12.05.2016

General information

Federal legislation establishes that in certain cases legal entities must purchase insurance services. These cases also apply to government organizations and commercial organizations with government participation. For example, this applies to compulsory life and health insurance for employees of certain government organizations (from bailiffs to the President of the Russian Federation) 1 ; compulsory insurance of civil liability of vehicle owners (OSAGO) 2; compulsory insurance of the property interests of the owner of a dangerous object related to his obligation to compensate for damage caused by victims 3 etc. When purchasing relevant insurance services, the above customers must be guided either by the federal law on the contract system (44-FZ) or the federal law on the procurement of industrial and technical equipment by certain types of legal entities (223-FZ) - nothing exempts customers from applying the provisions of these laws when purchasing insurance services.

Established features of the procurement of insurance services

The text of 44-FZ only states that the customer must use closed methods of identifying suppliers (competition or auction) when concluding contracts for insurance of valuables of the State Fund of Precious Metals and Precious Stones of the Russian Federation, museum objects and museum collections, rare and valuable publications, manuscripts, archival documents (including copies thereof) having historical, artistic or other cultural significance and transferred by customers to individuals or legal entities or accepted by customers from individuals or legal entities for temporary possession and use or for temporary use, including in connection with holding exhibitions on the territory of the Russian Federation and (or) the territories of foreign states 4. This law, as well as 223-FZ, as well as their by-laws, do not provide for any other features or restrictions in the procurement of insurance services. Therefore, customers in the first case almost always, and in the second, they can simply always make the necessary purchases from insurance companies on the general conditions provided for by the relevant federal laws. Of course, in the case of 44-FZ there are more such general conditions and restrictions in the law itself, and in the case of 223-FZ - much less.

Practice of purchasing compulsory insurance services

A selective review of procurement data available on the official website of the unified information system in the field of procurement (www.zakupki.gov.ru) allows you to see that customers use various methods to purchase compulsory insurance services. You can find a request for quotations, an electronic auction, an open competition, a request for proposals (within the framework of 223-FZ), and procurement from a single supplier. Let us briefly consider specific examples in the context of the methods and types of compulsory insurance used.

Request for quotation

At the beginning of April 2016, the customer (Federal State Institution “Center for Economic and Service Support of the Ministry of Internal Affairs of the Russian Federation for the Kirov Region”), within the framework of 44-FZ, conducted a request for quotations for the purchase of services for compulsory civil liability insurance of vehicle owners 5 . NMCC was determined by applying the comparable market prices method and was set at RUB 242,598.07. Quotations were received from 5 insurance companies, each of which offered a price equal to the NMCC. The application of 1 participant was rejected, and from the remaining 4 participants, the winner, in accordance with the established rules, was the one whose application was received earlier than the rest.

Electronic auction

In the spring of 2015, the customer (state budgetary educational institution of primary vocational education of the Rostov region “Vocational Lyceum No. 59”), within the framework of 44-FZ, held an auction for the purchase of services for compulsory civil liability insurance of the owner of a hazardous facility (gas boiler house) 7 . NMCC was determined by applying the comparable market prices method and was set at RUB 43,333.33. Two insurance companies took part in the auction, both of them “fell” in price to approximately the same level (RUB 37,383.32 and RUB 37,599.98); the contract was accordingly concluded with the procurement participant who offered the lowest price.

Open competition

In March 2016, the customer (the state institution of the Khanty-Mansiysk Autonomous Okrug - Ugra "Tsentrospas-Yugoria"), with the participation of the authorized body (the district department of public procurement), within the framework of 44-FZ, held a competition for the purchase of services for compulsory state personal life and health insurance fire service workers 8. The subject of the competition consisted of 9 lots (in relation to individual territorial divisions of the customer), for each of which, by applying the method of comparable market prices, the NMCC was established - from 155.04 to 478 thousand rubles. 3 insurance companies took part in the competition, each of which submitted its proposal for each lot. At the same time, the price of their offers varied in a fairly wide range - for example, for one lot with NMCC in the amount of 278 thousand rubles. this range was from 173.85 to 274.5 thousand rubles. The evaluation of competitive bids was carried out according to two criteria - the contract price (60% significance) and the qualifications of the procurement participant (40% significance). For the second criterion, two indicators were used in turn. The first was “positive experience in providing similar services for government needs”, it had to be confirmed by copies of government contracts for the previous 3 years, and the cost of each of such contracts had to be at least 70% of the NMCC of the lot for which an application was submitted, the significance of the indicator when the criterion score was 30%. The second indicator is “the number of municipalities of the Khanty-Mansiysk Autonomous Okrug - Ugra, in which there are branches of procurement participants with at least 3 years of experience and having the authority to settle losses and make insurance payments.” This indicator had a significance of 70% and had to be confirmed by a certificate from the participant and copies of his documents (charter, notice of tax registration of the branch, etc.). The winner of the competition was an insurance company that was almost twice as ahead of its competitors in terms of the final rating score, since it significantly surpassed them in both price and qualification criteria.

Request for proposals

In March 2016, the customer (Circassian municipal unitary enterprise “Trolleybus Management”), within the framework of 223-FZ, conducted a request for proposals for the purchase of services for compulsory insurance of the carrier’s civil liability for causing harm to the life, health and property of passengers 9 . The maximum contract price was RUB 405,887.20. The auction received proposals from 3 insurance companies with the same bid price equal to the initial price of the contract. The procurement commission scored proposals based on the following 5 criteria: 1) contract price; 2) reliability rating of the insurance company (in accordance with the assessment of the rating agency "Expert RA"); 3) the volume of payments made for civil liability insurance for 9 months of 2015; 4) the size of the company’s authorized capital; 5) the possibility of granting the customer a deferral of payment of the second half of the insurance premium until August 1, 2016. Since the price parameters of the procurement participants were equal, competition during the assessment was actually implemented according to non-price criteria. As a result, the participants received from 46 to 80 points, and the winner was the company with the most points.

Purchasing from a single supplier

Although the direct purchase of insurance services is not directly classified by 44-FZ as established cases of procurement from a single supplier, customers working under 44-FZ can use this method if the amount of the insurance premium does not exceed 100 thousand rubles, and in the case of certain types of suppliers - 400 thousand rubles.10.

But as for procurement under 223-FZ, here this method is actively used by customers and for very large volumes of purchases. For example, in March 2016, the municipal government enterprise of Novosibirsk, Gorelektrotransport, purchased compulsory insurance of the carrier’s civil liability for damage to life, health, and property of passengers from a single supplier 11 . The price of the contract concluded in this way was 4,273.4 thousand rubles. Let us note that in the procurement regulations of this supplier, the purchase of insurance services refers specifically to cases of purchase from a single supplier.

Analyzing the examples given, it is easy to notice that when the size of insurance tariffs is regulated by the state (for example, as in the case of tariffs under OSAGO 12), the price criterion for evaluating bids from procurement participants actually does not work - the participants provide the same price offers. Therefore, the use of such procurement methods here as a request for quotation or an auction is by and large impractical, because competition turns into a “speed race” - the winner is the one who submitted a quotation request or made a price offer faster. A more correct approach can be considered the use of those procurement methods that provide the possibility of evaluation based on non-price criteria - see above examples of holding a competition within the framework of 44-FZ and a request for proposals within the framework of 223-FZ. Users of 223-FZ may have sufficient freedom in choosing procurement methods (they themselves determine the nomenclature and conditions of the methods used in their procurement regulations). As for the users of the “strict” law on the contract system, the only method available to them can be an open competition, since insurance services do not fall within the “field of application” of other “not only price” methods that are provided for in 44-FZ (request proposals, two-stage competition, competition with limited participation). Additionally, we note that insurance services are not included in the list of those services that customers, within the framework of 44-FZ, are required to purchase only through an electronic auction 13, so adherence to this method of procurement is not some kind of inevitability here.

We also note that customers working under 44-FZ use the method of comparable market prices to determine NMCC, even in cases where insurance rates are subject to government regulation, that is, when the tariff method should have been used. It is clear why they do this - it is easier to request prices from insurance companies by providing them with information about the characteristics of their insurance items than to calculate this price themselves based on approved rates and coefficients. Although, according to the letter of the law, if insurance rates are formed within the framework of state regulation, then the tariff method should be used 14.

In addition, there may be situations where procurement participants, in their desire to become the winner literally “at any cost,” can reduce the prices they offer below the insurance rates established by the state. In particular, these situations occur in the field of compulsory motor liability insurance. Please note that even if the FAS, following the results of such a purchase, receives a complaint from the losing participant, who points out that the winner’s price does not comply with the requirements of the legislation of the Russian Federation in relation to the purchased type of compulsory insurance, the FAS may recognize this complaint as unfounded 15 . This opinion of the FAS is based on the fact that there are no violations of the procurement legislation itself, although a possible violation of insurance legislation may be recognized. But in the practice of FAS decisions there are other examples - FAS can carefully understand the issue of forming the amount of the insurance premium and recognize as legitimate the customer’s rejection of an application whose price (amount of insurance premium) does not meet the requirements of the regulatory legal acts of the Russian Federation governing relevant relations in the field of compulsory insurance 16 . This opinion of the FAS when holding a tender within the framework of 44-FZ, in turn, is based on the fact that in this case the procurement participant provides false information in its documents, and this is the basis for its exclusion from participation in the procurement 17.

To prevent such a situation, we can recommend that customers include in the procurement documentation a requirement that procurement participants comply with the established amounts of insurance rates that are subject to state regulation. For example, if, according to 44-FZ, services are purchased under compulsory motor liability insurance, then the implementation of this recommendation can occur within the framework of establishing such a single requirement for procurement participants as “compliance with the requirements established in accordance with the legislation of the Russian Federation for persons supplying goods, performing work, providing services that are the object of procurement" 18 - according to federal legislation, insurers do not have the right to apply base rates, insurance tariff coefficients, or the structure of insurance tariffs that do not comply with the requirements established by the Bank of Russia, and the insurance tariffs established by it are mandatory for use by insurers in relation to each policyholder 12. If a procurement participant does not comply with this requirement, its application must be rejected. You can also advise both customers and bona fide procurement participants who are faced with a malicious, unlawful understatement of the insurance premium on the part of specific insurers (competitors) to send appropriate appeals about these facts to the insurance supervisory body, which is the Central Bank of the Russian Federation 19 , as well as to professional associations of insurers.

In particular, in the field of compulsory motor liability insurance, such an association is the Russian Union of Insurers (RUA), membership in which is mandatory for insurers carrying out compulsory motor liability insurance 20 . They can be expelled from the RSA if a member of the RSA does not meet the requirements for a member of the RSA by the rules of professional activity, and/or if a member of the RSA, through his actions (inaction), causes significant harm to the interests of the RSA and/or the interests of other members of the RSA related to the implementation of they compulsory insurance 21 . Unlawful underestimation by the insurer of the amount of the insurance premium when participating in procurement falls precisely within these definitions.

1 See, for example, Federal Law No. 52-FZ of March 28, 1998 “On compulsory state insurance of life and health of military personnel, citizens called up for military training, private and commanding personnel of the internal affairs bodies of the Russian Federation, the State Fire Service, and control over the circulation of narcotic drugs and psychotropic substances, employees of institutions and bodies of the penal system"

2 Federal Law No. 40-FZ of April 25, 2002 “On compulsory insurance of civil liability of vehicle owners”

3 Federal Law No. 225-FZ of July 27, 2010 “On compulsory insurance of civil liability of the owner of a hazardous facility for damage caused by an accident at a hazardous facility”

4 P. 3 parts 1 tbsp. 84 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 Notice No. 0840100001016000081

6 Part 6 Art. 78 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 Notice No. 0358200032415000015

8 Notice No. 0187200001716000074

9 Notice No. 31603428646. This type of insurance is mandatory regardless of the type of transport and type of transportation in accordance with the provisions of Federal Law dated June 14, 2012 No. 67-FZ “On compulsory insurance of civil liability of the carrier for damage to life, health, property of passengers and on the procedure compensation for such damage caused during the transportation of passengers by metro"

10 Part 1 tbsp. 93 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”

11 Purchase No. 31603454677

12 Art. 8 and part 6 of Art. 9 of the Federal Law of April 25, 2002 No. 40-FZ “On compulsory insurance of civil liability of vehicle owners”

13 Order of the Government of the Russian Federation dated March 21, 2016 No. 471-r “On the list of goods, works, services, in the case of procurement of which the customer is obliged to conduct an auction in electronic form (electronic auction)”

14 Part 8 Art. 22 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 04/09/2015 No. D28i-979

15 See, for example, the Decision of the Sverdlovsk OFAS Russia dated January 29, 2016 in case No. 131-Z

16 See, for example, Decision of the Irkutsk OFAS Russia dated January 13, 2016 No. 3

17 Part 3.1 Art. 53 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 P. 1 part 1 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”

Compulsory civil liability insurance services for vehicle owners (OSAGO) are one of the most non-standard procurement items. Is there a way to purchase these services in which the requirements of the legislation on the contract system and the legislation on compulsory motor liability insurance are consistent with each other? This article is devoted to the search for an answer to this question.

Justification of the initial (maximum) contract price

As is known, the priority method for determining and justifying the initial (maximum) contract price (hereinafter referred to as NMCP) is the method of comparable market prices (market analysis) (Part 6, Article 22 of Law No. 44-FZ). However, if the prices of purchased services are regulated by the state, the tariff method is applied (Part 8 of Article 22 of Law No. 44-FZ).

As follows from Part 1 of Art. 8 of Federal Law No. 40-FZ of April 25, 2002 “On compulsory civil liability insurance of vehicle owners” (hereinafter referred to as Law No. 40-FZ), insurance rates for compulsory motor liability insurance are regulated by the Bank of Russia, which establishes:

1) maximum amounts of basic rates of insurance tariffs (their minimum and maximum values, expressed in rubles);

2) insurance rate coefficients;

3) requirements for the structure of insurance tariffs;

4) the procedure for applying insurance rates by insurers when determining the insurance premium under the MTPL agreement.

Currently, all of the specified parameters of insurance tariffs are determined by the Bank of Russia’s directive No. 3384-U dated September 19, 2014 (hereinafter referred to as the Central Bank of the Russian Federation directive N 3384-U). Thus, if the subject of the purchase is MTPL services, customers are required to use the tariff method when determining the NMCC, based on the maximum amounts of basic rates of insurance tariffs (see also the letter of the Ministry of Economic Development of Russia dated November 18, 2015 N D28i-3461 on this). Justification of the NMCC using the method of comparable market prices (market analysis) will lead to a violation of the requirements of Art. 22 of Law No. 44-FZ (see Resolution of the Federal Antimonopoly Service of the North-Western District dated September 4, 2015 in case No. A05-14192/2014).

What happens if the customer, ignoring all of the above, prepares a justification for the NMCC using the method of comparable market prices (market analysis)? In reality, nothing bad may happen. The fact is that insurers are also obliged to apply established insurance rates and do not have the right to apply rates and (or) coefficients that differ from the established ones (Part 6, Article 9 of Law No. 40-FZ). Therefore, when calculating the average market price based on the commercial proposals of insurers, the customer will actually receive the same result as in the case of an independent calculation of the NMCC using the tariff method: after all, all insurers will have to submit commercial proposals containing exactly the same calculation of the same price.

This incident received a legal assessment in the decision of the Krasnoyarsk OFAS Russia dated 06/09/2015 in case No. 610. In this case, the NMCC was justified by the method of comparable market prices (market analysis). For this purpose, commercial offers from various insurers were used, containing calculations made in accordance with the instructions of the Central Bank of the Russian Federation N 3384-U using the maximum value of the basic rates of insurance tariffs.

The commission of the Krasnoyarsk OFAS Russia noted that in this case the NMCC really should have been justified using the tariff method, because prices for purchased services are regulated by the instruction of the Central Bank of the Russian Federation N 3384-U. However, the use of an inappropriate method for justifying the NMCC did not actually have an impact on the results of the competition, since all its participants submitted applications with price proposals equal to the NMCC.

Drawing a conclusion from the above, we recommend that customers, when preparing the purchase of MTPL services, independently calculate the NMCC using the tariff method. In this case, the procurement documentation must necessarily indicate the price formula and the maximum value of the contract price. The customer has such an obligation by virtue of Part 2 of Art. 34 of Law No. 44-FZ and adopted in its development, Resolution of the Government of the Russian Federation of January 13, 2014 No. 19 “On establishing cases in which, when concluding a contract, the price formula and the maximum value of the contract price are indicated in the procurement documentation.”

Let's create an example of a formula for calculating the insurance premium for a vehicle of category "B", using the instructions of the Central Bank of the Russian Federation N 3384-U:

T = TB x CT x KBM x KO x KM x KS x KN x KPR,

T - the amount of the insurance premium payable under the compulsory insurance contract;

TB - the maximum value of the base rate of the insurance tariff;

CT - coefficient of insurance rates depending on the territory of primary use of the vehicle;

KBM - the coefficient of insurance rates depending on the presence or absence of insurance compensation in the event of insured events that occurred during the period of validity of previous compulsory insurance contracts (the "bonus-malus" coefficient);

KO - coefficient of insurance rates depending on the availability of information on the number of persons allowed to drive a vehicle;

KM - coefficient of insurance rates depending on the technical characteristics of the vehicle, in particular the engine power of a passenger car (vehicles of category "B");

KS - coefficient of insurance rates depending on the period of use of the vehicle;

KN - coefficient applied in the presence of violations provided for in paragraph 3 of Art. 9 of the Law on Compulsory Motor Liability Insurance;

KPR is the coefficient of insurance rates depending on the presence in the compulsory insurance contract of a condition providing for the possibility of driving a vehicle with a trailer attached to it.

An example of calculating the insurance premium for one vehicle using the above formula is contained in Table 1.

Table 1

Insurance premium calculation

Indicator name		Indicator value
Make, model of vehicle
Identification number (VIN)		XTT316300D0007677
Year of issue
Passenger car engine power, hp, permissible maximum weight of trucks
Minimum base rate
Maximum base rate
Odds	territories of primary use of vehicles (CT)
	KBM, determined from the AIS database of the Russian Union of Auto Insurers (RUA)
	depending on the availability of information on the number of persons admitted to management (CP)
	passenger car engine power (KM)
	depending on the period of use of the vehicle (KS)
	used in case of gross violations of insurance conditions (CI)
Minimum insurance premium, rub.
Maximum insurance premium, rub.

Based on the presented calculation, the initial (maximum) contract price for this vehicle will be equal to the amount of the insurance premium calculated using the maximum base rate (RUB 3,087) and will be RUB 9,607.36. Please note - it applies maximum base rate!

Nevertheless, it is widespread among customers to use minimum base rates of insurance tariffs for the purposes of calculating NMCC when purchasing MTPL services. It must be said that only in some cases do control authorities “notice” this violation: for example, the commission of the North Ossetian OFAS Russia in a decision dated June 23, 2015 in case No. A24-6-06/15 noted that the calculation of the insurance premium was made by the customer using the minimum rate of the basic insurance rate and for this reason does not contain the maximum value of the contract price. The antimonopoly authority recognized the specified actions of the customer as violating the requirements of Part 2 of Art. 34, paragraph 2 of Art. 42, paragraph 1, part 3, art. 49 and part 1 of Art. 59 of Law No. 44-FZ, as well as Decree of the Government of the Russian Federation of January 13, 2015 No. 19. The “selective” susceptibility of control bodies to such a violation is quite understandable: after all, by “erring” in the smaller direction, customers save budget funds.

