Government procurement: benefits can be provided to organizations of disabled people and small businesses at the same time. Advantages provided during procurement Combination of advantages when placing procurement

What threatens the customer if, during the auction, advantages are simultaneously provided to institutions of the penal system (under Article 28 of Law 44-FZ) and organizations of disabled people (under Article 29 of Law No. 44-FZ), plus a restriction is established “only for SMP” (under Article 30 Law No. 44-FZ), has the law been violated?

From this article you will learn:

• for whom it is possible to establish advantages and restrictions for procurement participants;
• features for organizations of the disabled, emergency medical services and social protection organizations, as well as institutions of the penitentiary system;
• how to calculate SMP;
• what organizations can be included in the penal system.

Having simultaneously established such advantages and restrictions, the customer will not fulfill the obligation to provide, since they cannot be allowed to participate in the procurement carried out only for SMP and SONO.

Formally, this combination of advantages and restrictions does not violate the provisions of Law No. 44-FZ. However, based on the fact of restrictions of penal institutions, the control body may incriminate a violation of paragraph 2 of part 1 of Art. 17 of Law No. 135-FZ (“On Protection of Competition”). After all, a participant from the penal system can file a complaint with the FAS.

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For which procurement participants can advantages and restrictions be established?

Organizations of disabled people

Institutions of the penal system

Based on Part 2 of Art. 28 of Law No. 44-FZ (except for purchases from a single supplier), the customer is obliged to provide institutions and enterprises of the penal system with benefits of up to 15% of the contract price they offer. Advantages must be provided if the purchased goods are included in the list approved by the Government of the Russian Federation dated July 14, 2014 No. 649 (hereinafter referred to as Resolution No. 649).

Let's look at who is included in the NSR subjects.

To identify a supplier, contractor or contractor, you first need to plan electronic procedures. Get an electronic signature. Select the platform that best suits your organization and register. Next, generate documentation and notices, carry out procedures and identify a supplier and conclude a contract, taking into account the characteristics of each procurement method.
See solutions for each electronic method: auction, competition, request for quotations, request for proposals.

How to calculate SMP

As stated in Law No. 209-FZ dated July 24, 2007 “On the development of small and medium-sized businesses in the Russian Federation,” a legal entity can be classified as an SMP if the total share of participation of the Russian Federation, constituent entities of the Russian Federation, and municipalities in it does not exceed 25%, and the total share of participation of foreign legal entities or the total share of participation of other legal entities that are not small and medium-sized businesses does not exceed 49% each.

At the same time, according to Art. 5 of the Law of the Russian Federation of July 21, 1993 No. 5473-1 “On institutions and bodies executing criminal penalties in the form of imprisonment”, the penal system includes:

• institutions executing punishments;
• territorial bodies of the penal system;
• federal executive body exercising control and supervision functions in the field of execution of punishments.

The penal system may include:

• pre-trial detention centers;
• enterprises specially created to support the activities of the penal system;
• research;
• design;
• medical;
• educational organizations.

The only founders of almost all penal system institutions, most of which are created in the form of unitary enterprises, are the Russian Federation or constituent entities of the Russian Federation, which makes it impossible to classify them as SMP.

In part 2 art. 30 of Law No. 44-FZ directly states that this article applies to SONOs with the exception of socially oriented non-profit organizations whose founders are the Russian Federation, constituent entities of the Russian Federation or municipalities.

Thus, penal institutions, being non-profit organizations, do not belong to SONO. After all, their founder is the Russian Federation. Consequently, penal system institutions will not have the right to participate in procurement carried out in accordance with Part 1 of Art. 30 of Law No. 44-FZ, as SONO!

This means that, having established in the notice (documentation) the benefits for penal institutions, you can simultaneously indicate that the procurement is carried out for SMP and SONO (under Article 30 of Law No. 44-FZ). That is, Law No. 44-FZ does not contain a direct prohibition on the customer establishing such conditions.

