Regional branches of disabled organizations will receive preferences at public procurement
The right to receive an allowance of 15% to the price of the state contract have not only all -Russian organizations of disabled people, but also their regional branches, as well as the companies they have established. Such a decision was made by the Supreme Court of the Russian Federation (Sun), urging the antitrust service not to narrow the circle of persons to whom the law gives preferences in public procurement, since the purpose of this measure is the state support of citizens with disabilities. The issue of competition at public procurement is acute, and there are a lot of similar disputes with the FAS in practice, but the position of the Armed Forces should put an end to them.
The Armed Forces published a decision in the case of which disabled organizations have advantages under state procurement of certain types of goods and services (the list is established by the Government of the Russian Federation) under the Law on the 44-FZ contract system. Under Art. 29 of the Law, the All-Russian Public Organizations of Disabled (LLC) and their 100 percent « daughters » winning the tender receive an allowance of 15% to the price they proposed, but within the maximum price of the contract. At the same time, in subsidiaries of LLC, there should be at least 50% of disabled employees who have at least a quarter of the salary fund.
LLC Lamirel, 100% belonging to the Vladimir regional branch of LLC Rostar, repeatedly won in such competitions and received a premium, but then faced the PAS claims. The case in the case is about one of these cases. The Office of the Federal Antimonopoly Service in Moscow considered the provision of preferences LLC Lamirel, which defeated in 2022 in several auctions, which were carried out by the metropolitan “housing” for the supply of a number of goods-snowstorms, blankets, road signs, construction blocks, etc., the company does not fall under the 44-FZ criteria, since it was founded by the regional department, and not the head of the all-Russian general Russian Organization of disabled people.
Lamirel appealed the decision of the FAS, and the arbitration courts of the first and appeal instances supported the company, but the district cassation agreed with the position of the antimonopoly service (See “Kommersant” from April 15). According to the company’s complaint, the case was transferred to the Economic College of the Armed Forces, which satisfied the lawsuit, recognizing the decision of the FAS and creating a precedent for all similar cases.
Wider circle of faces
The collegium recalled that the objectives of the creation of disabled organizations are to protect the rights and legitimate interests of such persons and the solution of the problems of public integration, and the allowance to the price of the state contract is a kind of state support addressed to this category of citizens. The Armed Forces also referred to the position of the Constitutional Court of the Russian Federation of July 1, 2014 that taking into account the interests and needs of disabled people involves the “creation of special legal mechanisms” to provide them with additional advantages, “to guarantee their right to equal opportunities with other citizens in the exercise of constitutional rights”.
It is impossible to equate regional public organizations with regional branches of all -Russian organizations, Sun. To recognize the organization of all -Russian, it needs to conduct activities in more than half of the constituent entities of the Russian Federation, therefore it is the regional branches in the structure of LLC and determine its status. The Vladimir Regional Branch of LLC Rostar was created by a decision of the conference of the All -Russian Organization, registered as a legal entity and acts on the basis of the Charter of LLC, obeying the decisions of its highest bodies. The staffing schedule and disability certificates confirm that seven people are employed in Lamirel, six of them are persons with disabilities, and this information has not been refuted by anyone.
In this regard, he recognized the Armed Forces, the regional branch “all preferences are fully extended” under Art. 29 of the Law. The provision of advantages in public procurement only to the head organizations of LLC “significantly limits the scope” of this norm, “since it does not take into account the multi -level data structure of organizations,” the collegium summed up.
Lawyer Fedor Lepp, representing Lamirel in the Armed Forces, says that the position of the economy of the board will affect “dozens of court cases” and will preserve one of the most important benefits. According to him, if the Armed Forces upheld the judicial acts in favor of the FAS, “this would result in greater instability for disabled organizations throughout Russia,” including the loss of jobs for such citizens.
The FAS “Kommersant” reported that they take into account the position of the aircraft, but they will consider the issue of amendments to 44-FZ, since there are risks of obtaining illegal advantages under Art. 29, since “there are no legal mechanisms for checking the purchase participant’s belonging to the company, the founder of which is the structural unit of LLC.”
700 million rubles
The lower threshold of the initial price of state contracts, complaints about the purchases of which are considered by the Central FAS apparatus.
Preferences for the weak
The senior partner of AB “Zalesov, Timofeev, Gusev and partners” Alexei Zalesov says that in recent years the activity of the central apparatus of the FAS has increased for unscheduled inspections according to 44-ФЗ and letters to the publication of the procedure for the norms of this law based on departmental interpretation. The Armed Forces are trying to balance control of this area. The senior partner of AB « Line of Law » Alexei Kostovarov recalls that in January the Armed Forces recognized the letter of the FAS, which did not recognize the preferences in public procurement at the regional branches of LLC, and the decision on « Lamirel » is developing this position. Moreover, the other day, four more disputes of disabled organizations against the FAS were transferred to the economy of the Armed Forces. This indicates the social significance of such cases, the need to clear the issue of the issue and the creation of a uniform practice, says Batradz Mezaev, head of the energy and administrative practice of the Mitra Energy and Administrative Practice.
The lawyers surveyed “Kommersant” support the position of the Armed Forces. Alexei Zalesov explains that, according to the FAS approach, only the central structures of LLC would receive preferences in public procurement, but “collecting benefits in Moscow nothing to do with all -Russian He does not have support for disabled people. ” Moreover, the “centralization of benefits” has the nature of “opaque” regulation, which the law on the contract system should fight, the lawyer indicates. According to the consultant of the legal entity “Kamenskaya & Partners” by Natalia Strelova, the approach of the Armed Forces corresponds to the general logic of legislation in the field of social protection of disabled people.
Mr. Mezaev admits that the subsequent allowance of 15% to the price of the contract allows organizations of disabled people to dump, and fears that this can to some extent lead to a distortion of a competitive environment. Alexei Kostovarov does not see the problem here: “It seems to me that this is the state support of disabled people, otherwise the abuse must be recognized by the legislative mechanism that provides such preferences.” Mrs. Strelkova agrees with him. Preferences allow the more weak subjects to “slightly align their position” in economic terms, adds the partner of Delcredere, Oleg Moskvitin, since “classic business” usually has more financial resources, more experienced management, and developed marketing. In his opinion, it is necessary to deal not with the preference, but so that it is not received by imaginary associations of the disabled.
