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FAS Russia on the appeal of the activists of the Moscow ONF and the NGO "STOPKARTEL" revealed violations in the centralized purchase of computers for the Ministry of Internal Affairs of the country with the preinstalled Microsoft Windows 7 program, in violation of the RF Government Decree 1236.
In this NAP there is a ban on admission of programs for electronic computers and databases originating from foreign countries (with the exception of software included in a single register of computer programs produced in the Russian Federation ...), operating system analogues have already been developed by many Russian companies in t.ch. daughter of the corporation "Rostekh" and can be used in the Ministry of Internal Affairs and other state structures.
One can not allow the entire computer network of the Ministry of Internal Affairs, other state structures and their personal computers to be paralyzed at one time, with the introduction of new US sanctions to ban the use of Microsofts programs. The President of the Russian Federation was not in vain talking about the need to import substitution of foreign software for domestic ... so why are not they thinking about this in the Ministry of Internal Affairs and continue to purchase foreign software. In total it was planned to buy more than 30 000 computers with preinstalled Microsoft Windows 7 and monitors for a total amount of over 1 BILLION. The units of the Moscow Ministry of Internal Affairs planned to supply 2,800 computers, in St. Petersburg - 1,000, to Nizhny Novgorod - 684, etc. (see purchase No. 0173100012518000112 of 07.09.2018)
DECISION No. KGOZ-417/18
based on the results of the consideration of the complaint about the violation of the
legislation of the Russian Federation
on the contractual system in the field of procurement
09/07/2018 Moscow
Having examined the complaint of the Regional Public Association of the public organization STOPKARTEL (hereinafter referred to as the "Applicant") for the actions of the Ministry of Internal Affairs of the Russian Federation (hereinafter referred to as the "Customer") when the Customer, EETP JSC (hereinafter referred to as the Electronic Market Operator), makes an electronic auction for the right to conclude a state contract for delivery of desktop PCs (notice number 0173100012518000112) (hereinafter referred to as the Auction) and as a result of an unscheduled inspection in accordance with clause 1 of part 15 of article 99 of the Federal Law of 05.04.2013 No. 44-FZ "On the Contract System in the Sphere of Procurement of Goods, Works, Services for Ensuring State and Municipal Needs" (hereinafter referred to as the Contractual System Act);
INSTALLED:
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The Customers representatives disagreed with the Applicants argument and reported that during the Auction the Customer acted in accordance with the provisions of the Law on the Contract System.
In accordance with the notice of the Auction, the Auction documentation, the protocols drawn up in the determination of the supplier (contractor, performer):
1) notice of the Auction is placed in the EIS - August 30, 2013;
2) the initial (maximum) price of the contract - 1 072 282 825 rub .;
3) the date and time of the deadline for submission of applications for participation in the Auction - September 24, 2013;
4) the date of the Auction - 01.10.2018.
In accordance with Part 3 of Article 14 of the Law on the Contract System, in order to protect the foundations of the constitutional system, to ensure the countrys defense and state security, to protect the domestic market of the Russian Federation, to develop the national economy, to support Russian commodity producers, the regulatory legal acts of the Government of the Russian Federation prohibit the admission of goods, originating from foreign states, works, services, respectively, carried out, provided by foreign persons, and restrictions on the admission of the decree goods, works, services for the purposes of procurement. In the event that the specified regulatory legal acts of the Government of the Russian Federation provide for circumstances permitting exceptions to the prohibition or restrictions established in accordance with this part, customers in the presence of specified circumstances are obliged to place in a unified information system a justification for the impossibility of observing the specified prohibition or restrictions. Such normative legal acts establish the procedure for preparing a justification for the impossibility of observing the said prohibition or restrictions, as well as the requirements for its content.
Point 2 of Resolution No. 1236 prohibits the admission of programs for electronic computers and databases sold regardless of the type of contract on a physical medium and (or) electronically via communication channels originating from foreign countries (with the exception of software included in a single the register of programs for electronic computers and databases from the member states of the Eurasian Economic Union, with the exception of the Russian Federation (hereinafter - the Register of Eurasian Software tions), as well as exclusive rights to such software and rights of use of such software, for the purposes of procurement for state and municipal needs, except in the following cases:
a) there is no information in the single register of Russian programs for electronic computers and databases and the register of the Eurasian software on software corresponding to the same software class as the software planned for purchase;
b) software, information about which is included in the register of Russian software and / or the register of the Eurasian software and which corresponds to the same software class as the software planned for purchase, for its functional, technical and (or) operational The characteristics do not meet the requirements set by the customer for the software planned for purchase.
According to the documentation on the auction, the object of purchase is a desktop PC with a basic (preinstalled) software.
In accordance with paragraph 9.2.2. "Description of the object of procurement" of the Auction Documentation, the following requirement "Operating system" - licensed Microsoft Windows 7 Professional, 64-bit, Russified version, on the case must be a sticker confirming the authenticity of the product. "
According to the Customers explanations, the network authentication module is used as part of the access control service to information systems (hereinafter referred to as the SUDIS) and the ISDOD resources of the Ministry of Internal Affairs of Russia. This module is a certified software that implements information security mechanisms (FSTEC certificate of Russia No. 989, valid until 04.08.2023) and provides end-to-end user authorization in the operating system and services of the Ministry of Internal Affairs of Russia. Restriction of the application of the module SUDIS are operating systems used in automated workplaces. List of operating systems compatible with the network authentication module SUDIS: Windows XP; Windows Vista; Windows 7 (32/64 bit).
The customer, in connection with the need to ensure the interaction of the software with the software used by the Customer, the equivalent for the software specified in the documentation about the Auction is not provided.
The customer, guided by subparagraph (b) of paragraph 2 of Government Decision No. 1236, did not establish a prohibition provided for by Government Resolution No. 1236.
In accordance with paragraph 3 of the Procedure for the preparation of a justification for the impossibility of complying with the prohibition on the admission of software originating from foreign countries for the purposes of procurement for ensuring state and municipal needs approved by Resolution No. 1236 (hereinafter - Procedure), the rationale shall contain an indication of:
a) the circumstance provided for in subparagraph "a" or "b" of clause 2 of the Procedure;
b) the class (classes) of software to which the software being the object of purchase must correspond;
c) the requirements for the functional, technical and operational characteristics of the software that is the subject of procurement, as specified by the customer, indicating the class (s) to which the software must comply;
d) functional, technical and (or) performance characteristics (including their parameters) for which the software, information about which is included in the register of the Russian software and (or) the register of the Eurasian software, does not meet the requirements set by the customer for the software , which is the subject of procurement, for each software (with the name of the software), information about which is included in the register of Russian software and (s) i) the register of Eurasian software and which corresponds to the same software class as the software that is the subject of procurement (only for purchase in the case provided for in subparagraph "b" of clause 2 of the Procedure).
The rationale for the impossibility of complying with the prohibition on the admission of software (hereinafter referred to as the "Justification") originating from foreign countries (with the exception of software included in a single register of Eurasian software, for procurement purposes to ensure state and municipal needs is placed in section 12 of the Auction Documentation.
At the same time, the Rationale placed by the Customer in the EIS does not contain an indication of the specific functional, technical and (or) performance characteristics for which the software (operating system), information about which is included in the register of Russian software and (or) the Eurasian software registry, is not meets the requirements established by the Customer for the software being the subject of procurement, for each software, information about which is included in the register of Russian of software and (or) the Register of Eurasian software and which corresponds to the same class of software that the software that is the object of purchase.
Taking into account the foregoing, the Commission concludes that the proper Rationale does not comply with Clause 3 of the Procedure, thus the Customer has violated Part 3 of Article 14 of the Law on the Contract System, which contains the signs of an administrative offense, responsibility for the commission provided for in part 4.2 of Article 7.30 of the Code of the Russian Federation on administrative offenses.
Based on the above and guided by clause 2 of part 15, clause 2 of part 22 of article 99 of the Law on the contract system, the Commission DECIDED:
1. To acknowledge the complaint of the Regional Public Association of the public organization "STOPKARTEL" justified.
2. Recognize in the actions of the Customer a violation of part 3 of Article 14 of the Law on the Contract System.
3. Issue to the Customer, the Operator of the electronic site, an order to eliminate the violation of the legislation of the Russian Federation on the contract system in the procurement sphere.
4. Transfer information on the detected violation of the Law on the contract system to the relevant official of the FAS Russia Department for Controlling the State Defense Order to consider the initiation of an administrative violation case.
The present decision can be appealed in a judicial procedure within three months from the date of its adoption. |
