on the volume of purchases from SMP, SONKO
The report contains three sections:
- Information about the customer.
- Information on the volume of purchases from SMEs and SONPOs.
- Information about concluded contracts.
Section I. Information about the customer
The first section indicates the legal form, location (address), telephone number, address Email, INN, checkpoint. Further in this section, the customer codes are filled in according to: All-Russian Classifier of Organizational and Legal Forms (OKOPF), All-Russian Classifier of Enterprises and Organizations (OKPO), All-Russian Classifier of Municipal Territories (determined by location) state registration customer) (OKTMO).
Section II. Information on the volume of purchases
Mostly questions arise when filling out the second and third sections.
Important!
The report is prepared in thousands of rubles.
Position 1 of Section II indicates the total annual volume of purchases (AGP) of the customer for the reporting year, determined in accordance with paragraph 16 of Article 3 of Law No. 44-FZ, with the exception of the volume of purchases, information about which constitutes a state secret.
SGOZ- this is the volume of financial support (appropriations) for the customer’s procurement (this issue is explained in the letter of the Ministry of Economic Development of Russia dated December 31, 2014 No. D28I2868).
According to the Ministry of Economic Development of the Russian Federation, the SGOZ is the total amount of financial support approved for the corresponding financial year for the customer’s procurement in accordance with 44-FZ, including for payment of contracts concluded before the start of the specified financial year and payable in the specified financial year.
The Ministry of Economic Development has also developed a simple and convenient calculation formula.
“SGOZ = a + b + c”, where:
A. Contracts concluded in previous financial years, in part payable in the current financial year.
b. Contracts entered into in the current financial year are fully executable and payable in the current financial year.
V. Contracts concluded in the current financial year, executed in the current and subsequent years, to the extent payable in the current financial year.
If there is a volume of purchases, information about which constitutes a state secret, it is necessary to subtract this volume from the State Public Promotion Order.
For example, a school enters into a contract for the supply of food from September to May. This does not coincide with the calendar year; accordingly, what the school pays from September to December will be included in this year’s SGOZ, and from January to May - in the next year’s SGOZ.
SGOS is equal to the plan for the financial and economic activities of a budgetary institution minus the funds that go to taxes and wages.
In position 2 of Section II, it is necessary to identify contracts that were concluded in accordance with Part 1.1 of Article 30 of Law No. 44-FZ, with the exception of the amount of financial security for payment in the reporting year for contracts containing information containing state secrets.
This column is calculated as the sum of the values provided for in paragraphs 2-6 of the specified position:
The second paragraph is the volume of defense purchases.
The third paragraph is loans.
The fourth paragraph is everything that was purchased from a single supplier: all items included in Part 1 of Article 93 of Law No. 44-FZ.
The fifth paragraph is nuclear energy.
The sixth paragraph is closed methods.
Repeated recording of information on the volume of financial support for payment in the reporting year is not allowed. If, for example, a contract falls under both a single supplier and credits, then the information is entered only once - either into the single supplier or into credits.
In this case, it is necessary to indicate actual payments under contracts. Particular attention should be paid to utilities, since often the contract is concluded for one amount, but another is paid out, since it is clearly foreseeable how much will be chosen utilities, impossible. The contract is adjusted during the execution process, and upon payment, the amount may differ from the original one. The exact amount that was actually paid under this contract for the reporting year should be paid. The same applies to all other purchases.
How is the procurement rate from SMP, which the customer must comply with in accordance with 44-FZ, calculated?
After the customer has calculated the SGOZ, he needs to deduct the amount provided for payment for goods, works and services specified in Part 1.1 of Art. 30 of Law No. 44-FZ (clause 2), and enter the resulting amount into position 3 of Section II.
Next, to fill out point 4, you need to calculate 15% of the result obtained. This will be the volume of purchases that the customer must carry out from SMP and SONKO in this reporting year. This amount is entered into position 4 of section II.
Position 5 indicates the volume of purchases, calculated as the amount of funds payable in the reporting financial year, as well as before the start of the reporting financial year based on the results of the procedures for identifying a supplier, the notice of which established a restriction in relation to participants, who could only be SMP and SONKO. That is, these are purchases carried out only among SMP and SONCO.
In position 6, the same data is entered, only regarding subcontractors from among SMP and SONKO (purchases in which the customer set the percentage of involvement of SMP and SONKO in subcontracting). It is not the entire amount that is entered, but precisely this stipulated percentage.
Staged payment and accounts payable
If payment for the contract is carried out in stages in different financial years, then the cost of each stage is taken into account in the SGOZ of the year in which payment is made (letter of the Ministry of Economic Development of the Russian Federation dated December 31, 2014 No. D28I-2898).
