Digitalization of the closed purchases for needs of defense and safety of the state: search of optimal legal solutions

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Digitalization of the closed purchases for needs of defense and safety of the state: search of optimal legal solutions

O.A. Belyaeva

A.V. Mikhashin

Abstract

In article the analysis of the last short stories of the legislation Russian about contract system regarding special type of digitalization of purchases -the closed procedures for needs of defense and safety of the state is undertaken. The research conducted by authors is the first in this subject owing to the fact that regulation of the considered relations was unknown to our law and order earlier. In article key problems of electronic procurement in the closed form among which are called existence of the only specialized electronic trading platform, lack of the transparent mechanism of selection of platforms, lack of a legislative regulation of the key legally significant actions made by customers and participants of purchases in a digital format are designated. Authors formulated offers on optimization of legislative regulation of the closed electronic procurement, including regarding reduction to a uniform denominator of a conceptual framework, increase in variability of ways of the closed purchases which are carried out in an electronic form is offered.

Keywords: the contract system, the State Defense order, purchase procedure, private purchase, procurement, procurement closed digitalization in electronic form, private electronic auction, specialized electronic playground.

The federal law from the 5^th of April 2013 №44 «On the contract system in the sphere of purchases of products, work or services for state and municipal needs» («On the contract system»), which came into force on the 1^st of January 2014, has set an unprecedented level transparency in the area of placing information regarding state purchases. Purchases for defense and security purposes also have not become an exception. The access to the information on any non-State secret purchases was free.

Military airbases maintenance, supply of repair and component parts for armored vehicles, food provision of military men, uniform sewing, building and repair of military buildings, headquarters, warehouses and storage facilities of arms and military machinery (in case of the absence of confidentiality regime): any purchase-related information and analytics are put on the state purchases website on terms of free access. Such information sets forth a detailed description of a purchased object and the quantity of supplied goods while also pre scribing the location of works execution or services provision.

At the same time, the current global military and political situation and the sanctions policy used by foreign states have been dictating new requirements to the legal regulation of informative ensuring of such purchases. The legislation governing purchases for defense and security purposes must become more closed from the outer world.

One of the first steps of «closing» the defense and security purposed purchases was the adoption of the decree by the Russian Government on the 30th of June 2015 №1247-r «On the assertion of the list of non-State secret goods, works, services in the field of space activity which are not subject to placement in the united informational system of in the sphere of purchases of products, work or services for state and municipal needs».

The production of aviation, rocket and space machinery, radio-locating and radio-navigating devices, ballistic and intercontinental missiles, communication devices parts and gear of computing machines were included in the list. Overall, more than 50 categories of goods, works and services for military and so-called «double» purposes were set forth in the decree. From now on, such purchases are to be made only in a «closed» form and, consequently, in writing.

The next step towards improvement of the legal regulation in this area became the decree of the Russian Government from the 27^th of November 2017 №1428 «On the peculiarities of making defense and security purposed purchases» (the Decree №1428). In accordance with this decree, purchases by some federal executive authorities (the Ministry of Defense of the Russian Federation, the Federal Security Service, The Foreign Intelligence Service) and by a number of public institutions and state unitary enterprises under their jurisdiction are exclusively closed.

It is necessary to point out that the Decree №1428 prescribes not only the defense order production purchases, but also other kinds of purchases of these federal executive authorities pursuant to the law «On the contract system». Such other purchases include supply of general and administrative purposes (furniture, stationery, computers, fuel and lubricants, means of auto-transport, major and minor repairs, medical equipment, educational services etc.).

In addition, the legislator stipulated that a part of closed procedures (in particular, of the ones purposed for the purchase of goods (works, services) included in a so-called «Auction list»Regarding the algorithm of execution of purchase traditional closed procedures read: Belyaeva O.A. Kontraktnaya sistema: zakrytye sposoby zakupok [Contract system: closed purchase methods] // Auktsionni vestnik. 2013. №167. P. 1-2; №168. P. 6-7. The Decree of the Russian Government from the 21^st of Match 2016 №471-r «On the list of goods, works and services, the purchase of which obliges the client to condemn an auction in the electronic form (electronic auction».) was to be executed in a form of a closed auction by using the specialized electronic trade platform (specialized ETP) «Automatized defense order trade system» (ADOTS)The federal Law of Dec. 31^st 2017 №504-FZ «On the amendments to the federal law «On the contract system» (came into force on the 1^st of July 2018)..

