The purchase of cartridges under 44-FZ has its own characteristics and subtleties, which we will discuss further. In addition, we will analyze the administrative and judicial practice of the FAS.

What OKPD 2

Let's figure out which OKPD 2 code corresponds to the purchase of printer cartridges. For them, the code 28.23.25.00 or 26.20.40.190 is suitable. The Ministry of Economic Development indicates that for cartridges you should select code 26.20.40.190. The Karelian OFAS recognized it as legal to use another code - 26.20.16.120 (and the decision of the Karelian OFAS dated May 4, 2017 No. 04-18/90-2017).

Please note that when describing the procurement object, a 21-digit indicator from KTR is used.

The code you choose determines whether or not to apply preferences for goods from the EAEU countries. So, for goods with code 26.20, preferences need to be applied, but for products with code 28.23 - no (Order of the Ministry of Economic Development dated March 25, 2014 No. 155).

A common question among customers is whether the purchase of printer cartridges under 44-FZ is subject to the restrictions established for certain types of foreign-made radio-electronic products. A list of such products is contained in. Cartridges are not included.

Purchase of original 44-FZ cartridges and their difference from compatible ones

Speaking about the purchase of cartridges under 44-FZ, we need to raise the question of what they are. Let's consider it in the light of the government order. Consumables may be original and compatible. In the first case, they are produced by the same company as the printer, and in the second, by a third-party company (they are suitable for printing machines, but do not guarantee their proper operation).

The differences between the two types are that the original consumables are more expensive, sometimes significantly. When purchasing compatible ones, it is often unknown who and how they were produced, what quality they are, and whether they are new or used. On the one hand, the customer can purchase non-original goods in order to save money. But he runs the risk that such consumables will not fit, will be of poor quality, or will damage the printer. Therefore, institutions prefer to purchase original cartridges in accordance with 44-FZ.

Purchase of cartridges for printers under 44-FZ

Practice shows that purchasing original cartridges under 44-FZ is almost impossible in real conditions. This is due to the fact that the cost of compatible consumables is several times cheaper. If their manufacturers enter an auction or request for quotation, it is difficult for those companies that produce the original to compete with them.

Small organizations get out of this situation by conducting small purchases in accordance with paragraph 4 of part 1 of Article 93 of Law No. 44-FZ from a single supplier. Large ones are forced to conduct requests for quotations and electronic auctions. This is where problems arise. In addition to the uncompetitive price of original consumables, one should not forget that customers are prohibited from indicating trademarks, brand names, etc. in the documentation.

• indicate for each product the manufacturer, model and its alphanumeric marking. This allows you to do this in paragraph 1 of part 1 of Article 33 of Law No. 44-FZ when purchasing spare parts and consumables for equipment (the words “or equivalent” do not need to be specified);
• indicate which printer requires cartridges, indicate that the equipment is under warranty;
• indicate that the supply of non-original consumables or goods from another manufacturer (other than the printer) is impossible (refer to the above paragraph of Law No. 44-FZ);
• state that the manufacturer of the existing equipment has established an official ban on the use of compatible cartridges instead of original ones (such information is usually indicated in the accompanying documents for the equipment or on the manufacturer’s website). Attach a copy of the supporting document to the procurement documentation.

Purchase of cartridges under 44-FZ at a price per unit of service

Sometimes the law allows customers to indicate in the procurement documentation the cost of spare parts for machinery and equipment, as well as the price per unit of work or service. In particular, this is possible when purchasing cartridge refills under 44-FZ, as well as their maintenance and repair. This opinion was expressed on December 1, 2017 No. 24-02-07/79982.

In addition to the purchase of printer cartridges under 44-FZ in 2018, this rule applies to the following types of services:

• communications;
• medical;
• hotel;
• educational;
• legal;
• Catering;
• translators, etc.

Purchase of original cartridges under 44-FZ: FAS practice

The fact that when purchasing printer cartridges under 44-FZ in 2018, customers have the right to indicate a trademark in the documentation without the words “or equivalent” is confirmed by current administrative practice. The inclusion of this information in the technical specifications can be justified by the fact that the customer must use products compatible with the equipment only in accordance with the technical documentation, and it prohibits the use of non-original products.

The opinion of the FAS regarding the purchase of original cartridges under 44-FZ is that the application of the participant who offered compatible consumables can be rejected. This position, in particular, is contained in the decision of the Federal Antimonopoly Service for Moscow in case No. 2-57-6423/77-14 dated 09.09.14.

The customer indicated in the documentation that he required cartridges for the HP LaserJet 1320 HP Q5949X printer, original ones from the manufacturer HEWLET PACKARD. However, one of the participants offered cartridges for the HP LaserJet 1320 HP Q5949X printer from original UNITON. The auction commission allowed it to be purchased. Moreover, he became its winner, which the others did not agree with.

