How much to hang exactly?
Purchase of spare parts for cars according to the rules of Law No. 223-FZ
The purchase of spare parts is a pressing issue for every organization that has vehicles on its balance sheet. Customers working under Law No. 223-FZ must be especially careful, since for them such a purchase involves three additional issues: the wording of the subject of the purchase, precise definition method and form of procurement and establishing the volume of purchase.
What are we purchasing?
If the agenda is to purchase one individual part or a set of such parts, then everything is more or less clear about the subject of purchase - this is a product of a certain name with certain technical characteristics.
But as a rule, spare parts appear as part of more complex contracts. Thus, contracts are concluded for vehicle maintenance, which, in addition to the delivery of the necessary parts, also include work on their installation. These same contracts may include a provision for the provision of troubleshooting services. In this case, the wording of the subject of purchase will not be based on the description of the spare parts to be installed, but on the description of the vehicle whose maintenance is the subject of the contract.
Simply put, the list of parts in a vehicle maintenance contract may not be provided at all, and this will not be a violation of the requirements of Law No. 223-FZ - provided that the procurement documentation and the draft contract, in particular, accurately describe the vehicle that is subject to maintenance, and a list of works and services included in this technical maintenance. If these requirements are formulated vaguely and vaguely, then the customer may be charged with violating antimonopoly laws: the complainant will convince the antimonopoly service that if the requirements were precise, then a wider range of potential suppliers could participate in this purchase.
Moreover, unlike the state customer, the subject of Law No. 223-FZ is not bound by the restriction of clause 1, part 1, art. 33 of Law No. 44-FZ, which means it can indicate a certain trademark (brand) of purchased parts even without justifying their compatibility. For a customer working under Law No. 223-FZ, an indication of the brand is not considered an unreasonable restriction of competition - such a restriction is justified by the technological needs of this customer, and this is quite enough to comply with the norm of paragraph 2 of part 1 of Art. 3 of Law No. 223-FZ. Initially, the Antimonopoly Service was against this approach, requiring a clause about the analogue in the procurement documentation, similar to the government procurement system. However, since 2013, customers have been able to defend their right to indicate the brand in court. According to the court, Law No. 223-FZ does not contain a direct prohibition on indicating in the procurement documentation trademarks or the name of the manufacturer, and with such an indication the customer imposes a restrictive requirement not on the procurement participants, but on the goods of certain manufacturers, which indicates that the participant who submitted the application is not limited in the rights to conclude a supply agreement, and this opportunity is provided for an unlimited number of suppliers (this position is formulated, in particular, in the decisions of the Seventeenth Arbitration Court of Appeal No. 17AP - 213/2013-AK dated 02/12/2013 and No. 17AP-1205/2013-AK dated 03/01/2013).
Electronic procurement
If, when establishing requirements for purchased products and participants, the customer is limited by the norms of antimonopoly legislation, then when choosing a method for purchasing spare parts, he is so far limited only by the norms of his own procurement regulations. At the same time, you should not ignore the norms of the Government of the Russian Federation of June 21, 2012 No. 616 - even if the purchase is positioned as the conclusion of a contract for the performance of work or services for maintenance vehicles, the availability of parts and accessories for the vehicle as part of such maintenance automatically includes such a purchase in the list of goods, works and services purchased in electronic form. One can, of course, challenge the extension of this rule to a maintenance contract, but in this case it is unlikely that arguments that not only spare parts are purchased will help - in this case it is important that they are purchased too.
In this situation, the customer only needs to remember that he chooses the procurement method himself in accordance with his procurement regulations. After all, Decree No. 616 requires the customer to purchase car parts through e-procurement, however, such a purchase does not have to be an electronic auction. Moreover, if the subject of purchase is not an individual part, but rather maintenance, then it is advisable for the customer to choose an electronic request for proposals as a procurement method, which can be carried out promptly, but at the same time compare not only prices, but also the quality of work of potential suppliers. Even the Antimonopoly Service admits that Law No. 223-FZ does not establish minimum deadlines for publishing a notice of a procurement using non-trade methods (request for prices, request for proposals, etc.) - this is confirmed, for example, by the decision of the St. Petersburg OFAS in case no. T12-43/13 dated 03/28/2013.