The amounts of contracts concluded in the previous financial year, for which accounts payable were generated, are taken into account when determining purchases from SMP and SONKO (letter of the Ministry of Economic Development of the Russian Federation dated December 14, 2015 No. D28I-3625). For example, if part of the payments under a contract concluded in 2015 was transferred to 2016, these amounts are taken into account when calculating the State Public Health Insurance for 2016. Accordingly, if part of the payments under contracts of 2016 was transferred to 2017, then this accounts payable is not taken into account when calculating the SSPP for 2016.
Position 7 includes the sum of the volume values indicated in positions 5 and 6, that is, purchases actually made by the institution in order to comply with the requirements of the law on providing benefits to SMP and SONCO.
Position 8 is the share of purchases, which is calculated as the percentage of the volume of purchases specified in position 7 in relation to position 3, that is, the percentage of purchases actually carried out in order to comply with the requirements of the law on providing benefits to SMP and SONCO.
Position 9 indicates the total amount of NMTC of failed competitive procurement procedures, in which a restriction was established in relation to procurement participants, and as a result of which the contract was not concluded or was concluded on the grounds provided for in clause 25 of part 1 of Article 93 of Law No. 44-FZ. This is the only position in which not the actual amounts are indicated, but the NMCC. For example, if the customer announced an auction with a note that it is held only among small and medium-sized enterprises and sonkos, but this procedure did not take place (not a single application was submitted or only one application was submitted), then he can conclude a contract under clause 25 of part 1 of the article 93 (as a failed auction). This contract does not fall within the scope of the concluded contracts with SMP and SONKO, but falls into column 9 of section II.
Section III. Information about concluded contracts
This section is filled in according to the unique numbers of the registry entries of contracts that are concluded with SMP and SONKO. These records are pulled from the contract registers.
Position 1 indicates the unique numbers of register entries of contracts concluded with SMP and SONKO from the register of contracts concluded by customers.
In position 2 - the same thing, but for contracts containing conditions for attracting subcontractors.
Position 3 indicates the unique numbers of register entries of contracts concluded on the grounds provided for in Part 1.1 of Article 30 of Law No. 44-FZ, from the register of contracts concluded by customers.
Attention!
If you do not find contracts in the registry, try to remove all the checkboxes when selecting a contract, since when registering a contract, many do not indicate the status of the supplier, and when performing a search, the “SMP and SONKO” checkbox is checked automatically.
It is important to know:
- The report is generated electronically and posted in the Unified Information System. It is recommended that you also prepare and approve a “paper” report.
- Contract registry numbers are filled in from the system. If they are not filled out or there are errors, they should be filled out completely in a “paper” form.
- Remember that if you paid accounts payable last year, those contracts are also included in the report.
- The calculation does not include carryover accounts payable under contracts, which will be paid in the next reporting period.
Responsibility
The fine for non-compliance with procurement norms from SMP and SONKO is 50,000 rubles per contract manager (Clause 11, Article 7.30 of the Administrative Code).
Failure by an official to place in the Unified Information System information and documents, the placement of which is provided for in accordance with the legislation of the Russian Federation on the contract system in the field of procurement (including a report, even if it is zero), entails a fine for officials in the amount of 50,000 rubles, for legal entities - 500,000 rubles (Part 3 of Article 7.30 of the Administrative Code).
Placement by an official in the Unified Information System of information and documents to be placed in violation of the requirements provided for by the legislation of the Russian Federation on the contract system, with the exception of cases provided for in parts 1 - 1.3 and 1.7 of Article 7.30 of the Code of Administrative Offenses (for example, accounts payable are not taken into account or not all register entries are made contracts), entails a fine on officials in the amount of 15,000 rubles, on legal entities - 50,000 rubles.
In addition to regular tenders, there are special tenders that are allocated exclusively to small businesses for participation. Such procurement has additional requirements and benefits for suppliers. For the convenience of suppliers, we provide contract services according to any, even the narrowest, criteria.
Purchases from Small Business Entities can be carried out by customers in any way and in any form, but in an amount of at least 15% of the total annual volume of concluded contracts. In order to comply with the standard, Federal Law 44 provides for 3 mechanisms.
Firstly, a procurement volume of 15% can include contracts concluded with SMP, which won the procurement carried out among all suppliers (for example, a regular purchase was announced, and SMP won it);
Secondly, procurement, the participants of which can only be SMP. These are competitive procurements for which a list of goods, works, and services is approved (see below). Agreements based on the results of these purchases fall into the standard of 10% of purchases only from SMP;
Thirdly, contracts concluded by participants (executors, contractors) with co-executors from among the SMP are used to account for the fulfillment of the standard. That is, contracts concluded as a result of procurement, in which there was a requirement for the winner that in order to fulfill the contract he must attract subcontractors from among the SMP. Such agreements also fall into the total number of agreements concluded with SMP (15%).