Description of the procurement object

The procurement documentation must contain indicators that make it possible to determine the compliance of the purchased services with the requirements established by the customer (Part 2 of Article 33 of Law No. 44-FZ). In the case of the purchase of MTPL services, this means the customer’s obligation to include in the description of the procurement object all the information that potential procurement participants will need to calculate the insurance premium in accordance with the instructions of the Central Bank of the Russian Federation N 3384-U. Based on the calculation of the NMCC performed by the customer himself (Table 1), we can easily determine the composition of such information (Table 2).

table 2

Description of the procurement object

Indicator name	Indicator value
Make, model of vehicle
Identification number (VIN)	XTT316300D0007677
Year of issue
State registration plate
Passenger car engine power, hp, permissible maximum weight of trucks
KBM determined from the AIS RSA database
Period of use of the vehicle, months
Start date of the insurance period

If the description of the procurement object does not contain any of the specified information, it is likely that insurers will complain about the inability to calculate the contract price proposal. For example, if the description of the procurement object does not contain identification numbers (VIN) of vehicles, insurers will not be able to obtain information about the bonus-malus coefficient (BMR) for the specified vehicles from the automated information system for compulsory insurance (AIS RSA). Such conclusions are contained in the decision of the Ryazan OFAS Russia dated January 21, 2016 in case No. 18-03-2/2016, the decision of the Karelian OFAS Russia dated March 16, 2015 in case No. 04-18/20-2015, etc.

In the decision of the Irkutsk OFAS Russia dated August 11, 2015 in case No. 379, rather far-reaching conclusions were drawn from such indication of information about the procurement object. As the antimonopoly authority indicated, in this case, only the person who provided the customer with MTPL services in the previous insurance period has reliable information about the indicators necessary to calculate the insurance premium. This can be regarded both as an advantage provided to such a person and as an advantage provided to other procurement participants. In the absence of information about the CBM, insurers may apply incorrect values ​​of this coefficient (assuming a priori accident-free driving) and make a more favorable offer for the price of the MTPL contract than a person who has information about the presence of insured events in the previous insurance period. According to the antimonopoly authority, the absence of information required for the purchase of MTPL services leads to a violation of the requirements of Part 1 of Art. 17 of the Federal Law of July 26, 2006 N 135-FZ “On the Protection of Competition”, since such actions of the customer may lead to the refusal of a number of insurance organizations to participate in this purchase due to insufficient information to calculate the price offer.

To be fair, we note that the belief in the need to indicate the vehicle identification number (VIN) in the purchase description is not shared by all territorial bodies of the FAS Russia. For example, the commission of the Novosibirsk OFAS Russia in decision dated 02/17/2016 N 08-01-37 on a similar case came to the conclusion that the legislation on the contract system in the field of procurement does not oblige the customer to indicate information about vehicle identification numbers (VIN).

It is important that all problems associated with the procurement of MTPL services in accordance with the requirements of Law N 44-FZ do not lose their relevance even if MTPL services are purchased in accordance with Law N 223-FZ. For example, by virtue of clause 1, part 10, art. 4 of Law N 223-FZ, procurement documentation must also contain requirements related to determining whether the service provided meets the customer’s needs. And the FAS Russia authorities similarly recognize as justified the complaints of procurement participants about the absence in the procurement documentation of the information necessary for calculating the insurance premium.

An example is the decision of the Orenburg OFAS Russia dated March 11, 2016 in case No. 07-16-23/2016, which considered the complaint of AlfaStrakhovanie OJSC about the actions of the customer when conducting a request for quotes in accordance with the requirements of Law No. 223-FZ. Complaints from the insurer were caused by the fact that the customer indicated only the make of the vehicle, the year of its manufacture, the state number and the expiration date of the MTPL policy. The antimonopoly authority recognized the insurer's complaint as justified, since the customer did not indicate the characteristics necessary to calculate the insurance premium, which could lead to an incorrect calculation of the insurance premium by potential procurement participants and thereby a violation of their legal rights and interests.

Separately, it is worth mentioning the features associated with determining the value of the bonus-malus coefficient (BMR). According to Appendix No. 2 to the instruction of the Central Bank of the Russian Federation No. 3384-U, if during the period of validity of previous OSAGO contracts there were no insurance compensations upon the occurrence of insured events, then the value of the CBM for each subsequent insurance period (one year) is reduced. Therefore, when justifying the initial (maximum) price of the contract, which will be concluded based on the results of the purchase for the next insurance period, it is necessary to take into account the downgrade of the KBM class.

Thus, in the decision of the Novosibirsk OFAS Russia dated September 25, 2015 in case No. 0801-377, the situation was considered when the customer, when justifying the initial (maximum) price of the contract to be concluded for the next insurance period, indicated the KBM for the current insurance period. The antimonopoly authority considered that, in connection with this, the procurement participants submitted incorrect price proposals. The customer was found to have violated the requirements of Art. 22 of Law No. 44-FZ when justifying the NMCC.

Choosing a method for determining the contract executor

At first glance, what problems could there be here? After all, the customer chooses the method of determining the contractor, guided by the provisions of Chapter. 3 of Law No. 44-FZ (Part 5 of Article 24 of the said Law) - and only by them. And if we proceed only from the provisions of the legislation on the contract system as such, there is no way of determining the executor of a contract for the provision of MTPL services that the customer could not use. However, upon closer examination, it turns out that not everything is so simple...

For example, a request for quotations can be carried out if the planned contract price does not exceed 500 thousand rubles, and the annual volume of purchases carried out through a request for quotations does not exceed 10% of the total annual volume of purchases of the customer and not more than 100 million rubles. (Part 2 of Article 72 of Law No. 44-FZ). It would seem that Law No. 44-FZ does not provide for any additional conditions for purchasing through a request for quotation!

However, it is necessary to take into account that the winner of the request for quotation is the procurement participant who offered the lowest contract price (Part 1, Article 72 of Law No. 44-FZ). If the lowest contract price was offered by several participants in the request for quotation, the winner of the request for quotation is the participant who submitted the quotation application before others (Part 6, Article 78 of Law No. 44-FZ).

The problem arising in this regard received a legal assessment in the Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated July 29, 2015 in case No. A38-4680/2014. The court indicated that the price for compulsory motor liability insurance services (amount of insurance premium) for specific vehicles is fixed and cannot change during the procurement. Consequently, in the case of a request for quotations for MTPL services, procurement participants are deprived of the opportunity to offer the “lowest contract price” and can compete with each other only in terms of the time of submission of the application, which does not correspond to the principles of determining the contract executor by requesting quotations.

Based on the foregoing, the court came to the conclusion that the purchase of MTPL services through a request for quotations does not meet the procurement goals established in Law No. 44-FZ, and the customer violated the requirements of Part 5 of Art. 24, part 2 art. 48, part 1 art. 73 of Law No. 44-FZ when choosing a procurement method. The court emphasized that this conclusion corresponds to the explanations of the Federal Antimonopoly Service of Russia, as well as the position of the Supreme Arbitration Court of the Russian Federation, set out in the Determination of November 21, 2012 N VAS-14998/12.

Similar conclusions are contained in the Resolution of the Federal Antimonopoly Service of the North-Western District dated September 4, 2015 in case No. A05-14192/2014, as well as in the decisions of the Moscow OFAS Russia dated November 16, 2015 in case No. 2-57-10216/77-15, and the Bryansk OFAS Russia dated 12/12/2014 in case No. 467 and others. According to these antimonopoly authorities, the purchase of compulsory motor liability insurance services can and should be carried out exclusively in the form of an open tender.

What can be said about electronic auctions? An auction is understood as a method of determining the executor of a contract, in which the winner is the procurement participant who offered the lowest contract price (Part 4, Article 24 of Law No. 44-FZ). Based on the provisions of the legislation on the contract system, the customer has the right use an auction for the purpose of purchasing absolutely any goods, works and services (Part 3 of Article 59 of Law No. 44-FZ). In this case, the subject of procurement may be included by the Government of the Russian Federation in the list of goods, works and services, in the procurement of which the customer must conduct an electronic auction (Part 2 of Article 59 of Law No. 44-FZ, Order of the Government of the Russian Federation dated October 31, 2013 No. 2019-r). However, taking into account the exceptions to this obligation, this only means the absence of the right to hold a tender: even if the subject of purchase is included in the specified list, the request for quotations, request for proposals and purchase from a single supplier (contractor, performer) still remain in the customer’s arsenal. However, services for civil liability insurance of vehicle owners (OKPD2 65.12.21.000, corresponds to OKPD 66.03.21.000) are not included in the specified list.

Thus, based on the provisions of the legislation on the contract system, customers have every right to purchase MTPL services through an electronic auction. But just as in the case of a request for quotations, the properties of this method of determining the executor of a contract turn out to be very questionable from the standpoint of compliance with the MTPL Law. This was well shown in the decision of the Tyvinsky OFAS Russia dated April 14, 2015 in case No. 05-05-06/21-15.

Having analyzed articles 8, 9, 15 of the Law on OSAGO, the antimonopoly authority indicated that the price of the contract for the provision of OSAGO services (insurance premium for a specific vehicle fleet) cannot be lower than the applicable basic tariff rates and coefficients approved by the Bank of Russia. Consequently, a procurement participant who conscientiously fulfills the requirements of the Law on Compulsory Motor Liability Insurance does not have the right to offer a price lower than that calculated taking into account the instructions of the Central Bank of the Russian Federation N 3384-U. But the essence of an electronic auction is precisely that its participants strive to offer the lowest price!

In connection with the above, the commission of the Tyvinsky OFAS Russia recognized the purchase of MTPL services through an electronic auction as unlawful. If there are mandatory insurance rates for all procurement participants and a list of specific vehicles offered by the customer for insurance, the contract price is predetermined. The antimonopoly authority considered that in such conditions, the method chosen by the customer to determine the contract executor - an electronic auction - does not take into account the specifics of MTPL services and does not comply with the provisions of Part 2 of Art. 59 of Law No. 44-FZ.

Similar conclusions are contained in the decisions of the Ulyanovsk OFAS Russia dated 04/11/2014 in case No. 10808/03-2014, the Bryansk OFAS Russia dated 03/24/2014 N 65, etc. According to these antimonopoly authorities, the only legal way to determine the executor of a contract for the provision of MTPL services is open competition.

However, not all territorial bodies of the FAS Russia adhere to this position (in our opinion, the only reasonable one). Thus, the decision of the Sverdlovsk OFAS Russia dated August 20, 2015 in case No. 1120-Z states that customers, by virtue of Part 3 of Art. 59 of Law N 44-FZ have the right to carry out purchases through an electronic auction, incl. and such goods, works and services that are not included in the list approved by Order of the Government of the Russian Federation dated October 31, 2013 N 2019-r. Similar conclusions are shared by the Novosibirsk OFAS Russia (see, for example, the decision of September 25, 2015 in case No. 08-01-377, etc.) and a number of other territorial departments.

How to deal with an insurer's price offer that does not comply with the MTPL Law?

As shown above, in relation to a specific fleet of vehicles subject to insurance, a contract price (insurance premium) cannot be offered that differs from that calculated in accordance with the instructions of the Central Bank of the Russian Federation N 3384-U. The question arises: should the procurement commission reject applications from those insurers who offered a different price for MTPL services?

In fact, this issue is perhaps the most pressing of all those related to the procurement of MTPL services. The fact is that a procurement participant who has made a price offer in violation of the requirements of the legislation on compulsory motor liability insurance (as a rule, in the direction of underestimating the amount of the insurance premium) receives a competitive advantage over procurement participants who conscientiously fulfill the specified requirements, and according to the rules for determining the contract executor, there must be recognized as the winner of the relevant competitive procedure. At the same time, the legislation on the contract system in many cases does not provide mechanisms for rejecting applications from such procurement participants. Finding itself in such a situation - which, by the way, is quite common - the procurement commission is forced to choose between two evils: whether to violate the requirements of the legislation on the contract system or the requirements of the legislation on compulsory motor liability insurance. And no matter what decision it makes, there is always a risk that the control body will not agree with it.

For example, certain territorial bodies of the Federal Antimonopoly Service of Russia believe that when purchasing MTPL services through a request for quotation, quotation applications containing an improper price proposal should be rejected.

Thus, the commission of the Vologda OFAS Russia, in decision dated April 28, 2014 N 5-2/60-14, considered the following situation. When conducting a request for quotation, the NMCC was calculated based on the minimum size of base rates and amounted to 213,119.52 rubles. 6 applications were submitted for participation in this request for quotations, and in 5 of them the procurement participants offered a contract price equal to the NMCC (i.e. 213,119.52 rubles), and in one - 213,119.35 rubles. The procurement participant who offered the last of the named prices was declared the winner of the request for quotations on the basis of Part 6 of Art. 78 of Law No. 44-FZ.

The procurement participant, who submitted a price proposal of 213,119.52 rubles earlier than others, appealed to the antimonopoly authority with a complaint about the actions of the customer’s quotation commission. Having studied the case materials, the commission of the Vologda OFAS Russia found that in the quotation application of the winner of the request for quotations when calculating the proposal for the contract price, rounding was done without observing the mathematical rule of rounding numbers to hundredths. In this regard, the antimonopoly authority recognized this procurement participant as violating Part 2 of Art. 8 of Law N 44-FZ, which prescribes compliance with the principle of fair price and non-price competition between procurement participants and prohibits all participants in the contract system from committing any actions that violate the requirements of the legislation on the contract system.

As for the customer, the commission he created was found to have violated Part 7 of Art. 78 of Law No. 44-FZ. As follows from this norm, the quotation commission does not consider and rejects applications for participation in the request for quotation if they do not meet the requirements established in the notice of the request for quotation. And the customer in this case established in the technical specifications included in the notice the requirement that the total price of the quotation offer should be calculated by the insurer in accordance with the current legislation on compulsory motor liability insurance (using established insurance tariffs, etc.).

Considering a similar situation, the commission of the Mordovian OFAS Russia in its decision dated January 13, 2015 in case No. 428 came to the opposite conclusions. The antimonopoly authority indicated that, by virtue of Part 7 of Art. 78 of Law N 44-FZ, the quotation commission does not consider and rejects applications for participation in the request for quotation only in three cases:

1) if they do not meet the requirements established in the notice of the request for quotation;

2) the contract price proposed in such applications exceeds the NMCC specified in the notice of the request for quotation;

3) the participant in the request for quotations did not submit the documents and information provided for in Part 3 of Art. 73 Law No. 44-FZ.

Rejection of applications to participate in the request for quotation on other grounds is not permitted. Since the procurement participant’s price offer did not exceed the NMCC, the customer’s quotation commission had no grounds for rejecting the controversial quotation application.

This approach is quite widespread. Thus, the commission of the Novgorod OFAS Russia in decision dated December 4, 2015 N 6688/03, in addition to the arguments already considered, indicated that Law N 44-FZ does not provide for the customer’s right to demand calculation of the price offer as part of the quotation application and, as a result, does not provide for the obligation the customer and the quotation commission to check the correctness of the calculation of the price proposed by the contract participant. See also the decision of the Krasnodar OFAS Russia dated December 30, 2015 in case No. ZK-73/2015 and others.

Let us note the difference between the two above approaches of the territorial bodies of the FAS Russia: in the first case, the antimonopoly authority considers it possible and necessary to reject a quotation application with an improper price on the basis of Part 7 of Art. 78 of Law N 44-FZ, since the customer established the corresponding requirement for price calculation as part of the notice of a request for quotation. The existence of such logic is also confirmed by the decision of the Pskov OFAS Russia dated December 18, 2014 in case No. 44-143/14: the antimonopoly authority considered that the customer’s quotation commission in this case had no grounds for rejecting the quotation application, since the form of the quotation application provided for in this purchase obligated the procurement participant to indicate only a proposal for the contract price, but not its calculation.

But the decision of the Omsk OFAS Russia dated July 28, 2014 N 03-10.1/394-2014 states that the non-compliance of the contract price proposed by the procurement participant with the requirements of the legislation on compulsory motor liability insurance is an absolute basis for recognizing the quotation bid as not meeting the requirements of the notice of request for quotation. Based on the foregoing, the quotation commission, by definition, is obliged to reject quotation bids if the contract price proposed in them differs from that indicated in the notice of the request for quotation. The same position was expressed in the decision of the Buryat OFAS Russia dated December 14, 2015 N 04-50/411-2015.

So far we have been talking about requests for quotes. In the case of electronic auctions, the situation is somewhat different: for contrast, we cite the decision of the same Omsk OFAS Russia dated December 26, 2014 in case No. 03-10.1/668-2014.

In this case, the procurement participant offered the lowest price during the electronic auction and became the winner. The second part of the application of this procurement participant was considered by the auction commission in the manner established by Art. 69 of Law N 44-FZ, and was recognized as meeting the requirements of the auction documentation. The commission of the antimonopoly authority agreed with the customer that Law No. 44-FZ does not provide for the obligation of an electronic auction participant to provide a calculation of the price proposal submitted by him as part of the application and does not provide for the right of the customer or his auction commission to demand that the procurement participant provide such a calculation. Thus, cases where the second part of the application is recognized as not meeting the requirements of the auction documentation, established by Part 6 of Art. 69 of Law N 44-FZ, did not allow the customer’s auction commission to recognize the application of an unscrupulous winner of an electronic auction as not meeting the requirements.

Similar conclusions are also contained in the decision of the Trans-Baikal OFAS Russia dated December 8, 2014 in case No. 379 and others. Similarly, recognizing the hopelessness of the situation taking into account the legal regime of the electronic auction, the Sverdlovsk OFAS Russia in a decision dated August 20, 2015 in case No. 1120-Z recommends that persons whose rights and legitimate interests have been violated, contact the Russian Union of Auto Insurers to consider the issue of the legality of the actions of the procurement participants who reduced the price of the contract for the provision of compulsory motor insurance services.

However, there is another approach to the problem under consideration, an example of which is the decision of the Novosibirsk OFAS Russia dated December 17, 2015 N 08-01-507. The complainant indicated that the insurance premium for all compulsory insurance items should be at least 61,738.90 rubles, while the winner of the electronic auction offered a price of 61,738.88 rubles. (i.e. 2 kopecks lower than what is obtained when calculating the insurance premium in accordance with the instructions of the Central Bank of the Russian Federation N 3384-U).

The customer reported that the winner of the electronic auction correctly calculated the insurance premium for each individual vehicle, but the final price was calculated in Microsoft Excel with automatic rounding, and therefore amounted to 61,738.88 rubles. In connection with the above, the customer asked that the complaint be declared unfounded.

Having studied the case materials, the commission of the antimonopoly authority found that with manual summation of the insurance premium for each vehicle, the final amount of the contract price would be 61,738.90 rubles. Consequently, the winner of the electronic auction provided the customer with false information, indicating an incorrect contract price.

The commission of the Novosibirsk OFAS Russia indicated that if the information contained in the documents submitted by a participant in an electronic auction is determined to be unreliable, the auction commission is obliged to remove such participant from participation in the electronic auction at any stage of its conduct (Part 6.1 of Article 66 of Law No. 44-FZ) . By analogy with this rule, if it is established that the information contained in the price proposal submitted by a participant in an electronic auction during an auction is unreliable, the auction commission is obliged to remove such participant from participation in the electronic auction at any stage of its conduct, since the contract cannot be concluded at such a price proposal.