In this purchase of printer cartridges under 44-FZ, FAS found violations committed by the customer. The department referred to the fact that the participant provided information about the product that did not meet the documentation requirements. Therefore, he was unfairly allowed to undergo the procedure.

In five cases, the purchase of foreign goods and services is prohibited under any circumstances. This rule applies to all purchases for defense and security needs, purchases of furniture, engineering and light industry goods, software. In the remaining four cases, they purchase according to the “third wheel” rule.

— Find out more in the article

Arbitrage practice

Judicial practice regarding the purchase of original cartridges under 44-FZ suggests that the customer can terminate the contract with the supplier who supplied non-original goods. This is evidenced by the decision of the Arbitration Court of the Volga District dated 02/08/2018 No. F06-28252/2017 in case No. A65-26603/2016.

The documentation and the contract stated that the company undertakes to supply cartridges produced by Canon, Hewllet Packard, Panasonic, and Samsung. However, in fact, the customer was brought NV print brand consumables. The government customer decided to unilaterally refuse the contract. Before that, he conducted an examination.

The specialist confirmed that the product is not original and is not recommended for use by the printer manufacturer. The court decided that the supplier had materially violated the terms of the contract, and the customer rightfully considered this a reason for unilateral termination.

Attached files

• Terms of reference for the supply of office equipment.docx
• Terms of reference for the supply of computers with software.docx

1. Warranty for services and products of Tonermen:
1.1. All types of services and products produced by Tonerman are provided with a 1-year warranty from the date of purchase or provision of the service, or until the toner in the print cartridge runs out (the end of the toner is considered to be 10% of the remainder of the norm declared by the manufacturer).
1.2. Warranty obligations include:
1.2.1. Troubleshoot detected problems with the print cartridge.
1.2.2. Replacement of the print cartridge at the expense of Tonermen if it is impossible to eliminate the faults found in it.

2. Warranties for devices using Tonerman print cartridges:
2.1. Printing devices using Tonerman cartridges are provided with a limited time warranty (1 year) from the date of purchase of the print cartridge used in this printing device.
2.2. Warranty obligations include:
2.2.1. Repair of a printing device if its failure is caused by the use of a Tonerman print cartridge in it;
2.2.2. Providing another printing device to replace the faulty one during repair;
2.2.3. If repair is impossible, replace the faulty printing device with a similar one.

In this article we will talk about cases when you don’t have to indicate the words “or equivalent” when purchasing spare parts and consumables. And also, what if guarantee period has already expired, and is it legal to purchase only original spare parts in this case?

These are current and important topics. You will refresh your knowledge, learn all the innovations, and figure out how to properly participate in electronic trading. Webinars will be useful for both beginners and experienced professionals.

The wording “or equivalent” in the procurement of CPRM under 44-FZ

If the description of the procurement object (“technical specifications”) indicates the trademark of the purchased product, it must be accompanied by the words “or equivalent” (clause 1, part 1, article 33 of Law No. 44-FZ). The customer should state the needs for goods so that the requirements of the technical specifications are met by the products of at least two manufacturers. Otherwise, along with the law on the contract system, the law on the protection of competition will also be violated, which prohibits the creation of a preferential position for individual business entities in competitive procurement (Article 17 Federal Law dated July 26, 2006 No. 135-FZ).

However, sometimes the customer has the right to indicate a trademark without the words “or equivalent”. The relevant cases are listed in the last sentence of clause 1, part 1, art. 33 of Law No. 44-FZ. These include the purchase of spare parts and consumables (hereinafter referred to as SPRM) “for machines and equipment used by the customer, in accordance with the technical documentation for the specified machines and equipment.”

What is the point of indicating in the description of the procurement object the trademark of the purchased CPRM without the words “or equivalent”? That's right, to get the so-called. original ZCHRM. CPRMs produced by manufacturers of machines and equipment for which these CPRMs are intended are recognized as original. As a rule, equipment manufacturers recommend using in their devices only AFRMs manufactured under the same trademark as the equipment itself - in other words, original AFRMs.

Purchase of spare parts for equipment is not under warranty

It is generally accepted that original AFRM can only be purchased for equipment that is under warranty. This is due to the fact that equipment breakdown due to the use of non-original AFRM will not be considered a warranty case (i.e., the use of original AFRM is a condition of warranty service).

But what if the warranty period has already expired? Is it legal to purchase original CCRM in this case?

Law enforcement practice answers this question in the affirmative.

Example
The customer appealed to the court the decision of the Sakhalin OFAS Russia dated February 20, 2015 in case No. 53/15. The antimonopoly authority considered that the customer violated clause 1, part 1, art. 33 of Law No. 44-FZ, purchasing original Brother LG-1100HY-BK cartridges without specifying the words “or equivalent”.