When choosing a procurement method, the customer must imagine the principle by which he will ultimately determine the winner. When conducting an auction or request for quotations, the only criterion for selecting the winner will be the price: per part, per batch of parts or per vehicle maintenance, depending on what is determined as the subject of purchase. If the customer dares to choose this method, then it is necessary to describe in as much detail as possible the requirements for the part or the list of works, and with details of what exactly each item on this list implies. If such requirements are not formulated precisely enough, then an unscrupulous supplier will be able to dump, simply looking for “loopholes” in the procurement documentation that allow him to save on quality (during the validity of Law No. 94-FZ, which has become history, this scheme has been worked out many times). Moreover, if the customer allows in the wording detailed requirements subjectivity, then he risks being accused of “tailoring” the documentation for a specific supplier.
Conducting a purchase through a tender or request for proposals allows you to focus not only on the prices of potential suppliers, but also on the quality of spare parts or work. Here it is important not so much to formulate comprehensive quality requirements as to determine the criteria and procedure for comparing proposals from potential suppliers. To do this, the customer will first need to establish the key aspects on which the comparison will be made: guarantee period service of the part, country of its production, speed of repair and readiness to guarantee long-term operation of the repaired vehicle unit. The price may not appear in these criteria at all - in this case, the initial price will indicate only the maximum financing limit set by the customer for the annual maintenance of the car, which will be discussed in more detail below. Having established comparison criteria, the customer must determine specific gravity each of them and the procedure for assigning points when assessing the criterion (for example, 1 point can be assigned for a six-month guarantee, 5 points for an annual guarantee, etc.). The procurement participant with the highest total number of points becomes the winner. Of course, the criteria and evaluation procedure are necessarily indicated in the procurement documentation (Part 10, Article 4 of Law No. 223-FZ).
Obviously, multi-criteria comparison is more suitable for the purchase of maintenance, and comparison by price is more suitable for the purchase of standard spare parts (suppliers will bargain for the price of a single spare part or for the price of the entire batch, depending on what the customer has defined as a unit of purchased product). In both the first and second cases, the customer, in addition to the procedure for evaluating the application (by price or by a set of criteria), also sets requirements for the suppliers themselves, so that those who do not meet these requirements do not participate in the application. And again, it would not be superfluous to recall that these requirements should not unreasonably limit competition, but should be aimed only at ensuring the efficiency of the procurement and ensuring that the winner is the best participant.
How much to hang exactly?
As a rule, car maintenance “eats up” more than 100 thousand rubles, not only in a year, but even in several months. This means that regardless of the procurement method, even if it is a purchase from a single supplier, the customer is still obliged to publish information about such a purchase in accordance with the requirements of Art. 4 of Law No. 223-FZ. In particular, when purchasing spare parts, it is necessary to publish the corresponding line in the procurement plan, the procurement notice and the procurement documentation.
When filling out these documents, the question inevitably arises: how to correctly formulate the item, and even more so the volume of the purchase, if it is not known in advance what will break and how much will be required to fix the breakdown?
There are no special problems with the plan: both in relation to the volume and in relation to the initial (maximum) price, according to Decree of the Government of the Russian Federation of September 17, 2012 No. 932, you can indicate not an exact figure, but only information. Information, in particular, includes the words “depending on the occurrence of needs”, “upon the fact of breakdown”, etc. The plan requires you to indicate another month and year of execution of the contract - but even if the maintenance contract is concluded for the whole year, then it is quite acceptable to indicate December (the last month of the contract) as the month, since it is in this month that the contract will be considered finally executed.