As you can see, there are strict regulations for the customer regarding the placement of such contracts and further reporting on them. It is for this reason that we recommend paying attention to bidding for small businesses first of all - they are much more profitable and transparent. For convenience and quick navigation, there is a section among the most profitable contracts -.
Result in numbers:
30%
is the size of the maximum advance as part of supporting small businesses
The experts of the Entrepreneurship Support Center, having studied all existing programs to support small businesses, using the accumulated experience, and close interaction with various government agencies, have developed a unique scheme for working on government and commercial tenders for small businesses. You will receive profitable contracts with an advance payment and with all possible advantages, and also at minimal cost!
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The main advantages of purchasing from Small Businesses and Socially Oriented Non-Profit Organizations under 44-FZ
The Federal Law applies the designation SMP - “Small Business Entity”. The format for participation in procurement is described in detail in, within the framework of which customers are required to conclude at least 15% of all contracts from the total volume of concluded transactions with SMP. At the end of the year, before April 1, customers place in the Unified Information System data on tenders allocated for SMP for the entire last year. The report is allowed to include only those purchases in which the advantage for the NSR was stated and these tenders took place. If the quota is not met, the organization will receive a substantial fine!
SMP can participate in any tender if the organization meets the customer’s criteria and is able to fulfill the terms of the contract. Tenders that the customer is required to place exclusively for small businesses have a number of benefits. This means that there will be no large or medium-sized organizations among the participants. If they want to participate, the commission will definitely reject them. NMCC purchases from SMP under 44 Federal Laws cannot exceed 20 million rubles. To submit an application, suppliers attach . And since 2017, an extract from the Federal Tax Service from the new Unified Register of Small Business Enterprises has been provided.
Result in numbers:
2%
is the amount of maximum support within the framework of support for small business representatives
Benefits for tenders for small businesses under Federal Law 44
- Approved advance payment of up to 30% of the contract value.
- Payment terms for completed work are strictly up to 15 days.
- The size of the application security is no more than 1% or 2%.
- Enforcement is no more than 5% or 10%.
- Neither medium nor large competing companies can participate.
- Involvement of SMP through subcontracting, according to the corresponding requirement in the tender documentation.
Among the nearest changes, the Federal Law approves “On Amendments to the Federal Law “On the Contract System...””. The bill will no longer allow the involvement of a subcontractor that is affiliated with the customer in the implementation of the tender. This will exclude cases where an organization transfers construction subcontracts to its subsidiaries. If an institution violates the Federal Law, then such a contract cannot be placed in the procurement register of the SMP. Another innovation concerns the fact that since 2017, applications for any form of tender selection can be sent to the EIS electronically. This will reduce costs for participants and also eliminate the corruption component when rigging results when carrying out “paper” procedures.
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How are purchases made from small enterprises under 44 Federal Laws?
The law defines privileged conditions for the participation of small businesses and socially oriented non-profit organizations (hereinafter referred to as SMP, SONCO) in the procurement of goods, works, and services for state or municipal needs. Customers are required to purchase from SMP and SONKO in the amount of at least 15% of the total annual procurement volume through various tenders: open tenders, tenders with limited participation, two-stage tenders, electronic auctions, requests for quotes, requests for proposals. In this case, the initial (maximum) price of the contract should not exceed twenty million rubles. (Part 1 of Article 30 of Federal Law-44).
Procurement from SMP and SONPO is a separate procedure - its participants are exclusively SMP and SONPO, and a corresponding restriction is established in procurement notices. In this case, procurement participants are required to declare in applications for participation in procurement their affiliation with SMP or SONKO (Part 3 of Article 30 of Federal Law No. 44). You can download all the necessary declarations and certificates in the section.
If procurement from SMP or SONCO is declared invalid, the customer has the right to cancel the restriction on procurement participants, which can only be SMP or SONPO, and carry out procurement on a general basis (Part 4 of Article 30 of Federal Law No. 44).
The customer has the right to establish in the procurement notice a requirement for the supplier (performer, contractor), who is not an SMP or SONCO, to involve co-contractors from among the SMP, SONCO in the execution of the contract. In this case, the condition on the involvement of subcontractors, co-executors from among the SMP, SONCO in the execution of contracts is included in the contracts indicating the volume of such involvement, established as a percentage of the contract price.
If the notice of procurement establishes restrictions on the participation of exclusively SMEs and SONCOs, the contract concluded with a small business entity or a socially oriented non-profit organization includes a mandatory condition on payment by the customer for the goods supplied, the work performed (its results), the services provided , individual stages of contract execution no more than fifteen days from the date the customer signs the acceptance document.
