Software products for 44 FZ. Software purchases by educational institutions. Supplier identification method

From July 1, 2018 to January 1, 2019, customers have a transitional period - it is allowed to carry out both electronic and paper procedures. As of 2019, paper tenders, auctions, quotes and requests for proposals will be banned, with eight exceptions.
Read what purchases to make on the ETP, how to choose a site and get an electronic signature, according to what rules to conclude contracts in the transition period and after.

Since January 1, 2016, there is a ban on admission of software (hereinafter referred to as software) and rights to it originating from foreign countries.

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The ban on the admission of software of foreign origin is established by Resolution of the Government of the Russian Federation No. 1236 (hereinafter - Resolution No. 1236).

The ban on admission in procurement is established for:

• computer programs of foreign origin;
• databases of foreign origin;
• exclusive rights to software of foreign origin;
• the right to use software of foreign origin.

A ban on admission is established regardless of:

• the type of contract on the basis of which software and databases are implemented;
• forms of software and database implementation - on a material carrier, in electronic form via communication channels. *

Situation: is it necessary to establish a ban on admission when purchasing exclusive and non-exclusive rights to software

The customer, when purchasing exclusive and non-exclusive rights to software, establishes a ban on admission of software of foreign origin, except for cases when a ban on admission is not established. Such a prohibition is established, including when renewing non-exclusive rights to the software.

A similar conclusion follows from the decision of the Vologda OFAS Russia dated March 3, 2016 in case No. 5-2 / 25-16.

When planning and preparing a notice, documentation, the customer determines whether the unified register of Russian programs for electronic computers and databases (hereinafter referred to as the register) contains software of Russian origin, corresponding to the same class of software as the one planned for purchase.

If the register does not contain information about the software corresponding to the same class as the software planned for purchase, then the customer does not prohibit the admission of software of foreign origin. Also, no prohibition is established if information about software of this class is included in the register, but in terms of its functional, technical or operational characteristics does not correspond to the requirements established by the customer for the planned software purchase.

In addition, such a prohibition is not established if software or rights to it are purchased:

• diplomatic missions and consular offices of Russia, trade missions of the Russian Federation at international organizations to ensure their activities on the territory of a foreign state;
• information about which or the purchase of which is a state secret.

In all other cases, the customer is obliged to establish a ban on the admission of software of foreign origin.

In the event that the customer does not establish a ban, he prepares a justification for the impossibility of observing the ban on the admission of software of foreign origin.

The justification for the impossibility of observing the prohibition is approved by the customer as of the day of placing the notice of the procurement. Such justification is placed in the EIS simultaneously with the placement of the notice.

The procedure for preparing the justification for the impossibility of observing the ban on admission of software of foreign origin was approved by Resolution No. 1236.

Situation: is it necessary to place in a unified information system a justification for the impossibility of observing the prohibition on admitting software originating from foreign states under contracts concluded in accordance with paragraph 4 of part 1 of Article 93 of Law No. 44-FZ

Information on contracts concluded in accordance with paragraph 4 of Part 1 of Art. 93 of Law No. 44-FZ is not placed in the EIS.

If this case relates to exceptions to Resolution No. 1236, then the customer must prepare a justification for the impossibility of complying with the prohibition on admitting software originating from foreign countries and keep such justification together with the contract and other documents on such a purchase.

When purchasing software of Russian origin, the customer also establishes a ban on the admission of software originating from foreign countries, except in cases where a ban on admission is not established.

In such cases, the customer prepares a justification for the impossibility of observing the ban on the admission of software originating from foreign countries in accordance with the Procedure.

Situation: should software of Russian origin be necessarily contained in the unified register of Russian programs for electronic computers and databases

No, it shouldn't. Requirements that software of Russian origin must be necessarily contained in a unified register is not established by Resolution No. 1236.