ADOTS commenced to function on the 7^th of February 2017 and it ensured purchase procedures prescribed in the federal law from July 18, 2011 №223-FZ «On purchases of the goods, works, services by separate types of legal entities» (the Law «On purchases)» for the defense industry enterprises until the adoption of the Decree №1428Here, it is important to clarify that the majority of defense industry enterprises are listed as clients in the Law «On purchases»)..

The peculiar feature of the specialized ETP is a multi-level system of information protection from the unsanctioned access. This system meets the information protection requirements while allowing to the accredited purchase participants to take part into closed electronic tenders from their work-places by using the cryptography information protection (CIP). Such participation has undoubtedly become a significant achievement of national science and technology.

At the same time, despite the major breakthrough in the area of technical possibilities of closed procedures conducting in the electronic form, the legal regulation of this field is in fact «minor», since it is currently on the opening stage of its development and it does not always comply with the relations in the sphere of such purchases. This non-compliance creates multiple issues of theoretical and practical nature. russian contract digitalization closed procurement defense

The above-mentioned fact does not come as a surprise, since, according to the precise definition of a Russian Academy of Sciences member T.Y. Habrieva, «in the first place, «digitalization» influences legal regulation. Such regulation covers new relationships, which have never existed before, have never required legal governing or objectively could not have been legally stipulated»Habrieva T.A. Pravo pered vyzovami cifrovoj realnosti [Law facing digital reality challenges] // Zhurnal rossijskogo pra- va. 2018. №9. P. 8..

Defense and security purposed purchases regulation has a number of significant peculiarities. Notably, pursuant to the article 111 of the law «On the contract system», the Russian Government is entitled to determine special features of a certain purchase, including stipulation of the way to select a contractor, which is not prescribed by the law «On the contract system». The Government enjoyed this right by adopting the Decree №1428.

According to the free-access sources, the new State Weapons Program 2019-2-27 plans to spend 20 trillion rubles -19 trillion on purchasing, repairing and elaborating of weapons and military machinery. It is possible to assume that the significant number of such purchases will be made by means of closed tenders. For comparison, the sum of state order for 2017 was 6.31 trillion rubles, ursuant to the Ministry of Finances of the Russian Federation).

In our opinion, the by-law level of regulation of defense and security purposed purchases in electronic form can hardly be considered an optimal legal regulation model. Considering peculiarities of such purchases, their volume, and their importance for the government and the society, implementation of a respective Chapter, dedicated to closed electronic tenders in the law «On the contract system» seems more suitable.

1. In accordance with paragraph 3 of the Decree №1428, the clients are obliged to conduct a closed auction using the specialized ETP functions while making purchases of goods (works, services). Also, the procedure of conducting of such auction in terms of:

— purchase-related documentation publication term;

— proposal submission;

— first and seconds parts of submissions examination and;

— contract signing is the same as the procedure of conducting of a «general» electronic auction. At the same time, by stipulating the procedure of a closed auction, the legislator left the question of notification and purchase-conducting documentation unanswered. Therefore, legal vacuum related to:

— the provision of requirements for the proposal, submitted to take part in the auction;

— the necessity of adoption of the rules on proposal's filling, execution and form etc., becomes quite obvious.

It is also interesting how the Ministry of Finances of the Russian Federation, the Federal Treasury and the Federal Anti-monopoly Service have advised on allying the regulations governing electronic auction to closed auction by using the specialized ETP functions where such application does not contradict the Decree №1428The letter of the Ministry of Finances of the Russian Federation, the Federal Treasury and the Federal Anti-monopoly Service from the 29^th of Jan. 2018. №24-04-06/4970, 14-00-06/1303, МО/5562/18.. The above-mentioned authorities supported their positions by the principles of reasonableness, united character of contract system and also by the provisions of the article 6 of the Civil Code of the Russian Federation regarding civil legislation application by the analogy.