However, in case of the opposite, you should be careful! If you are purchasing on the basis of Art. 30 of Law No. 44-FZ and the subject of the purchase refers to the List approved by Resolution No. 649 (providing advantages to penal system institutions), you are obliged to establish advantages for penal system institutions. At this stage, you may fall into a trap: penal institutions cannot be allowed to participate in procurement carried out only for SMP and SONO, which means that the control body may consider your restrictions a violation.

It is advisable to purchase goods included in the List approved by Resolution No. 649 separately, without limiting the circle of participants in the procurement of SMP and SONO. This will reduce the risk of complaints from participants and claims from supervisory authorities. Indication in the notice of both the benefits for penal institutions and the restrictions “only for emergency medical services and emergency services” makes it impossible for enterprises and institutions of the penitentiary system to submit applications for participation in such procurement.

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Hello, dear colleague! Lately, my support team has been receiving a lot of questions on the topic of placing orders with small businesses (SMBs). Therefore, today I decided to write a short review article and briefly, but to the point, answer all frequently asked questions. Since the majority of procurement participants (suppliers) belong specifically to the category of small businesses, this article will be useful and relevant for most visitors to my site. Therefore, I propose to immediately move on to the essence of our topic today.

1. Definition of small and medium-sized businesses

Small and medium-sized businesses - business entities (legal entities and individual entrepreneurs) classified in accordance with the conditions established by the Federal Law of July 24, 2007 No. 209-FZ “On the development of small and medium-sized enterprises of the Russian Federation”, to small enterprises, including micro-enterprises, and medium-sized enterprises.

2. Conditions that small and medium-sized businesses must meet

1. For legal entities - the total share of participation of the Russian Federation, constituent entities of the Russian Federation, municipalities, public and religious organizations (associations), charitable and other funds in the authorized (share) capital (share fund) of these legal entitiesshould not exceed 25% (except for the total share of participation included in the assets of joint-stock investment funds, the composition of the property of closed-end mutual investment funds, the composition of the total property of investment partnerships), and the total share of participation of foreign legal entities, the total share of participation belonging to one or more legal entities that are not small and medium-sized businesses,should not exceed 49% each.

1. The average number of employees for the previous calendar year should not exceed the following maximum values ​​of the average number of employees for each category of small and medium-sized businesses:

A) from 101 to 250 people inclusive for medium-sized enterprises;

b) up to 100 people inclusive for small businesses;

V) up to 15 people - microenterprises.

Note: If procurement is carried out for small businesses (SMB), then the number of employees should not exceed 100 people inclusive.

1. Revenue from the sale of goods (work, services) excluding value added tax or the book value of assets (residual value of fixed assets and intangible assets) for the previous calendar year should not exceed the limit values ​​​​established by the Government of the Russian Federation for each category of small and medium-sized businesses.

Note: In accordance with Decree of the Government of the Russian Federation dated July 13, 2015 No. 702for small businesses this figure is 800 million rubles. For micro-enterprises - 120 million rubles, for medium-sized enterprises - 2 billion rubles.

3. Volume of purchases from SMP under 44-FZ

In accordance with Part 1 of Art. 30 44-FZ, government customers are required to place orders with small businesses (SMB), socially oriented non-profit organizations (SONO) in the amount no less than 15% the total annual volume of purchases, calculated taking into account Part 1.1 of Art. 30 44-FZ.

According to Part 1.1. Art. 30 44-FZ, when determining the volume of purchases from small businesses and socially oriented non-profit organizations, the following purchases are not included in the calculation of the total annual volume of purchases:

• to ensure the country's defense and state security;
• loan services;
• from the only supplier (contractor, performer) in accordance with Part 1 of Art. 93 44-FZ;
• work in the field of atomic energy use;
• in the implementation of which closed methods of identifying suppliers (contractors, performers) are used.

4. Methods of purchasing from SMP

As follows from clause 1, part 1, art. 30 44-FZ purchases from small businesses and socially oriented non-profit organizations can be carried out in the following ways: , competitions with limited participation, two-stage competitions,, , requests for proposals.

5. List of purchases from SMP according to 44-FZ

Many suppliers are interested in the following question: Is there a list of goods, works, and services, according to 44-FZ, which must be purchased from small businesses? I will answer that there is no such list, so any goods, work, or services can be purchased with preferences for the NSR and SONO.