Another instructive case is associated with the issues of legality/illegality of mathematical rounding when calculating the contract price, which was considered in the decision of the Tambov OFAS Russia dated March 2, 2015 in case No. RZ-17/15. The customer held an open tender, calculating the NMCC based on the maximum base rates of insurance tariffs provided for by the instruction of the Central Bank of the Russian Federation N 3384-U, in the amount of 231,843.58 rubles. Two applications were submitted for participation in the open competition: 219,751.96 and 219,751.97 rubles. (with a difference of 1 kopeck). The procurement participant who proposed the contract price for 1 kopeck. higher than that of its competitor, appealed to the antimonopoly authority with a complaint about the latter’s unlawful admission to participate in the competition. According to the complainant, the customer's competition commission should have rejected the application of the winner of the open competition due to the improper calculation of the insurance premium contained in it.

Having studied the case materials, the commission of the Tambov OFAS Russia indicated that the customer was not vested with the authority to recalculate the contract price proposed by the participants in the open tender. Control over the correctness of insurers' calculation of insurance premiums under MTPL contracts is exercised by the Bank of Russia (Part 6, Article 9 of the MTPL Law).

An application for participation in a competition is recognized as proper if it meets the requirements of Law No. 44-FZ, the notice of procurement and competition documentation, and the procurement participant who submitted the application meets the requirements for it (Part 2 of Article 53 of Law No. 44-FZ). In this regard, the customer’s competition commission had no legal grounds for rejecting the application of the procurement participant who offered the contract price 1 kopeck less than other procurement participants.

In addition, the antimonopoly authority took into account the customer’s explanation that the controversial price offer could not be considered unreliable even if the competition commission had the appropriate powers. The fact is that there are 3 options for calculating the specified price:

219751.96 - automatic calculation for 45 machines, the minimum basic tariff, provided coefficients with numerical rounding in the Microsoft Excel program (automatic calculation 2 decimal places);

219751.9632 - automatic calculation for 45 machines, the minimum basic tariff, provided coefficients (without rounding) in the Microsoft Excel program (automatic calculation 4 decimal places);

219,751.97 - manual calculation for 45 machines, the minimum basic tariff, provided coefficients (rounded to tenths) in the Microsoft Excel program (manual calculation).

At the same time, the tender documentation did not establish the rounding order and the number of significant digits after the decimal point involved in the calculation.

However, another position should be taken into account on the issue of the legality of rejecting competitive bids if they contain an improper calculation of the insurance premium. Thus, in the decisions of the Tatarstan OFAS Russia dated 06/03/2015 in case No. 135-kz/2015, dated 07/02/2015 N IP-04/8876, the rejection of the competitive application was recognized as legitimate, since when calculating insurance premiums, procurement participants applied the base rates of insurance tariffs that were beyond the minimum values ​​provided for by the instructions of the Central Bank of the Russian Federation N 3384-U.

The fact that “freedom of action” in relation to the cost of compulsory motor insurance services is strictly limited by the maximum values ​​​​established by the Bank of Russia may have another non-trivial consequence, which is well illustrated by the decision of the Krasnoyarsk OFAS Russia dated May 19, 2015 in case No. 500. In this case, the participants procurement appealed the customer’s violation of the procedure for canceling an open tender.

Having studied the case materials, the antimonopoly authority established that during the period for submitting competitive applications, changes were made to the instruction of the Central Bank of the Russian Federation N 3384-U, as a result of which the maximum amounts of basic tariff rates and insurance tariff coefficients began to differ from those that were taken as a basis when formation of the NMCC. At the same time, the price proposals received from the competition participants were formed both taking into account the changes that had occurred (i.e. not in strict accordance with the competition documentation) and without taking them into account. Due to the impossibility of reviewing and evaluating competitive bids, the customer decided to cancel the purchase.

The commission of the Krasnoyarsk OFAS Russia took the side of the customer, pointing out that in the current situation it is not possible to fairly evaluate competitive bids: applications sent in accordance with the new tariffs cannot be recognized as meeting the requirements of the tender documentation, and applications drawn up on the basis of the provisions of the tender documentation , cannot be considered relevant, since they contradict the provisions of the legislation on compulsory motor liability insurance.

The antimonopoly authority indicated that relations in the field of the contract system must comply with the fundamental general principles of law, including the principles of good faith, reasonableness and fairness, applied to the subjects of relations, which determine the nature of the subjects’ behavior during the period of emergence and existence of these relations. “Integrity” means the actual honesty of subjects in their behavior, “reasonableness” means awareness of the legality of one’s behavior, “justice” means the compliance of subjects’ behavior with moral, ethical and ethical standards.

The commission of the Krasnoyarsk OFAS Russia considered the customer’s actions to cancel the procurement in connection with the above factual circumstances to be conscientious and reasonable, since they were aimed at eliminating the unfair procedure for considering and evaluating competitive applications, unequal treatment of the conscientious behavior of procurement participants, as well as restoring legal order in legal relations arising during the procurement.

Open competition for MTPL services

Much has been said above about the problems associated with the procurement of MTPL services through requests for quotations and electronic auctions. The conclusion suggests itself that of all the competitive methods for determining the contract executor, the most optimal for the purposes of purchasing MTPL services is an open competition. Of course, it is difficult to disagree with this - after all, the winner of the competition is the procurement participant who offered the best conditions for the execution of the contract (Part 3, Article 24 of Law No. 44-FZ), which means that the customer has the opportunity to compare competitive bids not only by the contract price , which, if calculated correctly, will be the same for all procurement participants.

At the same time, choosing a competition as a way to determine the executor of a contract is not a panacea for all ills. The specificity of MTPL services makes itself felt in this case as well.

As provided in Part 8 of Art. 53 of Law N 44-FZ, the best conditions for the execution of the contract are determined on the basis of the criteria specified in the tender documentation. In accordance with Part 2 of Art. 32 of Law No. 44-FZ, the customer may establish in the procurement documentation the following criteria for evaluating applications from procurement participants:

Contract price;

Expenses for operation and repair of goods, use of work results;

Qualitative, functional and environmental characteristics of the procurement object;

Qualifications of procurement participants, including their availability of financial resources, ownership or other legal basis of equipment and other material resources, work experience related to the subject of the contract, and business reputation, specialists and other employees of a certain skill level.

The first two criteria are among the cost criteria, the last two are among the non-cost criteria. The customer is obliged to indicate in the procurement documentation the criteria used and the magnitude of their significance. In this case, the number of criteria used must be at least two, and one of them must be the contract price (Part 4, Article 32 of Law No. 44-FZ). The maximum values ​​for the significance of cost and non-cost criteria for evaluating competitive applications are established in the appendix to the Rules for evaluating applications, final proposals of participants in the procurement of goods, works, services to meet state and municipal needs (approved by Decree of the Government of the Russian Federation of November 28, 2013 N 1085). In particular, when providing services, the minimum importance of cost evaluation criteria is 60%, and the maximum importance of non-cost criteria is 40%.

It is the development of a system of indicators for evaluating participants’ proposals based on non-cost criteria that poses the greatest difficulty in preparing tender documentation for the provision of compulsory motor insurance services. For example, according to the criterion "quality, functional characteristics of the services provided" The rating of the procurement participant can be determined taking into account the quality of service it offers in the event of an insured event. Here is how, for example, this was done in purchase N 0828100000416000011 (Table 3).

Table 3

Indicators of the criterion “quality of services and qualifications of the competition participant”	Member value	Maximum number of points
Availability of a 24-hour dispatch service to support insurance claims
Departure to the scene of an accident from the moment of receiving a message about such a need from the customer of the emergency commissioner within:
Possibility of calling a tow truck around the clock for free transportation of the customer’s car from the scene of the accident to the place of repair or storage
Ensuring the inspection of the customer’s vehicle that received technical damage in an accident, and (or) conducting an independent examination
Promptness of compensation for losses under compulsory motor liability insurance (after filing an application from the state customer) no more than 10 days
Possibility of legal support in collecting documents to receive payment for an insured event

According to one of the procurement participants, the establishment of the indicator “The presence of representative offices for the settlement of losses in the insurance company in the cities of the Vladimir region (Vladimir, Alexandrov, Vyazniki, Gus-Khrustalny, Kovrov, Kolchugino, Melenki, Murom, Petushki, Sudogda, Suzdal, Yuryev-Polsky) with addresses and telephone numbers" leads to a potential limitation of the number of insurance companies that could take part in this purchase, and creates advantages for those of them that have an extensive branch network. As the participant indicated in the complaint sent by him to the Vladimir OFAS Russia, only one insurance company in Russia has representative offices for the settlement of losses in all cities of the Vladimir region, as well as in all cities of each of the constituent entities of the Russian Federation, which initially puts other insurance companies, who will take part in this open competition are in a losing position. According to the complainant, the customer’s actions violate the requirements of Part 1 of Art. 17 of the Federal Law of July 26, 2006 N 135-FZ “On the Protection of Competition”.

In his objections to the complaint, the customer (Center for Economic and Service Support of the Office of the Ministry of Internal Affairs of Russia for the Vladimir Region) explained that the object of the purchase is motor insurance, a significant part of which was transferred for free use to the territorial bodies of the Ministry of Internal Affairs of Russia at the district level for permanent operation outside the city of Vladimir . It is in this regard that the customer needs representation of the insurance company at the location of the vehicle (including to receive on-site legal support when collecting documents to receive payment for an insured event (subcriterion 6 of the criterion “Quality, functional characteristics of the services provided”), as well as additional free legal assistance (subcriterion 9 of the criterion “Quality, functional characteristics of the services provided”)). The customer emphasized that the requirements for the number of representative offices of the insurance company are minimal and include only large cities of the Vladimir region, on the territory of which (including adjacent areas) the customer’s cars are operated. The list does not include cities in the Vladimir region that are located at a minimum distance from the cities specified by the customer (Raduzhny, Sobinka, Kameshkovo, Kirzhach). Thus, the presence of representative offices of the procurement participant in all cities of the Vladimir region is not required.

By decision of the Vladimir OFAS Russia dated February 19, 2016 N G 65-04/2016, the complaint was declared unfounded, since it was not proven that the establishment of a controversial indicator led to a reduction in the number of procurement participants. In addition, the antimonopoly authority took into account that four applications were submitted to participate in the procurement in question.

In the decision of the Krasnoyarsk OFAS Russia dated December 3, 2014 in case No. 1178, the indicators of the non-cost criterion established by the customer received a legal assessment "qualification of the competition participant". In particular, the customer assessed, from 0 to 100 points, the presence or absence of experience in providing similar services to budgetary or government institutions located in the Krasnoyarsk Territory for the last 3 years preceding the deadline for submitting applications for participation in the competition, including:

Lack of information on experience in providing similar services to budgetary or government institutions located in the Krasnoyarsk Territory for the last 3 years preceding the deadline for submitting applications for participation in the competition - 0 points;

Documents are presented confirming experience in providing similar services to budgetary or government institutions located in the Krasnoyarsk Territory over the last 3 years preceding the deadline for submitting applications for participation in the competition, in a volume of less than 100 contracts/agreements, - 25 points;

Documents are presented confirming experience in providing similar services to budgetary or government institutions located in the Krasnoyarsk Territory over the last 3 years preceding the deadline for filing applications for participation in the competition, in the amount of from 100 to 450 contracts/agreements (inclusive), - 50 points;

Documents are presented confirming experience in providing similar services to budgetary or government institutions located in the Krasnoyarsk Territory over the last 3 years preceding the deadline for submitting applications for participation in the competition, in the amount of more than 450 contracts/agreements, - 100 points.

Having studied the case materials, the antimonopoly authority established that, by virtue of Part 1 of Art. 21 of the Law on Compulsory Motor Liability Insurance, in each constituent entity of the Russian Federation there must be representatives of the insurer authorized to consider claims of victims for insurance payments and direct compensation for losses, as well as to make insurance payments and direct compensation for losses. The service for concluding MTPL contracts must be provided in any separate division of the insurer (branch). In connection with the above, the commission of the Krasnoyarsk OFAS Russia came to the conclusion that the legislation on compulsory motor liability insurance does not provide for any differences between the constituent entities of the Russian Federation: compulsory motor liability insurance services are provided the same throughout the entire territory of Russia. This means that there is no reason to believe that the experience of providing MTPL services in other territories is in any way different from the experience in the Krasnoyarsk Territory.

In addition, the antimonopoly authority considered it incorrect to reduce possible experience in providing MTPL services only to experience in providing such services specifically budgetary or government institutions located on the territory of the Krasnoyarsk Territory. Again, no specific features of the legal regime for the provision of MTPL services budget and government institutions are not established by the legislation on compulsory motor liability insurance. As a result, the commission of the Krasnoyarsk OFAS Russia recognized the customer’s actions as violating the rights and legitimate interests of the procurement participants, as well as the requirements of Art. 50 Law No. 44-FZ.

When purchasing MTPL services through a competition, another problem may arise. In this case, the features of submitting applications for participation in the competition, namely the rules for determining the order of submitted applications, come to the fore. The numbers assigned to competitive applications as they are submitted can play an important role in their evaluation: as mentioned above, the minimum significance of the “contract price” criterion when conducting a competition for the provision of services is 60%, and the contract price offered by the competition participants if calculated correctly they will all have the same one.

Let us remind you that in accordance with Part 7 of Art. 53 of Law N 44-FZ, the competition commission assigns a serial number to each application for participation in the competition in order of decreasing degree of profitability of the contract execution conditions contained therein. Thus, the application for participation in the competition, which contains the best conditions for the execution of the contract, is assigned the first number. And if several competitive bids contain the same conditions for the execution of the contract, a lower serial number is assigned to the bid that was received earlier than other bids containing the same conditions.

By virtue of Art. 43 of Law N 44-FZ, before the deadline for submitting applications for participation in an open competition, a procurement participant has the right to make changes to its application. In this regard, the question arises: what will be the final serial number of the competitive bid if the procurement participant made changes to it? In other words, should the filing date of an application be considered the date of filing the original version of such an application or the date of filing the latest amendments to it? This issue was investigated by the Murmansk OFAS Russia in a decision dated January 29, 2016 in case No. 06-10/16-16.

As it was established by the antimonopoly authority, the procurement participant submitted its competitive bid on December 1, 2015 at 09:00, and in accordance with the protocol for opening envelopes with competitive bids, this application was assigned serial number 1. However, before the deadline for submitting competitive bids, namely 15.12 .2015, the procurement participant made changes to its application, supplementing it with the original extract from the Unified State Register of Legal Entities and a copy of the payment order confirming the transfer of funds as security for the application for participation in the open tender. In accordance with the protocol for opening envelopes with competitive bids, the new version of the application received serial number 8. When considering and evaluating competitive bids, the customer’s competition commission assigned the fourth serial number to the procurement participant’s application, considering the date of submission of the application to be the date of the last changes to it (12/15/2015), and not the date of filing the initial version of the application (12/01/2015). The procurement participant did not agree with this decision of the customer’s tender committee, appealing it to the antimonopoly authority.

The Murmansk OFAS commission recognized the complaint as unfounded, considering that the assessment of the procurement participant’s application and the assignment of a serial number to it can only be carried out taking into account all the changes received. The antimonopoly authority referred, among other things. and to letters from the Ministry of Economic Development of Russia dated June 11, 2015 N D28i-1758, dated October 27, 2015 N D28i-3110, dated October 16, 2015 N D28i-3006, dated October 15, 2015 N D28i-3002, dated October 14, 2015 N D28i-3011 , dated 10/12/2015 N D28i-2988, dated 10/09/2015 N D28i-3003, D28i-2986, D28i-2990, D28i-2991, D28i-2989, according to which the date of filing an application for participation in the competition should be considered the date of filing the latter changes to the application.

Requirements for procurement participants

By virtue of clause 1, part 1, art. 31 of Law N 44-FZ, when making purchases, the customer must require procurement participants to comply with the requirements established by the legislation of the Russian Federation. What are the requirements for participants in the procurement of MTPL services?

Insurers providing MTPL services are classified as insurance organizations (Article 1 of the MTPL Law). In accordance with Part 2 of Art. 4.1 of the Law of the Russian Federation dated November 27, 1992 N 4015-1 “On the organization of insurance business in the Russian Federation,” insurance organizations are recognized as subjects of the insurance business and their activities are subject to licensing. Federal Law dated May 4, 2011 N 99-FZ “On licensing of certain types of activities” also includes insurance activities among the licensed types of activities (clause 11, part 1, article 12).

Thus, a mandatory requirement for participants in the procurement of MTPL services is the requirement to have a valid license to carry out insurance activities. At the same time, the license must indicate a specific type of insurance - “insurance of motor vehicles subject to compulsory motor third party liability insurance (MTPL).”

Another mandatory requirement for insurers is the requirement for their membership in a professional association of insurers (Part 2 of Article 21 of the Law on Compulsory Motor Liability Insurance). In practice, this norm is implemented in the form of a requirement for procurement participants to be members of the Russian Union of Auto Insurers (RUA), confirmed by an appropriate certificate.

At the same time, the requirements for participants in the electronic auction on the basis of clause 1, part 1, art. 31 of Law N 44-FZ, as well as an exhaustive list of documents that must be submitted by them to confirm their compliance with such requirements, must be established in the notice of an electronic auction and in the auction documentation (see clause 6, part 5, article 63 , paragraph 1 of Article 64 of Law No. 44-FZ). For example, the commission of the Sverdlovsk OFAS Russia, in a decision dated August 20, 2015 in case No. 1120-Z, noted a violation of the specified norms of legislation on the contract system in the actions of the customer, who established the specified requirements for insurers in the description of the procurement object, and not in the notice of an electronic auction and in the auction documentation.

Customers should keep in mind that the requirement to have a license to carry out insurance activities is presented directly to the procurement participant, and it is the procurement participant himself who must meet this requirement. The above can be clarified using the example of the decision of the Kemerovo OFAS Russia dated 03/03/2016 in case No. 136/Z-2016.

In this case, as part of the second part of the individual entrepreneur’s application, a copy of the power of attorney issued by the Helios Reserve insurance company was presented, according to which the individual entrepreneur was given the right to conclude insurance contracts with individuals and legal entities on behalf of the insurance company. Also presented was a copy of the agency agreement concluded between the individual entrepreneur and the Helios Reserve insurance company, and a copy of the current license issued to the Helios Reserve insurance company to provide compulsory motor liability insurance services. Naturally, the application did not include a copy of a document confirming the presence of a license to provide compulsory motor insurance services from the direct participant in the auction, i.e. from an individual entrepreneur.

In connection with the above, the customer’s auction commission had to recognize the individual entrepreneur’s application as not meeting the requirements of the auction documentation. Since the auction commission did not do this, the commission of the Kemerovo OFAS Russia recognized its actions as unlawful and in violation of clause 2, part 6 of Art. 69 Law No. 44-FZ.

In addition, when checking the compliance of participants in the procurement of MTPL services, procurement specialists need to make sure that their license to carry out insurance activities is not suspended, revoked or limited in validity. In all of these cases, the insurer does not have the right to enter into new insurance contracts and renew existing ones (see, for example, the decision of the North Ossetian OFAS Russia dated June 22, 2015 in case No. A235-06/15).

Terms of the contract

Customers are well aware of the norm established in Part 13 of Art. 34 of Law No. 44-FZ. It establishes the customer’s obligation to include in the contract the following mandatory conditions:

On the procedure and terms of payment for services provided;

On the procedure and timing of acceptance of the service provided in terms of its compliance with the terms of the contract;

About the procedure and timing for processing the results of such acceptance.

In most cases, customers are free to determine the content of such conditions at their own discretion. That is, the Law requires that the contract contain “the procedure and period for payment for the services provided,” but what kind of procedure this will be and what specific period it will be is up to the customer to decide independently. However, procurement of MTPL services is an exception here too...

