Currently main federal laws controlling the Government procurement in Russia are:
- «On the contract system in state and municipal procurement of goods, works and services» (№44-FL of 05 April 2013, as amended on 13.07.2015);
- «On Procurement of Goods, Works and Services by Certain Legal Entities» (№223-FL on 18 July 2011, as amended on 29.06.2015).
223-FL is by definition and requirements to the Government procurement more loyal than 44-FL. For example, the last one in a serious way limits ways of bidding, sums and procurement of goods amount, works and services; demands proving the starting price of contract, describing functional characteristics of goods and services to the full extent. The reasons of passing 44-FL are: misregulating of relations appeared while using the previous law connected with the Government procurement; grown corruption level; development of business activity in Russia.
223-FL, for example, does not demand proving the Government procurement, the starting price of contract, the possibility of making amendments into completed contract. Other differences of 223-FL are represented in table 1.
|Name of law provision||223-FL||44-FL|
|1||Procurement plan||Can be changed. It is by definition easier and customer defines its structure and content||Yearly plan-diagram and 3-year procurement plan for the state institutions are demanded|
|2||Reason for procurement||Not required||Obligatory|
|3||Description of procurement||Can be any, including with direct reference to brand name, manufacturer, country, origin||Neutral, objective, without brand names|
|4||Source of financing||Self-gained finances||Transfers (subsidies), provided for the Government task fulfillment|
|5||Conditions of contract||Can be changed||Limited change|
|6||Making contract with winner||Not obligatory||Only with winner|
|7||Conditions of procurement||Customer defines||Heavy regulations|
|8||List of cases for procurement by the sole supplier||Customer defines||Limited|
|9||Ways of procurement||Any ways depending from the customer`s choice||Limited|
Analysis of 223-FL realization shows that several state companies abuse loyalty of the law, for example, tens of times driving up procurement prices, as a result increase of expenses is close to 100%. When there is a violation of 223-FL participant of procurement can lodge a complaint to the Federal Antimonopoly Service of the RF (FAS). Among the violations are: not placement of data on procurement in the unified information system; inaccurate information about procurement; additional requirements to suppliers. However, it turned out to be inadequate, that is why the Government of the RF made a decision to enforce procurement control of state companies.
According to the Government regulation №1139, amendments were made to the FAS activity. Since 1 November 2015 FAS is vested with oversight functions in the procurement area of «Certain Legal Entities» in accordance with 223-FL. They include state and municipal unitary enterprises with a government stake more than 50%. Moreover, FAS got a possibility to make decisions on suspense of plan implementation of goods procurement, works, services, and also innovative and high-technology products, medical products concerning procurement of small and medium-sized business entities.
In 2011, considering complaints of JSC «Nedvizhimost-M», OOO «Solomatinskoe khlebopriemnoe predpriyatie» and the citizen L.M. Kostareva, Russia's Constitutional Court verified the compliance with the Constitution of the Article 115 of the Criminal Procedure Code of the Russian Federation, which regulates the procedure of imposition and prolongation of the attachment of property to prevent its concealment or sale. As a result, it was drawn the conclusion of non-compliance of a number provisions of this article with the basic law of the country.
In the operative part of the Ruling of the Constitutional Court the legislator was ordered to «enter necessary changes to the Russian Federation Code of Criminal Procedure». In particular, to provide the persons an effective protection of property rights, including the possibility of compensation for losses in case of suspension of criminal proceedings. The necessity stems from the fact that the arrest to ensure the execution of a sentence in terms of the civil suit on these proceedings had been already imposed, and the application of this measure of procedural compulsion is excessively long.
In accordance with this Ruling of the Constitutional Court the amendments to the Code of Criminal Procedure were prepared, enshrined in the Federal Law №190-FZ of June 29, 2015 «On Amendments to Certain Legislative Acts of the Russian Federation».
With regard to the criminal procedure the law concretized the definition of property as a thing, including cash, non-cash funds in bank accounts, property rights and securities.
A significant innovation became the concept of «reasonable time» of the attachment of property defined by the set of circumstances, including, for example, the complexity of criminal case, duration of proceedings, degree of assistance to the investigation on the part of participants. The amendments defined clearly the process and procedure of extension of this arrest. This process allows the participation of persons, whose property had been arrested, and the relevant decision of the court can be complained on appeal and under cassational procedure.
In case of violation of «reasonable time» of proceedings prescribed by Art. 6.1 of the Civil Procedure Code, the persons, who are not suspected or accused in criminal cases and whose property has been arrested, may demand compensation from the state. If the property of such citizens is under arrest for more than six months from the date of entry into force of the sentence or dismissal of a case, or the total duration of property's attachment has exceeded four years, an administrative claim may be filed in a court for awards of such compensation.
The Federal Law №190-FZ has entered into force since 15 September of the current year. It is subject also to the amendments on the limitation of terms of property’s attachment. However, the provisions of the law are extended also to cases of property’s attachment before this date, if the attachment had not been withdrawn or prolonged by the court by due process of law.
To estimate the importance of innovations and the volume of property potentially affected by this problem, you can look at the statistics of the Federal Bailiff Service. For example, in 2014 the number of enforcement proceedings, within which the property was seized, amounted to 276 123 pcs, and the total value of distrained property – more than 145 bln RUB.