Rationale NMCC is the process of determining by the customer the marginal cost of the purchase, above which he will not be able to conclude a contract with a potential supplier. We analyzed all the stages of justifying the initial maximum contract price under 44-FZ, examples, including justifying the initial (maximum) contract price, the price of a contract concluded with sole supplier(contractor, contractor).
The restrictions that exist when choosing the procedure for determining the contractor directly depend on the value of the initial cost. For example, if the initial maximum cost under 44-FZ exceeds 500,000 rubles, the customer does not have the right to conduct a request for quotations.
Also, the price affects the timing of the procedure. For example, for electronic auctions with an initial value of more than 3 million rubles, the deadline for submitting applications is at least 15 days from the date of placement of the notice in the EIS, and at a cost of less than 3 million rubles - at least 7 days.
On July 1, 2018, the rule on the timing of consideration of the first parts of applications for participation in an electronic auction came into force. So, if the purchase price is less than 3 million rubles. the term for making a decision on admission to trading may not exceed 1 business day.
At the same time, starting from July, the NCMC began to influence the obligation of state customers to establish the security of applications. If the NMTsK does not exceed 1 million rubles, the state customer has the right (but not the obligation!) to require the participant to provide an offer (Article 44). The Ministry of Finance confirmed these conclusions in letter No. 24-06-08/70718 dated 02.10.2018.
In addition, the supplier needs to understand that the definition of the marginal purchase cost is milestone participation. Based on the information provided in the schedule and procurement documentation, it is possible to draw conclusions about the market situation among competitors and the chances of winning the tender.
NMCC at the planning stage
Calculation and justification of the NMTsK according to 44-FZ is carried out by the customer. Then he enters information about the price restriction of the purchase into the schedule. The justification of the NMCC in the schedule for 2020 of all customers is in the register of the Unified information system(EIS).
Information on the initial cost of the contract must correspond to the calculations in the documentation. Realities differ from plans, so often customers correct this information and, as a result, must change the cost estimate.
For calculation, the customer uses the form recommended by the Ministry of Economic Development. In it, he reflects the entire calculation process, details of supporting documents, indicates the date of summing up, and also fixes another necessary information. You can download a sample NMCC justification form for 2020 according to 44-FZ from the link below.
Sample justification of the NMCC for a government contract with a single supplier
The bidding initiator is obliged to finally fix the maximum price of the planned contract in the schedule no later than ten days before the placement of the procurement documentation in the EIS.
Justification methods
The main features of the five procedures for determining the maximum cost are set out in the law (Article 22 No. 44-FZ) and specified in the Methodological Recommendations of the Ministry of Economic Development.
On February 26, 2019, on the official website of draft regulations, the Ministry of Finance published a notice on the development of new Methodological Recommendations. The text of the draft order is not yet available.
Law on contract system prioritizes the justification of the NMCC by the method of comparable market prices, example and detailed description you can read this method in the article "How to justify the NMCC using the comparable market prices method".
We have also prepared articles about the other four methods, you can find them at the links below:
At the same time, the rationale for the method for determining the NMCC can be established by additional methodological recommendations. The authority to adopt such documents belongs to the supreme executive body subject of the Russian Federation. For example, Decree of the Government of Moscow No. 242-RP, Decree of the Government of the Sakhalin Region No. 117-r, etc.
Thus, the customer has the right to act within the framework of additional recommendations when making a purchase for the needs of a constituent entity of the Russian Federation.
You can visually see how the sample calculation of the initial maximum contract price looks like (example according to 44-FZ) by downloading the file from the link below.
An example of justifying the price of a contract under 44-FZ
Other calculation options
In a situation where it is impossible to apply the calculation options established by the Law on the contract system and the Methodological Recommendations, a procurement is carried out and a justification is drawn up for the impossibility of applying the calculation methods of the NMCC.
Let's talk about situations when customers need to change their plans and schedules. Including due to the fact that they were able to save on purchases.
When to change the procurement plan
The norms of Part 6 of Article 17 of Law 44-FZ require in certain cases make changes to the procurement plan. Also, this issue is regulated by Government Decrees No. 552 dated June 5, 2015, and No. 1043 dated November 21, 2013.
So, the law established the following grounds. Procurement plans are changed if:
Registration in ERUZ EIS
From January 1 2020 years to participate in auctions under 44-FZ, 223-FZ and 615-PP registration required in the ERUZ registry ( Single register procurement participants) on the EIS (Unified Information System) portal in the field of procurement zakupki.gov.ru.