Thus, the ban on the admission of software of foreign origin was established by the RF Government Resolution No. 1236 (hereinafter - the Resolution No. 1236). Resolution No. 1236 establishes ban on admission of certain types of work (services), which corresponds to Part 3 of Art. 14 of Law No. 44-FZ, according to which, in order to protect the foundations of the constitutional system, ensure the country's defense and state security, protect the domestic market of the Russian Federation, develop the national economy, support Russian commodity producers, regulatory legal acts of the Government of the Russian Federation may prohibit the admission of work , services performed, provided by foreign persons, and restrictions on the admission of these goods, works, services for the purposes of procurement.

After a brief analysis of Resolution No. 1236, we come to the conclusion that it does not require the participant of the electronic auction to provide in the second part of the application any documents confirming that the software offered by it does not belong to software of foreign origin.

We believe that in the first part of the application, it is enough for the participant to indicate the country of origin of the goods. But if the customer has established in the documentation that, when submitting applications, the participant "additionally confirms" that the software offered by him is of Russian origin (for example, a declaration), then it is advisable to attach such a declaration.

After that, when considering the second parts of applications, his "proposal" is checked for compliance with the stated requirements in the terms of reference.

We recommend that the contract be written that the purchased software must be of Russian origin, and in the event that such software does not meet the specified requirements, the customer has the right to terminate the contract unilaterally.

“… .At the same time, by virtue of Part 3 of Art. 14 of the Law on the contract system in order to protect the foundations of the constitutional system, ensure the country's defense and state security, protect the internal market of the Russian Federation, develop the national economy, support Russian producers, regulatory legal acts of the Government of the Russian Federation establish a ban on the admission of goods originating from foreign states, works , services, respectively performed, provided by foreign persons, and restrictions on the admission of these 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 that admit exceptions to the prohibition or restrictions established in accordance with this part, the customers, in the presence of these circumstances, are obliged to place in the unified information system a justification for the impossibility of observing the specified prohibition or restrictions. The procedure for preparing and placing a justification for the impossibility of observing the indicated prohibition or restrictions in the unified information system, as well as the requirements for its content, are established by the Government of the Russian Federation. The determination of the country of origin of these goods is carried out in accordance with the legislation of the Russian Federation.

Clause 2 of Resolution No. 1236 establishes a ban on admission of programs for electronic computers and databases, implemented regardless of the type of contract on a tangible medium and (or) in electronic form via communication channels originating from foreign states, as well as exclusive rights to such software provision of and rights to use such software (hereinafter referred to as software and (or) rights to it), for the purpose of making purchases to meet state and municipal needs, except for the following cases:

a) there is no information in the register about software corresponding to the same class of software as the software planned for purchase;

According to clause 2 of the Procedure for preparing a justification for the impossibility of observing the prohibition on the admission of software originating from foreign countries for the purpose of purchasing to meet state and municipal needs, approved by Resolution No. 1236, the justification is prepared by the customer when purchasing software in the following cases:

a) the unified register of Russian programs for electronic computers and databases does not contain information about software corresponding to the same class of software as the software planned for purchase;

b) software, information about which is included in the register and which corresponds to the same class of software as the software planned for purchase, in terms of its functional, technical and (or) operational characteristics does not correspond to the requirements set by the customer for the software planned to be purchased provision.

By virtue of clause 6 of the Procedure for preparing the justification for the impossibility of observing the prohibition, the placement in the unified information system of the justification for the impossibility of observing the prohibition in the field of procurement is carried out by the customer simultaneously with the placement of the notice of the procurement.

The specified justification for the impossibility of observing the ban in the EIS is not posted, which is a violation of Part 3 of Art. 14 of the Law on the Contract System .... "

It is necessary to establish a ban under article 14 of Law No. 44-FZ.

We believe that it is enough for the participant to indicate the country of origin of the goods in the application. But if the customer has established in the documentation that, when submitting applications, the participant "additionally confirms" that the software offered by him is of Russian origin (for example, a declaration), then, we believe, it is advisable to attach such a declaration.