A state or municipal customer is obliged to provide part of its needs through contracts with small enterprises or non-profit organizations, doing this in the following ways similar to this:
- Conducting procurement (tenders, auctions, quotations) specifically for specified persons. In this case, the initial price of the contract should not exceed 20 million rubles, the amount of security for the participant’s application should not exceed 2% of the initial purchase price. The documentation must contain the condition that only SMP and SONCO are allowed to participate. After the supplier/performer/contractor has fulfilled its obligations, payment must be transferred to him no later than 30 days.
- By indicating in the procurement documentation the winner’s obligation to involve co-executors from among small businesses in the execution of the contract (a specific percentage of the contract price, but not less than 5%).
If the procurement is carried out among SMP/SONCO, the procurement participant declares his affiliation with these entities as part of the application. The form of such a declaration has not been approved and is drawn up arbitrarily. If the organization is already included in the list, you can submit an extract from it. SONCOs fill out a declaration indicating the type of activity, since the benefits are not provided for everyone by law.
It is important to remember that for providing false information, the contract with the winner may be terminated at the discretion of the customer.
Administrative liability for non-compliance with the legislation on placing an order with SMP determined by Article 7.30 of the Code of Administrative Offenses of the Russian Federation:
- Violation of deadlines for posting information in the unified procurement information system during a competition or auction for less than two days, relies fine of 5 and 15 thousand rubles for individuals and legal entities, respectively;
- in case of violation of the specified period for more than two days the fine is 30 and 100 thousand rubles;
- Violation of the deadline for posting information when requesting quotes or proposals from small businesses no more than a day - 3 and 10 thousand. for individuals and legal entities;
- similar violation with delay more than a day - 15 and 50 thousand.;
- violation of the requirements and procedure for posting information for procurement from small businesses entails fine of 15 and 50 thousand.
Detailed standards are presented in the section. Penalties are also imposed for other administrative violations - unlawful refusal, failure to comply with protocol and reporting requirements. Special mention should be made of fine for failure to comply with the established volume of purchases for small businesses - it is 50 thousand rubles.
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Where to start searching for suitable tenders for small businesses under Federal Law No. 44
You can independently search for the necessary information, buy a program for monitoring procurement and hire tender specialists with suitable experience or submit an application to the Entrepreneurship Support Center and we will provide you with the full range of required services at the most affordable prices with a guarantee of a positive result.
Result in numbers:
1 month
is the maximum period for concluding the first successful contracts
We will promptly check your organization for compliance with all criteria, order an extract and report the result. After this, we will agree with you and prepare the constituent documents and declarations required for further work with tenders and financing.
When the preparation is completed, we will assign you a personal manager who will manually select transactions according to your criteria, according to which advance payment and short payment terms are approved, and we will also provide access to the Multifunctional Account, which will provide you with all the necessary information.
The state provides special benefits for small and medium-sized businesses. In order to develop and maintain this area, tax, financial and administrative benefits are provided.
Small businesses are commercial organizations (legal organizations and individual entrepreneurs) that carry out their activities with the aim of making a profit. At the same time, non-profit organizations, unitary municipal or government agencies cannot be classified in this category of entities, even if they meet the requirements for SMEs in terms of annual revenue and number of employees.
Which organizations belong to the SMP?
For business entities and partnerships, at least one of the requirements of clause 1, part 1.1 of Art. 4 209-FZ. If the organization meets one of the listed conditions, then indicators on revenue and the average number of employees are considered.
The Federal Law “On the Development of Small and Medium-Sized Enterprises in the Russian Federation” dated July 24, 2007 N 209-FZ regulates the basic requirements under which an organization can be classified as an SME. In 2017, some changes were made to these requirements, thereby allowing more organizations to meet the status of a small or medium-sized enterprise.
Gradation of enterprises and limits established in each group:
Microenterprise: the amount of annual revenue excluding VAT should not exceed 120 million rubles, and the number of employees should be no more than 15 people.
Small business: the amount of annual revenue is no more than 800 million rubles, the number of employees is no more than 100 people.
Medium enterprise: revenue excluding VAT for the year is up to 2 billion rubles, and the average number of employees does not exceed 250 people.
The same rules for dividing into categories apply to individual entrepreneurs. If individual entrepreneurs do not have employees, then the criterion will be only the amount of revenue received for the year. When using the patent taxation system, individual entrepreneurs are classified as micro-enterprises.
All small business enterprises are entered into the Register of Small Business Entities, maintained by the Federal Tax Service, on the basis of:
information from the Unified State Register of Legal Entities, Unified State Register of Individual Entrepreneurs;
information provided to the Federal Tax Service on the number of employees, revenue from business activities and the application of special tax regimes, in the reporting established by the legislation of the Russian Federation;
information provided by persons specified in paragraph 2 of Art. 6 Federal Law No. 408-FZ;
information provided by legal and individuals, included in the register of SMP.
More detailed information can be obtained on the Federal Tax Service website, including viewing.