In the meantime, legislation application by analogy in such situation is a state client's right but definitely not a responsibility. Refusal to apply such regulations in terms of notification and documentation contents cannot be considered a violation of the procedure of purchase of goods (works, services) for state needs. Consequently, previously described refusal does not entail the sanctions set forth in the article 7.30 of the Code of Administrative Offences (CoAO). Thus, the necessity of overcoming of the existing legal regulation gap appears to be quite clear.

2. To our minds, the stipulation of the new to the contract system purchase method -«closed auction by means of specialized ETP functions» could have been better.

The law «On the contract system» contains the regulations, which govern the conducting of a closed auction, such auction being a classical purchase procedure (limited list of participants, paper envelopes and voting signs, personal presence of the participants in the auction hall, an auction mallet etc.).

The phrasing «by means of specialized ETP functions» exceptionally means using ETP while making a purchase, although, it does not imply on the electronic format of every procedure. ETP can be used to send invitations to potential participants of the purchase or, for instance, to publish the protocol on the auction results, but at the same time, the interaction of participants might stick to the «old style and» not involve ETP. Besides, the reference itself to the ETP functions (which might as well change) in the name of the purchase method does not seem like a good choice.

To avoid the collision of legal regulations, governing closed auctions according to the law «On the contract system» and the Decree №1428, it may be reasonable to just use the term «closed auction in electronic form» instead of the « closed auction by means of specialized ETP functions».

3. Pursuant to the paragraph 3 article 84.1 of the law «On the contract system», closed electronic procedures are conducted by taking into consideration the peculiarities set forth by the Russian Government and the rules regarding accreditation on specialized ETP.

The Decree №1428 does prescribe the peculiarities related to conducting of closed electronic purchases. Such peculiarities are connected to the:

— procedure of the agreement upon the purchase conducting method;

— mechanism of interaction of a specialized ETP and a unified informational system in the sphere of purchases;

— declaration of the failure to accomplish the purchase procedures;

— special features of planning and controlling. However, the Decree №1428 overlooks the regulation regarding the participants' accreditation.

The absence of the accreditation on ETP (especially on a specialized ETP) makes the participation of an economic entity of such platform impossible.

Moreover, the accreditation procedure on a specialized ETP is much more complicated than the accreditation on ordinary trading platforms, due to the mandatory compliance with the provisions of safety regulationsFor instance, the Order of the Federal Agency of Government Communications and Information (FAGCI) from the 13^th of June 2001 №152.. The former also includes the steps related to the:

— acquisition of special software;

— organization of a secure communication channel;

— development and approval of the regulations by the company regarding using the cryptography information protection;

— CIP register;

— ordering of the controlled area; within which technical devices with the inserted CIP are permanently located;

— delivery of software by means of special communicationThe detailed procedure of the participants' accreditation by the ETP operator is stipulated by the article 61 of the law «On the contractual system»..

Therefore, the lack of a complex legal regulation of the accreditation process leads to the situation where the peculiarities of the accreditation procedure are “de facto” are given exclusively to the ETP. This fact at some level deprives potential participants of legally guaranteed rights in terms of the:

— mechanism of such accreditation;

— list of the documents submitted to the ETP operator for accreditation fulfillment;

— term of such procedure.

Considering the above-mentioned, regulation of the procedure for accreditation of participants of closed electronic procedures by the provisions of the law «On the contract system» seems reasonable, since it will contribute to avoiding of failures in the accreditation process and of the impossibility of prompt participation of potential procurement participants in competitive procedures.

4. In accordance with Decree №1428, clients, when conducting purchasing (except for purchases from a single supplier and purchases in a foreign country), are obliged to use closed methods of identifying suppliers (contractors, performers). Such methods include a closed competition, a closed competition with limited participation, a closed two-stage competition and a closed auction.