6. Features of the participation of small businesses in government procurement

1. The category of a small or medium-sized business is determined in accordance with the largest condition (number of employees or revenue (asset value)).

1. The category of a small or medium-sized enterprise is changed only if the limit values ​​for the number of employees or the volume of revenue (asset value) are higher or lower than the specified limit values,over the years , following one after another.

1. Newly created organizations or newly registered individual entrepreneurs and peasant (farm) enterprises during the year in which they are registered can be classified as small and medium-sized businesses if their indicators of the average number of employees, revenue from the sale of goods (work, services) or the book value of assets (residual value of fixed assets and intangible assets) for the period elapsed from the date of their state registration do not exceed the established limit values.

1. Clause 1 part 1 art. 30 44-FZ establishes a limit on the initial (maximum) contract price when placing an order for the supply of goods, performance of work, for state or municipal needs at SMP - 20 million rubles .

1. When identifying suppliers (contractors, performers) in procurement notices, a restriction is established in relation to procurement participants, which can only be small businesses. In this case, procurement participants are required to declare in applications for participation in procurement that they belong to small businesses.

1. The joint letter of the MED No. 7158-EE/D28i and the FAS No. ATs/13590/14 dated April 4, 2014 “On the position of the MED and the FAS on the application of the norms of 44-FZ to relations related to procurement from SMP and socially oriented non-profit organizations” says following:

Article 30 of the Law on the Contract System establishes that a document confirming the right of a participant in an open tender, electronic auction, request for quotations, request for proposals to receive benefits in accordance with Article 30 of the Law on the Contract System is a declaration. The need to submit other documents confirming the status of such a participant as a small business entity is not provided for by the Law on the Contract System.

Those. Based on the above, it is enough just to declare your attitude towards the NSR in the application and that’s it. It would be enough.

Samples of declarations of participant compliance with the requirements established by Article 4 of the Federal Law of July 24, 2007 No. 209-FZ “On the development of small and medium-sized businesses in the Russian Federation” can be downloaded on the website in section paragraph 5.

1. According to Part 15 of Art. 44 44-FZ amount of security for an application for participation in tenders when placing an order with SMPcannot exceed 2% initial (maximum) contract price.

7. Administrative responsibility of the customer for non-compliance with the legislation on placing an order with SMP

Article 7.30 The Code of the Russian Federation on Administrative Offenses provides for liability for non-compliance with the legislation on placing an order with SMP:

Part 11. Procurement of goods, works, services to meet state and municipal needs from small businesses, socially oriented non-profit organizations in an amount less than the amount provided for by the legislation of the Russian Federation on the contract system in the field of procurement - entails the imposition of an administrative fine on officialsin the amount of 50,000 rubles .

Here, in fact, are all the main points that a supplier needs to know in order to participate in tenders placed for small businesses.

That's all for today. See you in the next issues!

P.S.: If the material in the article was useful to you, then be sure to “like” and share this article with your friends and colleagues on social networks.

First of all, let’s answer the question: “Purchases from SMP and SONO - what is it?” The Law on the Contract System establishes the customer’s obligation to place orders with small businesses (SMB) and socially oriented non-profit organizations (SONO). Let's take a closer look.

The first are legal entities registered in the established order (, partnerships, peasant farms) and individual entrepreneurs. Law No. 209, according to which a particular person can be classified in this category. For example, the specific number of employees for medium and small enterprises, income indicators for the year, or the status of a participant in the Skolkovo project.

SONKO or SONO (socially oriented non-profit organizations) are entities created in certain forms (for example, public organizations, foundations) for the purpose of solving social problems, developing civil society and others provided for by Law No. 7-FZ.

Privileges and ways to exercise them

The annual volume of purchases from SMP under 44 Federal Laws (Article 30) must be at least 15%, as well as from SONO. In this case, the privilege can be exercised in two ways:

• (tenders with limited participation, two-stage tenders, electronic auctions, and proposals), which can only be SMP and SONO;
• the requirement to involve small businesses and socially-oriented non-profit organizations as subcontractors.

At the same time, if we talk about the first method, then it should be borne in mind that there should be no more than 20 million rubles.