As provided in Art. 5 of the Law on Compulsory Motor Liability Insurance, the procedure for exercising the rights and obligations of the parties under the Compulsory Motor Liability Insurance agreement is established by the Bank of Russia in the rules of compulsory insurance. These rules were adopted by the Bank of Russia in the form of Regulations on the rules of compulsory civil liability insurance of vehicle owners dated September 19, 2014 N 431-P (hereinafter referred to as Regulation N 431-P). The rules contain:

a) the procedure for concluding, amending, extending, and early termination of a compulsory insurance contract;

b) the procedure for paying the insurance premium;

c) a list of actions of persons when carrying out compulsory insurance, including upon the occurrence of an insured event;

d) the procedure for determining the amount of losses to be compensated by the insurer and making insurance payments;

e) the procedure for resolving disputes regarding compulsory insurance.

Accordingly, the customer does not have the right to define in the draft contract the conditions for the provision of MTPL services that differ from the rules established by the Bank of Russia in Regulation No. 431-P. In support of this thesis, one can cite the recent decision of the Ryazan OFAS Russia dated March 4, 2016 in case No. 6503-3/2016, where Rosgosstrakh PJSC challenged the conditions for the provision of compulsory motor insurance services provided for by the customer in the draft contract.

Thus, the customer established that “payment for insurance policies is made by the policyholder within 20 working days from the date of receipt of the insurance policies, according to the invoices issued. The basis for issuing an invoice is the act of acceptance and transfer of insurance policies. Form of payment: non-cash, by transferring funds to the settlement insurer's account. Policies are issued within 3 business days from the date of conclusion of the contract."

The commission of the Ryazan OFAS Russia recognized these customer requirements as unfounded. According to para. 5 tbsp. 1.4 of Regulations N 431-P, in the case of payment of an insurance premium by bank transfer, a compulsory insurance policy is issued to the policyholder no later than the business day following the day the insurance premium is transferred to the insurer’s bank account.

In addition, the antimonopoly authority noted that the MTPL agreement refers to public contracts. Therefore, it must be concluded taking into account Articles 426, 445 of the Civil Code of the Russian Federation. What does this mean? In our case, the insurer is a party for whom the conclusion of a contract is mandatory, and the day of concluding a contract for the provision of compulsory motor insurance services can be considered as the day it receives an offer. By virtue of paragraph 1 of Art. 445 of the Civil Code of the Russian Federation, the insurer (i.e., the executor of the contract) is given 30 days to send to the insured (i.e., the customer) a notice of acceptance, or refusal of acceptance, or acceptance of the offer on other terms (protocol of disagreements to the project agreement). In addition, if the policyholder (customer) receives a protocol of disagreements regarding the draft agreement, the insurer is given another 30 days from the date of receipt of the protocol of disagreements in order to notify the other party of the acceptance of the agreement as amended or of the rejection of the protocol of disagreements (clause 2 of Article 445 of the Civil Code RF). Thus, the period for a car owner to apply to an insurer for an MTPL policy cannot be less than 60 days.

Based on the above, the commission of the Ryazan OFAS Russia recognized the requirements established by the customer for the terms of payment for services and for the period of issuance of the insurance policy as unlawful. In addition, when considering the complaint, it turned out that the customer provided for the following responsibilities of the insurer in the draft contract:

24-hour call and visit of traffic commissioners to the scene of an accident;

Availability of a 24-hour dispatch service and provision of specialist advice in the event of an insured event;

Availability of a contract (contracts) with an organization that performs an independent examination of road accidents;

Support in collecting documents to receive insurance payments;

Extraordinary acceptance of all necessary documents in the event of an accident.

The Commission of the Ryazan OFAS Russia recalled that the obligations of the insurer assigned to it when concluding an MTPL agreement are established in Art. 6 of the Law on Compulsory Motor Liability Insurance and Ch. 48 Civil Code of the Russian Federation. So, by virtue of Art. 6 of the Law on Compulsory Motor Liability Insurance, the object of compulsory insurance is property interests associated with the risk of civil liability of the owner of the vehicle for obligations arising from harm to the life, health or property of victims when using the vehicle on the territory of the Russian Federation. The services listed by the customer in the draft contract are not the responsibility of the insurer.

This concludes our review of law enforcement practice on the problems of procurement of MTPL services. We wish you successful shopping!

Can a state government institution that carries out procurement on the basis of Federal Law dated 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”, enter into comprehensive insurance contracts and compulsory motor liability insurance for an amount of up to 100,000 rub. without bidding, electronic auctions, quotations, etc.?

Having considered the issue, we came to the following conclusion:
The contracts specified in the question may be concluded by the customer without conducting competitive procedures on the basis provided for in clause 4, part 1, art. 93 of the Federal Law of 04/05/2013 N 44-FZ, subject to compliance with the restrictions established by this norm.

Rationale for the conclusion:
First of all, we note that since January 6, 2012, Federal Law No. 135-FZ dated July 26, 2006 “On the Protection of Competition” does not provide for provisions according to which federal executive authorities and executive authorities of constituent entities of the Russian Federation, regardless of the amount of the transaction, must enter into insurance contracts only based on the results of an open competition or open auction (see in this regard, for example, topic 2 of the Review of clarifications of the FAS Russia for February 2012).
According to Part. 1 and 2 tbsp. 24 of 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” when making purchases, customers use competitive methods for determining counterparties (tenders, auctions, request for quotations, request for proposals) or make purchases from a single supplier, contractor, performer (hereinafter referred to as the counterparty).
The customer chooses the method of determining the counterparty in accordance with the provisions of Chapter 3 of Law No. 44-FZ, while he does not have the right to take actions that entail an unreasonable reduction in the number of procurement participants (Part 5 of Article 24 of the said Law). According to the general rule provided for in Part 2 of Art. 48 of Law N 44-FZ, the customer in all cases carries out procurement through an open tender, except for the cases provided for in Art. 56, 57, 59, 72, 83, 84 and 93 of Law No. 44-FZ.
Law N 44-FZ does not oblige customers to use any specific competitive procedures for the purpose of concluding insurance contracts (including MTPL and comprehensive insurance contracts). The customer has the right to purchase from a single counterparty only in cases expressly provided for in Part 1 of Art. 93 Law No. 44-FZ. Such a basis for making a purchase from a single counterparty is the conclusion of an insurance contract, according to the provisions of Part 1 of Art. 93 of Law No. 44-FZ is not provided for. Therefore, without competitive procedures, insurance and compulsory motor liability insurance agreements can be concluded by the customer only on the basis of paragraphs 4 and 5 of Part 1 of Art. 93 of Law N 44-FZ (of course, subject to the restrictions established by these norms).

Prepared answer:
Expert of the Legal Consulting Service GARANT
Kislenko Maria

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Alexandrov Alexey

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.

Purchase of MTPL policies

Questions and answers on the topic

What mandatory conditions must be specified in the contract and in the calculation of compulsory civil liability insurance of vehicle owners by NMCC?

When justifying the NMCC for the purchase of MTPL policies, the tariff method should be used. MTPL tariffs are formed based on a closed list of coefficients established by Directive No. 3384-U. The purchase price consists of the amount of insurance premiums for each vehicle of the institution. In this case, each insurance premium must be calculated according to the formula provided by Directive No. 3384-U (Appendix No. 4), taking into account the maximum (maximum) base rates of the OSAGO tariff.

According to Article 1 of Law No. 40-FZ, an insurance organization must have a license. Therefore, the requirement for its availability must be specified in the procurement documentation.

Justification of NMCC for the purchase of MTPL services

As for choosing a method for purchasing compulsory insurance services, in practice a competition is most often held. This is due to the fact that previously the MTPL tariffs were set by the Government of the Russian Federation. Institutions practically did not resort to requests for quotations and auctions for such purchases, since participants did not have the right to reduce the NMTsK (determination of the Supreme Arbitration Court of the Russian Federation dated November 21, 2012 No. VAS-14998/12). At the moment, the insurer has the right to determine the amount of insurance rates independently based on the minimum and maximum values ​​​​established by Directive No. 3384-U. Such a tariff corridor allows procurement participants to use price competition methods.

When preparing documentation and notices, also pay attention to clause 1, part 1, art. 31 of Law No. 44-FZ. This norm instructs customers to set conditions regarding the compliance of potential counterparties with uniform requirements.

Please note that according to Art. 1 of Federal Law No. 40-FZ of April 25, 2002 (hereinafter referred to as Law No. 40-FZ), an insurance organization must have a license. Therefore, the requirement for its availability must be specified in the procurement documentation.

the minimum period for conducting an examination and assessing damage;

the minimum period of insurance payment after the examination;

the ability to apply for insurance by email;

Competition for compulsory motor insurance under Federal Law 44

Today I saw this resolution

In accordance with Part 2 of Article 34 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:
Establish that when concluding a contract, the procurement documentation indicates the price formula and the maximum value of the contract price in the following cases:
concluding a contract for the provision of compulsory insurance services provided for by the federal law on the relevant type of compulsory insurance;
concluding a contract for the provision of agency services, provided that the contract establishes the dependence of the amount of the agent’s remuneration on the result of the execution of the principal’s instructions;
concluding a contract for the provision of real estate valuation services, provided that the contract establishes a proportional ratio of the amount of the appraiser's remuneration to the estimated value of the property to be assessed.

And I can’t understand him about MTPL. What other formula should I invent?

Re: OSAGO under 44-FZ

Alienora wrote: Today I saw this resolution
GOVERNMENT OF THE RUSSIAN FEDERATION

ABOUT THE ESTABLISHMENT
CASES IN WHICH WHEN CONCLUSING A CONTRACT IN THE DOCUMENTATION
ABOUT THE PURCHASE THE PRICE FORMULA AND THE MAXIMUM MAXIMUM ARE INDICATED
VALUE OF THE CONTRACT PRICE

Chairman of the Government
Russian Federation
D.MEDVEDEV

forum.gov-zakupki.ru

Features of purchasing MTPL services

Articles on the topic

In the article, we will consider competitive methods for choosing an insurance company, calculating the NMCC, the features of concluding a compulsory motor liability insurance contract and the amount of its security.

As practice shows, concluding contracts for compulsory motor third party liability insurance (MTPL) is one of the most common purchases among customers at all levels of budget financing. When purchasing a policy, an institution must be guided not only by the provisions of procurement legislation, but also by the regulations governing the insurance market.

Competitive ways to choose an insurance company

The easiest way to purchase MTPL policies is to enter into a contract with a single supplier in accordance with paragraph 4 or 5 of part 1 of Article 93 of Federal Law No. 44-FZ of April 5, 2013 (hereinafter referred to as Law No. 44-FZ). But at the end of the year, the limits on such purchases are usually exhausted.

In addition, the contract price may significantly exceed the permitted limits of 100 thousand and 400 thousand rubles. respectively. In this case, the institution will have to hold a tender.

First of all, the customer must choose a method for determining the insurer.

"Purchasing management (120 hours)"
The program was developed according to methodological recommendations Ministry of Economic Development of Russia and Ministry of Education and Science of Russia and fully complies with the Professional Standard.

In practice, a competition is most often held. This is due to the fact that previously the MTPL tariffs were set by the Government of the Russian Federation. Institutions practically did not resort to requests for quotations and auctions for such purchases, since participants did not have the right to reduce the NMTsK (determination of the Supreme Arbitration Court of the Russian Federation of November 21, 2012 No. VAS-14998/12). At the moment, the insurer has the right to determine the amount of insurance rates independently based on the minimum and maximum values ​​established by the Bank of Russia Directive No. 3384-U dated September 19, 2014 (hereinafter referred to as Directive No. 3384-U). Such a tariff corridor allows procurement participants to use price competition methods.

Therefore, the purchase of MTPL services using, for example, a request for quotations is fully consistent with the norms of Law No. 44-FZ.

When conducting a competition, an institution may apply the following criteria to evaluate applications:

• possibility of delivering insurance policies to the customer’s address;
• reliability class of the insurance company according to the scale of any rating agency, etc.

How to buy car insurance? Can we purchase MTPL services by requesting quotations or is an open tender required?

Calculation of NMCC

When justifying the initial (maximum) contract price, the tariff method should be used. MTPL tariffs are formed based on a closed list of coefficients established by Directive No. 3384-U. The purchase price consists of the amount of insurance premiums for each vehicle of the institution. In this case, each insurance premium must be calculated according to the formula provided by Directive No. 3384-U (Appendix No. 4), taking into account the maximum (maximum) base rates of the OSAGO tariff.

Important to remember!

NMCC for the purchase of MTPL services must be calculated strictly using the formula from Directive No. 3384-U (decision of the Chelyabinsk OFAS Russia dated September 3, 2015 in case No. 559-zh/2015).

Example

The customer purchases an MTPL policy for a 2008 GAZ-31105 car.

Engine power – 131 hp. With. The territory of primary use of the vehicle is the city of Sevastopol.

Formula for calculating insurance premium:

T = TB × KT × KBM × KO × KM × KS × KN × KPR,

where TB is the base rate of the insurance tariff (its maximum value);

CT – coefficient of insurance rates depending on the territory of primary use of a given vehicle;

KBM – coefficient of insurance rates depending on the presence or absence of insurance compensation in the event of insured events that occurred during the period of validity of previous compulsory insurance contracts (bonus-malus coefficient);

KO – coefficient of insurance rates depending on the availability of information on the number of persons allowed to drive a vehicle (for legal entities this coefficient is always equal to 1.8);

KM – coefficient of insurance rates depending on the technical characteristics of the vehicle, in particular the engine power of a passenger car (vehicles of categories “B”, “BE”);

KS – coefficient of insurance rates depending on the period of use of the vehicle;

КН – coefficient of insurance tariffs depending on the presence of violations of insurance rules;

KPR is the coefficient of insurance rates depending on the presence of a trailer for the vehicle.

So, taking the maximum base rate of the insurance tariff and the coefficients from Directive No. 3384-U, we obtain the amount of the insurance premium:

3087 rub. × 0.6 × 1 × 1.8 × 1.4 × 1 × 1 × 1 = 4667.55 rub.

Sample form for calculating NMCC



Notice of purchase

Taking into account the specifics of calculating the NMCC for MTPL services, indicate in the purchase notice the type and make of each vehicle, registration plate number, year of manufacture, technical inspection period, insurance period. Potential insurers will also need a vehicle identification number in order to correctly calculate the bonus-malus ratio using an automated information system.

On a note

In the procurement documentation, indicate information about vehicle identification numbers (decision of the Irkutsk OFAS Russia dated August 11, 2015 in case No. 379)

When preparing documentation and notices, also pay attention to paragraph 1 of part 1 of Article 31 of Law No. 44-FZ. This norm instructs customers to set conditions regarding the compliance of potential counterparties with uniform requirements.

Please note that, according to Article 1 of Federal Law No. 40-FZ of April 25, 2002 (hereinafter referred to as Law No. 40-FZ), an insurance organization must have a license. Therefore, the requirement for its availability must be specified in the procurement documentation.

Current information on the availability of a license can be checked on the official website of the Bank of Russia in the section “Financial Markets” – “Supervision of Financial Market Participants” – “Insurance Business Entities” – “Registers of Insurance Business Entities”.

Electronic auction recognized as a legal method of procurement

Despite the “tariff corridor” for MTPL services introduced by Directive No. 3384U, many still have questions about the legality of such a purchase through an electronic auction. Indeed, as a result of bidding, participants can significantly reduce the NMCC, contrary to the current tariff rates. But officials of the Federal Antimonopoly Service of Russia for the Sverdlovsk region considered that by choosing this method of determining the supplier, the customer acted lawfully (decision of August 20, 2015 in case No. 1120-Z). The controllers emphasized that institutions can conduct such tenders for the purchase of any types of services, even those not included in the special “auction” list (Part 3 of Article 59 of Law No. 44-FZ).

Qualified customers carefully study the draft contract. Why? Firstly, the draft contract regulates all further work with the supplier. In all claims and legal proceedings, you will rely on the terms of the contract. Secondly, when you conclude a contract with the winner of the purchase, in the project you only change the price, conditions and information about the product: you attribute them to the application. It is impossible to make any other changes - it is illegal, so it is important to work out the contract in advance. We have written down all the conditions of an impeccable contract and shown them with clear examples. Look at what to write in the project so as not to receive an order from the controller and work comfortably with the supplier.



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Features of concluding a contract

The amount of contract performance security is equal to the total cost of insurance policies.

Be careful when drafting the contract. Indeed, when forming it, in addition to the norms of Law No. 44-FZ, it is necessary to take into account the requirements of Law No. 40-FZ. It is important to establish a list of insured events, the amount of insurance premium and insurance payments. According to the rules of Article 10 of Law No. 40-FZ, the validity period of a compulsory insurance contract is one year.

In addition, it makes sense to indicate in the draft contract the period for issuing and delivering policies. For example, like this: “A properly executed insurance policy must be delivered to the Customer’s address no later than three days from the date of filing an application for the policy.” Don’t forget to include a list of vehicles as an appendix to the contract.

“How to use GOSTs when describing the procurement object?”

Konstantin Edelev, State Order System expert

Write in the terms of reference not only GOST, but also indicators from the standard. If you only indicate the name of the product and a link to GOST, it will be difficult for the participant to understand which product is needed. For example, one of the customers included in the documentation a requirement that materials must meet certain GOST standards. There were no specific indicators in the terms of reference. Controllers and courts considered this a violation. Materials according to state standards are varied: they are divided into types, classes, brands, classifications, so the participants did not understand which product to supply. See three more tips on the use of GOSTs, in the recommendation:
“How to describe a procurement object in 2018”

Collateral amount

When concluding a contract for the provision of MTPL services, the customer pays an insurance premium before receiving a policy for the corresponding vehicle. Thus, the insurer receives an advance payment.

Since the advance in this case may exceed 30 percent of the NMCC, the security for the execution of the contract must be established in the amount of such an advance payment (Part 6 of Article 96 of Law No. 44-FZ).

Let us recall that in some situations, demanding security for the execution of a contract is the right, and not the obligation, of the customer (Part 2, 2.1, Article 96 of Law No. 44-FZ).

www.pro-goszakaz.ru

Procurement of MTPL services (Gurin O.Yu.)

Article posted date: 02/28/2017



Compulsory civil liability insurance services for vehicle owners (OSAGO) are one of the most non-standard procurement items. Is there a way to purchase these services in which the requirements of the legislation on the contract system and the legislation on compulsory motor liability insurance are consistent with each other? This article is devoted to the search for an answer to this question.

Justification of the initial (maximum) contract price

As is known, the priority method for determining and justifying the initial (maximum) contract price (hereinafter referred to as the NMCP) is the method of comparable market prices (market analysis) (Part 6, Article 22 of Law No. 44-FZ). However, if the prices of purchased services are regulated by the state, the tariff method is applied (Part 8 of Article 22 of Law No. 44-FZ).

As follows from Part 1 of Art. 8 of the Federal Law of April 25, 2002 N 40-FZ “On compulsory civil liability insurance of vehicle owners” (hereinafter referred to as Law N 40-FZ), insurance rates for compulsory motor third party liability insurance are regulated by the Bank of Russia, which establishes:

1) maximum amounts of basic rates of insurance tariffs (their minimum and maximum values, expressed in rubles);

2) insurance rate coefficients;

3) requirements for the structure of insurance tariffs;

4) the procedure for applying insurance rates by insurers when determining the insurance premium under the MTPL agreement.