The situation is more complicated with the proper wording of the notice of purchase of spare parts and procurement documentation, because in both documents it is necessary to indicate the exact volume of purchased products (clause 3, part 9 and clause 3, part 10, article 4 of Law No. 223-FZ). How to indicate this volume if it is unknown in advance and generally depends solely on events that are yet to occur after the conclusion of the contract itself? In this case, it will not be possible to refer to the norms of the new Article 429.1 of the Civil Code of the Russian Federation on the framework agreement, since Law No. 223-FZ is a special law in relation to the Civil Code and can specify its requirements - so it specifies it, obliging the customer to publish in advance the volume of what he needs products.
And yet, you will have to resort to the design of a framework agreement, but this must be done in such a way as not to come into direct conflict with the imperative requirements of Law No. 223-FZ (and the requirement to indicate the volume is operational, and cannot be canceled by the procurement regulations). Experienced customers in this case indicate the maximum, maximum possible volume of products that may be required under this contract - and at the same time, the draft contract includes conditions that, firstly, individual deliveries within this volume are carried out exclusively at the customer’s request, and secondly the contract terminates after a certain date without mutual claims, even if the customer has not chosen the maximum volume. Or it is extended, but under the same conditions: delivery upon request and the possibility of completion until complete exhaustion.
Individual applications in pursuance of such a framework agreement are not considered separate procurements precisely because during the procurement for the conclusion of this framework agreement, all the information provided for in Art. 4 of Law No. 223-FZ. But if the actually selected volume does not coincide with the limit specified in the procurement documentation - and in practice this is most often what happens - then it is important not to forget to publish the relevant information on the official website www/zakupki.gov.ru. Compliance with this simple requirement of Part 5 of Art. 4 of Law No. 223-FZ makes changing the purchase volume absolutely legal. By the way, this change can be not only in the direction of decrease, but also in the direction of increase, if real breakdowns suddenly exceeded all predicted levels.
And finally, returning to car parts, what is better to specify as volume limits in such quasi-framework contracts? It depends, as was said at the very beginning of the article, on what exactly is indicated as the subject of purchase. If only individual spare parts are purchased, which will then be installed by the customer’s employees, then in the purchasing documentation and specifications it is advisable to list the entire range of parts that may be needed during the term of the contract, and indicate the maximum volume of needs for each type of part. Of course, it is not worth breaking the purchase into separate lots for each type of part, but it is necessary to include in the contract a condition on the possibility of the customer submitting an application for the supply of only certain items from the specification.
If the subject of the purchase is the technical maintenance of vehicles, then when describing the volume of purchase it will be necessary to indicate the technical characteristics of each vehicle, their quantity, the entire range of work that theoretically may be needed if they break down, as well as the requirements for parts that will be used in the event of a breakdown. performing such work. In this case, it is the scope of work that will be the volume of purchase, but, as in the case of goods, it is necessary to provide for the possibility of submitting an application only for certain items from the list of works provided for in the contract.
Although when formulating information about the initial (maximum) price, one can limit ourselves to the phrase “the initial (maximum) price has not been determined,” any customer has the right to indicate its exact value. And in this case, it is extremely important that this value corresponds to what the customer has defined as a unit of purchased product - an individual part, a batch of such parts or maintenance specific car? If the customer specifies the initial (maximum) price for an individual part, then he will have to break the purchase into lots in order to indicate in each of them that starting price, which corresponds to this type of part. If a batch of various parts is purchased, then it will be enough to indicate the initial price specifically for the batch, and in the documentation, if necessary, indicate the maximum price values per unit of certain parts included in this batch. If the unit of purchased products is the maintenance of one car, then as the initial (maximum) price it is most logical to indicate the maximum limit set for annual maintenance of this car: this limit will serve as the limit of exhaustion of the quasi-framework agreement that will be signed based on the results of such a purchase.
There is probably not a single customer who would not be faced with the need to purchase consumables for printing devices - every office has at least one printer or MFP. Sooner or later, the need arises to refill and repair existing cartridges or buy new ones.