Regarding government and commercial procurement, small businesses also have a number of advantages over other participants.
Purchase from small businesses, SONKO 44-FZ
Government procurement under 44-FZ from small and medium-sized businesses is regulated by Art. 30 44-FZ.
For customers working in accordance with the law “On the Contract System”, a number of requirements are put forward regarding procurement from small businesses and socially oriented non-profit organizations.
According to Part 1 of Art. 30 44-FZ, customers are required to carry them out in an amount of at least 15% of their annual purchases. Such trades can be carried out in the following types:
open competition;
competition with limited participation;
two-stage competition;
electronic auction;
request for quotations;
request for proposals.
At the same time, the initial maximum contract price should not exceed 20 million rubles.
Also, a positive point in procurement carried out only among small businesses and socially oriented non-profit organizations is that the amount of security for an application for participation is set at no more than 2% of the NMCC. For comparison, in other procurements the customer has the right to set a bid security in the amount of up to 5% of the contract price.
Involvement of SMP or SONKO in the execution of a contract
When conducting a procurement, the customer has the right to establish in the notice a requirement for a contractor who is not an SMP or SONCO to involve a subcontractor or co-executors from the register of small businesses in the execution of the contract.
In this case, it is indicated what percentage of the work (of the contract value) was carried out with the involvement of a subcontractor from among SMP, SONCO, and this part is counted to the customer in the volume of purchases for the reporting period made from small businesses and SONPO.
The contract of such a tender must include a clause on the civil liability of the contractor for failure to fulfill the conditions for engaging a subcontractor from among the SMP, SONCO.
The Government of the Russian Federation may establish standard terms of contracts providing for the involvement of SMEs (small and medium-sized businesses) in execution.
Advantages:
- the contractor must pay subcontractors and co-executors involved from among the SMP and SONCO within 15 workers days from the date of signing the document on acceptance of services, work or goods from the subcontractor. Previously this period was 30 calendar days.
- the changes affected clause 1 of Government Decree No. 1466 of December 23, 2016, now the customer sets a fixed percentage of the contract price to indicate the volume of attraction of SMP or SONCO.
Calculation of the volume of purchases from SMP, SONKO according to 44-FZ
money to secure the application must be deposited into a special bank account;
The contract with the winner of the purchase is concluded in electronic form on the site (the paper version is not applicable).
Deadlines for publishing notices of procurement:
Competitions and auctions:
with NMCC up to 30 million rubles, then at least 7 days;
with NMCC more than 30 million rubles - in 15 days.
Request for proposals— within 5 working days (NMCC should not exceed 15 million rubles).
Request for quotation- for 4 working hours days (NMCC should not exceed 7 million rubles).
The payment period for contracts concluded with SMEs from 01/01/2020 was reduced from 30 days up to 15 days. By analogy with purchases from SMP within the framework of 44-FZ.
Schedule of purchases from SMEs
Customers who are included in the category according to PP No. 1352 must calculate the total trading volume among SMEs, then they must approve the list of goods and place it in the Unified Information System. If this action is not implemented, then purchases from small and medium-sized businesses under 223-FZ will not be able to be carried out.
In the procurement schedule, the customer must, in separate sections, reflect and approve the goods, works or services that he will purchase through bidding only among SMEs. Participants in such tenders must declare their affiliation with the SMP in the application; at the moment, the form is unified and the same for everyone.
The initial maximum purchase price carried out only among participants of small and medium-sized businesses should not exceed 400 million rubles.
Also, a certain group of customers, approved by Government Order No. 475-r, must purchase innovative and high-tech equipment from small businesses.
According to Art. 5.1 223-FZ, in relation to certain categories of customers, control and monitoring of compliance of procurement plans and annual reports with the requirements of the legislation of the Russian Federation on procurement from SMEs is carried out. Conformity assessment is carried out as part of the verification of a draft procurement plan for goods, works or services, a draft procurement plan for innovative and high-tech products and projects for amending such plans, prior to the approval of these plans.
Monitoring is carried out according to procurement plans approved by the customer and changes made to them.
Based on the results of inspection and monitoring, a conclusion is issued on the compliance or non-compliance of the documents being checked with the requirements of the legislation of the Russian Federation. If violations are identified, the customer must eliminate them or place a protocol of disagreements for this notification in the Unified Information System. Otherwise, the implementation of the procurement plan of this organization may be suspended by the antimonopoly authority.
Report on procurement from SMEs
At the end of the month, each customer must draw up a report containing information about its purchases from SMEs, and no later than the 10th day of the month following the reporting month, place it in the Unified Information System. (Clause 4, Part 19, Article 223-FZ)
Before February 1 of the following reporting year, the customer must publish in the Unified Information System an annual report in the prescribed form, with information on the annual volume of purchases from small and medium-sized businesses.