We recommend specifying in the contract, for example: “… the software purchased must be of Russian origin. If information is revealed that the software is not of Russian origin, the customer has the right to refuse to accept the goods, and also has the right to terminate the contract unilaterally. "

A rare modern company does not need software that must be purchased periodically. If it belongs to state or municipal, then it cannot use any software other than licensed. From January 1, 2014, all suppliers of intellectual property are required to comply with Federal Law No. 44-FZ of 05.04.2013 "On the contract system in the procurement of goods, works, services to meet state and municipal needs." This document is called the "public procurement law". The latest revision introduced restrictions on certain groups of software. How the provisions of Federal Law No. 44 regarding the acquisition of intellectual property, ours and foreign, are implemented, read in this article.

Intellectual property - a product, service or work?

The Law on Public Procurements - ФЗ №44 - considers all kinds of legal relations between the supplier and the customer:

• at an open auction;
• in auctions on electronic platforms;
• in requesting quotes;
• in trades by private selection.

The Law deals with all the nuances of procurement aimed at the sale of a specific product, work or service. Does this triad include intellectual property, namely software?

REFERENCE! In the text of Federal Law No. 44 there are no direct statements regarding software, therefore, the interpretation of the application of this law to software products may differ.

Disposal of intellectual property objects cannot be fully attributed to the sale of goods, the provision of services or the performance of work. This is an independent legal relationship, more precisely, civil law, regulated by the Civil Code of the Russian Federation. Therefore, you need to be especially careful about the application of Federal Law No. 44 in relation to software:

• when registering government contracts;
• when registering tenders.

Application for a tender for the purchase of software

By submitting an application, the participant must agree with the terms of reference. The application form differs depending on whether the product is being purchased or the service provided. In the first case, it is obligatory to indicate the state where the goods were produced. What about intellectual property in such an application?

The regulatory authorities regard the software license agreement not as a supply agreement, but as an agreement for the provision of services. However, it is recommended for reinsurance to still declare the country of origin of the goods, in most cases it will be Russia or one of the EEC countries.

State contract for the purchase of software

By purchasing licensed software, the customer buys not just a box with the program or an electronic version, but also the right to temporary possession and use. Therefore, it is necessary to conclude not just a contract, but a licensing agreement, which includes, in addition to the basic agreements, important points regarding intellectual property:

• boundaries of rights that are transferred;
• territorial restrictions on their action;
• period of relevance;
• rights and obligations of the customer and the contractor.

This agreement should be formalized as an appendix to a government contract or as a "accession agreement" (additional conditions are written on the packaging of the purchased product or a copy of the program).

No purchases outside the Register

In 2016, software as an object of procurement fell under the Decree of the Government of the Russian Federation of November 16, 2016 No. 1236. This act prescribes to limit the purchased software to what is contained in the Unified Register of Russian Programs for Electronic Computers and Databases. This means that foreign software is strictly limited in favor of domestic software (this is done to implement the import substitution program).

What software is limited as a procurement item

The Government decree declares which types of software are banned. According to this regulatory act, it is prohibited to purchase foreign software if there is a domestic analogue - neither directly (under a contract), nor by purchasing a license. The following foreign products are subject to limitation:

• programs for electronic computers;
• databases of other states;
• any exclusive intellectual property rights;
• the right to use the software.

Foreign programs are not permitted to be acquired either electronically or recorded on any tangible medium.

There is also a ban on the purchase of certain types of foreign products related to radio electronics, namely portable PCs weighing up to 10 kg (laptops, tablets, laptops, pocket electronic devices, including those combined with mobile phones, etc.).

Exceptions to software limitation

The scope of this Bylaw does not include a few specified exceptions. You are still allowed to buy foreign software and the rights to it:

• diplomatic missions of the Russian Federation;
• consulates;
• trade representations of Russia at international organizations on the territory of other states;
• in the event that the software itself or data on its purchase are classified as state secrets.

What has changed in software procurement in 2018

Since 2016, customers have been looking for a way to find workarounds in the prohibition order in order to purchase the familiar software. This prompted the Government to revise the regulations and make a number of changes to the Resolution. This happened at the end of 2017, so that the new edition became relevant from January 2018.