SGOZ - what is it?

Total annual procurement volume (AGP) is the total amount of funds allocated for the purchase of goods, works and services. The state public health insurance premium is determined for the financial year. These funds are intended to pay for contracts in this financial period. To the question whether it is necessary to include the cost of long-term contracts that were issued last year and are being executed in the current year, we answer: in this case, only the amount that is payable in the current period should be included in the State Contract.

So, why is the total annual volume of purchases needed:

• to decide on the creation of a contract service;
• to calculate the volume of bidding that needs to be carried out for small businesses and socially oriented non-profit organizations (recall that when purchasing from SMP under 44 Federal Laws, the percentage is 15%, the same as for SONO);
• to calculate the volume of goods and services purchased from;
• in order to determine the quantity of goods and services that can be purchased through a request for quotation.

Purchases from SMP under Federal Law 223

Like the Law on the Contract System, 223 Federal Law provides for the holding of tenders with the participation of small businesses. The specifics of such procurement procedures are established by the Government of the Russian Federation. Thus, according to Decree of the Government of the Russian Federation dated December 11, 2014 No. 1352, tenders for small businesses are carried out in three ways:

• a tender, the participants of which can be any persons, including the subjects we are considering;
• a tender in which only small businesses participate;
• a tender in which the customer demands the involvement of small businesses as subcontractors.

It should be noted that the annual volume of purchases from them is set at 18%.

Small and medium business criteria:

44-FZ

The law uses the term “small businesses” or SSE. Conditions of participation are dedicated.

Quotas for SMP

Customers must purchase at least 15% of goods and services from SMP from the total annual volume of purchases. Every year, before April 1, they publish a report on purchases from SMP for the previous year in the Unified Information System. It can only include those purchases in which an advantage for small businesses was indicated and these purchases took place. If the quota is not met, the institution will receive a fine of 50,000 rubles.

What procurements does SMP participate in?

SMP can take part in any procurement if the company meets the customer’s requirements and can fulfill the terms of the contract. But purchases that the customer must carry out specifically among small and medium-sized enterprises are more interesting. This means that there will be no representatives of medium and large businesses among competitors. Even if such participants submit applications, the customer will reject them.

The initial price of such purchases should not exceed 20 million rubles. To participate in them, the organization provides a declaration of belonging to a small business. Use the declaration form provided by the customer or our template.

A customer can purchase from a small business in six ways:

• Open competition,
• Limited participation competition
• Two-stage competition
• Request for proposals.

What benefits are available?

1. The amount of the application security cannot exceed 2% of the NMC of the contract.
2. The customer must pay for the work or goods no later than 15 working days from the date of signing the acceptance certificate (Part 8, Article 30 44-FZ). This clause is included in the contract with SMP.
3. The customer has the right not to require contract security during tenders, electronic auctions and requests for proposals if the winner is a representative of SMP (RF RF No. 182 dated March 11, 2016). However, in practice, customers almost never use this opportunity.

What will make life easier?

Bill No. 623906-6 “On Amendments to the Federal Law “On the Contract System...”” is being discussed. It will prohibit the involvement of a subcontractor who is affiliated with the customer in the execution of the contract. This will help avoid situations where a company involves its own subsidiaries in fulfilling a contract. If the customer violates the prohibition, this purchase cannot be included in the small business procurement report.

​

From 2017, it will be possible to send applications for any procedures electronically to the EIS. This will reduce costs for suppliers and leave no chance for the customer to falsify the results of “paper” procedures.

223-FZ

The law uses the term “small and medium-sized enterprises” (SMiSP or SME). The law does not stipulate the conditions for the participation of SMEs in procurement, but government decree No. 1352 is in force, which regulates such procurement. Customers are controlled by JSC Federal Corporation for the Development of Small and Medium Enterprises.

Quotas for customers

If the company’s revenue is more than 2 billion rubles, then from 2016 such customers must purchase goods and services from SMEs for 18% of the total volume of purchases, which is calculated according to concluded contracts. At the same time, 10% of contracts must be concluded strictly among SMEs. The calculation is based on the amount of concluded contracts: if the announced purchase among SMEs does not take place, it will not be included in the report.