Important: in the event that the customer has not carried out the required volume of purchases from small and medium-sized businesses during the calendar year, or has posted a report with incorrect data or has not posted it at all in the unified information system, then appropriate sanctions are imposed on such an organization, namely - it will be deprived of procurement privileges under 223-FZ and from February 1 until the end of the year following the reporting year, it will be obliged to conduct tenders only within the framework of 44-FZ.
As for the submission of reports by companies operating under 223-FZ, but not obliged to purchase from SMP, these companies also submit monthly reports on the number of contracts signed with SMP, in which they indicate the number of such contracts; if they are absent, they simply enter the value 0. At the same time, organizations that do not fall under Government Decree No. 1352 do not have the right to indicate in the documentation a restriction on participation in tenders only for small and medium-sized businesses, because this will already be considered a restriction of competition.
Annual report on purchases from SMEs of enterprises with revenue of less than 2 billion rubles. should not be published, even if such tenders were held.
Suppliers belonging to SMEs
The benefits for procurement participants belonging to small and medium-sized businesses have now been cancelled. But at the same time, there are restrictions that do not allow participation in procurement carried out for SMEs.
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There are two ways to purchase from SMP and SONKO.
How to calculate the annual volume of purchases that need to be made from SMP and SONKO
This can be done more conveniently using the following formula:
Annual volume of purchases from SMP and SONKO | = | - | × | 15% |
The 15 percent norm must take into account purchases in which SMP and SONCO:
When calculating the annual volume for purchases from SONKO and SMP, it is impossible to take into account the following purchases:
- to ensure national defense and security;
- loan services;
- from a single supplier (contractor, performer);
- work in the field of atomic energy;
- carried out using closed methods.
However, if these purchases, in addition to providing loans and purchases from a single supplier, were carried out from SONKO and SMP (under Part 1.2 of Article 30 of Law No. 44-FZ), their volume is still required . That is, the amount of these purchases does not need to be subtracted from the total annual volume when calculating. They also need to be enabled , which the customer draws up at the end of the year and which reflects the number of their purchases.
This procedure is given in parts 1.1, 1.2, 4 of Article 30 of Law No. 44-FZ and explained in the letter of the Ministry of Economic Development of Russia dated June 2, 2015 No. D28i-1455.
But if the calculated volume of purchases from SMP and SONKO was 0 rubles, then it is not necessary to purchase from them. This is possible if, for example, the customer makes all of his purchases only from a single supplier (contractor, performer). Such clarifications are given in letters of the Ministry of Economic Development of Russia dated March 11, 2015 No. D28i-643, dated February 18, 2015 No. D28i-413, dated December 31, 2014 No. D28I-2891.
Attention!If the customer purchases goods (works, services) from SMP and SONKO in a smaller amount than established by Law No. 44-FZ, he faces administrative liability. Thus, officials (contract manager, contract service employees) may be subject to an administrative fine in the amount of 50 thousand rubles. (Part 11 of Article 7.30 of the Code of Administrative Offenses of the Russian Federation, letter of the Ministry of Economic Development of Russia dated March 10, 2015 No. D28i-590).
An example of calculation and subsequent recalculation of procurement rates from SMP and SONKO
In 2016, the institution plans to conclude contracts:
- for the purchase of passenger cars (RUB 2,000,000);
- for the purchase of computers (600,000 rubles), including from a single supplier, in the amount of 80,000 rubles;
- for improvement of the territory of the institution (RUB 1,000,000);
- for current repairs (RUB 700,000);
- for maintenance of office equipment, computers (800,000 rubles), including from a single supplier, in the amount of 50,000 rubles.
At the end of 2015, the institution did not conclude contracts with execution in 2016.
The contract manager calculated the minimum volume of purchases from small businesses and socially oriented non-profit organizations.
He compiled:
(2,000,000 rub. + (600,000 rub. - 80,000 rub.) + 1,000,000 rub. + 700,000 rub. + (800,000 rub. - 50,000 rub.)) × 15% = 745,500 rub.
In 2016, the standard volume of purchases from such suppliers must be at least 745,500 rubles.
Within the calculated volume, the contract manager decided to purchase computer equipment in the amount of 520,000 rubles. by open competition among SMP and SONKO. He indicated information about the provision of advantages and restrictions on the participation of suppliers who are not SONCO and SMP in the procurement notice and tender documentation.
During this competition, only one application was submitted that met the requirements. The competition was declared invalid. The contract manager sent an appeal to the control body to approve the conclusion of a contract with the participant who submitted the only application, as the only supplier. After 10 working days, approval was received and the contract was concluded.
Since the contract was concluded with a single supplier, the contract manager recalculated the annual volume of purchases from SMP and SONKO. He excluded from the calculation the purchase in the amount of 520,000 rubles.
