Accounting audit according to 44 fz is carried out. Criteria for mandatory audit. Other cases established by federal laws

Item 7, part 4, art. 1 of Law No. 223-FZ directly indicates that this law does not regulate relations related to the mandatory audit of the customer's accounting (financial) statements. Thus, according to Law No. 223-FZ, this type of service is not purchased.

As follows from part 4 of Art. 5 of the Federal Law of December 30, 2008 No. 307-FZ "On Auditing" (hereinafter - Law No. 307-FZ), an agreement for the provision of services for the mandatory audit of the accounting (financial) statements of an organization must be concluded in the manner established by the legislation of the Russian Federation on contract system in the field of procurement, goods, works, services to meet state and municipal needs on the contract system, i.e. within the framework of the Law on the contract system. However, this requirement applies only to organizations belonging to one of the following categories:

• an organization in the authorized (share) capital of which the share of state property is at least 25%;
• state corporation;
• state company;
• state unitary enterprise;
• municipal unitary enterprise.

Conditions for conducting a statutory audit under the Constitutional Law

Part 4 of Art. 5 of Law No. 307-FZ defines the following conditions for concluding an agreement:

• the contract is concluded with an audit organization or an individual auditor;
• frequency of holding an open tender: at least once every five years;
• method and form of procurement: open tender;
• the establishment of requirements for securing bids for participation in the tender, as well as for securing the performance of a contract, is not mandatory.

Whoshouldconductrequiredaudit

In accordance with Part 3 of Art. 5 of Law No. 307-FZ, a mandatory audit of the accounting (financial) statements of the following categories of organizations, as well as an audit of consolidated statements heldonlyauditorganizations:

• organizations whose securities are admitted to circulation in organized trading;
• other credit and insurance organizations;
• non-state pension funds;
• organizations, in the authorized (share) capitals of which the share of state property is at least 25%;
• state corporations;
• state companies.

This means that the audit of the reporting of organizations related to those listed in Part 3 of Art. 5 of Law No. 307-FZ categories, as well as the audit of consolidated financial statements (regardless of the categories of the organization listed in parts 3 and 4 of article 5 of Law No. 307-FZ) should be carried out exclusively by audit organizations, despite the fact that part 4 Art. 5 of Law No. 307-FZ for similar categories of organizations, for example, organizations in the authorized (share) capital of which the share of state ownership is at least 25%, state corporations, state companies, it is possible to conduct an audit by an individual auditor.

As a rule, customers have developed standard documentation, where, when submitting requirements to procurement participants, a standard wording is prescribed that provides for the participation of individuals in the procurement. Therefore, taking into account the requirements of Part 3 of Art. 5 of Law No. 307-FZ, in the tender documentation for the procurement of services for a mandatory audit, one should not forget to indicate that only a legal entity (or a group of legal entities) can be a procurement participant.

Wayandorderdefinitionssupplier

Procurement for the selection of an audit organization for a mandatory audit of financial (accounting) statements by virtue of Part 4 of Art. 5 of Law No. 307-FZ cannot be carried out in any other way than opencompetition.

The frequency of this procedure is at least once every five years. At the same time, in accordance with Part 2 of Art. 5 of Law No. 307-FZ, a mandatory audit is carried out annually. How often should a competition be announced in such a case? An open competition for a mandatory audit can be held both annually and once every 2–5 years. For example, the subject can be worded as follows: “Conducting an open tender for the right to conclude an agreement for the provision of services for the audit of the consolidated financial statements of JSC XXX in accordance with IFRS for 2014, 2015, 2016.” If an open tender is held every 2–5 years, it is more convenient to single out the stages of the audit (1 year - 1 stage), where the documentation and the draft agreement also provide for a stage-by-stage payment procedure based on the documents closing the stage (and not the contract).