From the EEC - now you can

Russia allowed its customers to buy not only "native" software product, as it was in the initial edition, but also choose from proposals coming from the Eurasian Economic Union (Armenia, Belarus, Kyrgyzstan and Kazakhstan). Their software is now included in the Register along with the Russian one.

In connection with this permission, an important change affected the structure of the Register of approved programs for procurement. It was split into two:

• including domestic programs and databases;
• software product and databases of the EEC states.

What software will not be included in the Register

The new version of the Resolution made stricter requirements for products and databases that can be placed in the Register. In addition to domestic origin and other requirements that were in force before, software in the Register:

• should not be forced to be controlled or updated from abroad;
• has no right to interfere with the use of the product and its distribution in the territory of the Russian Federation and its subjects.

There are other significant changes:

• added additional conditions for inclusion in the Register of office software;
• the procedure for the functioning of the Expert Council for Domestic Software has been changed;
• revised the issue of mandatory information security certificate.

Algorithm for purchasing software

How to act for a customer who wants to conclude a contract for the purchase of software? The principles are as follows.

1. Examine the Registry.
2. If the required software is present in it, fill out an application;
3. If the required software is not available, look through the list in the search for a domestic analogue.
4. An analogue belonging to the same class was found - an application for it is being made.
5. There is an analog, but it does not quite suit the customer in terms of basic characteristics, or there are no analogs - the purchase of the required software, even foreign, is allowed.

Customer Requirements Arguments

A subtle point: to purchase foreign software, the customer will have to prove that none of the Russian analogues listed in the Register is suitable for his organization. The evidence must be compelling and not simply a management wish or other similar argument. To do this, in the Unified Information System (UIS), he is obliged to place a comprehensive justification, including:

• detailed and specific requirements for the purchased intellectual property (properties, characteristics);
• reasons for purchasing software that is not in the Register;
• class (or several classes) of software that you want to buy;
• comparison of the characteristics of software analogs present in the Register with those required by the customer (significant discrepancies should be found).

NOTE! Experienced customers do not recommend using a rationale as an option to purchase any software bypassing restrictions, except for exceptional situations. The reviewers are often not competent enough to adequately assess the arguments of the justification, and therefore may simply find them insufficient. In most cases, it is more expedient to stay within the Registry of Russian software.

In the procurement of software (software), three situations are possible:

1. The software is purchased directly. It does not matter whether it will be recorded on a medium (disk, flash drive) or downloaded from the Internet.
2. The equipment is purchased together with pre-installed software. For example, computers with an installed operating system and office suite.
3. Procurement of services for granting the right to use the program.

All cases must take place taking into account the requirements of the national regime for the state purchase of software.

For some customers, the acquisition of certain categories of software is carried out centrally by authorized bodies. In 2018, the Ministry of Digital Development developed a methodology for the transition of state-owned companies to domestic software. It is planned to be completed in 2020.

The Treasury will purchase software for budget accounting for federal executive bodies under the leadership of the Government and their subordinate government agencies. You need to switch to budget accounting using this software according to the schedule, which was approved by Order of the Treasury No. 36n dated 10.10.2018. Information on the need for such purchases must be submitted to the Treasury in the form and in the manner approved by Order of the Treasury No. 37 of 10.10.2018.

The Ministry of Telecom and Mass Communications will purchase office programs and software in the field of information security for these executive authorities. In 2019, information on the need for such state purchases must be submitted to the Ministry of Telecom and Mass Communications in the form and in the manner approved by the Order of the Ministry No. 725 of 12/19/2018. Read more about this in the articles:

We plan a purchase

When completing the schedule, you must indicate the restrictions on the national treatment.

Please tick box 27 “National Treatment in Procurement” of the procurement schedule.

We establish a ban on the purchase of foreign software

On 01/01/2016, Law No. 188-FZ came into force, which expanded the possibilities of using programs of Russian developers, giving them advantages over foreign ones. For these purposes, developed and adopted, which is set for the purchase of foreign software.