He did it like this:
(RUB 2,000,000 - RUB 80,000 - RUB 520,000 + RUB 1,000,000 + RUB 700,000 + (RUB 800,000 - RUB 50,000)) × 15% = RUB 577,500
Thus, the annual volume of purchases from SMP and SONKO for 2016 changed and amounted to 577,500 rubles.
First procurement method: conduct procurement only among SMEs and SONKOs in a competitive way
In this case, the initial (maximum) contract price (NMCP) should not exceed 20 million rubles. This is stated in paragraph 1 of part 1 of article 30 of Law No. 44-FZ.
If the customer is identifying suppliers only among SMP and SONPO, then he must indicate this in the procurement notice (clause 2 of the letter of the Ministry of Economic Development of Russia dated May 22, 2015 No. D28i-1296). And the participants, in turn, are obliged in applications their belonging to these categories.
In addition, the draft contract must include a requirement for payment for goods (work, services) for a separate stage of contract execution within 30 days from the date of signing the acceptance document. This is stated in parts 3, 8 of Article 30 of Law No. 44-FZ.
What should the customer do if the purchase under Law No. 44-FZ only among SMP and SONKO did not take place?
It makes sense for the customer to cancel this restriction and make the purchase in general procedure.
In this case, the contract price in small businesses and non-profit organizations do not need to be taken into account. That is, in includes only those purchases that have been completed exclusively for SMP and SONKO. But the remaining purchases do not need to be taken into account in the volume of purchases from SMP and SONKO, even if one of these categories of participants wins. This is stated in Part 4 of Article 30 of Law No. 44-FZ and explained in the letter of the Ministry of Economic Development of Russia dated February 10, 2015 No. D28i-173.
Second procurement method: establish an additional condition in the procurement notice and draft contract
An additional condition of the contract is the requirement for the winner of the purchase to involve subcontractors (co-contractors) from among the SMP and SONCO in the execution of the contract. Any organization can be a participant in such a purchase, and the NMCC does not matter in this case.
It is worth noting that if the winner of such a purchase is SMP (SONKO), then this condition does not apply to it. This is what the Russian Ministry of Economic Development thinks in its letter dated September 17, 2015 No. D28i-2812. However, experts still recommend stipulating this in the draft contract.
The condition that the winner must involve subcontractors and co-executors from SMP and SONKO must be included in the contract. Among other things, you need to write down:
- the volume of such attraction - as a percentage of the contract price;
- a condition on civil liability of suppliers (contractors, performers) if they do not involve subcontractors, co-executors from SMP and SONKO in the execution of contracts;
- that this requirement does not apply to the winner from among SMP and SONKO.
An example of the wording of the condition that the winner must involve subcontractors and co-executors from SMP and SONKO
“The developer is obliged to involve subcontractors (contractors) from among small businesses and socially oriented non-profit organizations in the execution of the contract in the amount of 15 percent of the cost of this contract.
The developer bears responsibility to the Customer in accordance with the legislation of the Russian Federation for failure to fulfill the condition of involving subcontractors (contractors) from among small businesses and socially oriented non-profit organizations in the execution of the contract.”
This procedure is established in paragraph 2 of part 1, parts 5, 6 of Article 30 of Law No. 44-FZ and is explained in letters of the Ministry of Economic Development of Russia dated September 17, 2015 No. D28i-2812, dated April 6, 2015 No. D28i-837, dated 10 March 2015 No. D28i-590, dated December 9, 2014 No. D28i-2740.
Advice: In the draft contract (and in the contract itself), it is worth establishing a condition for its unilateral termination if the supplier (contractor, performer) improperly fulfills the condition. And then, if the counterparty, in accordance with the conditions, does not involve SMP and SONKO in the execution, the customer will be able terminate the contract (Clause 9 of the letter of the Ministry of Economic Development of Russia dated March 17, 2015 No. D28i-747).
How to prepare a report on the volume of purchases from SMP and SONKO
At the end of the year, customers report on the volume of purchases from SMP and SONKO. To do this, the contract manager or contract service employee draws up and places a special report in the Unified Information System. Deadline - until April 1 of the year, following the reporting one.
Report form and the requirements for filling it out were approved by Decree of the Government of the Russian Federation of March 17, 2015 No. 238.
The report must contain information:
- about the contracts that were concluded with SMP and SONKO;
- about failed procurements with the participation of SMP and SONKO.
At the same time, there is no need to include a purchase in the report when , and the winner of the purchase was the small business entity itself (or SONKO).
And, of course, there is no need to include procurement information in the report if the contract was concluded with a single supplier (contractor, performer) - in accordance with paragraph 25 of part 1 of Article 93 of Law No. 44-FZ. That is, when a competitive procurement (competition, auction, request for quotations) from SMP and SONKO turned out to be invalid.