• The customer lists in his OKPD2 regulations all goods and services that will be purchased from SMEs:
• If the NMC of the contract is no more than 50 million rubles, the customer is obliged to purchase from this list strictly from SMEs,

If the NMC of the contract is from 50 to 200 million rubles, the customer decides for himself whether to purchase goods from SMEs or from large businesses.

If the customer does not purchase enough from small and medium-sized businesses, does not post information about this, or posts false information, then from February 1 until the end of next year he will have to make purchases under the more stringent 44-FZ.

The procurement methods are determined by the customer in his position. A representative of an SME can take part in tenders or other procurement methods carried out by the customer:

• “On a general basis”: any supplier can participate;
• Especially for SMEs: purchases from the list of goods in the customer’s position;
• With the condition of attracting SMEs for subcontracting: procurement participants describe in their applications a plan for attracting subcontractors from among SMEs.

Representatives of SMEs are required to declare in applications for participation in procurement that they belong to small and medium-sized businesses. The declaration form is in Resolution No. 1352.

Privileges

1. 223-FZ does not oblige customers to require suppliers to provide application and contract security. But if there is such a requirement in the procurement, then preferential conditions apply for SMEs:

• The amount of the application security cannot exceed 2% of the NMC of the contract;
• The amount of contract security cannot exceed 5% of the NMC or equal to the advance amount.

2. The maximum payment period under an agreement with SMEs is no more than 30 calendar days from the date of signing the acceptance certificate.

3. The customer has the right to approve its own partnership program for SMEs and provide benefits for its participants.

What will make life easier?

The State Duma is considering bill No. 821534-6, which:

• Establishes an exhaustive list of competitive procurement methods and the basic requirements for the procurement procedure by these methods. Currently, the UIS contains approximately 14 thousand unique names of procurement methods.
• Will streamline the number of electronic platforms according to 223-FZ. This will make the process of registering suppliers on sites and preparing for trading procedures easier.

Clause 4 art. 27 of Law No. 44-FZ provides for categories of procurement participants for whom advantages are established. One of these categories is small businesses (SMB). Read more about who belongs to the SMP and what advantages are established for them in our material.

Who belongs to the SMP

Requirements for persons applying for SME status must comply with the rules set out in Article 4 of Law No. 209-FZ dated July 24, 2007 “On the development of small and medium-sized businesses in the Russian Federation.” So, SMP may include:

• entrepreneurs;
• economic societies;
• production cooperatives;
• farms.

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For business partnerships and companies, one of the requirements must be met:

Besides:

• the number of employees of the enterprise should not be more than a hundred people;
• income of an organization or individual entrepreneur - above 800 million rubles.

• the share of participation of the Russian Federation, constituent entities of the Russian Federation, municipalities, public organizations, charitable foundations is not higher than 25%, and foreign participation - 49%;
• shares of the joint-stock company are classified by the Decree of the Government of the Russian Federation as shares of the innovative sector of the economy;
• the economic society is engaged in the practical application of know-how and other results of intellectual activity, the rights to which belong to their founders - budgetary and autonomous institutions;
• economic societies have the status of Skolkovo participant;

Register of SMP

Suppliers of information for maintaining the register are:

• exchanges that provide a list of shares traded on the securities market and shares that are classified as shares of the innovation sector;
• The Ministry of Education and Science transmits a list of economic entities implementing know-how, etc.
• the management company of the Skolkovo project presents a list of project participants;
• holders of shareholder registers provide a list of companies in which shareholders: Russia, its constituent entities, municipalities own more than 25% of the shares or foreigners - more than 49%.

Benefits for procurement participants

In accordance with Art. 30 of Law No. 44-FZ, government customers are required to place at least 15% of the total annual volume of purchases from SMP and socially oriented non-profit organizations (SONCO).

Included in this volume don't turn on government procurement:

• ✘ in order to ensure the security of the country;
• ✘ for issuing loans;
• ✘ made from a single supplier;
• ✘ produced using closed trading methods;
• ✘ work in the field of nuclear energy use.