Even today, when carrying out such procurements in accordance with the provisions of the law on the contract system, customers are faced with a number of problems and difficulties.
Original and compatible consumables
In order for the reader to fully understand what we are talking about, let’s take a break from the contract system and say a few words about what types of toners, cartridges, photo drums and others there are Consumables for printing devices.
In addition to a number of characteristics, it is important for the customer to know that they are divided into two groups:
- original - that is, those produced by the same manufacturer as the printing device;
- compatible - produced by a third party that has no relation to the manufacturer of the printing device. Such consumables are suitable for a particular model of printer or MFP and can be used, but the device manufacturer does not guarantee its high-quality and uninterrupted operation. In other words, they are simply compatible with this printer model.
In practice, there are several main differences between original and compatible consumables. Firstly, compatible consumables are much cheaper. Secondly, when purchasing compatible consumables, you never know who and how they were produced, what quality they are, whether these cartridges are really new or whether they are already used, but have undergone a refurbishment procedure and are packaged in new box etc.
The above does not mean that absolutely all non-original consumables Low quality. Not at all, there are also some that are in no way inferior in quality to the original ones. But can the buyer, represented by the customer, know this in advance?
Purchase of consumables according to Law No. 44-FZ
Customers, as a rule, are interested in receiving original consumables for one simple reason - they are of high quality. The initial (maximum) contract price is also calculated by the customer based on the cost of original materials. Small organizations usually purchase them, guided by paragraph 4 of part 1 of Law No., while larger organizations are forced to conduct requests for quotations and electronic auctions. As practice shows, it is almost impossible to obtain original cartridges and toners through competitive procedures.
The reason for this is one of the main features of non-original consumables - their cost is much lower. This allows the procurement participant to significantly reduce the price, which suppliers of original consumables simply cannot compete with.
In addition, we must not forget that according to paragraph 1 of part 1 of Law No. 44-FZ, trademarks, brand names, etc. should not be included in the description of the procurement object.
How to get original consumables
Despite the difficulties, it is possible to obtain original consumables for printing devices. To do this, when drawing up technical specifications, in addition to indicating the technical and functional characteristics of the product, it is necessary to include the following points:
1. For each product, indicate the manufacturer, model and its alphanumeric marking, guided by paragraph 1 of part 1 of Article 33 of Law No. 44-FZ regarding the possibility of indicating this information (without the words “or equivalent”) in cases where it is necessary to ensure the interaction of such goods with goods, used by the customer, as well as cases of procurement of spare parts and consumables for equipment used by the customer;
2. Indicate for each item that this product is intended for use or installation on the customer’s existing equipment that is under warranty, indicating its model and brand name;
3. Indicate in the procurement documentation, referring to the above clause of the law on the contract system, that the supply of non-original and compatible consumables, as well as materials from other manufacturers, is impossible;
4. Indicate in the text of the procurement documentation that the manufacturer of the equipment available to the customer for which consumables are purchased officially prohibits the use of materials and components from other manufacturers, since in this case the stable and trouble-free operation devices. Such information in one form or another is necessarily available in the accompanying documentation of any printing device or on the manufacturer’s official website. We recommend attaching a copy of the document to the procurement documentation.
Conclusion
Of course, even with this approach, there is no guarantee that there won’t be some particularly dull supplier who wants to offer the customer compatible consumables, supporting their application with a stack of various quality certificates. It is also impossible to be sure what position the supervisory authority will take when considering a complaint (if it comes to that, of course).