It is impossible to conduct requests for quotations and for proposals in a «closed form».

We believe that a limited number of purchase methods for the needs of the defense and security of the state is unjustified. The absence of the right to conduct a request for quotations deprives the state client of the ability to rapidly determine the counter-party in the “small” volume purchases (no more than 500 thousand rubles), by that, forcing such client to turn to much more labor-intensive, complex and lengthy procedures. The inability to make a purchase by means of the request for proposals, in its turn, limits the client to the ability of purchasing goods (works, services) specifically named in the law «On the contract system» in a short time and under a simplified procedure. For example, these are the products, that are subject matter of a terminated state contract, or medical substances that are prescribed to a patient on the grounds of certain medical indications at the discretion of the medical board. This last fact is especially important, since there are many medical organizations among institutions subordinated to the state clients, named in Decree №1428.

Thus, the reduction in variability in the selection of competitive procedures for the state customer alongside the increase in labor costs during the purchasing process (both for the customer at the documentation preparation stage and for the purchases participant at the application preparation stage), multiplied by the necessity for such purchases at a specialized ETP, where accreditation is obviously more difficult than on a “regular” ETP, clearly leads to:

— a decrease in the number of participants in such purchases;

— an increase in the price of concluded contracts and; consequently;

— to a decrease in effectiveness of meeting the needs of state clients in goods (works, services). Therefore, it seems reasonable for the law «On the contract system» to prescribe such purchasing methods as a closed request for quotations in electronic form and a closed request for proposals in electronic form, with the mechanism being identical to their «open» analogs. Moreover, all legally significant actions of the client and purchases participants (sending invitations to participate in the procurement, sending applications, opening access to received applications, etc.) must be transmitted into electronic format.

From a technical point of view, the implementation of such methods of purchases on a specialized ETP seems quite realistic, given that similar purchasing methods are already being carried out on a specialized ETP by clients, making purchases in accordance with the law «On purchases».

5. Today in Russia there is only one specialized ETP -«Automatized defense order trade system» (ADOTS)The Decree of the Government of the Russian Federation from 12.07.2018 №1447-r..

The Decree of the Government of the Russian Federation №656 from the 8^th of June 2018 stipulates the uniform requirements for ETP and specialized ETP. Notably, these requirements are identical in terms of the:

— general requirements for the size of the authorized capital;

— experience of conducting electronic purchases;

— availability of the communication services provision contracts;

— taxes and fees arrears absence;

— minimum technical requirements that the ETP should meet.

“Classical requirements” forbidding:

— conducting of liquidation process;

— suspending of business activity as prescribed by the Code of Administrative Offences.

The determination of a clear regulatory mechanism, enabling one of becoming an operator of a specialized ETP, as well as an increase in the number of such ETPs, are likely to increase competition level in this area. Such increase will eventually:

— boost the development and improvement of technologies in the field of closed electronic procedures;

— lead to increased convenience of work with ETP for state clients and potential counter-parties;

— increase the number of closed electronic purchases participants.

The carried-out study brings us to the conclusion that transition of closed procedures to electronic format is a «breakthrough» in the area of the defense and security purposed states purchases. This transition contributes to the:

— reducing of the risk of unfair competition;

— extending the transparency of purchasing procedures;

— bringing larger numbers of participants; and; as a result;

— reducing the price of the state contract, while also increasing the efficiency of budget spending. An example of the implementation of closed electronic purchases provide grounds for an assertion that the implementation of the digital economy program, approved by the decree of the Government of the Russian Federation №1632-r from July 28, 2017, feasible. Moreover, it is possible to carry out not only in open spheres of state's social and economic activity, but also in those segments, where opportunities for the participation of society and business are objectively limited due to the specifics of the regulatory framework.

At the same time, full digitalization of closed electronic purchases requires the formation of an integrative legislation in this area. The list of methods of closed electronic procedures must be expanded, unified terminology and basic definitions must be set forth, clear and precise rules for conducting such purchases must be established, and all the regulations of closed electronic procedures must be implemented directly into the law «On the contract system».

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