In addition, for persons classified as SMP, a shortened 15-day period is established for payment for work (goods, services) delivered under the state contract. Confirmation of a person’s membership in the SMP is a declaration.

How benefits are established

When conducting a competitive procedure, a restriction is established stipulating that only persons belonging to SMP and SONCO can participate in the procurement. Such public procurement can be carried out by:

• competitions (open, two-stage, with limited participation);
• requests for proposals;
• requests for quotes.

The initial price of the procedure is limited to 20 million rubles.

In addition, during the public procurement, a mandatory requirement may be established for the participant in the usual procedure to involve as a co-executor or subcontractor a person belonging to the SMP or SONCO. In this case, the percentage of the initial contract price for which a co-contractor from among the SMP is attracted must be indicated. This purchase volume is taken into account in the total 15 percent volume.

On this issue we take the following position:
Providing benefits within the framework of one electronic auction for small businesses and socially oriented non-profit organizations, as well as for organizations of people with disabilities, is possible if the conditions stipulated by law for the provision of both benefits coincide.

Justification for the position:
According to the Federal Law of 04/05/2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter referred to as Law N 44-FZ), the customer, when identifying suppliers (contractors, performers, hereinafter - counterparties), except in the case of procurement from a single counterparty, are obliged to provide benefits to organizations of disabled people (hereinafter referred to as OI) in relation to the contract price they offer in the amount of up to 15% in the manner established by the Government of the Russian Federation and in accordance with the lists of goods, works, and services approved by the Government of the Russian Federation . Currently, there is a corresponding list (hereinafter referred to as the List) and Rules for providing benefits to organizations of people with disabilities when determining a supplier (contractor, performer) in relation to the contract price they offer (hereinafter referred to as the Rules), approved by Decree of the Government of the Russian Federation dated April 15, 2014 N 341.
It should be taken into account that it is impossible to provide an advantage for the OP if the object of one purchase is both goods, works and services included in the List and not included in it (letter of the Ministry of Economic Development of Russia dated 08/19/2014 N D28I-1616).
The Rules do not imply restrictions on the circle of procurement participants. Likewise, there is no presumption of any preferential right of access for the PO to procurement or advantages in the evaluation of applications or when they offer prices.
In accordance with paragraphs. 4-6 of the Rules, an advantage is granted only if the organization of disabled people becomes the winner of the corresponding procedure for determining the counterparty or if a contract is concluded with it as a result of the winner of the procedure evading the conclusion of a contract (if the OE’s application is assigned a second number or if the OE has proposed the same as the winner auction, request for quotations, contract price or proposal for the contract price of which is the next after the offer of the winner of the auction, request for quotations). In this case, the contract is concluded at the price proposed by the PO, increased to 15% of such price, but not higher than the initial (maximum) contract price specified in the procurement notice.
As follows from Part 1 of Law No. 44-FZ, for the purposes of this Law, POs mean the following organizations:
- all-Russian public organizations of disabled people (including those created as unions of public organizations of disabled people), among whose members disabled people and their legal representatives make up at least 80%;
- organizations whose authorized (share) capital consists entirely of contributions from all-Russian public organizations of disabled people and meeting the following criteria:
the average number of disabled people in relation to other employees is no less than 50%;
the share of wages for disabled people in the wage fund is no less than 25%.
Advantages for small businesses (hereinafter referred to as SMB) and socially oriented non-profit organizations (hereinafter referred to as SONO) in accordance with Law N 44-FZ lie in the obligation of the customer to ensure the participation of such entities in meeting state or municipal needs within the framework of ongoing procurement (including in the form of electronic auctions) 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.
Achieving such a share can be achieved in two ways:
- conducting competitive procurement methods, the participants of which can only be SMP and SONO (Law No. 44-FZ). This procurement condition should be considered as an advantage for SMP and SONO and at the same time as a limitation for other participants (see also the answer to question 42 in the appendix to the Ministry of Economic Development of Russia dated September 30, 2014 N D28I-1889, Ministry of Economic Development of the Russian Federation dated October 3, 2016 N D28I-2584 );