However, as procurement practice shows, such an approach to drawing up documentation on the purchase of consumables for printing devices significantly increases the chances of getting exactly original materials and components and convince
The conditions for the purchase of such “extraordinary goods” in the law “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (hereinafter 44-FZ) are regulated by Part 2 of Art. 42: if, when concluding a contract, the volume of work to be performed on maintenance and (or) repair of machinery, equipment, provision of communication services, legal services, medical services, educational services, catering services, translation services, cargo transportation services, passengers and luggage, hotel services, assessment services cannot be determined in the procurement notice and procurement documentation the customer specifies the price of spare parts unit price of work or service. If the contract provides for the performance of work related to regular transportation by car and urban ground electric transport, payment for such a contract is allowed based on the actual volume of these works performed, but not exceeding the volume of work to be performed in accordance with the contract. At the same time, the notice of procurement and procurement documentation must indicate that payment for the performance of work or provision of a service is carried out at the price of a unit of work or service based on the volume of work actually performed or service provided, at the price of each spare part for machinery, equipment based on the number of spare parts that will be supplied during the execution of the contract, but in an amount not exceeding the initial (maximum) contract price specified in the procurement notice and procurement documentation.
not the contract price, and the total price of spare parts for machinery, equipment, unit price of work or service
total price spare parts for equipment, equipment; most low price units of work or maintenance service lowest price per unit of service(Part 17, Article 68 of Law No. 44-FZ).
three initial values:
Be sure to inform the auction participants in the documentation
It is important to indicate in the documentation
exclusively
(letter of the Ministry of Economic Development of Russia dated November 30, 2015 No. D28i-3511).
What to do when the volume of procurement services cannot be calculated in advance
There are categories of works and services with a scope that cannot be established at the time the contract is concluded.
Let’s assume that you need to purchase maintenance or repair work for equipment and you don’t know what will break during the financial year.
The conditions for the purchase of such “extraordinary goods” in the law “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (hereinafter 44-FZ) are regulated by Part 2 of Art. 42: if, when concluding a contract, the scope of work to be performed works on maintenance and (or) repair of machinery, equipment, provision of communication services, legal services, medical services, educational services, catering services, translation services, services for the transportation of goods, passengers and luggage, hotel services, assessment services it is impossible to determine in the notice of procurement and procurement documentation the customer specifies the price of spare parts or every spare part for machinery, equipment, unit price of work or service. If the contract provides for the performance of work related to the implementation of regular transportation by road transport and urban ground electric transport, payment for such a contract is allowed based on the actual volume of these works performed, but not exceeding the volume of work to be performed in accordance with the contract. At the same time, the notice of procurement and procurement documentation must indicate that payment for the performance of work or provision of a service is carried out at the price of a unit of work or service based on the volume of work actually performed or service provided, at the price of each spare part for machinery, equipment based on the number of spare parts that will be supplied during the execution of the contract, but in an amount not exceeding the initial (maximum) contract price specified in the notice of procurement and procurement documentation.
That is, the contract price remains unchanged. It is indicated in the notice, and the contract must be concluded at this price; the subject of the contract is the provision of services or performance of work, and the goods are used in the provision of these services; the contract amount should not exceed the allocated budget limits that you indicated in the schedule and procurement notice; you form a price per unit of goods, services (work) based on information about market prices identical goods, works, services planned for purchase (Article 22 44-FZ). The price must be obtained from at least two entities operating in a given product market.
As a result of the procurement procedure, the not the contract price, and the total price of spare parts for machinery, equipment, unit price of work or service(Part 17, Article 68 of Law No. 44-FZ).
Since it is impossible to determine in advance the specific parts of cars that will break, make a list of all spare parts, down to the smallest bolts and washers. To this information, add a list of consumables that will be used during repairs. And also the cost of a standard hour of repairing your brand of car. It is based on these given conditions that we request commercial proposals and form and calculate the initial price of the contract.
The participant who offered the lowest contract price is the person who offered: the lowest total price spare parts for equipment, equipment; lowest price per unit of work or maintenance service and repair of machinery and equipment; lowest price per unit of service(Part 17, Article 68 of Law No. 44-FZ).
Thus, to conduct an auction for maintenance and (or) repair of machinery and equipment, the customer must install three initial values: NMCC; the total initial (maximum) price of spare parts and consumables; the initial (maximum) price of a unit of work (service). The auction will be held to reduce unit prices for work and services and unit prices of spare parts. Once again, please note that the contract is concluded at the initial (maximum) price, and is executed at reduced unit prices. These amounts must be indicated in the notice.