Since an open tender for a statutory audit must be carried out in accordance with the procedure established by the Law on the contract system, then when developing criteria for evaluating and comparing applications of participants in the tender documentation, customers should be guided by the rules for evaluating applications, final proposals of participants in the procurement of goods, works, services to meet state and municipal needs, approved by Decree of the Government of the Russian Federation dated November 28, 2013 No. 1085. In addition, the Law on the contract system provides for the opening of envelopes with participants' applications, consideration and evaluation of such applications by the tender commission. Therefore, in addition to the norms of the Law on the contract system regarding the procedure for determining suppliers (contractors, performers) through tenders, which are contained in Art. 48-58 of the said law, to the customernecessaryalsocreatecommissionfordefinitionssupplier(performer, contractor) in the manner prescribed by Art. 39 of the Law on the contract system. At the same time, as a general rule, when holding tenders (according to the Law on the contract system), the customer is obliged to establish a requirement for securing applications (part 1 of article 44 of the Law on the contract system).

However, it should be noted that, despite the specified norm of the Law on the contract system, the customer is still entitled, by virtue of Part 4 of Art. 5 of Law No. 307-FZ do not establish this requirement during an open tender for a statutory audit of reporting, as well as (or) not establish a requirement for securing the performance of a contract.

By virtue of the requirements h. 5 Article. 5 of Law No. 307-FZ, organizations in which the amount of proceeds from the sale of products (sales of goods, performance of work, provision of services) for the previous reporting year does not exceed 1 billion rubles, it is necessary to select an audit organization for a mandatory audit of financial (accounting) statements among small and medium businesses. Therefore, it is necessary to conclude an agreement only with medium and small businesses. Therefore, the documentation should include a requirement that the participant complies with the requirements of Art. 4 of Law No. 209-FZ "On the development of small and medium-sized businesses in the Russian Federation".

However, the question arises: is it possible to conduct procurement on a general basis and conclude an agreement with a counterparty that is not a small and medium-sized business entity, if there were no applications from such entities at an open tender? Within the meaning of Part 4 of Art. 5 of Law No. 307-FZ, the conclusion of a contract in this case is possible only with a participant who is a subject of small and medium-sized businesses.

Consequences of declaring an open tender void

Article 55 of the Law on the contract system in the event of a tender being declared invalid, in addition to holding a re-tender or a new purchase (part 2 of article 55 of the Law on the contract system), also provides for the conclusion of an agreement with a single supplier in accordance with paragraph 25 of part 1 of art. 93 of the Law (part 2 of article 55 of the Law on the contract system) and procurement through a request for proposals (part 4 of article 55 of the Law on the contract system). Is it possible in this case to purchase this type of service from a single supplier or through a request for proposals?

According to the author of the article, no, because the procurement for the selection of an audit organization for a mandatory audit of financial (accounting) statements by virtue of Part 4 of Art. 5 of Law No. 307-FZ cannot be carried out in any other way than an open competition. The conclusion of a contract for a mandatory audit based on the results of procurement in such ways as a request for proposals and a single supplier would be contrary to the imperative norm of Law No. 307-FZ, which is also special in relation to the norms of the Law on the contract system.

In addition, when organizing and holding open competitions for the selection of an audit service provider, the author of the article recommends that customers be guided by the materials adopted to improve the practice of such competitions by the Audit Council (Order No. 18 dated September 18, 2014), namely:

• Guidelines for organizing and holding open tenders for the right to conclude an agreement to audit the accounting (financial) statements of organizations specified in Part 4 of Art. 5 of the Federal Law "On Auditing";
• an exemplary contract for an audit of the organization's accounting (financial) statements.

The Ministry of Finance of Russia in a letter dated September 30, 2014 No. 07-04-12 /48814 informs that these materials are posted on the official website of the Ministry www.minfin.ru in the section "Audit activities" ("General information" - "Mandatory audit " and "General information" - "Activities of audit organizations and individual auditors").

It will also be useful to familiarize yourself with the presentation prepared by the Department for Regulation of Accounting, Financial Reporting and Auditing of the Ministry of Finance of Russia on the topic “Guidelines for organizing the procurement of audit services”. This presentation is also available for review on the website of the Ministry of Finance.