- carrying out procurement without limiting the number of participants, but establishing in the notice of procurement and in the contract the conditions for involving subcontractors, co-executors from among SMP, SONO in the execution of contracts in the amount established as a percentage of the contract price (clause 2, part 1 , Part , Law N 44-FZ).
Based on Law N 44-FZ, SONO in this Law refers to non-profit organizations (with the exception of those whose founders are the Russian Federation, constituent entities of the Russian Federation or municipalities) carrying out, in accordance with the constituent documents, the types of activities provided for by the Federal Law of January 12, 1996 N 7-FZ "On Non-Profit Organizations" (hereinafter referred to as Law No. 7-FZ).
Norms No. 44-FZ do not contain special instructions regarding small and medium-sized enterprises, so it should be assumed that these are entities that meet the criteria given in Part 1 of the Federal Law of July 24, 2007 No. 209-FZ “On the development of small and medium-sized businesses in the Russian Federation "(hereinafter referred to as Law No. 209-FZ).
When providing the benefits of SMP, SONO in the first way, it is necessary to take into account that, firstly, in accordance with part six of the Federal Law of November 24, 1995 N 181-FZ "On Social Protection of Disabled Persons in the Russian Federation" (hereinafter referred to as Law N 181-FZ) the provision of support public associations of disabled people can also be carried out in accordance with N 7-FZ regarding SONO. Public organizations of people with disabilities are recognized as organizations created by people with disabilities and persons representing their interests, in order to protect the rights and legitimate interests of people with disabilities, provide them with equal opportunities with other citizens, solve problems of social integration of people with disabilities, among whose members are people with disabilities and their legal representatives (one of the parents , adoptive parents, guardian or trustee) constitute at least 80%, as well as unions (associations) of these organizations (part two of Law N 181-FZ). Of course, they carry out the type of activity provided for by Law No. 7-FZ. Accordingly, any public organizations of disabled people are SONO.
Secondly, according to part seven of Law N 181-FZ, organizations that are created by all-Russian public associations of disabled people, whose authorized capital consists entirely of contributions from public organizations of disabled people and the average number of disabled people in which in relation to other employees is no less than 50%, and the share of wages for disabled people in the wage fund is no less than 25%, subject to N 209-FZ, subject to their compliance with the requirements established by this Law, with the exception of Law N 209-FZ. Please note that the signs of classifying organizations created by public associations of disabled people, specified in N 181-FZ itself, as SMP, coincide with the signs of OI, which are provided with benefits in accordance with N 44-FZ. As for other features, we believe that the above provision contains an error of legal technique - its text is not brought into line with the changes in N 209-FZ and it refers to Law N 209-FZ, which makes the status of SMP dependent on the share in authorized capital of SMP, including public organizations (associations).
Accordingly, the above OI can be classified as SMP, subject to compliance with the requirements of Part 1 of Law N 209-FZ:
- the average number of employees for the previous calendar year should not exceed 100 people;
- income received from business activities for the previous calendar year, which is determined in the manner established by the legislation of the Russian Federation on taxes and fees, is summed up for all types of activities carried out and is applied under all tax regimes, should not exceed 800 million rubles (the Government of the Russian Federation from 04/04/2016 N 265).
At the same time, not a single norm of law or by-law makes the application of the advantages of the NSR and SONO and OI dependent on each other.
Thus, when conducting a purchase exclusively among SMP and SONO, the customer not only has the right, but also, by virtue of Law No. 44-FZ, is obliged to simultaneously provide the advantage established for the OI, if the following conditions coincide:
- only goods, works or services included in the List are purchased;
- the procurement involves an OE that has the characteristics necessary to obtain an advantage and is at the same time a SONO or an SMP;
- such an OP becomes the winner of the relevant procedure or a contract must be concluded with it due to the winner’s evasion from concluding a contract.
Indirect confirmation of this conclusion can be found in the resolution of the FAS Office for the Republic of Karachay-Cherkessia dated June 17, 2016 N 3-192/16, which examines the procurement carried out among SMP and SONO, in the documentation of which the customer established an advantage for the OI. The antimonopoly authority pointed out the incorrectness in the formulation of the conditions for providing this advantage, but not the impossibility of providing it in this case.
Moreover, any OI can freely participate in a procurement, the notice of which establishes the condition provided for by Law N 44-FZ, and win it, which also gives the right to receive an advantage, but does not relieve the obligation to involve SMP and SONO in the execution of the contract.