Currently, all of the specified parameters of insurance tariffs are determined by the Bank of Russia’s directive No. 3384-U dated September 19, 2014 (hereinafter referred to as the Central Bank of the Russian Federation directive N 3384-U). Thus, if the subject of the purchase is MTPL services, customers are required to use the tariff method when determining the NMCC, based on the maximum amounts of basic rates of insurance tariffs (see also the letter of the Ministry of Economic Development of Russia dated November 18, 2015 N D28i-3461 on this). Justification of the NMCC using the method of comparable market prices (market analysis) will lead to a violation of the requirements of Art. 22 of Law No. 44-FZ (see Resolution of the Federal Antimonopoly Service of the North-Western District dated September 4, 2015 in case No. A05-14192/2014).

What happens if the customer, ignoring all of the above, prepares a justification for the NMCC using the method of comparable market prices (market analysis)? In reality, nothing bad may happen. The fact is that insurers are also obliged to apply established insurance rates and do not have the right to apply rates and (or) coefficients that differ from the established ones (Part 6, Article 9 of Law No. 40-FZ). Therefore, when calculating the average market price based on the commercial proposals of insurers, the customer will actually receive the same result as in the case of an independent calculation of the NMCC using the tariff method: after all, all insurers will have to submit commercial proposals containing exactly the same calculation of the same price.

This incident received a legal assessment in the decision of the Krasnoyarsk OFAS Russia dated 06/09/2015 in case No. 610. In this case, the NMCC was justified by the method of comparable market prices (market analysis). For this purpose, commercial offers from various insurers were used, containing calculations made in accordance with the instructions of the Central Bank of the Russian Federation N 3384-U using the maximum value of the basic rates of insurance tariffs.

The commission of the Krasnoyarsk OFAS Russia noted that in this case the NMCC really should have been justified using the tariff method, because prices for purchased services are regulated by the instruction of the Central Bank of the Russian Federation N 3384-U. However, the use of an inappropriate method for justifying the NMCC did not actually have an impact on the results of the competition, since all its participants submitted applications with price proposals equal to the NMCC.

Drawing a conclusion from the above, we recommend that customers, when preparing the purchase of MTPL services, independently calculate the NMCC using the tariff method. In this case, the procurement documentation must necessarily indicate the price formula and the maximum value of the contract price. The customer has such an obligation by virtue of Part 2 of Art. 34 of Law No. 44-FZ and adopted in its development, Resolution of the Government of the Russian Federation of January 13, 2014 No. 19 “On establishing cases in which, when concluding a contract, the price formula and the maximum value of the contract price are indicated in the procurement documentation.”

Let's create an example of a formula for calculating the insurance premium for a vehicle of category “B”, using the instructions of the Central Bank of the Russian Federation N 3384-U:

T = TB x CT x KBM x KO x KM x KS x KN x KPR,

T - the amount of the insurance premium payable under the compulsory insurance contract;

TB - the maximum value of the base rate of the insurance tariff;

CT - coefficient of insurance rates depending on the territory of primary use of the vehicle;

KBM - coefficient of insurance rates depending on the presence or absence of insurance compensation in the event of insured events that occurred during the validity period of previous compulsory insurance contracts (bonus-malus coefficient);

KO - coefficient of insurance rates depending on the availability of information on the number of persons allowed to drive a vehicle;

KM - insurance rate coefficient depending on the technical characteristics of the vehicle, in particular the engine power of a passenger car (vehicles of category “B”);

KS - coefficient of insurance rates depending on the period of use of the vehicle;

KN - coefficient applied in the presence of violations provided for in paragraph 3 of Art. 9 of the Law on Compulsory Motor Liability Insurance;

KPR is the coefficient of insurance rates depending on the presence in the compulsory insurance contract of a condition providing for the possibility of driving a vehicle with a trailer attached to it.

An example of calculating the insurance premium for one vehicle using the above formula is contained in Table 1.

Table 1

Insurance premium calculation

Make, model of vehicle

Identification number (VIN)

Passenger car engine power, hp, permissible maximum weight of trucks

Minimum base rate

Maximum base rate

Odds

territories of primary use of vehicles (CT)

KBM, determined from the AIS database of the Russian Union of Auto Insurers (RUA)

depending on the availability of information on the number of persons admitted to management (CP)

passenger car engine power (KM)

depending on the period of use of the vehicle (KS)

used in case of gross violations of insurance conditions (CI)

Minimum insurance premium, rub.

Maximum insurance premium, rub.

Based on the presented calculation, the initial (maximum) contract price for this vehicle will be equal to the amount of the insurance premium calculated using the maximum base rate (RUB 3,087) and will be RUB 9,607.36. Please note that it applies maximum base rate!

Nevertheless, it is widespread among customers to use minimum base rates of insurance tariffs for the purposes of calculating NMCC when purchasing MTPL services. It must be said that only in some cases do control authorities “notice” this violation: for example, the commission of the North Ossetian OFAS Russia in a decision dated June 23, 2015 in case No. A24-6-06/15 noted that the calculation of the insurance premium was made by the customer using the minimum rate of the basic insurance rate and for this reason does not contain the maximum value of the contract price. The antimonopoly authority recognized the specified actions of the customer as violating the requirements of Part 2 of Art. 34, paragraph 2 of Art. 42, paragraph 1, part 3, art. 49 and part 1 of Art. 59 of Law No. 44-FZ, as well as Decree of the Government of the Russian Federation of January 13, 2015 No. 19. The “selective” susceptibility of control bodies to such a violation is quite understandable: after all, by “erring” on the smaller side, customers save budget funds.

Description of the procurement object

The procurement documentation must contain indicators that make it possible to determine the compliance of the purchased services with the requirements established by the customer (Part 2 of Article 33 of Law No. 44-FZ). In the case of the purchase of MTPL services, this means the customer’s obligation to include in the description of the procurement object all the information that potential procurement participants will need to calculate the insurance premium in accordance with the instructions of the Central Bank of the Russian Federation N 3384-U. Based on the calculation of the NMCC performed by the customer himself (Table 1), we can easily determine the composition of such information (Table 2).

table 2

Description of the procurement object

State registration plate

Passenger car engine power, hp,

permissible maximum weight of trucks

KBM determined from the AIS RSA database

Period of use of the vehicle, months

Start date of the insurance period

If the description of the procurement object does not contain any of the specified information, it is likely that insurers will complain about the inability to calculate the contract price proposal. For example, if the description of the procurement object does not contain identification numbers (VIN) of vehicles, insurers will not be able to obtain information about the bonus-malus coefficient (BMR) for the specified vehicles from the automated information system for compulsory insurance (AIS RSA). Such conclusions are contained in the decision of the Ryazan OFAS Russia dated January 21, 2016 in case No. 18-03-2/2016, the decision of the Karelian OFAS Russia dated March 16, 2015 in case No. 04-18/20-2015, etc.

In the decision of the Irkutsk OFAS Russia dated August 11, 2015 in case No. 379, rather far-reaching conclusions were drawn from such indication of information about the procurement object. As the antimonopoly authority indicated, in this case, only the person who provided the customer with MTPL services in the previous insurance period has reliable information about the indicators necessary to calculate the insurance premium. This can be regarded both as an advantage provided to such a person and as an advantage provided to other procurement participants. In the absence of information about the CBM, insurers may apply incorrect values ​​of this coefficient (assuming a priori accident-free driving) and make a more favorable offer for the price of the MTPL contract than a person who has information about the presence of insured events in the previous insurance period. According to the antimonopoly authority, the absence of information required for the purchase of MTPL services leads to a violation of the requirements of Part 1 of Art. 17 of the Federal Law of July 26, 2006 N 135-FZ “On the Protection of Competition”, since such actions of the customer may lead to the refusal of a number of insurance organizations to participate in this purchase due to insufficient information to calculate the price offer.

To be fair, we note that the belief in the need to indicate the vehicle identification number (VIN) in the purchase description is not shared by all territorial bodies of the FAS Russia. For example, the commission of the Novosibirsk OFAS Russia in decision dated 02/17/2016 N 08-01-37 on a similar case came to the conclusion that the legislation on the contract system in the field of procurement does not oblige the customer to indicate information about vehicle identification numbers (VIN).

It is important that all problems associated with the procurement of MTPL services in accordance with the requirements of Law N 44-FZ do not lose their relevance even if MTPL services are purchased in accordance with Law N 223-FZ. For example, by virtue of clause 1, part 10, art. 4 of Law N 223-FZ, procurement documentation must also contain requirements related to determining whether the service provided meets the customer’s needs. And the FAS Russia authorities similarly recognize as justified the complaints of procurement participants about the absence in the procurement documentation of the information necessary for calculating the insurance premium.

An example is the decision of the Orenburg OFAS Russia dated March 11, 2016 in case No. 07-16-23/2016, which considered the complaint of AlfaStrakhovanie OJSC about the actions of the customer during a request for quotes in accordance with the requirements of Law No. 223-FZ. Complaints from the insurer were caused by the fact that the customer indicated only the make of the vehicle, the year of its manufacture, the state number and the expiration date of the MTPL policy. The antimonopoly authority recognized the insurer's complaint as justified, since the customer did not indicate the characteristics necessary to calculate the insurance premium, which could lead to an incorrect calculation of the insurance premium by potential procurement participants and thereby a violation of their legal rights and interests.

Separately, it is worth mentioning the features associated with determining the value of the bonus-malus coefficient (BMR). According to Appendix No. 2 to the instruction of the Central Bank of the Russian Federation No. 3384-U, if during the period of validity of previous OSAGO contracts there were no insurance compensations upon the occurrence of insured events, then the value of the CBM for each subsequent insurance period (one year) is reduced. Therefore, when justifying the initial (maximum) price of the contract, which will be concluded based on the results of the purchase for the next insurance period, it is necessary to take into account the downgrade of the KBM class.

Thus, in the decision of the Novosibirsk OFAS Russia dated September 25, 2015 in case No. 0801-377, the situation was considered when the customer, when justifying the initial (maximum) price of the contract to be concluded for the next insurance period, indicated the KBM for the current insurance period. The antimonopoly authority considered that, in connection with this, the procurement participants submitted incorrect price proposals. The customer was found to have violated the requirements of Art. 22 of Law No. 44-FZ when justifying the NMCC.

Choosing a method for determining the contract executor

At first glance, what problems could there be here? After all, the customer chooses the method of determining the contractor, guided by the provisions of Chapter. 3 of Law N 44-FZ (Part 5 of Article 24 of the said Law) - and only by them. And if we proceed only from the provisions of the legislation on the contract system as such, there is no way of determining the executor of a contract for the provision of MTPL services that the customer could not use. However, upon closer examination, it turns out that not everything is so simple.

For example, a request for quotations can be carried out if the planned contract price does not exceed 500 thousand rubles, and the annual volume of purchases carried out through a request for quotations does not exceed 10% of the total annual volume of purchases of the customer and not more than 100 million rubles. (Part 2 of Article 72 of Law No. 44-FZ). It would seem that Law No. 44-FZ does not provide for any additional conditions for purchasing through a request for quotation!

However, it is necessary to take into account that the winner of the request for quotation is the procurement participant who offered the lowest contract price (Part 1, Article 72 of Law No. 44-FZ). If the lowest contract price was offered by several participants in the request for quotation, the winner of the request for quotation is the participant who submitted the quotation application before others (Part 6, Article 78 of Law No. 44-FZ).

The problem arising in this regard received a legal assessment in the Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated July 29, 2015 in case No. A38-4680/2014. The court indicated that the price for compulsory motor liability insurance services (amount of insurance premium) for specific vehicles is fixed and cannot change during the procurement. Consequently, in the case of a request for quotations for MTPL services, procurement participants are deprived of the opportunity to offer the “lowest contract price” and can compete with each other only in terms of the time of submission of the application, which does not correspond to the principles of determining the contract executor by requesting quotations.

Based on the foregoing, the court came to the conclusion that the purchase of MTPL services through a request for quotations does not meet the procurement goals established in Law No. 44-FZ, and the customer violated the requirements of Part 5 of Art. 24, part 2 art. 48, part 1 art. 73 of Law No. 44-FZ when choosing a procurement method. The court emphasized that this conclusion corresponds to the explanations of the Federal Antimonopoly Service of Russia, as well as the position of the Supreme Arbitration Court of the Russian Federation, set out in the Determination of November 21, 2012 N VAS-14998/12.

Similar conclusions are contained in the Resolution of the Federal Antimonopoly Service of the North-Western District dated September 4, 2015 in case No. A05-14192/2014, as well as in the decisions of the Moscow OFAS Russia dated November 16, 2015 in case No. 2-57-10216/77-15, and the Bryansk OFAS Russia dated 12/12/2014 in case No. 467 and others. According to these antimonopoly authorities, the purchase of compulsory motor liability insurance services can and should be carried out exclusively in the form of an open tender.

What can be said about electronic auctions? An auction is understood as a method of determining the executor of a contract, in which the winner is the procurement participant who offered the lowest contract price (Part 4, Article 24 of Law No. 44-FZ). Based on the provisions of the legislation on the contract system, the customer has the right use an auction for the purpose of purchasing absolutely any goods, works and services (Part 3 of Article 59 of Law No. 44-FZ). In this case, the subject of procurement may be included by the Government of the Russian Federation in the list of goods, works and services, in the procurement of which the customer must conduct an electronic auction (Part 2 of Article 59 of Law No. 44-FZ, Order of the Government of the Russian Federation dated October 31, 2013 No. 2019-r). However, taking into account the exceptions to this obligation, this only means the absence of the right to hold a tender: even if the subject of purchase is included in the specified list, the request for quotations, request for proposals and purchase from a single supplier (contractor, performer) still remain in the customer’s arsenal. However, services for civil liability insurance of vehicle owners (OKPD2 65.12.21.000, corresponds to OKPD 66.03.21.000) are not included in the specified list.

Thus, based on the provisions of the legislation on the contract system, customers have every right to purchase MTPL services through an electronic auction. But just as in the case of a request for quotations, the properties of this method of determining the executor of a contract turn out to be very questionable from the standpoint of compliance with the MTPL Law. This was well shown in the decision of the Tyvinsky OFAS Russia dated April 14, 2015 in case No. 05-05-06/21-15.

Having analyzed articles 8, 9, 15 of the Law on OSAGO, the antimonopoly authority indicated that the price of the contract for the provision of OSAGO services (insurance premium for a specific vehicle fleet) cannot be lower than the applicable basic tariff rates and coefficients approved by the Bank of Russia. Consequently, a procurement participant who conscientiously fulfills the requirements of the Law on Compulsory Motor Liability Insurance does not have the right to offer a price lower than that calculated taking into account the instructions of the Central Bank of the Russian Federation N 3384-U. But the essence of an electronic auction is precisely that its participants strive to offer the lowest price!

In connection with the above, the commission of the Tyvinsky OFAS Russia recognized the purchase of MTPL services through an electronic auction as unlawful. If there are mandatory insurance rates for all procurement participants and a list of specific vehicles offered by the customer for insurance, the contract price is predetermined. The antimonopoly authority considered that in such conditions, the method chosen by the customer to determine the contract executor - an electronic auction - does not take into account the specifics of MTPL services and does not comply with the provisions of Part 2 of Art. 59 of Law No. 44-FZ.

Similar conclusions are contained in the decisions of the Ulyanovsk OFAS Russia dated 04/11/2014 in case No. 10808/03-2014, the Bryansk OFAS Russia dated 03/24/2014 N 65, etc. According to these antimonopoly authorities, the only legal way to determine the executor of a contract for the provision of MTPL services is open competition.

However, not all territorial bodies of the FAS Russia adhere to this position (in our opinion, the only reasonable one). Thus, the decision of the Sverdlovsk OFAS Russia dated August 20, 2015 in case No. 1120-Z states that customers, by virtue of Part 3 of Art. 59 of Law N 44-FZ have the right to carry out purchases through an electronic auction, incl. and such goods, works and services that are not included in the list approved by Order of the Government of the Russian Federation dated October 31, 2013 N 2019-r. Similar conclusions are shared by the Novosibirsk OFAS Russia (see, for example, the decision of September 25, 2015 in case No. 08-01-377, etc.) and a number of other territorial departments.

How to deal with an insurer's price offer that does not comply with the MTPL Law?

As shown above, in relation to a specific fleet of vehicles subject to insurance, a contract price (insurance premium) cannot be offered that differs from that calculated in accordance with the instructions of the Central Bank of the Russian Federation N 3384-U. The question arises: should the procurement commission reject applications from those insurers who offered a different price for MTPL services?

In fact, this issue is perhaps the most pressing of all those related to the procurement of MTPL services. The fact is that a procurement participant who has made a price offer in violation of the requirements of the legislation on compulsory motor liability insurance (as a rule, in the direction of underestimating the amount of the insurance premium) receives a competitive advantage over procurement participants who conscientiously fulfill the specified requirements, and according to the rules for determining the contract executor, there must be recognized as the winner of the relevant competitive procedure. At the same time, the legislation on the contract system in many cases does not provide mechanisms for rejecting applications from such procurement participants. Finding itself in such a situation - which, by the way, is quite common - the procurement commission is forced to choose between two evils: whether to violate the requirements of the legislation on the contract system or the requirements of the legislation on compulsory motor liability insurance. And no matter what decision it makes, there is always a risk that the control body will not agree with it.

For example, certain territorial bodies of the Federal Antimonopoly Service of Russia believe that when purchasing MTPL services through a request for quotation, quotation applications containing an improper price proposal should be rejected.

Thus, the commission of the Vologda OFAS Russia, in decision dated April 28, 2014 N 5-2/60-14, considered the following situation. When conducting a request for quotation, the NMCC was calculated based on the minimum size of base rates and amounted to 213,119.52 rubles. 6 applications were submitted for participation in this request for quotations, and in 5 of them the procurement participants offered a contract price equal to the NMCC (i.e. 213,119.52 rubles), and in one - 213,119.35 rubles. The procurement participant who offered the last of the named prices was declared the winner of the request for quotations on the basis of Part 6 of Art. 78 of Law No. 44-FZ.

The procurement participant, who submitted a price proposal of 213,119.52 rubles earlier than others, appealed to the antimonopoly authority with a complaint about the actions of the customer’s quotation commission. Having studied the case materials, the commission of the Vologda OFAS Russia found that in the quotation application of the winner of the request for quotations when calculating the proposal for the contract price, rounding was done without observing the mathematical rule of rounding numbers to hundredths. In this regard, the antimonopoly authority recognized this procurement participant as violating Part 2 of Art. 8 of Law N 44-FZ, which prescribes compliance with the principle of fair price and non-price competition between procurement participants and prohibits all participants in the contract system from committing any actions that violate the requirements of the legislation on the contract system.

As for the customer, the commission he created was found to have violated Part 7 of Art. 78 of Law No. 44-FZ. As follows from this norm, the quotation commission does not consider and rejects applications for participation in the request for quotation if they do not meet the requirements established in the notice of the request for quotation. And the customer in this case established in the technical specifications included in the notice the requirement that the total price of the quotation offer should be calculated by the insurer in accordance with the current legislation on compulsory motor liability insurance (using established insurance tariffs, etc.).

Considering a similar situation, the commission of the Mordovian OFAS Russia in its decision dated January 13, 2015 in case No. 428 came to the opposite conclusions. The antimonopoly authority indicated that, by virtue of Part 7 of Art. 78 of Law N 44-FZ, the quotation commission does not consider and rejects applications for participation in the request for quotation only in three cases:

1) if they do not meet the requirements established in the notice of the request for quotation;

2) the contract price proposed in such applications exceeds the NMCC specified in the notice of the request for quotation;

3) the participant in the request for quotations did not submit the documents and information provided for in Part 3 of Art. 73 Law No. 44-FZ.

