home · Control · Involvement of SMEs and socially oriented NPOs in the execution of the contract. Practice of courts and courts on the application of RF PP N1466

Involvement of SMEs and socially oriented NPOs in the execution of the contract. Practice of courts and courts on the application of RF PP N1466

Who are SMPs? These are small businesses, often attracted by large businesses that perform various types of work in the field of public procurement.

Subcontracting for small businesses is a type of task that involves the performance of various works by representatives of small businesses who decide to undertake various types of obligations. In a word, subcontracting for SMP means taking on all or part of someone else’s work for financial compensation in a pre-agreed volume and equivalent.

Grounds for prohibiting the involvement of subcontractors from among the SMP in the work

Ignorance of the law does not excuse you from responsibility - always be careful about the documents you sign. Always negotiate the possibility of subcontracting for small businesses.

The issue of prohibiting the involvement of SMP as a subcontractor is secondary and ambiguous in terms of modern Russian Legislation. According to the terms of the contract signed by the Customer and the Contractor, there may be all kinds of prohibitions that fully comply with the provisions of the Law.

Of course, within the framework of the Legislation, the involvement of subcontractors in the performance of work is not considered a violation; on the other hand, co-contractors can be understood as both third parties and employees of the company performing the work prescribed by the contract. It is the involvement of a third party in the performance of work that is considered unlawful in the Civil Code, and, in the event of claims by the Customer in this regard, there is a high probability of losing the case if it is tried in court.

The involvement of SMP as a subcontractor must be stipulated in the contract itself, and also discussed with the Customer before signing a contract related to the performance of certain works.

As one respected Yaroslavl entrepreneur, Maxim Kostenko-Makintosh, said: If you were notified of the rules for carrying out work prescribed in the contract, but did not familiarize yourself with them, then you are obliged to comply in any case.

Coordination of work performance by co-executors from among the SMP with the customer

Engaging SMP as a subcontractor is not an offense unless the contrary was stated in the initially signed contract. It cannot be a violation even if such lines are included in the contract, since not all types of work can be performed independently by the performing party.

On the other hand, it will be easier if issues related to the involvement of SMP as subcontractors are specified and discussed in advance. Otherwise, serious financial losses may result, the compensation of which will require several years of court hearings.

Important: The legislative part regarding the involvement of SMPs as subcontractors in modern Russia is imperfect. It is ambiguous and can be interpreted differently in each court separately.

For all questions related to subcontracts for SMP and the involvement of SMP as subcontractors, you can contact our manager at one of the contact phone numbers listed on the website: cpp-group.ru.

Please advise on this question: our organization is participating in an electronic auction under 44-FZ, the procurement notice states: Benefits For participants who involve small businesses as co-executors, subcontractors for the execution of a contract, and for participants who involve Socially Oriented Non-Profit Organizations as co-executors, subcontractors for the execution of the contract (in accordance with Article 30 of Federal Law No. 44-FZ). What document should we confirm this with?

Law No. 44-FZ does not establish the method in which a procurement participant can confirm the involvement of co-executors-SMP. In practice, the customer independently includes in the draft contract the participant’s obligation to attract co-executors - SMP. For example, like this: . The customer also establishes in the contract a condition for its unilateral termination if the contractor fails to properly fulfill the specified condition.

Maxim Chemerisova, Director of the Department for Development of the Contract System of the Ministry of Economic Development of Russia

Who can participate in procurement

Participation of small businesses and non-profit organizations

The main thing is that such purchases must account for at least 15 percent of the total annual volume. Moreover, such contracts must not only be concluded within a year, but also executed and paid for. This is stated in part 1 of the letter of the Ministry of Economic Development of Russia dated July 8, 2015 No. D28i-2062. The letter discusses the procedure for calculating the annual volume of purchases through quotation and from a single supplier, but it can also be applied to purchases from SMP and SONKO.

There are two ways to purchase from SMP and SONKO.

First way

Conduct procurement only among SMP and SONCO in a competitive manner. In this case, the initial (maximum) contract price should not exceed 20 million rubles. This is stated in paragraph 1 of part 1 of Article 30 of the Law of April 5, 2013 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 participants, in turn, are required to declare in their 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, Article 30 of the Law of April 5, 2013 No. 44-FZ.