We provide a service for registration in the ERUZ in the EIS:
- they need to be changed due to the fact that the objectives of the procurement and the requirements for objects have changed;
- they must be brought into line with the amended legislation;
- this is required by the implementation of laws and by-laws of the federal, regional and municipal levels, adopted or issued after the formation of the procurement plan;
- it is required by the results of the mandatory public discussion of the procurement;
- when making a purchase, savings were formed;
- in other cases, which are established by the procedure for maintaining the procurement plan.
When to change the schedule
Changes to the schedule are made on the basis of Part 13 of Article 21 of Law 44-FZ, as well as Decrees of the Government of the Russian Federation of 05.06.2015 No. 553, of 05.06.2015 No. 554.
These legal regulations require changes to the schedule to be made in the following cases:
- In the process of preparing the purchase, the needs in terms of the volume and cost of objects have changed, and as a result, it is impossible to make a purchase.
- The terms or frequency of purchases, the date of the beginning and end of the auction, the method of determining the supplier, the amount of the advance payment, the terms of payment have changed.
- Purchase cancelled.
- The customer generated savings in the current financial year.
- The supervisory authority has issued a procurement order.
- Based on the results of the public discussion, the customer made a decision that will change the purchase.
- Unforeseen circumstances and other cases that emerged after the preparation of the schedule.
Saving
As you can see, plans and schedules have to be changed due to legislative changes, and due to changes in circumstances that affect procurement activities customer. And one of them is cost savings. Let's take an example of when and how it is necessary to change planning documents on this basis.
Situation 1. The customer needs office furniture and announces electronic auction. With the funds that will be saved during the auction, he plans to purchase another piece of furniture with the same OKPD-2. In this case, the customer only needs to make changes to the schedule. The procurement plan remains the same because new purchase will be carried out within one of its positions. As for the plan-schedule, then it is entered new position, as well as the information in the column "Planned payments" is specified.
Situation 2. Almost everything is the same, only with the money saved the customer is going to purchase a completely different product, which he did not plan to purchase at all. In this case, the new position is entered into both the procurement plan and the schedule. In the schedule, the planned payments are changed for the corresponding line. In the procurement plan, changes are made to the amount of financial support. Further, new positions are entered into the schedule in accordance with the terms of the concluded contract.
We remind you that if a new line is introduced into the plan and schedule, the necessary adjustments must be made to the justification for the purchase.
Another question is whether it is necessary to change in the planning documents those positions for which the customer received savings? The Ministry of Economic Development, in its letter dated November 29, 2016 No. D28i-3256, indicated that if other purchases are made at the expense of these funds, they should be included in a new line in the procurement plan and schedule. At the same time, the NMCC of purchases for which savings were obtained should remain unchanged.
MINISTRY OF ECONOMIC DEVELOPMENT OF THE RUSSIAN FEDERATION
The Department for the Development of the Contract System of the Ministry of Economic Development of Russia considered an appeal on the application of the provisions federal law dated April 5, 2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to ensure public and municipal needs(hereinafter - Law N 44-FZ) and within its competence reports.
Order of the Ministry of Economic Development of Russia dated October 2, 2013 N 567 approved guidelines on the application of methods for determining the initial (maximum) contract price, the price of a contract concluded with a single supplier (contractor, performer) (hereinafter referred to as the Recommendations).
According to part 2 of article 112 of Law N 44-FZ, customers place in a single information system in the field of procurement schedules for placing orders for 2014 - 2016 according to the rules approved by the joint order of the Ministry of Economic Development of Russia and the Federal Treasury dated December 27, 2011 N 761 / 20n (hereinafter - Order N 761/20n), taking into account the features established by the joint order of the Ministry of Economic Development of Russia and the Treasury of Russia of March 31, 2015 N 182/7n (hereinafter - Features).
The provisions of sub-clauses "i" and "k" of sub-clause 2 of clause 5 of the Specifics established that the NMCC and the amount of the application security are set in units - thousands of rubles.
Thus, the determination of the NMCC is carried out during the formation of the procurement schedule, the preparation of a notice on the implementation of the procurement, procurement documentation. At the same time, in the procurement schedule, the customer indicates the NMCC in units determined by the specified Features.
According to the Department for the Development of the Contract System of the Ministry of Economic Development of Russia, the indication in the notice of the procurement, the documentation of the purchase of NMCC to the nearest cent does not contradict the provisions of Part 12 of Article 21 of Law No. 44-FZ.
In addition, we inform you that, according to Order N 761/20n, changes to schedules are made in the event of a change by more than 10% of the cost of goods, works, services planned for purchase, identified as a result of preparation for placing a specific order, as a result of which it is impossible to place an order for supply of goods, performance of work, provision of services in accordance with the initial (maximum) price of the contract provided for by the schedule.