Rejection of applications to participate in the request for quotation on other grounds is not permitted. Since the procurement participant’s price offer did not exceed the NMCC, the customer’s quotation commission had no grounds for rejecting the controversial quotation application.

This approach is quite widespread. Thus, the commission of the Novgorod OFAS Russia in decision dated December 4, 2015 N 6688/03, in addition to the arguments already considered, indicated that Law N 44-FZ does not provide for the customer’s right to demand calculation of the price offer as part of the quotation application and, as a result, does not provide for the obligation the customer and the quotation commission to check the correctness of the calculation of the price proposed by the contract participant. See also the decision of the Krasnodar OFAS Russia dated December 30, 2015 in case No. ZK-73/2015 and others.

Let us note the difference between the two above approaches of the territorial bodies of the FAS Russia: in the first case, the antimonopoly authority considers it possible and necessary to reject a quotation application with an improper price on the basis of Part 7 of Art. 78 of Law N 44-FZ, since the customer established the corresponding requirement for price calculation as part of the notice of a request for quotation. The existence of such logic is also confirmed by the decision of the Pskov OFAS Russia dated December 18, 2014 in case No. 44-143/14: the antimonopoly authority considered that the customer’s quotation commission in this case had no grounds for rejecting the quotation application, since the form of the quotation application provided for in this purchase obligated the procurement participant to indicate only a proposal for the contract price, but not its calculation.

But the decision of the Omsk OFAS Russia dated July 28, 2014 N 03-10.1/394-2014 states that the non-compliance of the contract price proposed by the procurement participant with the requirements of the legislation on compulsory motor liability insurance is an absolute basis for recognizing the quotation bid as not meeting the requirements of the notice of request for quotation. Based on the foregoing, the quotation commission, by definition, is obliged to reject quotation bids if the contract price proposed in them differs from that indicated in the notice of the request for quotation. The same position was expressed in the decision of the Buryat OFAS Russia dated December 14, 2015 N 04-50/411-2015.

So far we have been talking about requests for quotes. In the case of electronic auctions, the situation is somewhat different: for contrast, we cite the decision of the same Omsk OFAS Russia dated December 26, 2014 in case No. 03-10.1/668-2014.

In this case, the procurement participant offered the lowest price during the electronic auction and became the winner. The second part of the application of this procurement participant was considered by the auction commission in the manner established by Art. 69 of Law N 44-FZ, and was recognized as meeting the requirements of the auction documentation. The commission of the antimonopoly authority agreed with the customer that Law No. 44-FZ does not provide for the obligation of an electronic auction participant to provide a calculation of the price proposal submitted by him as part of the application and does not provide for the right of the customer or his auction commission to demand that the procurement participant provide such a calculation. Thus, cases where the second part of the application is recognized as not meeting the requirements of the auction documentation, established by Part 6 of Art. 69 of Law N 44-FZ, did not allow the customer’s auction commission to recognize the application of an unscrupulous winner of an electronic auction as not meeting the requirements.

Similar conclusions are also contained in the decision of the Trans-Baikal OFAS Russia dated December 8, 2014 in case No. 379 and others. Similarly, recognizing the hopelessness of the situation taking into account the legal regime of the electronic auction, the Sverdlovsk OFAS Russia in a decision dated August 20, 2015 in case No. 1120-Z recommends that persons whose rights and legitimate interests have been violated, contact the Russian Union of Auto Insurers to consider the issue of the legality of the actions of the procurement participants who reduced the price of the contract for the provision of compulsory motor insurance services.

However, there is another approach to the problem under consideration, an example of which is the decision of the Novosibirsk OFAS Russia dated December 17, 2015 N 08-01-507. The complainant indicated that the insurance premium for all compulsory insurance items should be at least 61,738.90 rubles, while the winner of the electronic auction offered a price of 61,738.88 rubles. (i.e. 2 kopecks lower than what is obtained when calculating the insurance premium in accordance with the instructions of the Central Bank of the Russian Federation N 3384-U).

The customer reported that the winner of the electronic auction correctly calculated the insurance premium for each individual vehicle, but the final price was calculated in Microsoft Excel with automatic rounding, and therefore amounted to 61,738.88 rubles. In connection with the above, the customer asked that the complaint be declared unfounded.

Having studied the case materials, the commission of the antimonopoly authority found that with manual summation of the insurance premium for each vehicle, the final amount of the contract price would be 61,738.90 rubles. Consequently, the winner of the electronic auction provided the customer with false information, indicating an incorrect contract price.

The commission of the Novosibirsk OFAS Russia indicated that if the information contained in the documents submitted by a participant in an electronic auction is determined to be unreliable, the auction commission is obliged to remove such participant from participation in the electronic auction at any stage of its conduct (Part 6.1 of Article 66 of Law No. 44-FZ) . By analogy with this rule, if it is established that the information contained in the price proposal submitted by a participant in an electronic auction during an auction is unreliable, the auction commission is obliged to remove such participant from participation in the electronic auction at any stage of its conduct, since the contract cannot be concluded at such a price proposal.

Another instructive case is associated with the issues of legality/illegality of mathematical rounding when calculating the contract price, which was considered in the decision of the Tambov OFAS Russia dated March 2, 2015 in case No. RZ-17/15. The customer held an open tender, calculating the NMCC based on the maximum base rates of insurance tariffs provided for by the instruction of the Central Bank of the Russian Federation N 3384-U, in the amount of 231,843.58 rubles. Two applications were submitted for participation in the open competition: 219,751.96 and 219,751.97 rubles. (with a difference of 1 kopeck). The procurement participant who proposed the contract price for 1 kopeck. higher than that of its competitor, appealed to the antimonopoly authority with a complaint about the latter’s unlawful admission to participate in the competition. According to the complainant, the customer's competition commission should have rejected the application of the winner of the open competition due to the improper calculation of the insurance premium contained in it.

Having studied the case materials, the commission of the Tambov OFAS Russia indicated that the customer was not vested with the authority to recalculate the contract price proposed by the participants in the open tender. Control over the correctness of insurers' calculation of insurance premiums under MTPL contracts is exercised by the Bank of Russia (Part 6, Article 9 of the MTPL Law).

An application for participation in a competition is recognized as proper if it meets the requirements of Law No. 44-FZ, the notice of procurement and competition documentation, and the procurement participant who submitted the application meets the requirements for it (Part 2 of Article 53 of Law No. 44-FZ). In this regard, the customer’s competition commission had no legal grounds for rejecting the application of the procurement participant who offered the contract price 1 kopeck less than other procurement participants.

In addition, the antimonopoly authority took into account the customer’s explanation that the controversial price offer could not be considered unreliable even if the competition commission had the appropriate powers. The fact is that there are 3 options for calculating the specified price:

219751.96 - automatic calculation for 45 machines, the minimum basic tariff, provided coefficients with numerical rounding in the Microsoft Excel program (automatic calculation 2 decimal places);

219751.9632 - automatic calculation for 45 machines, minimum base tariff, provided coefficients (without rounding) in Microsoft Excel (automatic calculation 4 decimal places);

219,751.97 - manual calculation for 45 machines, the minimum basic tariff, provided coefficients (rounded to tenths) in the Microsoft Excel program (manual calculation).

At the same time, the tender documentation did not establish the rounding order and the number of significant digits after the decimal point involved in the calculation.

However, another position should be taken into account on the issue of the legality of rejecting competitive bids if they contain an improper calculation of the insurance premium. Thus, in the decisions of the Tatarstan OFAS Russia dated 06/03/2015 in case No. 135-kz/2015, dated 07/02/2015 N IP-04/8876, the rejection of the competitive application was recognized as legitimate, since when calculating insurance premiums, procurement participants applied the base rates of insurance tariffs that were beyond the minimum values ​​provided for by the instructions of the Central Bank of the Russian Federation N 3384-U.

The fact that “freedom of action” in relation to the cost of compulsory motor insurance services is strictly limited by the maximum values ​​​​established by the Bank of Russia may have another non-trivial consequence, which is well illustrated by the decision of the Krasnoyarsk OFAS Russia dated May 19, 2015 in case No. 500. In this case, the participants procurement appealed the customer’s violation of the procedure for canceling an open tender.

Having studied the case materials, the antimonopoly authority established that during the period for submitting competitive applications, changes were made to the instruction of the Central Bank of the Russian Federation N 3384-U, as a result of which the maximum amounts of basic tariff rates and insurance tariff coefficients began to differ from those that were taken as a basis when formation of the NMCC. At the same time, the price proposals received from the competition participants were formed both taking into account the changes that had occurred (i.e. not in strict accordance with the competition documentation) and without taking them into account. Due to the impossibility of reviewing and evaluating competitive bids, the customer decided to cancel the purchase.

The commission of the Krasnoyarsk OFAS Russia took the side of the customer, pointing out that in the current situation it is not possible to fairly evaluate competitive bids: applications sent in accordance with the new tariffs cannot be recognized as meeting the requirements of the tender documentation, and applications drawn up on the basis of the provisions of the tender documentation , cannot be considered relevant, since they contradict the provisions of the legislation on compulsory motor liability insurance.

The antimonopoly authority indicated that relations in the field of the contract system must comply with the fundamental general principles of law, including the principles of good faith, reasonableness and fairness, applied to the subjects of relations, which determine the nature of the subjects’ behavior during the period of emergence and existence of these relations. “Integrity” means the actual honesty of subjects in their behavior, “reasonableness” means awareness of the legality of one’s behavior, “justice” means the compliance of subjects’ behavior with moral, ethical and ethical standards.

The commission of the Krasnoyarsk OFAS Russia considered the customer’s actions to cancel the procurement in connection with the above factual circumstances to be conscientious and reasonable, since they were aimed at eliminating the unfair procedure for considering and evaluating competitive applications, unequal treatment of the conscientious behavior of procurement participants, as well as restoring legal order in legal relations arising during the procurement.

Open competition for MTPL services

Much has been said above about the problems associated with the procurement of MTPL services through requests for quotations and electronic auctions. The conclusion suggests itself that of all the competitive methods for determining the contract executor, the most optimal for the purposes of purchasing MTPL services is an open competition. Of course, it is difficult to disagree with this - after all, the winner of the competition is the procurement participant who offered the best terms for the execution of the contract (Part 3 of Article 24 of Law No. 44-FZ), which means that the customer has the opportunity to compare competitive bids not only by the contract price , which, if calculated correctly, will be the same for all procurement participants.

At the same time, choosing a competition as a way to determine the contractor is not a panacea for all ills. The specificity of MTPL services makes itself felt in this case as well.

As provided in Part 8 of Art. 53 of Law N 44-FZ, the best conditions for the execution of the contract are determined on the basis of the criteria specified in the tender documentation. In accordance with Part 2 of Art. 32 of Law No. 44-FZ, the customer may establish in the procurement documentation the following criteria for evaluating applications from procurement participants:

— expenses for operation and repair of goods, use of work results;

— qualitative, functional and environmental characteristics of the procurement object;

— qualifications of procurement participants, including their availability of financial resources, ownership or other legal basis of equipment and other material resources, work experience related to the subject of the contract, and business reputation, specialists and other employees of a certain skill level.

The first two criteria are among the cost criteria, the last two are among the non-cost criteria. The customer is obliged to indicate in the procurement documentation the criteria used and the magnitude of their significance. In this case, the number of criteria used must be at least two, and one of them must be the contract price (Part 4, Article 32 of Law No. 44-FZ). The maximum values ​​for the significance of cost and non-cost criteria for evaluating competitive applications are established in the appendix to the Rules for evaluating applications, final proposals of participants in the procurement of goods, works, services to meet state and municipal needs (approved by Decree of the Government of the Russian Federation of November 28, 2013 N 1085). In particular, when providing services, the minimum importance of cost evaluation criteria is 60%, and the maximum importance of non-cost criteria is 40%.

It is the development of a system of indicators for evaluating participants’ proposals based on non-cost criteria that poses the greatest difficulty in preparing tender documentation for the provision of compulsory motor insurance services. For example, according to the criterion “quality, functional characteristics of the services provided” The rating of the procurement participant can be determined taking into account the quality of service it offers in the event of an insured event. Here is how, for example, this was done in purchase N 0828100000416000011 (Table 3).

Table 3

Indicators of the criterion “quality of services and qualifications of the competition participant”

Maximum number of points

Availability of a 24-hour dispatch service to support insurance claims

Departure to the scene of an accident from the moment of receiving a message about such a need from the customer of the emergency commissioner within:

Possibility of calling a tow truck around the clock for free transportation of the customer’s car from the scene of the accident to the place of repair or storage

Ensuring the inspection of the customer’s vehicle that received technical damage in an accident, and (or) conducting an independent examination

Promptness of compensation for losses under compulsory motor liability insurance (after filing an application from the state customer) no more than 10 days

Possibility of legal support in collecting documents to receive payment for an insured event

According to one of the procurement participants, the establishment of the indicator “The presence of representative offices for the settlement of losses in the insurance company in the cities of the Vladimir region (Vladimir, Alexandrov, Vyazniki, Gus-Khrustalny, Kovrov, Kolchugino, Melenki, Murom, Petushki, Sudogda, Suzdal, Yuryev-Polsky) with addresses and telephone numbers” leads to a potential limitation of the number of insurance companies that could take part in this purchase, and creates advantages for those of them that have an extensive branch network. As the participant indicated in the complaint sent by him to the Vladimir OFAS Russia, only one insurance company in Russia has representative offices for the settlement of losses in all cities of the Vladimir region, as well as in all cities of each of the constituent entities of the Russian Federation, which initially puts other insurance companies, who will take part in this open competition are in a losing position. According to the complainant, the customer’s actions violate the requirements of Part 1 of Art. 17 of the Federal Law of July 26, 2006 N 135-FZ “On the Protection of Competition”.

In his objections to the complaint, the customer (Center for Economic and Service Support of the Office of the Ministry of Internal Affairs of Russia for the Vladimir Region) explained that the object of the purchase is motor insurance, a significant part of which was transferred for free use to the territorial bodies of the Ministry of Internal Affairs of Russia at the district level for permanent operation outside the city of Vladimir . It is in this regard that the customer needs representation of the insurance company at the location of the vehicle (including to receive on-site legal support when collecting documents to receive payment for an insured event (subcriterion 6 of the criterion “Quality, functional characteristics of the services provided”), as well as additional free legal assistance (subcriterion 9 of the criterion “Quality, functional characteristics of the services provided”)). The customer emphasized that the requirements for the number of representative offices of the insurance company are minimal and include only large cities of the Vladimir region, on the territory of which (including adjacent areas) the customer’s cars are operated. The list does not include cities in the Vladimir region that are located at a minimum distance from the cities specified by the customer (Raduzhny, Sobinka, Kameshkovo, Kirzhach). Thus, the presence of representative offices of the procurement participant in all cities of the Vladimir region is not required.

By decision of the Vladimir OFAS Russia dated February 19, 2016 N G 65-04/2016, the complaint was declared unfounded, since it was not proven that the establishment of a controversial indicator led to a reduction in the number of procurement participants. In addition, the antimonopoly authority took into account that four applications were submitted to participate in the procurement in question.

In the decision of the Krasnoyarsk OFAS Russia dated December 3, 2014 in case No. 1178, the indicators of the non-cost criterion established by the customer received a legal assessment “qualification of the competition participant”. In particular, the customer assessed, from 0 to 100 points, the presence or absence of experience in providing similar services to budgetary or government institutions located in the Krasnoyarsk Territory for the last 3 years preceding the deadline for submitting applications for participation in the competition, including:

- lack of information about experience in providing similar services to budgetary or government institutions located in the Krasnoyarsk Territory for the last 3 years preceding the deadline for submitting applications for participation in the competition - 0 points;

- submitted documents confirming experience in providing similar services to budgetary or government institutions located in the Krasnoyarsk Territory for the last 3 years preceding the deadline for submitting applications for participation in the competition, in a volume of less than 100 contracts/agreements - 25 points;

— documents are presented confirming experience in providing similar services to budgetary or government institutions located in the Krasnoyarsk Territory for the last 3 years preceding the deadline for submitting applications for participation in the competition, in the amount of from 100 to 450 contracts/agreements (inclusive), — 50 points;

— documents are presented confirming experience in providing similar services to budgetary or government institutions located in the Krasnoyarsk Territory over the last 3 years preceding the deadline for submitting applications for participation in the competition, in the amount of more than 450 contracts/agreements, — 100 points.

Having studied the case materials, the antimonopoly authority established that, by virtue of Part 1 of Art. 21 of the Law on Compulsory Motor Liability Insurance, in each constituent entity of the Russian Federation there must be representatives of the insurer authorized to consider claims of victims for insurance payments and direct compensation for losses, as well as to make insurance payments and direct compensation for losses. The service for concluding MTPL contracts must be provided in any separate division of the insurer (branch). In connection with the above, the commission of the Krasnoyarsk OFAS Russia came to the conclusion that the legislation on compulsory motor liability insurance does not provide for any differences between the constituent entities of the Russian Federation: compulsory motor liability insurance services are provided the same throughout the entire territory of Russia. This means that there is no reason to believe that the experience of providing MTPL services in other territories is in any way different from the experience in the Krasnoyarsk Territory.

In addition, the antimonopoly authority considered it incorrect to reduce possible experience in providing MTPL services only to experience in providing such services specifically budgetary or government institutions located on the territory of the Krasnoyarsk Territory. Again, no specific features of the legal regime for the provision of MTPL services budget and government institutions are not established by the legislation on compulsory motor liability insurance. As a result, the commission of the Krasnoyarsk OFAS Russia recognized the customer’s actions as violating the rights and legitimate interests of the procurement participants, as well as the requirements of Art. 50 Law No. 44-FZ.

When purchasing MTPL services through a competition, another problem may arise. In this case, the features of submitting applications for participation in the competition, namely the rules for determining the order of submitted applications, come to the fore. The numbers assigned to competitive applications as they are submitted can play an important role in their evaluation: as mentioned above, the minimum significance of the “contract price” criterion when conducting a competition for the provision of services is 60%, and the contract price offered by the competition participants if calculated correctly they will all have the same one.

Let us remind you that in accordance with Part 7 of Art. 53 of Law N 44-FZ, the competition commission assigns a serial number to each application for participation in the competition in order of decreasing degree of profitability of the contract execution conditions contained therein. Thus, the application for participation in the competition, which contains the best conditions for the execution of the contract, is assigned the first number. And if several competitive bids contain the same conditions for the execution of the contract, a lower serial number is assigned to the bid that was received earlier than other bids containing the same conditions.

By virtue of Art. 43 of Law N 44-FZ, before the deadline for submitting applications for participation in an open competition, a procurement participant has the right to make changes to its application. In this regard, the question arises: what will be the final serial number of the competitive bid if the procurement participant made changes to it? In other words, should the filing date of an application be considered the date of filing the original version of such an application or the date of filing the latest amendments to it? This issue was investigated by the Murmansk OFAS Russia in a decision dated January 29, 2016 in case No. 06-10/16-16.

As it was established by the antimonopoly authority, the procurement participant submitted its competitive bid on December 1, 2015 at 09:00, and in accordance with the protocol for opening envelopes with competitive bids, this application was assigned serial number 1. However, before the deadline for submitting competitive bids, namely 15.12 .2015, the procurement participant made changes to its application, supplementing it with the original extract from the Unified State Register of Legal Entities and a copy of the payment order confirming the transfer of funds as security for the application for participation in the open tender. In accordance with the protocol for opening envelopes with competitive bids, the new version of the application received serial number 8. When considering and evaluating competitive bids, the customer’s competition commission assigned the fourth serial number to the procurement participant’s application, considering the date of submission of the application to be the date of the last changes to it (12/15/2015), and not the date of filing the initial version of the application (12/01/2015). The procurement participant did not agree with this decision of the customer’s tender committee, appealing it to the antimonopoly authority.