If the purchase among SMP and SONPO does not take place, the customer can cancel the specified restriction and carry out the purchase in the general manner. In this case, do not take into account the contract price in the annual volume of purchases from small businesses and non-profit organizations. That is, the 15 percent norm includes only those purchases that were 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 the Law of April 5, 2013 No. 44-FZ and explained in the letter of the Ministry of Economic Development of Russia dated February 10, 2015 No. D28i-173.

Second way

An additional condition must be established in the procurement notice and the draft contract: the winner of the procurement must involve subcontractors (co-contractors) from among the SMP and SONKO in the execution of the contract. Any organization can be a participant in such a purchase, and NMCC does not matter in this case.*

But what if the winner of the procurement is SMP (SONKO) itself? Is there a provision in the contract for the involvement of subcontractors from SMP and SONKO? The legislation does not regulate this issue. Therefore, it is safer to leave this condition. This position is adhered to by the Ministry of Economic Development of Russia in a letter dated December 1, 2015 No. OG-D28-15247. And to avoid disputes with the winner of the purchase, fix the provisions in the procurement documentation. For example, like this: “The winner (including SMP or SONKO) is obliged to involve subcontractors (co-contractors) from among SMP (SONCO) in the execution of the contract”.*

Previously, the Ministry of Economic Development of Russia expressed the opposite opinion: winners from among the SMP (SONCO) should not involve other SMP (SONCO) in the execution of the contract (letter dated September 17, 2015 No. D28i-2812). But, if you choose this option, disputes with inspectors are possible.

In addition, the condition that the winner must involve subcontractors and co-executors from SMP and SONKO should be included in the draft contract and the contract itself. Including 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.

You can do it like this:*

This order has been established

In accordance with Part 7 of Article 30 of the Federal Law "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" the Government of the Russian Federation decides:

1. Approve the attached contracts providing for the involvement of subcontractors, co-executors from among small businesses and socially oriented non-profit organizations in the execution of contracts.

2. The federal executive authorities, the State Atomic Energy Corporation Rosatom and the State Corporation for Space Activities Roscosmos, which carry out regulatory and legal regulation in the relevant field of activity, shall, within 3 months, bring their regulatory legal acts into compliance with this resolution .

Standard conditions
contracts providing for the involvement of subcontractors, co-executors from among small businesses, socially oriented non-profit organizations in the execution of contracts
(approved by the Government of the Russian Federation dated December 23, 2016 No. 1466)

I. Conditions on the obligations of the supplier (contractor, performer)

1. Involve subcontractors, co-executors from among small businesses, socially oriented non-profit organizations (hereinafter referred to as subcontractors, co-executors) in the execution of the contract in an amount of at least 5 percent of the contract price.

2. Within no more than 5 working days from the date of conclusion of the contract with the subcontractor, co-contractor, provide the customer with:

a) a declaration on the affiliation of the subcontractor, co-executor with a small business entity, a socially oriented non-profit organization, drawn up in simple written form, signed by the head (other authorized person) of the small business entity, a socially oriented non-profit organization and certified by a seal (if there is a seal);

b) a copy of the agreement (agreements) concluded with the subcontractor, co-executor, certified by the supplier (contractor, performer).

3. In case of replacement of a subcontractor, co-executor at the stage of execution of the contract with another subcontractor, co-executor, provide the customer with the documents specified in this section within 5 days from the date of conclusion of the contract with the new subcontractor, co-executor.

4. Within 10 working days from the date of payment by the supplier (contractor, performer) of the fulfilled obligations under the contract with the subcontractor, co-contractor, provide the customer with the following documents:

a) copies of documents on acceptance of goods delivered, work performed, services rendered, which are the subject of an agreement concluded between the supplier (contractor, performer) and the subcontractor or co-contractor engaged by him;

b) copies of payment orders confirming the transfer of funds by the supplier (contractor, performer) to the subcontractor, co-executor - if the agreement concluded between the supplier (contractor, performer) and the subcontractor, co-executor engaged by him, provides for payment of fulfilled obligations before the payment deadline for the goods supplied , work performed, services provided, provided for in the contract concluded with the customer (otherwise, the specified document is presented to the customer additionally within 5 days from the date of payment by the supplier (contractor, performer) of the obligations fulfilled by the subcontractor, co-performer).