The court reviewed the user manual for the Brother DCP-6690CW multifunction machine. It stated that this device was designed to work with a specific type of ink and would only operate at optimal performance and reliability when used with genuine Brother ink cartridges. Brother does not recommend using non-Brother cartridges or refilling used cartridges with ink from other sources. The warranty does not cover damage to the print head or other parts of the device caused by the use of ink or cartridges from other manufacturers.

Having assessed this information, the court agreed that the operation of the customer's device required original Brother cartridges, and not any compatible products from other manufacturers.

According to the antimonopoly authority, in this case the customer should have indicated that the purchased product must be compatible with his existing equipment, and provided evidence that the warranty period for the equipment for which the cartridges were purchased had not expired at the time of consideration of the complaint. But the court rejected this argument citing the fact that Art. 33 of Law No. 44-FZ does not contain such a requirement. On the contrary, this norm gives the customer the right to indicate the manufacturer of the necessary goods if CPRM for machinery and equipment is purchased (Resolution of the Fifth AAC dated 05.08.2015 No. 05AP-6479/2015 in case No. A59-1187/2015).

Whether the customer’s equipment is under warranty or not is irrelevant. A simple reference by the customer to the last sentence of clause 1, part 1, art. 33 of Law No. 44-FZ.

In addition to this conclusion, the above court ruling is interesting for two other bold statements:

1. the purchase of original AFRMs is in itself a valid reason to indicate the trademark of such AFRMs without the words “or equivalent”. There is no need to specifically justify the need for compatibility of the purchased products with the goods the customer already has;
2. the purchase of original ZCHRM is the case when Law No. 44-FZ allows you to indicate the manufacturer of the required products.

Not every law enforcer agrees with these statements. Let's figure it out in order.

1. Indeed, sometimes the absence of the words “or equivalent” when indicating the trademark of the required CCRM is in itself recognized as sufficient to consider the requirements of paragraph 1 of Part 1 of Art. 33 of Law No. 44-FZ executed.

Example
The customer indicated in the description of the purchase object the specific values ​​of product codes of cartridge manufacturers, which, with due and necessary qualifications, prudence and conscientiousness, could only be correlated with manufacturers of original cartridges that meet warranty and technological requirements.

The antimonopoly authority did not prove that the terms of reference do not contain indicators that would allow determining the compliance of the proposed goods with the terms of purchase. Arguments about the bias of the auction conditions and the illegality of the absence of the words “or equivalent” when indicating trademarks in the description of the procurement object were not confirmed (Resolution of the Federal Antimonopoly Service of the Volga District of February 19, 2015 No. F06-20456/2013 in case No. A65-14066/2014).

However, there are opinions that the absence of the words “or equivalent” when indicating a trademark in the technical specifications still needs to be justified.

Example
The customer has the right not to include in the description of the procurement object the words “or equivalent” after indicating the trademark in the following exceptional cases:

• incompatibility of goods on which other trademarks are placed, and the need to ensure the interaction of such goods with goods used by the customer;
• in the case of purchases of CPRM for machines and equipment used by the customer, in accordance with the technical documentation for the specified machines and equipment.

By not including the words “or equivalent” in the description of the procurement item, the customer was obliged to indicate any of these exceptions. In particular, indicate that the product cannot be replaced with an equivalent, since consumables (cartridges) are purchased for machines and equipment used by the customer in accordance with the technical documentation for the specified machines and equipment.

However, technical documentation for the machines and equipment used was not submitted either to the Federal Antimonopoly Service or to the court. Therefore, the courts supported the conclusion of the antimonopoly authority that there was a violation of the requirements of paragraph 1 of Part 1 of Art. in the actions of the customer. 33 of Law No. 44-FZ. The argument that the customer is not obliged to indicate, when describing the procurement object, the reasons for the purchase of original CCRMs, was rejected (Resolution of the Fifth AAS dated 02/18/2016 No. 05AP-112/2016 in case No. A59-3664/2015. See also the resolution of the Nineteenth AAS dated 08/19/2016 No. 19AP-4426/2016 in case No. A14-10260/2015).

2. As for the requirement that participants in the purchase of original FCRMs indicate the manufacturer of such CPRMs, its legality is questionable.

Firstly, according to Part 3 of Art. 33 of Law No. 44-FZ, it is not allowed to include requirements for the manufacturer of goods in the procurement documentation (including in the form of quality requirements, technical specifications goods, work or services, requirements for functional characteristics (consumer properties) of the product).

Secondly, the requirements established by Law No. 44-FZ for the content of applications for participation in procurement do not oblige procurement participants to indicate the name of the manufacturer of the offered product (see, for example, the decisions of the Moscow OFAS Russia dated December 17, 2015 in case No. 2-57-11875/77-15 , Udmurt OFAS Russia dated April 26, 2016 in case No. ASH 07-06/2016-75 Z, etc.).