Acquisition of:

• programs regardless of media, as well as cloud services;
• supply and maintenance of computer equipment and similar equipment, for which you need to download software;
• development, modification, modernization, maintenance, technical support, software updates, if the customer receives the rights to use the software or the previously granted scope of rights is expanded.

This list is enshrined in paragraph 2 (1) of Resolution No. 1236.

Documentation for the state purchase of software under 44-FZ must contain a reference to the established prohibition (Art. 14 of Law No. 44-FZ).

Checking software in registries

To determine whether to set a ban, you will have to check the information from the registries. As the name suggests, Resolution No. 1236 distinguishes between the two. Both the register of Eurasian software and the register of Russian contain all information about a particular program. These include the name (including obsolete), product code, copyright holder, information on compliance, etc. The lists are posted on the website of the Ministry of Communications in the "Register" section, the register of Eurasian software is under development.

If the required software is contained in at least one of the registers, the prohibition is mandatory. It is possible to purchase foreign software in cases when:

• there are no analogues in the registers that correspond to the class that meets the needs of the state customer;
• there is an analogue in the registers, but certain characteristics do not suit the customer;
• software is purchased for a customer who works abroad;
• information about public procurement is a state secret.

If you did not find analogues in the register or it does not fit for some characteristics, make a justification for the impossibility of observing the ban. Submit it in the EIS along with the purchase notice.

We justify the impossibility

If it is impossible to purchase Russian software and it is necessary to purchase foreign software, the customer needs to prepare and place it in the EIS. The preparation of such a document should be approached extremely responsibly so as not to violate the established prohibition.

The document must contain:

• grounds for purchasing foreign software;
• a link to the classes to which the software belongs;
• a list of customer requirements for the characteristics of the purchased software;
• justification (reasons) why the purchased software does not meet the requirements of the programs fixed in the register.

The justification is published simultaneously with the notice of the procurement procedure.

We draw up a technical task

When you draw up the terms of reference for the tender, you need to check the functional connection, as well as pay attention to the wording of the subject of the request.

When purchasing software (software), the customer can combine the purchase of software and services for its support. These conclusions were made by the Ministry of Finance in Letter No. 24-06-06 / 60727 dated 19.09.2017.

The supply of computer equipment and the purchase of programs not related to it, as a carrier of non-exclusive rights to use, programs cannot be combined. So the Arbitration Court of the Volga-Vyatka District decided in case No. A38-10848 / 2016 dated 08/14/2017.

The terms of reference for software, that is, a description of the technical characteristics, do in accordance with the general provisions of Law No. 44-FZ. That is, any state contract concluded must contain a technical assignment in the documentation.

A competent example of a technical assignment for software, in addition to the general requirements under Art. 33 44-FZ, must contain:

• license standard;
• scope and terms of quality assurance;
• specification and distribution of licenses.

We consider applications

If a ban on admission of foreign software is established, then do not allow applications that are not in the registers of domestic or Eurasian software.

This rule is fixed in clause 2 (2) of Resolution No. 1236.

We conclude a contract

Procurement procedures for Russian-made software are completed with the conclusion of a contract. The rules are established in Art. 83.2 44-FZ.

Some authorities are developing standard forms for such contracts. For example, in the Khanty-Mansi Autonomous Okrug.

Study an example of a signed government contract in public procurement of software in 2019.

Can the customer, according to the Federal Law of 05.04.2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law N 44-FZ) buy software produced in the Russian Federation , but not included in the Register of Russian programs for electronic computers and databases (PP 1236 of 11/16/2015)? Can a customer, under Law N 44-FZ, buy foreign software as part of equipment or a computer? Do I need to prepare a justification for the purchase of foreign software if it is preinstalled on the equipment or computer by the manufacturer?