5. Pay for goods supplied by a subcontractor, co-executor, work performed (its results), services rendered, individual stages of execution of the contract concluded with such a subcontractor, co-executor, within 30 days from the date of signing by the supplier (contractor, performer) of the document on acceptance of goods completed work (its results), services provided, individual stages of contract execution.

6. Bear civil liability to the customer for non-fulfillment or improper fulfillment of the conditions for involving subcontractors and co-executors in the execution of contracts, including:

a) for the submission of documents specified in this section containing false information, or their failure to submit or the submission of such documents in violation of the established deadlines;

b) for failure to involve subcontractors and co-executors to the extent established in the contract.

II. Conditions on the rights of the supplier (contractor, performer)

In case of non-fulfillment or improper fulfillment by a subcontractor, co-executor of the obligations stipulated by the agreement concluded with the supplier (contractor, performer), replace the subcontractor, co-executor with whom the contract was previously concluded with another subcontractor, co-executor.

Document overview

Standard terms of contracts have been approved that provide for the involvement of subcontractors, co-executors from among small businesses (SMBs), and socially oriented NPOs.

Thus, the supplier (contractor, performer) must involve subcontractors, co-executors from among SMP, NPOs in the execution of the contract in an amount of at least 5% of the contract price; submit certain documents to the customer within no more than 5 working days from the date of conclusion of the contract with the subcontractor, co-executor, as well as within 10 working days from the date of payment by the supplier (contractor, performer) for fulfilled obligations under the contract.

Goods supplied by a subcontractor, co-contractor, work performed (its results), services rendered, individual stages of contract execution must be paid for within 30 days from the date of signing by the supplier (contractor, performer) of the document on acceptance of goods, work performed (its results), services rendered, individual stages of contract execution.

Date of: 24.04.2017

Involving subcontractors (co-executors) to fulfill contracts with customers is a common practice in the activities of various business entities. As a rule, such involvement takes place in the performance of contract agreements (involvement of subcontractors) and contracts for paid services (involvement of co-contractors). With regard to the work contract, it is stated that “if the law or the work contract does not provide for the contractor’s obligation to perform the work provided for in the contract personally, the contractor has the right to involve other persons (subcontractors) in the performance of his obligations” 1, and with regard to the contract for the provision of paid services it is said , that “unless otherwise provided by the contract for the provision of paid services, the contractor is obliged to provide the services personally” 2. In addition, the possibility of attracting subcontractors or co-executors is allowed in relation to contracts for the performance of research, development and technological work 3.

44-FZ itself also contains two separate provisions that relate to the involvement of subcontractors or co-executors. Let's take a closer look at them.

  • The possibility for the customer to require the mandatory involvement of subcontractors (co-contractors) from among self-employed enterprises and joint venture non-profit organizations.

    • Within the framework of quotas for purchases from SMP and socially oriented non-profit organizations (SO NPOs) 4 provided for in 44-FZ, the customer, when determining a supplier (contractor, performer), has the right to establish in the procurement notice a requirement for the supplier (contractor, performer) that is not a small entity entrepreneurship or a socially oriented non-profit organization, on the involvement of subcontractors, co-executors from among SMP and SO NPOs in the execution of the contract 5. In this case, this condition is included in contracts indicating the volume of such attraction, established as a percentage of the contract price, and the specified volume is taken into account in the total volume of purchases made by customers from SMP and SO NPOs, and is included in the corresponding report on such purchases, in addition, Contracts should also include a mandatory provision on the civil liability of suppliers (contractors, performers) for failure to fulfill the condition of involving subcontractors, co-executors from among the SMP and SO NPOs in the execution of contracts 6 . Such liability can be expressed in establishing a fine in a certain amount - for example, 1% of the contract price 7.