Such rules are established in parts 4, 4.1 of Article 30 of Law No. 44-FZ and explained in letters of the Ministry of Economic Development of Russia dated February 10, 2015 No. D28i-173, dated December 23, 2014 No. D28i-2792.
In 2018, customers must still allocate a certain percentage of purchases to small businesses under 44-FZ. Organizations with a small number of employees and profits below the established limit fall under this category. Who are small businesses under 44-FZ is stated in Federal Law No. 209-FZ dated July 24, 2007.
What is a small business entity under 44-FZ
Let's consider who is a small business entity under 44-FZ. The criteria for classification as an NSR did not change in 2018. A micro-enterprise is considered to be an organization with up to 15 employees and an annual income of no more than 120 million rubles.
Small companies include companies that officially employ up to 100 people and have an annual income of up to 800 million rubles. Enterprises with a number of employees from 101 to 250 people and a turnover of no more than 2 billion rubles are considered medium-sized. In all three cases, the share of participation of the state should not be higher than 25%, of foreign legal entities - no more than 49%, and the share of legal entities that are not small and medium-sized businesses - no more than 49%.
Application for participation in procurement from small businesses 44-FZ
According to Federal Law 44, small businesses receive some preferences when purchasing. However, they can use them and participate in procedures for SMP only under one condition: a declaration must be attached to the application. Indicate in it:
- Company name;
- the category to which it belongs - small or medium business;
- legal address;
- OGRN.
Then enter the indicators into the table. In particular, indicate the total share of state participation in the authorized capital of the company, the number of employees, and income for the past year.
Documentation on purchase from SMP under 44-FZ and contract
We looked at who belongs to the NSR in 2018. Despite the fact that the requirement for a mandatory share of purchases from small businesses under 44-FZ appeared quite a long time ago, customers continue to get confused about the concepts. For example, require that the participant belong either to a small business or to a socially oriented non-profit organization, and companies that fall into both categories and report this in the declaration are not allowed to bid. This is a violation confirmed by administrative practice, for example, by the decision of the Office of the Federal Antimonopoly Service for Moscow in case No. 2-57-1428/77-18 dated 02/06/2018.
Advantages when purchasing from small businesses 44-FZ
According to 44-FZ, small businesses receive some preferences when purchasing. For example, if a sanction is imposed for violating the terms of a contract, the fine can generally reach 10% of the contract price if it is less than 3 million rubles, and 5% if the cost is in the range of 3-50 million. For small enterprises with contract price up to 3 million, the amount of the fine will be 3% of the contract value, if it is in the range of 3-10 million - 2%, 10-20 million - 1%.
Also, SMEs have lower tariffs for work on trading platforms. Let us remind you that in 2018 it became paid. Money for participation in the procedures is taken only from the winners. If for ordinary participants this is 1% of the contract price, but not more than 5 thousand rubles, then for SMP the upper limit is 2 thousand rubles.
How to distinguish, establish and combine advantages for SMP, UIS, OI and import
From the article you will learn:
✔ What benefits are established for participants of the SMP or SONO;
✔ Three main mistakes of mixed purchasing using a live example;
✔ In what cases are advantages established for the product of the UIS and OI;
✔ When benefits cannot be combined in one purchase:
From the article
Volume of mandatory purchases from small businesses 44-FZ
We defined small businesses according to 44-FZ and examined the criteria for their classification into this category. Next, let's move on to the percentage of purchases from small businesses under 44-FZ. This is 15% of the total annual volume. To meet this standard, customers use two ways:
- conduct procurement only among small businesses;
- establish in the procurement documentation a requirement to attract subcontractors from among the SMP.
Any procedure can be performed:
- competitions - paper electronic, open and closed, with limited participation, two-stage;
- electronic auctions;
- requests for quotations and proposals in any form.
NMCC at auctions only among SMP and SONCO should not exceed 20 million rubles. If 15% of purchases among SMP and SONKO are not reached, the contract manager will be fined 50,000 rubles.
Let's consider the calculation of the volume of mandatory purchases from small businesses 44-FZ. The annual volume is understood as the amount of money approved for the financial year to meet the needs of government customers. Earlier, the Ministry of Finance clarified that it takes into account contracts concluded in previous years, but for which payment takes place this year, as well as those concluded and paid in the current year.
When calculating the average annual purchase volume, the following are not taken into account:
- to ensure the defense capability of the Russian Federation;
- on providing loans;
- from a single supplier;
- in the field of nuclear energy use;
- closed procedures.
At the end of the year, the customer must publish in the Unified Information System a report on purchases from small enterprises and socially oriented non-profit organizations.
You will find more answers to questions about procurement in the new issue of the magazine “Government Order in Questions and Answers”
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