The Murmansk OFAS commission recognized the complaint as unfounded, considering that the assessment of the procurement participant’s application and the assignment of a serial number to it can only be carried out taking into account all the changes received. The antimonopoly authority referred, among other things. and to letters from the Ministry of Economic Development of Russia dated June 11, 2015 N D28i-1758, dated October 27, 2015 N D28i-3110, dated October 16, 2015 N D28i-3006, dated October 15, 2015 N D28i-3002, dated October 14, 2015 N D28i-3011 , dated 10/12/2015 N D28i-2988, dated 10/09/2015 N D28i-3003, D28i-2986, D28i-2990, D28i-2991, D28i-2989, according to which the date of filing an application for participation in the competition should be considered the date of filing the latter changes to the application.

Requirements for procurement participants

By virtue of clause 1, part 1, art. 31 of Law N 44-FZ, when making purchases, the customer must require procurement participants to comply with the requirements established by the legislation of the Russian Federation. What are the requirements for participants in the procurement of MTPL services?

Insurers providing MTPL services are classified as insurance organizations (Article 1 of the MTPL Law). In accordance with Part 2 of Art. 4.1 of the Law of the Russian Federation dated November 27, 1992 N 4015-1 “On the organization of insurance business in the Russian Federation”, insurance organizations are recognized as subjects of the insurance business and their activities are subject to licensing. Federal Law dated May 4, 2011 N 99-FZ “On licensing of certain types of activities” also includes insurance activities among the licensed types of activities (clause 11, part 1, article 12).

Thus, a mandatory requirement for participants in the procurement of MTPL services is the requirement to have a valid license to carry out insurance activities. At the same time, the license must indicate a specific type of insurance - “insurance of motor vehicles subject to compulsory motor third party liability insurance (MTPL).”

Another mandatory requirement for insurers is the requirement for their membership in a professional association of insurers (Part 2 of Article 21 of the Law on Compulsory Motor Liability Insurance). In practice, this norm is implemented in the form of a requirement for procurement participants to be members of the Russian Union of Auto Insurers (RUA), confirmed by an appropriate certificate.

At the same time, the requirements for participants in the electronic auction on the basis of clause 1, part 1, art. 31 of Law N 44-FZ, as well as an exhaustive list of documents that must be submitted by them to confirm their compliance with such requirements, must be established in the notice of an electronic auction and in the auction documentation (see clause 6, part 5, article 63 , paragraph 1 of Article 64 of Law No. 44-FZ). For example, the commission of the Sverdlovsk OFAS Russia, in a decision dated August 20, 2015 in case No. 1120-Z, noted a violation of the specified norms of legislation on the contract system in the actions of the customer, who established the specified requirements for insurers in the description of the procurement object, and not in the notice of an electronic auction and in the auction documentation.

Customers should keep in mind that the requirement to have a license to carry out insurance activities is presented directly to the procurement participant, and it is the procurement participant himself who must meet this requirement. The above can be clarified using the example of the decision of the Kemerovo OFAS Russia dated 03/03/2016 in case No. 136/Z-2016.

In this case, as part of the second part of the individual entrepreneur’s application, a copy of the power of attorney issued by the insurance company Helios Reserve was presented, according to which the individual entrepreneur was given the right to conclude insurance contracts with individuals and legal entities on behalf of the insurance company. Also presented was a copy of the agency agreement concluded between the individual entrepreneur and the Helios Reserve insurance company, and a copy of the current license issued to the Helios Reserve insurance company to provide compulsory motor liability insurance services. Naturally, the application did not include a copy of a document confirming the presence of a license to provide compulsory motor insurance services from the direct participant in the auction, i.e. from an individual entrepreneur.

In connection with the above, the customer’s auction commission had to recognize the individual entrepreneur’s application as not meeting the requirements of the auction documentation. Since the auction commission did not do this, the commission of the Kemerovo OFAS Russia recognized its actions as unlawful and in violation of clause 2, part 6 of Art. 69 Law No. 44-FZ.

In addition, when checking the compliance of participants in the procurement of MTPL services, procurement specialists need to make sure that their license to carry out insurance activities is not suspended, revoked or limited in validity. In all of these cases, the insurer does not have the right to enter into new insurance contracts and renew existing ones (see, for example, the decision of the North Ossetian OFAS Russia dated June 22, 2015 in case No. A235-06/15).

Terms of the contract

Customers are well aware of the norm established in Part 13 of Art. 34 of Law No. 44-FZ. It establishes the customer’s obligation to include in the contract the following mandatory conditions:

— on the procedure and terms of payment for services provided;

— on the procedure and timing of acceptance of the service provided in terms of its compliance with the terms of the contract;

— about the procedure and timing for processing the results of such acceptance.

In most cases, customers are free to determine the content of such conditions at their own discretion. That is, the Law requires that the contract contain “the procedure and period for payment for services provided,” but what kind of procedure this will be and what specific period it will be is up to the customer to decide independently. However, procurement of MTPL services is an exception here too.

As provided in Art. 5 of the Law on Compulsory Motor Liability Insurance, the procedure for exercising the rights and obligations of the parties under the Compulsory Motor Liability Insurance agreement is established by the Bank of Russia in the rules of compulsory insurance. These rules were adopted by the Bank of Russia in the form of Regulations on the rules of compulsory civil liability insurance of vehicle owners dated September 19, 2014 N 431-P (hereinafter referred to as Regulation N 431-P). The rules contain:

a) the procedure for concluding, amending, extending, and early termination of a compulsory insurance contract;

b) the procedure for paying the insurance premium;

c) a list of actions of persons when carrying out compulsory insurance, including upon the occurrence of an insured event;

d) the procedure for determining the amount of losses to be compensated by the insurer and making insurance payments;

e) the procedure for resolving disputes regarding compulsory insurance.

Accordingly, the customer does not have the right to define in the draft contract the conditions for the provision of MTPL services that differ from the rules established by the Bank of Russia in Regulation No. 431-P. In support of this thesis, one can cite the recent decision of the Ryazan OFAS Russia dated March 4, 2016 in case No. 6503-3/2016, where Rosgosstrakh PJSC challenged the conditions for the provision of compulsory motor insurance services provided for by the customer in the draft contract.

Thus, the customer established that “payment of insurance policies is made by the policyholder within 20 working days from the date of receipt of the insurance policies, according to the invoices issued. The basis for issuing an invoice is the act of acceptance and transfer of insurance policies. Form of payment: non-cash, by transferring funds to the insurer's bank account. Policies are issued within 3 working days from the date of conclusion of the contract.”

The commission of the Ryazan OFAS Russia recognized these customer requirements as unfounded. According to para. 5 tbsp. 1.4 of Regulations N 431-P, in the case of payment of an insurance premium by bank transfer, a compulsory insurance policy is issued to the policyholder no later than the business day following the day the insurance premium is transferred to the insurer’s bank account.

In addition, the antimonopoly authority noted that the MTPL agreement refers to public contracts. Therefore, it must be concluded taking into account Articles 426, 445 of the Civil Code of the Russian Federation. What does this mean? In our case, the insurer is a party for whom the conclusion of a contract is mandatory, and the day of concluding a contract for the provision of compulsory motor insurance services can be considered as the day it receives an offer. By virtue of paragraph 1 of Art. 445 of the Civil Code of the Russian Federation, the insurer (i.e., the executor of the contract) is given 30 days to send to the insured (i.e., the customer) a notice of acceptance, or refusal of acceptance, or acceptance of the offer on other terms (protocol of disagreements to the project agreement). In addition, if the policyholder (customer) receives a protocol of disagreements regarding the draft agreement, the insurer is given another 30 days from the date of receipt of the protocol of disagreements in order to notify the other party of the acceptance of the agreement as amended or of the rejection of the protocol of disagreements (clause 2 of Article 445 of the Civil Code RF). Thus, the period for a car owner to apply to an insurer for an MTPL policy cannot be less than 60 days.

Based on the above, the commission of the Ryazan OFAS Russia recognized the requirements established by the customer for the terms of payment for services and for the period of issuance of the insurance policy as unlawful. In addition, when considering the complaint, it turned out that the customer provided for the following responsibilities of the insurer in the draft contract:

— round-the-clock call and visit of traffic commissioners to the scene of an accident;

— availability of a 24-hour dispatch service and provision of specialist advice in the event of an insured event;

— existence of a contract (contracts) with an organization that performs an independent examination of road accidents;

— support in collecting documents to receive insurance payments;

— extraordinary acceptance of all necessary documents in the event of an accident.

The Commission of the Ryazan OFAS Russia recalled that the obligations of the insurer assigned to it when concluding an MTPL agreement are established in Art. 6 of the Law on Compulsory Motor Liability Insurance and Ch. 48 Civil Code of the Russian Federation. So, by virtue of Art. 6 of the Law on Compulsory Motor Liability Insurance, the object of compulsory insurance is property interests associated with the risk of civil liability of the owner of the vehicle for obligations arising from harm to the life, health or property of victims when using the vehicle on the territory of the Russian Federation. The services listed by the customer in the draft contract are not the responsibility of the insurer.

This concludes our review of law enforcement practice on the problems of procurement of MTPL services. We wish you successful shopping!

One of the most profitable options for securing contracts is liability insurance. The essence of this procedure is to insure the company that has undertaken the execution of a government or other order against surprises that could lead to failure to fulfill obligations to the customer (beneficiary).

Benefits of Liability Insurance

From a financial point of view, insurance of a government contract, municipal or commercial contract is a very profitable security for obligations.
The speed with which this service is processed is amazing compared to other methods of provision.
There will be no need to withdraw money from circulation if there is such serious security for the fulfillment of obligations.
The number of documents when registering this financial product is so minimal that it will not take much time to collect them.

Interesting features of contract insurance

The absence of risk entailing loss of funds by the contractor (supplier of goods or services) under the contract is the main feature of this type of security. If violations of the terms of the contract are detected, the amount of actual damage and lost profits of the customer will be paid by the insurance company, and not by the contractor (contractor).
The insurance contract establishes the obligation of the insurance company to repay the amount of losses incurred by the customer when there is a failure to fulfill or inadequate performance of the duties of the contractor who has entered into an agreement with the insurer.
The insurance policy may be valid during the period of fulfillment of the terms of the contract and during the post-warranty period.

Risks insured by the insurance contract




The insurance policy insures events that cause loss and serve as the cause of civil liability of the contractor under the contract to the customer when the insured fails to comply with the terms of the contract as a result of:

• insolvency (bankruptcy) or termination of activity of the performer;
• unintentional errors made by the contractor or his employees;
• a complete suspension of production or a reduction in its volume, which is caused by any damage that occurred at the insured’s facility, such as an accident, disruptions in heating systems, power supply, etc.

The insurance contract insures the risks of losses for the contractor, which became the basis for violations of obligations under the contract due to the contractor’s contractors’ inadequate performance of their duties under contracts concluded between the government contractor and the contractors, based on the following:

• bankruptcy of the counterparty;
• complete or partial stoppage of the activities of the counterparty's enterprise due to an explosion, fire or other disaster at the facilities;
• natural disasters that occurred during the fulfillment by the counterparties of the insurer-executor of their obligations and in the place where they were carried out.

That is, the occurrence of any violations, be it a missed delivery date, any violations of technology, work, etc. - all losses associated with this are reimbursed by the insurance company.
Having an insurance policy in hand, the contractor under the contract can be confident in a favorable outcome of the case, because for him all risks of proving himself to be an unscrupulous contractor are excluded.

What does the amount of insurance compensation include?

The amount of insurance compensation depends on the following:

• expenses of the beneficiary (customer), incurred or those that must be incurred, in order to renew the right that was violated (real expenses, damage);
• additional expenses of the contractor arising upon the occurrence of an insured event;
• expenses of the policyholder that he has made or will make to restore his violated right;
• loss or damage to the property of the insured;
• the performer's lost profit.

Required when concluding an insurance contract

To obtain an insurance policy, the winning bidder must follow certain established rules, requirements and provide:

• the competitive documentation for the tender available to him;
• directly the contract (state, municipal, commercial) or its project with all applications;
• a statement confirming the desire to become an insured.
It's easy to get financial benefits with our help

In accordance with Federal Law 94-FZ, various ways to secure obligations under contracts are provided. In providing any of them, we provide assistance that is always distinguished by the use of the right solutions. After all, our specialists have an unsurpassed ability to apply their knowledge of financial services, taking into account all the intricacies and experience in this field. Whatever question you have about financial services, we will give you a comprehensive answer and help you resolve it.

Contacting us gives you guarantees:

• obtaining security on favorable terms;
• no need to withdraw funds from circulation or use them as collateral to secure obligations to the customer;
• maximum processing speed.

In addition to optimal terms of cooperation, we have the opportunity to offer you an acceptable cost of insurance services (the exact tariff can be found out by contacting us directly).
Our task is to enable any company to take part in competitions for the execution of government or other orders, regardless of what the financial position of the company is and whether it currently has available funds. We always cope well with our goals and do everything to provide the required assistance to each of our clients.

Insurance companies we cooperate with



We have connections with the largest companies in Moscow, successful in the insurance industry, as well as with smaller insurers, but no less reputable and also dynamically developing and having high levels of reliability. We have developed strong business relationships with each company.

Among them:

• Alfa insurance;
• VTB Insurance;
• Ingosstrakh;
• Renaissance Insurance;
• Ingosstrakh;
• IC "Progress-Garant";
• Russian People's Insurance Society "Rosno" and many others.

Our partners are also serious and reputable reinsurance companies engaged in reinsurance of state, municipal, and commercial contracts.

Can a state government institution that carries out procurement on the basis of Federal Law dated 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”, enter into comprehensive insurance contracts and compulsory motor liability insurance for an amount of up to 100,000 rub. without bidding, electronic auctions, quotations, etc.?

Having considered the issue, we came to the following conclusion:
The contracts specified in the question may be concluded by the customer without conducting competitive procedures on the basis provided for in clause 4, part 1, art. 93 of the Federal Law of 04/05/2013 N 44-FZ, subject to compliance with the restrictions established by this norm.

Rationale for the conclusion:
First of all, we note that since January 6, 2012, Federal Law No. 135-FZ dated July 26, 2006 “On the Protection of Competition” does not provide for provisions according to which federal executive authorities and executive authorities of constituent entities of the Russian Federation, regardless of the amount of the transaction, must enter into insurance contracts only based on the results of an open competition or open auction (see in this regard, for example, topic 2 of the Review of clarifications of the FAS Russia for February 2012).
According to Part. 1 and 2 tbsp. 24 of 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” when making purchases, customers use competitive methods for determining counterparties (tenders, auctions, request for quotations, request for proposals) or make purchases from a single supplier, contractor, performer (hereinafter referred to as the counterparty).
The customer chooses the method of determining the counterparty in accordance with the provisions of Chapter 3 of Law No. 44-FZ, while he does not have the right to take actions that entail an unreasonable reduction in the number of procurement participants (Part 5 of Article 24 of the said Law). According to the general rule provided for in Part 2 of Art. 48 of Law N 44-FZ, the customer in all cases carries out procurement through an open tender, except for the cases provided for in Art. 56, 57, 59, 72, 83, 84 and 93 of Law No. 44-FZ.
Law N 44-FZ does not oblige customers to use any specific competitive procedures for the purpose of concluding insurance contracts (including MTPL and comprehensive insurance contracts). The customer has the right to purchase from a single counterparty only in cases expressly provided for in Part 1 of Art. 93 Law No. 44-FZ. Such a basis for making a purchase from a single counterparty is the conclusion of an insurance contract, according to the provisions of Part 1 of Art. 93 of Law No. 44-FZ is not provided for. Therefore, without competitive procedures, insurance and compulsory motor liability insurance agreements can be concluded by the customer only on the basis of paragraphs 4 and 5 of Part 1 of Art. 93 of Law N 44-FZ (of course, subject to the restrictions established by these norms).

Prepared answer:
Expert of the Legal Consulting Service GARANT
Kislenko Maria

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Alexandrov Alexey

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.

Osago how to carry out 44 fz

Attention!
The reference material has been revised taking into account the changes introduced by Federal Law No. 504-FZ of December 31, 2017, and coming into force on July 1, 2018.

Vehicle owners are required to insure the risk of their civil liability, which may occur as a result of causing harm to the life, health or property of others when using vehicles.

This certificate presents material reflecting the specifics of the procurement of services for compulsory civil liability insurance of vehicle owners (hereinafter referred to as the purchase of compulsory motor vehicle liability insurance) in accordance with the norms of 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 Federal Law No. 44-FZ of April 5, 2013).

With the help of the information contained in this certificate, you will be able to avoid violations that arise during procurement in this area.

— Basic provisions
— Formation of the initial (maximum) price of the contract for the provision of MTPL services
— Methods for purchasing compulsory motor insurance
— Requirements for MTPL procurement participants
— Ensuring the execution of the contract for the provision of MTPL services

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How to purchase compulsory motor liability insurance: detailed instructions

Key changes for 2018

As of January 1, 2018, the motor vehicle liability insurance algorithm has been significantly adjusted. Main innovations:

1. A citizen who has entered into a car insurance contract has the right to terminate it within two weeks. Let us remember that last year it was possible to “change your mind” only within 5 days.
2. Companies offering services under OSAGO (OKVED: 65.13, OSAGO OKPD: 65.12) are required to take into account the Directives of the Central Bank of Russia dated November 14, 2016 No. 4192-U when providing these services.
3. In 2018, a new unified auto insurance policy form is in effect. Moreover, it is identical for paper and electronic forms. The new document has a special QR code that allows you to read additional information about the concluded agreement.

Please note that the new 2018 car insurance policy will disclose information on the calculation of the amount of the insurance premium, as well as the class of persons allowed to drive the vehicle.

How to purchase MTPL policies under 44-FZ

The purchase of auto insurance services is one of the most common types of expenses of public sector institutions. However, when concluding transactions of this nature, customers must take into account the current procurement regulations, as well as regulations governing the Russian insurance market.

OSAGO under 44-FZ, how to make purchases for public sector employees:

This is the easiest and most convenient way to purchase auto insurance services. The basis for such a transaction is set out in paragraphs 4 and 5 of part 1 of Article 93 of Federal Law No. 44 of 04/05/2013.

However, this procurement option is not always possible. For example, the contract amount exceeds the maximum permissible 100,000 or 400,000 rubles, or the permissible annual limit does not allow the transaction to be completed.

Option 2. Competition, request for quotations or auction.

First of all, the contracting institution must decide on the method for determining the contractor. Please note that previously customers chose exclusively to purchase through a competition. Why? According to the definition of the Supreme Arbitration Court of the Russian Federation dated November 21, 2012 No. VAS-14998/12, a reduction in the initial price of a government contract for such services is unacceptable. Therefore, it was inappropriate to use a request for quotations or an auction for the purchase of compulsory motor liability insurance.

Currently, the position of officials regarding the reduction of initial prices has changed. Thus, the Directive of the Bank of Russia dated September 19, 2014 No. 3384-U established the procedure for determining the price “corridor”. In other words, a special tariff method that allows you to determine the maximum and minimum values ​​for the NMCC.

goscontract.info

Purchase of compulsory motor liability insurance under Federal Law 44

Good day! Question regarding the purchase of compulsory motor liability insurance under Federal Law 44. Please tell me how to conclude a contract with OSAGO. We are a municipal institution. Do we need a commercial proposal and price justification? and in general how to carry it all out correctly. Thank you in advance!