Be sure to inform the auction participants in the documentation that payment will be made at the price of a unit of service based on the actual volume provided. And also at the price of each spare part based on the quantity supplied. In this case, the amount of payment will not exceed the NMCC specified in the notice and documentation.
For example, you can formulate the notice paragraph as follows: “In accordance with Art. 42 of Law No. 44-FZ, payment for the performance of work or provision of a service is carried out at the price of a unit of work or service based on the volume of work actually performed or service provided, at the price of each spare part for machinery and equipment based on the number of spare parts that will be supplied during execution of the contract, but in an amount not exceeding the NMTsK specified in the notice of procurement and procurement documentation.”
It is important to indicate in the documentation that the unit price will be calculated after the winner is determined using the price reduction factor. The formula for its calculation is as follows: K = Tsea ÷ Ttot, where: Tsea is the total price of spare parts and consumables used in repairs and the price of one man-hour of work offered by the auction winner; Total - the sum of the total initial (maximum) price of spare parts, consumables and the price of one man-hour of work, indicated in the notice and documentation of the auction. The prices of units of the supplied goods, works, services are recalculated by multiplying the resulting coefficient by the initial (maximum) price of a unit of goods, works, services specified in the auction documentation. This must be done for each position of the technical specification. Similarly, by multiplying by the reduction factor, the price of one man-hour of maintenance and repair work is calculated. When making calculations, the obtained values are rounded to two decimal places after the decimal point according to the mathematical rules of rounding.
Purchasing is carried out according to the same principle: cellular communication services (offers from different operators for single tariffs for incoming and outgoing calls within the network, to phones of other operators, other regions of Russia, SMS messages and other services); services for maintenance and repair of computing and copying equipment; motor transport services for the transportation of passengers (taking into account the type of car, the cost of 1 km, the cost of 1 hour of waiting, the number of cars and other data); medical services (pre-trip and post-trip examination of employees assigned to official vehicles; medical examinations of employees), as well as other services specified in clause 2 of Art. 42 of Law No. 44-FZ.
Please note that the Customer has the right to indicate in the notice the price of spare parts or each spare part for machinery, equipment, the price of a unit of work or service, as well as NMCC exclusively when purchasing works and services directly specified in clause 2 of Art. 42 of Law No. 44-FZ
(letter of the Ministry of Economic Development of Russia dated November 30, 2015 No. D28i-3511).
The purchase of spare parts under 44-FZ is slightly different from the purchase of ordinary goods, work or services. A spare part is a part that represents component larger product. This part can also be replaced, thereby making a repair.
Often the customer needs to purchase originals. Such bidding is possible provided that it is justified. Equipment that requires these materials usually has technical documentation manufacturer, in which the manufacturer recommends the use of original parts so that the use of third-party materials does not lead to equipment breakdown.
Please note that when technical device is located on, then justifying the purchase of the originals is not difficult, since the company producing this technique, sets out the condition of the warranty only if original materials were used.
Determining the volume
The customer is not always aware of the need and quantity necessary details. According to Law No. 44-FZ, in cases where it is impossible to determine the exact volume, it is necessary to indicate in the procurement documentation of the contract, as well as the NMCC of each product. Based on practice, customers purchase all parts or those that need to be replaced most often.
These conclusions were confirmed in Letter of the Ministry of Finance No. 24-02-07/79982 dated December 1, 2017.
We draw up technical specifications
We conclude a contract
You can download an example of a contract for the purchase of spare parts on our website using the link below.
How to conduct other government procurements
We also have detailed instructions, how to purchase correctly.
In this article we will talk about cases when you don’t have to indicate the words “or equivalent” when purchasing spare parts and consumables. And also, what to do if the warranty period has already expired, and is it legal to purchase only original spare parts in this case?