Thus, if, when generating a notice and procurement documentation in a unified information system in the field of procurement, based on the position of the schedule, it becomes necessary to indicate the initial (maximum) price of the contract, which differs by no more than 10% from that specified in the schedule, then it is also necessary to edit the corresponding field filled in based on the data specified in the schedule.
To change the data in the notice of procurement, generated on the basis of the schedule, the user of the unified information system must click on the hyperlink "Change information generated on the basis of the schedule". detailed instructions for performing this action is given in section 4.6.2.1.3 of the User Guide for the unified information system in the field of procurement.
At the same time, we draw your attention to the fact that the clarifications of the state authority have legal force, if this body is endowed in accordance with the law Russian Federation special competence to issue clarifications on the application of the provisions of regulatory legal acts.
In the article, we will consider when the customer must make changes to the plan, the procurement schedule, and pay special attention to such a basis as the resulting savings during procurement.
Changing the procurement plan
Changes to the procurement plan are made in accordance with Part 6 of Art. 17 of the Federal Law on the contract system, as well as Decrees of the Government of the Russian Federation dated 06/05/2015 No. 552, dated 11/21/2013 No. 1043.
Question: Do I need to reduce the amount in the purchase plan in the position where the savings occurred? The letter of the Ministry of Economic Development dated November 29, 2016 No. D28i-3256 states that if it is necessary for the customer to purchase goods, works, services through the use of savings obtained in the course of procurement in accordance with the legislation of the Russian Federation, the customer enters such a purchase in a new line in the procurement plan and procurement schedule. At the same time, the initial (maximum) prices of contracts, as a result of which such savings were obtained, do not change.
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In a letter dated November 22, 2017 No. 24-01-09 / 78284, the Ministry of Finance said what would happen if the customer violates the requirements for justifying the NMCC when the purchase is included in the schedule. You can read the text of the letter below.
Letter dated November 22, 2017 No. 24-01-09/78284
NMTsK or the price of the contract when purchasing from a single supplier must be justified at the stage of including the purchase in the schedule. This requirement is provided for by the 44th law. Justification of the contract price can be dispensed with only in relation to special purchases(clauses 4.5, 26, 33, part 1, article 93 of the 44th law), according to which their annual amount must be justified. Such an exception is expressly provided for by the procurement justification rules established by Decree 555 of the Government.
In the absence of substantiation or its non-compliance with the established requirements, the guilty employee of the customer may be held liable under Art. 7.29.3 of the Code of Administrative Offenses of the Russian Federation. According to part 1 of this article, the fine for the committed violation can range from 20 to 50 thousand rubles.
The Department of Budget Policy in the field of the contract system, having considered the appeal on the issue of holding an official of the customer accountable on the basis of Article 7.29.3 of the Code of the Russian Federation on administrative offenses, says the following.
In accordance with paragraph 1 of part 3 of Article 18 of the Federal Law of 05.04.2013 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 the Law on the contract system), when forming a plan - schedule, the initial (maximum) price of the contract, the price of the contract in the manner prescribed by Article 22 of the said Federal Law is subject to justification.
The rules for substantiating the procurement of goods, works and services to meet state and municipal needs were approved by Decree of the Government of the Russian Federation of 06/05/2015 N 555 (hereinafter - Rules N 555).
The provisions of Part 1 of Article 7.29.3 of the Code of Administrative Offenses of the Russian Federation provide for administrative liability for the inclusion in the procurement plan or the procurement schedule of an object or objects of procurement that do not comply with the objectives of procurement or established by the legislation of the Russian Federation and other regulatory legal acts of the Russian Federation on the contract system in the field of procurement requirements for goods, works, services and (or) standard costs purchased by the customer, or inclusion in the procurement schedule of the initial (maximum) price of the contract, including the one concluded with a single supplier (contractor, performer), in respect of which there is no justification or complies with the requirements established by the legislation of the Russian Federation and other regulatory legal acts of the Russian Federation on the contract system in the field of procurement.
Thus, the authorized officials customers who have included in the procurement schedule the initial (maximum) price of the contract, including those concluded with a single supplier (contractor, performer), in respect of which there is no justification or does not comply with the requirements of legislation in the field of the contract system, are subject to administrative liability in accordance with part 1 of article 7.29.3 of the Code of Administrative Offenses of the Russian Federation.
At the same time, paragraph 6 of Regulation N 555 provides that in relation to purchases made in accordance with paragraphs 4, 5, 26 and 33 of part 1 of Article 93 of the Law on the contract system, the annual volume of these purchases is subject to justification.
Director of the Budget Department
policy in the field of the contract system