As already mentioned, original AFRMs are AFRMs manufactured by the same companies that manufactured the machines and equipment used by the customer. At the same time, the description of the purchase object “original Kyocera TK-350 toner cartridge” will be considered correct (“original” as a product characteristic), but the requirement “consumables for the Kyocera FS-3040MFP+ MFP must be manufactured by Kyocera” will not (see. , for example, resolution of the Mordovian OFAS Russia dated October 28, 2016 No. 772 in case No. 592). Although sometimes the requirement that the supplied CCRMs have a specific manufacturer is perceived adequately by the territorial bodies of the FAS Russia (see the decision of the Moscow OFAS Russia dated August 31, 2015 in case No. 2-57-7369/77-15), we recommend that customers replace it with the requirement the originality of the required CCRM.

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There is probably not a single customer who would not be faced with the need to purchase consumables for printing devices - every office has at least one printer or MFP. Sooner or later, the need arises to refill and repair existing cartridges or buy new ones.

Even today, when carrying out such procurements in accordance with the provisions of the law on the contract system, customers are faced with a number of problems and difficulties.

Original and compatible consumables

In order for the reader to fully understand what we're talking about, let's take a break from the contract system and say a few words about what types of toners, cartridges, photodrums and other consumables for printing devices there are.

In addition to a number of characteristics, it is important for the customer to know that they are divided into two groups:

• original - that is, those produced by the same manufacturer as the printing device;
• compatible - produced by a third party that has no relation to the manufacturer of the printing device. Such consumables are suitable for a particular model of printer or MFP and can be used, but the device manufacturer does not guarantee its high-quality and uninterrupted operation. In other words, they are simply compatible with this printer model.

In practice, there are several main differences between original and compatible consumables. Firstly, compatible consumables are much cheaper. Secondly, when purchasing compatible consumables, you never know who and how they were produced, what quality they are, whether these cartridges are really new or whether they are already used, but have undergone a refurbishment procedure and are packaged in a new box, etc.

The above does not mean that absolutely all non-original consumables Low quality. Not at all, there are also some that are in no way inferior in quality to the original ones. But can the buyer, represented by the customer, know this in advance?

Purchase of consumables according to Law No. 44-FZ

Customers, as a rule, are interested in receiving original consumables for one simple reason - they are of high quality. The initial (maximum) contract price is also calculated by the customer based on the cost of original materials. Small organizations usually purchase them, guided by paragraph 4 of part 1 of Law No., while larger organizations are forced to conduct requests for quotations and electronic auctions. As practice shows, it is almost impossible to obtain original cartridges and toners through competitive procedures.

The reason for this is one of the main features of non-original consumables - their cost is much lower. This allows the procurement participant to significantly reduce the price, which suppliers of original consumables simply cannot compete with.

In addition, we must not forget that according to paragraph 1 of part 1 of Law No. 44-FZ, trademarks, brand names, etc. should not be included in the description of the procurement object.

How to get original consumables

Despite the difficulties, it is possible to obtain original consumables for printing devices. To do this, when drawing up technical specifications, in addition to indicating the technical and functional characteristics of the product, it is necessary to include the following points:

1. For each product, indicate the manufacturer, model and its alphanumeric marking, guided by paragraph 1 of part 1 of Article 33 of Law No. 44-FZ regarding the possibility of indicating this information (without the words “or equivalent”) in cases where it is necessary to ensure the interaction of such goods with goods, used by the customer, as well as cases of procurement of spare parts and consumables for equipment used by the customer;

2. Indicate for each item that this product is intended for use or installation on the customer’s existing equipment that is under warranty, indicating its model and brand name;

3. Indicate in the procurement documentation, referring to the above clause of the law on the contract system, that the supply of non-original and compatible consumables, as well as materials from other manufacturers, is impossible;

4. Indicate in the text of the procurement documentation that the manufacturer of the equipment available to the customer for which consumables are purchased officially prohibits the use of materials and components from other manufacturers, since in this case the stable and uninterrupted operation of the device is not guaranteed. Such information in one form or another is necessarily available in the accompanying documentation of any printing device or on the manufacturer’s official website. We recommend attaching a copy of the document to the procurement documentation.

Conclusion

Of course, even with this approach, there is no guarantee that there won’t be some particularly dull supplier who wants to offer the customer compatible consumables, supporting their application with a stack of various quality certificates. It is also impossible to be sure what position the supervisory authority will take when considering a complaint (if it comes to that, of course).

However, as procurement practice shows, this approach to drawing up documentation for the purchase of consumables for printing devices significantly increases the chances of receiving original materials and components and convincing

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