These are current and important topics. You will refresh your knowledge, learn all the innovations, and figure out how to properly participate in electronic trading. Webinars will be useful for both beginners and experienced professionals.
The wording “or equivalent” in the procurement of CPRM under 44-FZ
If in the description of the procurement object (“ terms of reference") the trademark of the purchased product is indicated; it must be accompanied by the words “or equivalent” (clause 1, part 1, article 33 of Law No. 44-FZ). The customer should state the needs for goods so that the requirements of the technical specifications are met by the products of at least two manufacturers. Otherwise, along with the law on the contract system, the law on the protection of competition will also be violated, which prohibits the creation of a preferential position for individual business entities in competitive procurement (Article 17 Federal Law dated July 26, 2006 No. 135-FZ).
However, sometimes the customer has the right to indicate a trademark without the words “or equivalent”. The relevant cases are listed in the last sentence of clause 1, part 1, art. 33 of Law No. 44-FZ. These include the purchase of spare parts and consumables (hereinafter referred to as SPRM) “for machines and equipment used by the customer, in accordance with the technical documentation for the specified machines and equipment.”
What is the point of indicating in the description of the procurement object the trademark of the purchased CPRM without the words “or equivalent”? That's right, to get the so-called. original ZCHRM. CPRMs produced by manufacturers of machines and equipment for which these CPRMs are intended are recognized as original. As a rule, equipment manufacturers recommend using in their devices only AFRMs manufactured under the same trademark as the equipment itself - in other words, original AFRMs.
Purchase of spare parts for equipment is not under warranty
It is generally accepted that original AFRM can only be purchased for equipment that is located on warranty service. This is due to the fact that equipment breakdown due to the use of non-original AFRM will not be considered a warranty case (i.e., the use of original AFRM is a condition of warranty service).
But what if the warranty period has already expired? Is it legal to purchase original CCRM in this case?
Law enforcement practice answers this question in the affirmative.
Example
The customer appealed to the court the decision of the Sakhalin OFAS Russia dated February 20, 2015 in case No. 53/15. The antimonopoly authority considered that the customer violated clause 1, part 1, art. 33 of Law No. 44-FZ, purchasing original Brother LG-1100HY-BK cartridges without specifying the words “or equivalent”.The court reviewed the user manual for the Brother DCP-6690CW multifunction machine. It stated that this device was designed to work with a specific type of ink and would only operate at optimal performance and reliability when used with genuine Brother ink cartridges. Brother does not recommend using non-Brother cartridges or refilling used cartridges with ink from other sources. The warranty does not cover damage to the print head or other parts of the device caused by the use of ink or cartridges from other manufacturers.
Having assessed this information, the court agreed that the operation of the customer’s device required original Brother cartridges, and not any compatible products from other manufacturers.
According to the antimonopoly authority, in this case the customer should have indicated that the purchased product must be compatible with his existing equipment, and provided evidence that the warranty period for the equipment for which the cartridges were purchased had not expired at the time of consideration of the complaint. But the court rejected this argument citing the fact that Art. 33 of Law No. 44-FZ does not contain such a requirement. On the contrary, this norm gives the customer the right to indicate the manufacturer of the necessary goods if CPRM for machinery and equipment is purchased (Resolution of the Fifth AAC dated 05.08.2015 No. 05AP-6479/2015 in case No. A59-1187/2015).
Whether the customer’s equipment is under warranty or not is irrelevant. A simple reference by the customer to the last sentence of clause 1, part 1, art. 33 of Law No. 44-FZ.
In addition to this conclusion, the above court ruling is interesting for two other bold statements:
- the purchase of original AFRMs is in itself a valid reason to indicate the trademark of such AFRMs without the words “or equivalent”. There is no need to specifically justify the need for compatibility of the purchased products with the goods the customer already has;
- the purchase of original ZCHRM is the case when Law No. 44-FZ allows you to indicate the manufacturer of the required products.