    Please note that the percentage volume of this attraction must be indicated in the contract as a fixed number. If it is indicated in a range value (for example, “not less than 15%”), then although sometimes control authorities may consider this acceptable 8, in the vast majority of cases they regard this as a violation of the law 9. It should also be remembered that this fixed number must be included directly in the draft contract, which is part of the procurement documentation, and not “specified” in the contract when it is concluded - otherwise there will also be a violation of the law 10.

    In addition, in accordance with 44-FZ, the Government of the Russian Federation at the end of 2016 approved standard terms of contracts providing for the involvement of subcontractors, co-contractors from among SMP and SO NPOs in the execution of contracts 11 . These conditions, which must be followed by customers who establish a requirement for such involvement in contracts, state, among other things, that the volume of this involvement must be at least 5% of the contract price, and the contractor or performer must, within a certain time frame, document the reporting to the customer on the actual involvement of SMP and SO NPOs as subcontractors or co-executors and payment for the work performed or services rendered. Please note that the contractor (performer) is obliged to pay for goods supplied by the subcontractor, co-performer, work performed (its results), services rendered, individual stages of the execution of the contract concluded with such subcontractor, co-performer, within 30 days from the date of signing by the supplier (contractor, performer ) document on acceptance of goods, work performed (its results), services rendered, individual stages of contract execution. Let us note that this norm is similar to the norm contained in 44-FZ itself and concerns the timing of direct payment by the customer for the work and services of SMP and SO NPOs in the event that the customer makes direct targeted (quoted) purchases from them 12.

    Finally, 44-FZ itself contains a rule according to which the customer is obliged to exercise control over the involvement of the supplier (contractor, performer) in the execution of the contract by the supplier (contractor, performer) of subcontractors, co-contractors from among the SMP and SO NPOs 13. This once again demonstrates the importance of such involvement, and the method of this control in practice is precisely the receipt by the customer of appropriate reporting from the contractor or performer (see above).

  • The obligation of the supplier (contractor, performer) in some cases to provide the customer with information about co-executors and subcontractors

    • If the NMCC during a procurement exceeds a certain amount established by the Government of the Russian Federation, the contract must indicate the obligation of the supplier (contractor, performer) to provide information about all co-contractors, subcontractors who have entered into an agreement or agreements with the supplier (contractor, performer), the price of which or the total price of which exceeds 10% of the contract price 14. The specified size of the NMCC is 1 billion rubles. when making purchases to meet federal needs and 100 million rubles. when making purchases to meet the needs of a constituent entity of the Russian Federation and municipal needs 15. This information is provided to the customer by the supplier (contractor, performer) within 10 days from the date of conclusion of the contract with the co-executor, subcontractor, and the contract must provide for liability for failure to provide this information by collecting a fine from the supplier (contractor, performer) in the amount of 1/ 300 of the refinancing rate of the Central Bank of the Russian Federation in effect on the date of payment of the penalty from the price of the contract concluded by the supplier (contractor, performer) with the co-executor, subcontractor, and the penalty is subject to accrual for each day of delay in fulfilling such an obligation 16 . Also, if the supplier (contractor, performer) does not provide the customer with this information, information about this is placed by the customer in the Unified Information System 17. However, these are the only possible sanctions, since failure to provide this information by the supplier (contractor, performer) does not entail the invalidity of the concluded contract on this basis 17.

    Let us note that in the practice of control authorities and judicial practice, the absence of a corresponding requirement in the draft contract may serve as one of the grounds for issuing to the customer an order to make changes to the procurement documentation and extend the deadline for filing applications 18 , as well as recognition of the fact of committing an administrative offense 19 , which is in the approval of procurement documentation in violation of the requirements provided for by the legislation of the Russian Federation on the contract system in the field of procurement 20.

    Prohibition on engaging subcontractors (co-contractors)

    The question of the legality of the customer’s ban on the involvement of subcontractors (co-contractors) for the execution of the contract deserves special attention. Let us say right away that the legal situation here is ambiguous, and official comments on this matter are contradictory.