On this issue, we adhere to the following position:
The purchase of equipment with preinstalled software originating from foreign countries is possible only if it is justifiably impossible to comply with the prohibition on admitting such software.
This prohibition does not apply to the purchase of Russian software, information about which is not included in the Register of Russian programs, but such a position will most likely have to be defended in court.

Justification of the position:
In accordance with the requirements of the Federal Law of 05.04.2013 N 44-FZ "On the contract system in the procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law N 44-FZ), mentioned by you Government of the Russian Federation of 16.11. 2015 N 1236 established a ban on the admission of software (hereinafter referred to as software) originating from foreign countries for the purpose of making purchases to meet state and municipal needs (hereinafter referred to as Resolution N 1236).
According to Resolution N 1236, this prohibition applies to the admission of software for electronic computers and databases, implemented regardless of the type of contract on a tangible medium and (or) in electronic form via communication channels originating from foreign countries, as well as exclusive rights to such software and the rights to use such software. There are no exceptions for cases when the customer purchases computer equipment with preinstalled software; accordingly, the prohibition established by this decree applies to such purchases.
The above is confirmed by numerous law enforcement practice (see, for example, FAS dated 10.24.2016 N K-1725/16, decision of the OFAS for the Astrakhan region of 02.06.2017 N 173-RZ-04-17, decision of the OFAS for the Kemerovo region of 18.05.2017 N 284 / З-2017, resolution of the OFAS for the Chelyabinsk region of 13.04.2017 N 7.30-4.2 / 69-2017, the decision of the OFAS for the Republic of Crimea and the city of Sevastopol of 20.12.2016 N 08 / 3205-16), as well as judicial practice (see , for example, the decree of the Eleventh AAS dated 07.07.2017 N 11AP-7913/17).
Resolution N 1236 establishes exceptions that give the right not to comply with the ban on admission of foreign software:
- there is no information in the register about software corresponding to the same software class as the software planned for purchase;
- Software, information about which is included in the register and which corresponds to the same software class as the software planned for purchase, in terms of its functional, technical and (or) operational characteristics does not meet the requirements set by the customer for the software planned for purchase.
The impossibility of observing the prohibition established by N 1236 for the above reasons must be justified. The procedure for preparing this justification was approved by clause 1 of Resolution N 1236.
Under the "register" in the above norms is obviously understood as a unified register of Russian programs for electronic computers and databases (hereinafter referred to as the Register), the rules for the formation and maintenance of which are approved by the same paragraph 1 of Resolution N 1236.
Accordingly, if foreign software is preinstalled on the equipment or computer and there are no analogues in the Register of Russian programs, or the Russian analogue in its functional, technical and (or) operational characteristics does not meet the requirements set by the customer for the software planned to be purchased, the customer must justify the impossibility of observing the prohibition, established by Resolution N 1236.
At present, in a number of cases, referring to the provisions of the Federal Law of 27.07.2006 N 149-FZ "On information, information technologies and information protection" (hereinafter - Law N 149-FZ), according to which programs for electronic computers and databases data, information about which is included in the Register, is recognized as originating from the Russian Federation, the regulatory authorities equate software produced in Russia, information about which is not available in the Register of Russian programs, to originating from foreign countries (see, for example, the decision of the Federal Antimonopoly Service of the Khabarovsk Territory dated October 27 .2016 N 477, decision of the OFAS for the Sakhalin region of June 19, 2017 N 171/17, decision of the OFAS for the Yaroslavl region of 04/27/2017 N 05-02 / 129Zh-17).
However, in our opinion, this position is not indisputable.
First of all, Resolution N 1236 prohibits the admission of software originating from foreign countries, and not the software, "information about which is not in the register." At the same time, neither in the law nor in N 1236 there is an indication that software, information about which is not in the register, "for the purpose of procurement is considered to come from foreign countries" or "cannot be considered Russian."
Moreover, according to Law N 149-FZ, the Register is created in order to expand the use of Russian programs for electronic computers and databases, to confirm their origin from the Russian Federation, as well as to provide state support measures to rightholders of the software, but not to restrict the use of Russian software. , information about which is not included in the Register. Inclusion in the register is carried out by virtue of clause 9 of the above Rules for the formation and maintenance of the Register at the request of the copyright holder. Obligations to include software in the Register (to submit a corresponding application) are not established by any rule. Hence, we can conclude that for the purposes of providing state support, including the provision of preferences for procurement for state or municipal needs, software, information about which is included in the Register, should definitely be considered Russian - this is precisely why it was created. But the opposite - that software, information about which is not included in the register, should not be considered Russian - does not follow from the above norms.
In other words, the lack of information about software in the Register itself may have the following negative consequences for the copyright holder in the field of procurement for state or municipal needs:
a) when the customer makes and justifies a decision on the possibility of purchasing foreign software, even the very existence of Russian software that is not included in the register, and even more so its characteristics, are not taken into account;
b) the assignment of the software to Russian cannot be verified by the contents of the Register.
However, in this case, the rightholder of the Russian software can participate in the procurement, he simply will not be given preferences in the form of removing the procurement participants offering software originating from foreign countries, and he will have to compete with such participants on equal terms.
We believe that the conclusion is rather strange that the copyright holder of such Russian software, which can compete on equal terms with those originating from foreign countries, should be deprived of the opportunity to compete with participants of other domestic software included in the Register.
Accordingly, in our opinion, the copyright holder of the software can, in principle, participate in the purchase, access to which is prohibited for foreign software, by submitting evidence other than including information about the software in the Register that this software is Russian. For example, documents can be considered as evidence, the provision of which is necessary for inclusion in the register, confirming the ownership of the exclusive right to the residents of the Russian Federation and (or) persons controlled by them, the use of foreign software components no more than 30% of the cost of the software included in the register, etc. P. (Law N 149-FZ).
Equally, in our opinion, the customer is not obliged to justify the purchase of Russian software, information about which is not included in the Register.
Nevertheless, it should be noted that taking into account the practice of application by the authorities of the FAS Russia and in the absence of official explanations from this department itself, as well as from judicial practice, most likely, this position will have to be defended in court.
Recall that in the case of purchasing a computer (other equipment) with preinstalled software, the customer must also comply with the requirements of the Government of the Russian Federation dated September 26, 2016 N 968 "On restrictions and conditions for admitting certain types of radio electronic products originating from foreign countries, for the purpose of making purchases to ensure state and municipal needs ".