Not every law enforcer agrees with these statements. Let's figure it out in order.
1. Indeed, sometimes the absence of the words “or equivalent” when indicating the trademark of the required CCRM is in itself recognized as sufficient to consider the requirements of paragraph 1 of Part 1 of Art. 33 of Law No. 44-FZ executed.
Example
The customer indicated in the description of the purchase object the specific values of product codes of cartridge manufacturers, which, with due and necessary qualifications, prudence and conscientiousness, could only be correlated with manufacturers of original cartridges that meet warranty and technological requirements.The antimonopoly authority did not prove that the terms of reference do not contain indicators that would allow determining the compliance of the proposed goods with the procurement conditions. Arguments about the bias of the auction conditions and the illegality of the absence of the words “or equivalent” when indicating trademarks in the description of the procurement object were not confirmed (Resolution of the Federal Antimonopoly Service of the Volga District of February 19, 2015 No. F06-20456/2013 in case No. A65-14066/2014).
However, there are judgments that the absence of the words “or equivalent” when indicating a trademark in the technical specifications still needs to be justified.
Example
The customer has the right not to include in the description of the procurement object the words “or equivalent” after indicating the trademark in the following exceptional cases:
- incompatibility of goods on which other trademarks are placed, and the need to ensure the interaction of such goods with goods used by the customer;
- in the case of purchases of CPRM for machines and equipment used by the customer, in accordance with the technical documentation for the specified machines and equipment.
By not including the words “or equivalent” in the description of the procurement item, the customer was obliged to indicate any of these exceptions. In particular, indicate that the product cannot be replaced with an equivalent, since consumables (cartridges) are purchased for machines and equipment used by the customer in accordance with the technical documentation for the specified machines and equipment.
However, technical documentation for the machines and equipment used was not submitted either to the Federal Antimonopoly Service or to the court. Therefore, the courts supported the conclusion of the antimonopoly authority that there was a violation of the requirements of paragraph 1 of Part 1 of Art. in the actions of the customer. 33 of Law No. 44-FZ. The argument that the customer is not obliged to indicate, when describing the procurement object, the reasons for the purchase of original CCRMs, was rejected (Resolution of the Fifth AAS dated 02/18/2016 No. 05AP-112/2016 in case No. A59-3664/2015. See also the resolution of the Nineteenth AAS dated 08/19/2016 No. 19AP-4426/2016 in case No. A14-10260/2015).
2. As for the requirement that participants in the purchase of original BCRMs indicate the manufacturer of such BCRMs, its legality is questionable.
Firstly, according to Part 3 of Art. 33 of Law No. 44-FZ, it is not allowed to include requirements for the manufacturer of goods in the procurement documentation (including in the form of quality requirements, technical specifications goods, work or services, requirements for functional characteristics (consumer properties) goods).
Secondly, established by law No. 44-FZ requirements for the content of applications for participation in procurement do not oblige procurement participants to indicate the name of the manufacturer of the offered product (see, for example, decisions of the Moscow OFAS Russia dated December 17, 2015 in case No. 2-57-11875/77-15, Udmurt OFAS Russia dated April 26, 2016 in case No. ASH 07-06/2016-75 Z, etc.).
As already mentioned, original AFRMs are AFRMs manufactured by the same companies that manufactured the machines and equipment used by the customer. At the same time, the description of the purchase object “original Kyocera TK-350 toner cartridge” will be considered correct (“original” as a product characteristic), but the requirement “consumables for the Kyocera FS-3040MFP+ MFP must be manufactured by Kyocera” will not (see. , for example, resolution of the Mordovian OFAS Russia dated October 28, 2016 No. 772 in case No. 592). Although sometimes the requirement that the supplied CCRMs have a specific manufacturer is perceived adequately by the territorial bodies of the FAS Russia (see the decision of the Moscow OFAS Russia dated August 31, 2015 in case No. 2-57-7369/77-15), we recommend that customers replace it with the requirement the originality of the required CCRM.