Lawyers' answers (2)

Good day! Please tell me how to conclude a contract with OSAGO. We are a municipal institution. Do we need a commercial proposal and price justification? and in general how to carry it all out correctly. Thank you in advance!

If you have 1-2 cars and the opportunity allows, you can conclude as a single supplier on the basis of paragraph 4 of part 1 of article of the Federal Law of 04/05/2013 N 44-FZ “On the contract system in the field of procurement of goods, works, services for the provision of government and municipal needs":

procurement of goods, work or services in an amount not exceeding one hundred thousand rubles. In this case, the annual volume of purchases that the customer has the right to carry out on the basis of this clause should not exceed two million rubles or should not exceed five percent of the total annual volume of purchases of the customer and should not amount to more than fifty million rubles.

If this is not possible, then you can request quotes on the basis of paragraph 3 of Chapter 3 of 44-FZ, taking into account:

The customer has the right to make purchases by requesting quotations in accordance with the provisions of this paragraph, provided that the initial (maximum) contract price does not exceed five hundred thousand rubles. In this case, the annual volume of purchases carried out through a request for quotation should not exceed ten percent of the total annual volume of purchases of the customer and should not amount to more than one hundred million rubles.

Well, if there are already quotes or something like an auction!

Do we need a commercial proposal and price justification?

Yes, if you conduct quotes or an auction. No need for a single supplier!

You can contact with me any time!

What kind of institution are you? Budget? Autonomous? If you work under 223-FZ, then you can purchase according to your own regulations, and then OSAGO may be your only supplier.

According to 44-FZ, contracts up to 100 thousand are not subject to justification either by price or by essential conditions.

And if you are also a budget-funded educational institution, your limit increases to 400 thousand, you can include compulsory motor liability insurance under it. Justification is also not required; you enter into an agreement with the insurance company.

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Selection of insurer (based on court case materials)

January 1, 2014 is approaching, when Federal Law No. 44-FZ of April 5, 2013 “On the contract system in the field of procurement of goods, works, and services to meet state and municipal needs” will come into force. Although Russian officials have high hopes for this law to improve the public procurement system, it is worth raising some concerns. It seems that many of the current problems of law enforcement practice will remain relevant next year. In particular, we are talking about the relationship between the general procedure for placing orders for state and municipal needs with the special requirements of Art. 18 of the Federal Law of July 26, 2006 No. 135-FZ “On the Protection of Competition” regarding the conclusion of agreements with financial organizations.

Nowadays, both in judicial and arbitration practice, there has been an incorrect application of the general rules of legislation on the placement of orders to special cases of concluding such contracts. This problem can be illuminated using the example of the following case, which became the subject of consideration by the highest court.

On June 30, 2009, the Administration of the rural settlement of Novokulevsky Village Council of the Nurimanovsky District of the Republic of Bashkortostan (hereinafter referred to as the administration, the insurer) and Rosgosstrakh LLC represented by its branch in the Republic of Bashkortostan (the insurer) entered into a compulsory insurance agreement for civil liability of vehicle owners. Under the terms of the contract, the insurer agreed, for a fee stipulated by the contract (insurance premium), upon the occurrence of an event stipulated by the contract (insured event), to compensate the victim (third party) for losses resulting from damage to his life, health or property, and the policyholder - to pay the insurer the amount of the insurance premium.

The administration paid the insurer money, and the insurer issued an insurance policy to the administration. The insurance contract was concluded by the parties without competitive procedures (open tender or open auction).

The Office of the Federal Antimonopoly Service of Russia for the Republic of Bashkortostan (hereinafter referred to as the antimonopoly authority) in accordance with clause 11, part 1, art. 23 of the Federal Law of July 26, 2006 No. 135-FZ “On the Protection of Competition” (hereinafter referred to as the Law on the Protection of Competition), an unscheduled inspection was carried out regarding the administration’s compliance with the requirements of antimonopoly legislation when concluding the specified agreement.

On September 20, 2010, the antimonopoly authority made decision No. A-356/16-10 recognizing the administration as violating clause 4 of Art. 16 of the Law on the Protection of Competition in terms of restricting the access of business entities to the commodity market for insurance services.

The antimonopoly authority believed that, in accordance with Part 1 of Art. 18 of the Law on Protection of Competition, the administration, as a local government body, is obliged to hold open competitions (auctions) to select financial organizations to provide liability insurance services, regardless of the cost of such services in accordance with the provisions of Federal Law No. 94-FZ of July 21, 2005 “ On placing orders for the supply of goods, performance of services, provision of work for state and municipal needs” (hereinafter referred to as the Law on Placement of Orders).

On June 7, 2011, the deputy head of the Federal Antimonopoly Service for the Republic of Bashkortostan in relation to the head of the administration G.F. Sakaev. a protocol was drawn up on an administrative offense under Part 3 of Art. 14.32 of the Code of Administrative Offenses of the Russian Federation, and the case of an administrative offense was sent for consideration to the Kirovsky District Court of Ufa.

Judge of the Kirovsky District Court of Ufa, when making a decision on the appointment of Sakaev G.F. administrative punishment under Part 3 of Art. 14.32 of the Code of Administrative Offenses of the Russian Federation, proceeded from the fact that when concluding a contract of compulsory civil liability insurance for vehicle owners, an open competition (or open auction) was not held, while according to Part 1 of Art. 18 of the Law on Protection of Competition, in order to conclude a municipal contract for civil liability insurance, an open competition (or open auction) is necessary.

Sakaev G.F. at the court hearing he referred to the fact that if the amount of deductions for payment of the insurance premium is less than 100 thousand rubles, it is not necessary to hold a competition (or auction). The court considered these arguments unconvincing, because There is no direct indication of this in the law. In this connection, Sakaev G.F. a punishment was imposed in the form of an administrative fine in the amount of 20 thousand rubles.

Deputy Chairman of the Supreme Court of the Republic of Bashkortostan, considering the supervisory complaint of Sakaev G.F. to the decision of the judge of the Kirovsky District Court of Ufa dated June 28, 2011, agreed with this assessment of what was committed by G.F. Sakaev. deeds.

Sakaev G.F. filed a supervisory complaint with the Supreme Court of the Russian Federation, which, by resolution of April 12, 2012 No. 49-AD12-3, satisfied the complaint, canceling the previously issued judicial acts due to the absence of G.F. Sakaev in his actions. composition of an administrative offense. In this case, the court proceeded from the following.

In accordance with Part 3 of Art. 14.32 of the Code of Administrative Offenses of the Russian Federation, the conclusion by a federal executive body, an executive body of a constituent entity of the Russian Federation, a local government body, other body or organization performing the functions of these bodies, a state extra-budgetary fund of an agreement that is unacceptable in accordance with the antimonopoly legislation of the Russian Federation, or the implementation by these bodies or organizations that is unacceptable in accordance with with the antimonopoly legislation of the Russian Federation, concerted actions entail the imposition of an administrative fine on officials in the amount of 20 thousand to 50 thousand rubles. or disqualification for up to three years.

The objective side of this administrative offense consists of the actions of federal executive bodies, executive bodies of constituent entities of the Russian Federation, local governments, as well as the actions of other bodies or organizations performing the functions of these bodies, state extra-budgetary funds, which are recognized as unacceptable in accordance with the antimonopoly legislation of the Russian Federation.

According to Art. 16 of the Law on the Protection of Competition, such actions include the conclusion of an agreement between the above-mentioned bodies and organizations or the commission by them of other coordinated actions that lead or may lead to the prevention, restriction, or elimination of competition. This article establishes a direct prohibition on such actions if they can lead to the following consequences:

1) increasing, decreasing or maintaining prices (tariffs), except for cases where such agreements are provided for by federal laws or regulatory legal acts of the President of the Russian Federation, regulatory legal acts of the Government of the Russian Federation;

2) economically, technologically and otherwise unjustified establishment of different prices (tariffs) for the same product;

3) division of the commodity market according to the territorial principle, the volume of sales or purchases of goods, the range of goods sold, or the composition of sellers or buyers (customers);

4) restriction of access to the product market, exit from the product market or elimination of economic entities from it.

In accordance with Part 1 of Art. 18 of the Law on the Protection of Competition, federal executive authorities, executive authorities of constituent entities of the Russian Federation, local governments, state extra-budgetary funds, natural monopoly entities select financial organizations by holding an open competition or open auction in accordance with the provisions of the Law on the placement of orders for the provision, including financial services for liability insurance.

However, from the systematic interpretation of the provisions of the Law on the Placement of Orders, it follows that from the general rule on the mandatory holding of a competition or auction when placing an order for state or municipal needs, there is an exception - placing an order with a single supplier (performer, contractor). According to Part 1 of Art. 55 of the Law on Placement of Orders, placing an order with a single supplier (performer, contractor) means a method of placing an order in which the customer offers to conclude a state or municipal contract with only one supplier (performer, contractor).

Placement of an order with a single supplier (performer, contractor) is carried out by the customer if goods are supplied, work is performed, services are provided for state or municipal needs in an amount not exceeding the limit established by the Central Bank of the Russian Federation for cash payments in the Russian Federation between legal entities one transaction per transaction; at the same time, the customer has the right to place orders for the supply of goods of the same name, the performance of the same work, the provision of services of the same name during the quarter in accordance with the named paragraph for an amount not exceeding the specified maximum amount for cash payments (Clause 14, Part 2, Article 55 of the Placement Law orders).

This exception is aimed at establishing a reasonable ratio of the transaction amount and the costs of its conclusion; its purpose is to optimize the ratio of the rights of subjects and the economic feasibility of costs associated with holding a competition.

The exception provided for in Part 2 of Art. 55 of the Law on Placement of Orders also applies to cases of selection by local government bodies of financial organizations to provide financial services for liability insurance, provided for in Part 1 of Art. 18 of the Law on Protection of Competition.

Under the above circumstances, the conclusions of the courts that the norm of Part 1 of Art. 18 of the Law on the Protection of Competition establishes the direct obligation of the entities listed in it to conduct open competitions (auctions) for the selection of financial organizations to provide insurance services, regardless of the cost of such services, as well as the conclusions of the courts that the conclusion by the administration of a compulsory insurance contract for civil liability of owners vehicles without holding an open competition or auction, which entailed restriction of access to the commodity market for insurance services, should be recognized as contrary to the listed norms of substantive law.

The above circumstances indicate the absence of an administrative offense in the act committed by the head of the administration Sakaev G.F., the responsibility for which is provided for in Part 3 of Art. 14.32 of the Code of Administrative Offenses of the Russian Federation, therefore, there are no legal grounds for bringing this official to administrative responsibility.

The absence of an administrative offense is a circumstance that excludes proceedings in a case of an administrative offense (clause 2, part 1, article 24.5 of the Code of Administrative Offenses of the Russian Federation).

The stated position of the Supreme Court of the Russian Federation seems highly debatable. The assessment of the actions of the head of the administration, which was given by the antimonopoly authority, as well as by the courts of first and appellate instances, seems correct and based on the precise application of the legislation.

The main question in the above case comes down to understanding the exact meaning of the norm enshrined in Part 1 of Art. 18 of the Law on the Protection of Competition (as amended in force at the time of the conclusion of the controversial OSAGO agreement in 2009).

Indeed, in Part 1 of Art. 10 of the Law on Placement of Orders provides for two ways to place orders: 1) through bidding in the form of a competition, auction, including an auction in electronic form; 2) without holding a tender (request for quotations from a single supplier (performer, contractor), on stock exchanges).

Disposition of the norm, part 1, art. 18 of the Law on Protection of Competition is a blanket, it refers to the Law on Placement of Orders, but it does not indicate the possibility of selecting financial organizations by any means provided for by this Law. On the contrary, the norm in question does not refer to the entire regulatory legal act, but specifically indicates the use of only one selection method, namely: bidding in the form of an open competition or an open auction.

In this regard, the higher court in the above case had no grounds for concluding that any possible methods of placing an order could be used for the purpose of selecting an insurer. The court's conclusions should have been based not on the general meaning of the Ordering Law, but on the specific instructions of the legislator to conduct an open competition or open auction in the cases described in Part 1 of Art. 18 of the Law on Protection of Competition.

By the way, the meaning of this norm has been repeatedly explained over the years in letters from the FAS Russia (See, for example, letters from the FAS Russia dated February 21, 2007 No. IA/2168, dated March 23, 2007 No. AK/3869, dated June 14 2007 No. AC/9532, dated June 22, 2007 No. AK/10207, etc.). It is clear that letters from the executive authority are not sources of legal regulation and cannot be used as the basis for a court decision. However, they contain a correct interpretation of the literal content of the norm of Part 1 of Art. 18 of the Law on Protection of Competition, so reference to them seems appropriate.

Thus, the antimonopoly authority correctly indicated that in order to obtain financial services listed in Art. 18 of the Law on Protection of Competition, the entities named in this norm must hold an open competition or open auction to select a financial organization. Moreover, the methods for selecting financial organizations are specifically established by the norm; there are only two of them - an open competition or an open auction. The above norm does not contain conditions, compliance with which will be the basis for concluding such agreements without holding competitions or auctions. The law on placing orders in these cases applies only insofar as it concerns the procedure for conducting an open competition or open auction. The Law on Protection of Competition does not provide for the possibility of placing orders in any other way, incl. from a single supplier (performer, contractor).

Thus, the higher court applied the norm of Art. without sufficient grounds. 55 of the Law on Placement of Orders, which allows placing an order with a single supplier (performer, contractor) if the costs of completing the transaction (in the cited case, the amount of the insurance premium) do not exceed 100 thousand rubles.

The conclusion of an insurance contract is carried out not according to the general rules of the Law on Placement of Orders, which allows in certain cases to conclude a municipal contract (agreement) without bidding, but in accordance with the special requirements of Part 1 of Art. 18 of the Law on Protection of Competition.

It should be noted that arbitration practice in disputes related to the application of Part 1 of Art. 18 of the Law on the Protection of Competition (See the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 12, 2011 in case No. A01-1223/2010, the resolution of the FAS East Siberian District dated September 27, 2011 in the case No. A33-728/2011, the FAS resolution Far Eastern District dated September 6, 2011 No. F03-4000/2011 in case No. A73-14883/2010 etc.).

Thus, arbitration courts were of the opinion that it was possible to conclude MTPL agreements on the procedure for placing an order with a single supplier (performer, contractor) due to the lack of economic feasibility of holding an open tender or auction, given that the costs of holding a tender or auction are disproportionate to the amount of the insurance premium payable , as well as a fixed amount of insurance premium for all insurers. Given that insurance companies have their branches in all regions of the Russian Federation, the boundaries of the market for the provision of insurance services are not narrowed, and therefore there is no need to apply the provisions of the Law on Protection of Competition. Holding a competition or auction for the right to conclude a compulsory motor liability insurance agreement does not correspond to the purposes of the Law on the Placement of Orders, aimed, incl. to ensure efficient use of budget funds.

Indeed, in development of the provisions of Art. 9 of the Federal Law of April 25, 2002 No. 40-FZ “On compulsory civil liability insurance of vehicle owners”, insurance tariffs were approved by Decree of the Government of the Russian Federation of December 8, 2005 No. 739. In this regard, when concluding an MTPL agreement through bidding, price competition between participants is impossible; the price of the agreement does not matter for determining the winner of such a competition. For this reason, competitions for concluding MTPL contracts often turn into profanation: a queue of applicants is built up to the customer (organizer of the competition), whose task is to be the first to enter the premises where applications are accepted.

Despite the widespread use of this approach in judicial and arbitration practice, it is not possible to support it. After all, according to Art. 6 of the Arbitration Procedure Code of the Russian Federation, legality when considering cases by an arbitration court is ensured by the correct application of laws and other normative legal acts. The court cannot change the meaning of a legal norm due to the inexpediency of its application.

The essence of the competition is such that the competitive moment should not be reduced only to price competition. The customer can set detailed criteria for determining the winner of the competition. For example, the maximum amount of own and insurance reserves; the minimum period for conducting an examination and assessing damage; the minimum period of insurance payment after an examination of damage assessment; the minimum period for obtaining an insurance policy after payment of the invoice; possibility of delivering insurance policies to the customer’s address; the ability to apply for insurance by email; reliability class of the insurance company according to the scale of any rating agency, etc. In order to avoid a situation with absolutely identical applications, the customer should detail the competitive selection criteria as much as possible.

From January 1, 2012, the norm of Part 1 of Art. 18 of the Law on Protection of Competition has undergone major changes: its disposition has been supplemented with the words “regardless of the amount of the transaction,” which emphasizes the need for the unconditional application of a competitive or auction procedure carried out according to the rules of the Law on the Placement of Orders. At the same time, from Part 1 of Art. 18 of the Law on Protection of Competition, all types of insurance were excluded. Therefore, if the events constituting the plot of the above case had occurred in 2012, the MTPL agreement could have been concluded in the usual way: by sending a draft contract by one party (the customer) and signing it by the other party (the insurer).

However, the issue under consideration has not lost its relevance, since there are still general rules for placing orders and special provisions for holding competitions or auctions for the selection of financial organizations (credit institutions, registrars, trustees, non-state pension funds). Exclusion of insurance from the list of financial services contained in Part 1 of Art. 18 of the Law on Protection of Competition, removes only part of the problems that have accumulated in law enforcement practice, leaving relevant the main issue of the relationship between the general norms of legislation on the placement of orders and the special requirements of antimonopoly legislation.

In the above case, the act committed by the head of the administration was qualified by the antimonopoly authority under Part 3 of Art. 14.32 of the Code of Administrative Offenses of the Russian Federation - conclusion by a local government body of an agreement that is unacceptable in accordance with the antimonopoly legislation of the Russian Federation. Sakaev G.F. the minimum punishment provided for by the sanction of the above norm was imposed, namely: an administrative fine in the amount of 20 thousand rubles. This qualification of the actions of the head of the administration seems completely correct, since at the time the disputed agreement was concluded (in 2009), the legislation provided for a special procedure for selecting financial organizations for concluding agreements (open competition, open auction). Consequently, concluding an insurance contract “directly” with a specific insurer without observing the selection features established by Part 1 of Art. 18 of the Law on Protection of Competition should be qualified as concluding an agreement that is unacceptable in accordance with antimonopoly legislation.

It should be noted that in judicial practice there have been cases of incorrect classification of similar acts due to incorrect interpretation of Part 1 of Art. 18 of the Law on Protection of Competition. Thus, concluding an insurance contract without holding an open competition or open auction was often qualified as a violation under Part 1 of Art. 7.29 of the Code of Administrative Offenses of the Russian Federation - adoption by an official of a local government body of a decision on the method of placing an order for the supply of goods, performance of work, provision of services in violation of the requirements established by the legislation on placing orders for the supply of goods, performance of work, provision of services for state and municipal needs (See . decision of the Leningrad Regional Court of July 26, 2011 No. 7-521/2011). The sanction of the above norm provides for the imposition on an official of an administrative fine in the amount of 30 thousand rubles.

It seems that the norm of Part 1 of Art. 7.29 of the Code of Administrative Offenses of the Russian Federation should not be applied in such cases, since the choice of the order placement method for concluding an insurance contract is determined not by the requirements of the Order Placement Law, but by the requirements of the Competition Protection Law. In this regard, the rules of Part 3 of Art. 14.32 Code of Administrative Offenses of the Russian Federation.

Belyaeva Olga Alexandrovna
Doctor of Law
Leading researcher at the Institute of Legislation and Comparative Law under the Government of the Russian Federation

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