    On the one hand, this prohibition may be considered unlawful, since in this case there is a requirement for the procurement participant to perform work (provide a service) personally, and such a requirement for procurement participants is not provided for in 44-FZ 21. On the other hand, such a prohibition can be considered legitimate, since it represents a condition on the method and procedure for executing the contract after the procurement, and not a requirement for procurement participants 22 . In the practice of the FAS, there are cases when this ban is considered unlawful 24 . But in judicial practice this prohibition may be recognized as lawful 23 . Taking into account the fact that civil legislation provides for the possibility of such a prohibition in the contract itself and the contract for the provision of paid services, it should still be considered legal, at least in relation to these types of contracts.

    Coordination of subcontractors (co-contractors) with the customer

    In addition, attention should be paid to the issue that concerns the legality of the customer’s requirement to coordinate subcontractors (co-contractors) with him. Here, too, everything depends on whether there is a corresponding requirement in the procurement documentation (draft contract, concluded contract). And again, the legal interpretation of the legality of this ban is not entirely clear.

    On the one hand, this requirement may be considered unlawful, since 44-FZ does not contain such a rule, and customers do not have the right to establish requirements for procurement participants that are not provided for by this legislation 25 . Moreover, in accordance with civil law, the contractor must agree with the customer on the involvement of co-executors only when performing research work. On the other hand, this requirement can be considered legitimate, since, as in the above-mentioned case with the ban on the involvement of subcontractors (co-contractors), it represents a condition on the method and procedure for executing the contract; accordingly, it is not an additional requirement for procurement participants and thus not contradicts the condition of 44-FZ, according to which customers do not have the right to establish requirements for participants in violation of this law 25 .

    However, both in the practice of the FAS and in judicial practice, this prohibition is recognized as unlawful 27. Therefore, it is still recommended to adhere to this approach.

    1 Part 1 Art. 706 Civil Code of the Russian Federation

    2 Art. 780 Civil Code of the Russian Federation

    3 Art. 770 Civil Code of the Russian Federation

    4 Art. 30 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

    5 Part 5 Art. 30 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

    6 Part 6 art. 30 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”

    7 See, for example, the Decision of the Chelyabinsk OFAS Russia dated October 3, 2016 in case No. 718, 719-zh/2016, which confirms the legality of this approach

    8 Decision of the Arkhangelsk OFAS Russia dated May 13, 2016 in case No. 147mz-16

    9 See, for example, Resolution of the Arbitration Court of the Far Eastern District dated June 14, 2016 No. F03-1859/2016 in case No. A59-3392/2015, Decision of the FAS Russia dated September 26, 2016 in case No. K-1541/16

    10 See, for example, Decision of the Vologda OFAS Russia dated October 27, 2016 No. 5-2/249-16, 4244

    11 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.”

    12 Part 8 Art. 30 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

    13 Part 2 Art. 101 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

    14 Part 23 Art. 34 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

    15 Decree of the Government of the Russian Federation dated September 4, 2013 No. 775 “On establishing the size of the initial (maximum) contract price when purchasing goods, work, services, if exceeded, the contract establishes the obligation of the supplier (contractor, performer) to provide the customer with additional information”

    16 Part 24 Art. 34 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

    17 Part 25 Art. 34 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”

    18 See, for example, Resolution of the Fifteenth Arbitration Court of Appeal dated January 16, 2017 No. 15AP-18725/2016 in case No. A53-14983/2016

    19 See, for example, Decision of the FAS Russia dated December 14, 2016 in case No. K-1981/16, Decision of the FAS Russia dated December 14, 2016 in case No. K-1982/16

    20 Part 4.2 Art. 7.30 Code of Administrative Offenses

    21 Part 6 art. 31 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”, Letter of the Ministry of Economic Development of Russia dated 12/11/2015 No. D28i-3620

    22 Part 1 Art. 706 of the Civil Code of the Russian Federation, Letter of the Ministry of Economic Development of Russia dated December 7, 2015 No. D28i-3551

    23 See, for example, the Decision of the Federal Antimonopoly Service of Russia dated October 20, 2014 in case No. K-1505/14