Prepared by:
Expert of the Legal Consulting Service GARANT
Verkhova Nadezhda

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Serkov Arkady

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

Dear Colleagues!

Interesting and useful material for state and municipal customers is posted on the website of the Electronic Government Expert Center d-russia.ru. This material contains step-by-step instructions on the application of the Decree of the Government of the Russian Federation of November 16, 2015 No. 1236 "On the establishment of a ban on the admission of software originating from foreign countries for the purpose of making purchases to meet state and municipal needs."

Register of Russian software - instructions for government customers

Since January 1, 2016, all state and municipal bodies, state corporations Rosatom and Roskosmos, governing bodies of state extra-budgetary funds, as well as state and budgetary institutions carrying out purchases in accordance with the requirements of Federal Law No. 44 of April 5, 2013 -FZ "On the contractual system in the field of procurement of goods, works, services to meet state and municipal needs" are obliged to comply with the ban on the admission of software originating from foreign countries for the purpose of making purchases to meet state and municipal needs.

In order to make a decision on the purchase of software, the customer needs to work with the registry. When working with the register of Russian software, a customer placing an order for the supply of software products must:

1) study the classifier and determine which class the software planned for purchase corresponds to;

2) go to the official website of the registry and find out if the registry contains information about the software for this class (how to do this, see below);

3) if there is information about one or more software products for the desired class in the registry, the customer will need to independently determine whether at least one of the products meets the characteristics that the customer requires and which he plans to include in the description of the procurement object. To do this, it is advisable to determine the required functional, technical and operational characteristics of the software and compare them with similar characteristics of the software, information about which is located in the registry.