Prepared answer:
Expert of the Legal Consulting Service GARANT
Serkov Arkady

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Small businesses, socially oriented non-profit organizations in the amount of no less than fifteen percent of the total annual volume of purchases, calculated taking into account part 1.1 of this article, by:

1) holding open tenders, tenders with limited participation, two-stage tenders, electronic auctions, requests for quotations, requests for proposals, in which procurement participants are only small businesses and socially oriented non-profit organizations. In this case, the initial (maximum) contract price should not exceed twenty million rubles;

1.1. When determining the volume of purchases provided for in Part 1 of this article, the following purchases are not included in the calculation of the total annual volume of purchases:

1) to ensure the defense of the country and the security of the state;

2) services for providing loans;

3) from a single supplier (contractor, performer) in accordance with Part 1 of Article 93 of this Federal Law, with the exception of purchases that were made in accordance with clauses 25 - 25.3 of Part 1 of Article 93 of Clause 1 of Part 1 of this article;

(see text in the previous edition)

4) work in the field of atomic energy use;

5) in the implementation of which closed methods of identifying suppliers (contractors, performers) are used.

1.2. Customers have the right to make purchases specified in paragraphs 1 and 5 of part 1.1 of this article from small businesses and socially oriented non-profit organizations in accordance with part 1 of this article. In this case, the volume of such purchases is taken into account in the volume of purchases made by customers from small businesses and socially oriented non-profit organizations in accordance with Part 1 of this article, and is included in the report specified in Part 4 of this article.

2. This article applies to socially oriented non-profit organizations (with the exception of socially oriented non-profit organizations whose founders are the Russian Federation, constituent entities of the Russian Federation or municipalities) carrying out, in accordance with the constituent documents, the types of activities provided for in paragraph 1 of Article 31.1 of the Federal Law dated January 12, 1996 N 7-FZ “On Non-Profit Organizations”.

3. When identifying suppliers (contractors, performers) by the methods specified in paragraph 1 of part 1 of this article, procurement notices establish a restriction in relation to procurement participants, which can only be small businesses and socially oriented non-profit organizations. In this case, procurement participants are required to declare in applications for participation in procurement that they belong to small businesses or socially oriented non-profit organizations.

(see text in the previous edition)

4. If the determination of suppliers (contractors, performers) is declared invalid due to the fact that at the end of the deadline for submitting applications, final proposals, not a single application, not a single final proposal, or all applications, final proposals were rejected in the manner established by this Federal Law, the customer has the right to cancel the restriction specified in Part 3 of this article and make purchases on a general basis. Moreover, such purchases made on a general basis are not taken into account in the volume of purchases made by customers from small businesses and socially oriented non-profit organizations in accordance with Part 1 of this article. Purchases that were made on the basis of clauses 25 - 25.3 of part 1 of article 93 of this Federal Law based on the results of a failed identification of suppliers (contractors, performers) carried out in accordance with the requirements of clause 1 of part 1 of this article are taken into account in the volume of purchases that customers made from entities small businesses, socially oriented non-profit organizations. At the end of the year, the customer is obliged to draw up a report on the volume of purchases from small businesses and socially oriented non-profit organizations provided for in Part 2 of this article, and by April 1 of the year following the reporting year, place such a report in a unified information system. In such a report, the customer includes information about concluded contracts with small businesses and socially oriented non-profit organizations.

(see text in the previous edition)

5. When identifying a supplier (contractor, performer), the customer has the right to establish in the procurement notice a requirement for the supplier (contractor, performer), who is not a small business entity or a socially oriented non-profit organization, to involve subcontractors, co-executors from among small businesses in the execution of the contract entrepreneurship, socially oriented non-profit organizations.

(see text in the previous edition)

6. Conditions on the involvement of subcontractors, co-executors from among small businesses, socially oriented non-profit organizations in the execution of contracts in the case provided for