    24 See, for example, Resolution of the Thirteenth Arbitration Court of Appeal dated June 11, 2015 No. 13AP-8710/2015 in case No. A56-75576/2014, Decision of the Arbitration Court of the Sakhalin Region dated August 26, 2015 in case No. A59-2287/2015

    25 Part 6 art. 31 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”

A subcontract is the transfer of responsibilities under a contract to third parties. Law 44-FZ does not prohibit the involvement of subcontractors, and sometimes even makes such a requirement when it comes to small businesses and SONPOs. Let's look at how the conclusion and payment of a subcontract occurs.

Conclusion of subcontract agreements

Concluding a subcontract agreement to perform work under the contract is beneficial for the participant for several reasons:

  • you can find a company that will do the work for a lower price and keep the difference;
  • you can work on other contracts by outsourcing the work to a subcontractor.

To obtain full access to the PRO-GOSZAKAZ.RU portal, please register. It won't take more than a minute. Select a social network for quick authorization on the portal:

On the other hand, if the subcontractor violates its obligations, all issues will be directed to the main contractor. He will have to pay fines. As for customers, they are not interested in attracting third parties, since lower prices affect quality. In addition, it is not always possible to check the company performing the work. In any case, as of 2018, only 75% of work can be subcontracted.

Many questions arise about the legality of the requirement in the documentation to be agreed upon by the subcontractor with the customer. The legal interpretation of its legality is not entirely clear. On the one hand, it is not provided for in 44-FZ. But on the other hand, it represents a condition on the method and procedure for executing the contract and is not an additional requirement for procurement participants. At the same time, the winner of the state order must carry out some types of work on the construction and reconstruction of capital construction projects independently. Violation of this requirement may result in sanctions.

Subcontract agreement under 44-FZ: administrative practice

In the first example, the procurement participant mistakenly believed that it was not he who should meet the requirements, but the subcontractor who would directly perform the work. An auction was held for the overhaul of the hospital. In the documentation, the customer required a license for the installation, maintenance and repair of fire safety equipment for buildings and structures.

One of the participants considered this a restriction of competition and complained to the FAS. His arguments were based on the fact that the winner of an electronic auction has the right to transfer work under a subcontract agreement to another licensed organization. In its decision in case No. 05-02/210-18 Kurgan OFAS Russia reminded the participant that the requirements of the Contract System Law apply exclusively to procurement participants. They, in turn, must comply with them in full, regardless of the existence of a subcontract agreement for the performance of work subject to licensing. The complaint was declared unfounded. about what requirements cannot be made of the participant.

Also, as an example, we will cite the decision of the Ulyanovsk OFAS Russia in case No. RNP-73-69. This case shows why it is better to conduct negotiations with subcontractors at the same time as participating in the procurement. It is advisable to reach an agreement and conclude a contract before winning if the participant is not sure that he will be able to fulfill the contract. A contract was concluded with the individual entrepreneur to carry out work on laying a gas pipeline to supply gas to the boiler room.

However, he never started work. The customer accepted. The contractor was included in the register of unscrupulous suppliers. At a meeting of the OFAS commission, he explained that the contract was not fulfilled because an agreement was not reached with the subcontractors. At the same time, the contractor assured that he had no intention of evading the execution of the contract. But the commission was not convinced by these arguments, since when participating in the purchase, the individual entrepreneur had to be aware of all the risks.

As a third example, let us cite the decision of the Crimean OFAS Russia in case No. 08/0822-18. It clearly shows how to correctly confirm experience in similar work by providing subcontract agreements as part of the application. An auction was held to carry out work on the reconstruction of heating networks. One of the requirements for participants was to have experience in performing relevant work for the last 3 years before the date of filing an application for participation in the procurement.

In this case, the cost of the executed contract must be at least 20% of the NMCC for the current purchase. The participant provided a subcontract agreement. But the customer rejected the application. As the OFAS later found out, the participant did not submit annexes to it along with the subcontract agreement, in particular, an estimate that allows making a conclusion about the cost. On this basis, the rejection was considered justified.