An example form of comparison of characteristics is shown below:

Note

It should be noted that in accordance with the decree of the Government of the Russian Federation No. 1236 regarding the characteristics of the software, the registry entry contains only the address of the page of the copyright holder's website in the information and telecommunications network Internet, which contains the documentation containing a description of the functional characteristics of the software and information required for installation and software operation. In practice, the site of the copyright holder does not always contain all the necessary information about the software. The mechanism for obtaining such information for preparing a justification is not regulated. In case of insufficient information about the required software, it is advisable to request the copyright holder to provide such characteristics.

Based on the results of the work done, the customer makes one of two decisions: either to purchase one of the Russian software products specified in the register, or to justify the purchase of software that is not included in the register.

The second is possible if:

and) the registry does not contain information about the software of the required class;

b) software, information about which is included in the register for the desired class, does not meet the customer's requirements in terms of its functional, technical and (or) performance characteristics.

In this case, the customer must prepare, approve and publish (along with the procurement documentation) a justification for the impossibility of complying with the prohibition. Such a duty is established by part 3 of article 14 of the Federal Law of April 5, 2013 No. 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs." The procedure for preparing the justification (Procedure) was approved by the government decree of November 16, 2015, No. 1236.

It is worth noting that in accordance with clause 4 of the Procedure, the customer must approve the specified justification as of the day of the placement of the notice of the procurement. It is not enough to approve the justification at the same time as the entire package of procurement documents.

To comply with this provision, given the complex procurement procedures in general, customers should monitor not only the register itself, but also applications submitted for inclusion in the register (they are also posted on the website of the register operator). This will allow you to foresee the inclusion of a particular software in the registry.

It is advisable to prepare a draft justification at the time of preparing a complete package of procurement documentation, and then update and approve it on the day of publication.

The justification must contain an indication of:

and) a circumstance in connection with which it is impossible to comply with the prohibition (subparagraph "a" or "b" of paragraph 2 of the decree of the government of the Russian Federation No. 1236 is selected);

b) the class (classes) of software to which (which) the software that is the object of the procurement must correspond to;

at) requirements for the functional, technical and operational characteristics of the software that is the object of the procurement, established by the customer (indicating the class (classes) to which the software must comply, see above);

d) functional, technical and (or) operational characteristics, including quantitative ones, according to which the software products from the register do not meet the requirements set by the customer for the software product that is the object of the procurement for each software product from the register (indicating its name). Compared in this way software products must belong to the same class ( example of comparing software products).

If the registry does not contain information about the software for the desired class (subparagraph "a" of paragraph 2 of the decree of the Government of the Russian Federation No. 1236 is selected), the last block ("d") is not included in the justification.

For this block ("G") It should also be borne in mind that the decree of the Government of the Russian Federation No. 1236 does not provide for a mandatory indication of the functional, technical, and operational characteristics of the purchased software in order to prove its difference from the software specified in the register. Nevertheless, incorrectly specified characteristics of both the software required by the customer and the software placed in the registry may serve as a basis for claims of regulatory authorities. The reason for the claims may be, for example, the appeal of the software developer, information about which is entered in the register, with a complaint to the Federal Antimonopoly Service about the incorrect justification by the customer of the impossibility of observing the ban.

In case of insufficient information about the characteristics of the software, information about which is located in the registry, it is advisable to request the copyright holder to provide such characteristics.

If such information is not provided, it is advisable to take screenshots of the pages of the copyright holder's website, which contain information about the characteristics of the software from the register (at the time of publication of the justification), and attach these screenshots to the justification.

An example of justifying the inability to comply with the prohibition on purchasing software is given in the appendix.

Checking the presence in the registry of information about software for a specific class on the site reestr.minsvyaz.ru in its current form is performed as follows:

1) on the website of the register of Russian software, go to the "Register" section;

2) select the required software class (classes):

3a) if there is no information about the software for the class in question in the registry, a corresponding message appears:

3b) if the registry contains information about the software of the required class, a list of software products appears: