Sun will consider the case of preferences for disabled organizations in public procurement
Is the “daughter” of the regional unit of the All -Russian Organization of Disabled to rely on preferences in public procurement, the Supreme Court of the Russian Federation (Sun) will be entitled. We are talking about a state allowance of 15% of the contract price proposed by the contractor. The FAS considered that these advantages do not apply to regional departments and their structures, and arbitration courts supported this position. Now the case will be considered by the economy of the Armed Forces. Lawyers express different opinions on how to interpret the norms of the law.
The dispute about the advantages that the state gives to the organizations of the disabled participating in the public procurement has reached the level of the Armed Forces. The case is connected with the auctions, which in 2022 were carried out by the capital’s « housing » of different areas. Contracts, in particular, concerned the supply of snowstorms, road signs, construction blocks, blankets and even sea containers. The winner of the tender was LLC LAMARIL-an organization that was established by the Vladimir Regional Department of the All-Russian Public Organization of Disabled Disabled “Russian Society of Social and Labor Adaptation and Rehabilitation” (LLC ROSTAR). At the same time, Lamirel gained advantages that are entitled to the structures of LLC by law.
According to Art. 29 of the Law on the contract system (44-ФЗ), all-Russian organizations of disabled people in procurement in the event of their victory in the tender receive an additional allowance of 15% to the price of goods, work or services they proposed. This allowance cannot exceed the initial (maximum) price of the contract specified by the state order. According to the law, only LLCs and established by them in 100% of the organization have the right to such a preference. There are additional requirements for the latter: at least 50% of the disabled employees should have at least 50% of the enterprise, and at least 25% of the wage fund should account for their salary. The advantages in the form of an allowance to the price are not valid for all purchases, a specific list of goods, works and services is established by order of the Government of the Russian Federation No. 3500-r of December 8, 2021.
In 2024, the Moscow Department of the FAS conducted a check of these procurement and revealed violations of the law on the contract system. According to the department, the customers illegally provided Lamirel preferences that the company did not rely, since the founder of the legal entity is a regional structure, and not the all -Russian organization itself. And the winner of the auction indicated in unreliable information, believing the right to benefit, the antimonopoly service considered it.
Lamirel appealed to the Moscow Arbitration Court, demanding to recognize the decision of the FAS illegal. The first instance and appeal sided with the company. But the district supported the arguments of the FAS, indicating that formally the founder is precisely the regional branch. The winner of the tender did not agree with this approach and filed a complaint with the Armed Forces. In it, Lamirel insists that it meets the requirements for the number of disabled workers and their share in the salary fund. In addition, more than half of the constituent entities of Russia covers the activity of Rostar, that is, the organization is all -Russian. According to the enterprise, it does not matter who is its founder is the regional unit or directly federal growth, since “structural regional units are an integral part of the all -Russian association, since LLC has a“ multi -level structure ”.
The final argument was a link to the January decision of the Armed Forces to invalidate the letter of the FAS of July 10, 2024, which limits the regional departments in the receipt of preferences.
The Armed Forces recognized these arguments winging and transferred the case to the economy of the college.
Regional and all -Russian
In the register of non -profit organizations, the Ministry of Justice “Kommersant” discovered dozens of ooo (for example, the All -Russian Society of the Blind, the All -Russian Society of the Deaf, etc.) with numerous regional branches throughout the country. These organizations of people with disabilities under public procurement receive preferences on a wide range of positions, says Batradz Mezaev, head of the Energy Practice, the Energy Practice. The objects of such state contracts can be, in particular, various types of food products, home goods, construction and finishing materials, electrical equipment and devices, various types of work and services, including hotel, medical and sports, lists Mr. Mezaev. At the same time, these preferences can serve not only a stimulating tool, but also help win the competition itself. “Participating in the auction, such societies often lower the price for their goods (services) by 10-13%, realizing that then they will still receive a plus of 15% to their price,” Denis Shashkin’s managing partner shares observations.
According to lawyers, Lamirel’s conclusions in the case with a letter of the FAS are important for the Lamirel case, in which the antitrust department excluded regional departments and organizations of disabled people from the circle of recipients of preferences. In the decision of January 16, the administrative board of the Armed Forces explained that it is the conduct of activities in the territory of more than half of the regions of Russia that determines the all -Russian status of a public organization. In this regard, the regional unit of LLC does not belong to regional public organizations that act exclusively within the same subject of the Russian Federation, then concluded the Armed Forces.
Interpretation options
However, lawyers draw different conclusions from this position of the Armed Forces. According to the senior partner of AB « Line Law » Alexei Kostovarova, a company established by the regional branch of LLC, may claim the advantages of Art. 29 of the Law on the contract system: « If you are in the structure of the all -Russian organization, then the company established by you is considered established by the All -Russian Organization. » If Lamirel can be convinced by the Sun that it, in fact, is the “daughter” of LLC, then the company has a chance of winning a dispute, Mr. Mezaev believes. The managing partner of AB « South » Yuri Pustovit, on the contrary, considers the FAS position more reasonable and believes that if the regional unit of LLC is an independent legal entity, as it was in this case, then his subsidiary cannot use preferences.
At the same time, Denis Shashkin notes that not all contracts with the “housing” were entitled to apply for preferences. In this regard, Mr. Shashkin emphasizes, « state orders should be more attentive to the government list of goods and services. »