Violationorderholdingaudit

Let us turn to administrative practice when considering cases of violation of the procedure for the procurement of services for the mandatory audit of accounting (financial) statements.

Information on holding an open tender for the purpose of a mandatory audit of accounting (financial) statements in order to avoid the risk of appealing the procedure should be posted in the section of the Official Website intended for placing information on placing orders for the supply of goods, performance of work, provision of services (under the Law on the Constitutional Court).

To do this, an organization registered on the Official website as a customer, according to Law No. 223-FZ in the manner prescribed by order of the Ministry of Economic Development of Russia No. 506, the Treasury of Russia No. 13n dated 10.08.2012, must be registered in the appropriate section of the site (according to the Law on the Constitutional Court) in the manner prescribed by the order of the Treasury of Russia dated March 25, 2014 No. 4n.

If the organization is not subject to Law No. 223-FZ, however, by virtue of Art. 5 of Law No. 307-FZ, it is obliged to conduct an open tender in the manner prescribed by the Law on the contract system, then such an organization should also first register on the Official Website in the manner prescribed by order of the Treasury of Russia dated March 25, 2014 No. 4n.

As already mentioned, Law No. 223-FZ does not regulate relations related to the selection by the Customer of an audit organization for a mandatory audit of accounting (financial) statements. However, some customers, ignoring paragraph 7 of part 4 of Art. 1 Law No. 223-FZ, develop documentation within the framework of Law No. 223-FZ and a procurement regulation approved in accordance with this law, which is illegal. This position is reflected in the decisions of the Kalmyk OFAS dated August 18, 2014 No. 08/2254, the Ivanovo OFAS dated September 15, 2014 No. 10126, the Tatarstan OFAS dated November 20, 2014 in case No. T04-201 / 2014, etc.

Also, some customers develop documentation in accordance with the requirements of the Law on the contract system, and a notice of procurement is posted on the Official website in a section intended for posting information on procurement by certain types of legal entities (according to Law No. 223-FZ). In this situation, the position of the antimonopoly authority in different regions regarding the legality of such actions is not so unambiguous. Thus, the Moscow OFAS (decision of December 3, 2014 in case No. 1-00-1795 / 77–14), the Ivanovo OFAS (decisions of September 15, 2014 No. 10126, of November 13, 2014 No. 10313) believe that it does not matter, in on which part of the Official Site the notice is placed, since the search for the required subject of procurement cannot be difficult, because when typing the word “audit” in the search line, information about all purchases is displayed, regardless of the section in the information resource on which the information is posted. However, the Tatarstan OFAS (decision of November 20, 2014 in case No. T04-201 / 2014), the Penza OFAS (decision of August 22, 2014 in case No. 3-09/34-2014), the Kalmyk OFAS (of August 18, 2014 No. ) hold the opposite position, citing the fact that posting a notice of an open tender for the selection of an audit organization for a mandatory audit of accounting (financial) statements in the section of the Official Website intended for posting information on procurement by certain types of legal entities is a violation of the procedure for determining the winner of an open tender, which may lead to a limit on the number of participants competition.

If apurchaseauditnotcarried outinframeworklawaboutKS

There is a certain category of customers that are subject to Law No. 223-FZ, who are required to conduct a mandatory audit, but are not included in the list of cases when it must be carried out in the manner prescribed by the Law on the contract system. Is it legal in this case to carry out a purchase under Law No. 223-FZ and post information on the Official website in the section dedicated to it? In our opinion, since Law No. 223-FZ (by virtue of clause 7, part 4, article 1) does not regulate the purchase of this type of service, the documentation should be developed outside the framework of this law. If the organization carries out its procurement activities within the framework of Law No. 223-FZ and has passed the registration procedure on the Official Website in the appropriate section (according to Law No. 223-FZ) as a customer and in the manner prescribed by order of the Ministry of Economic Development of Russia No. 506, the Treasury of Russia No. 13n dated 08/10/2012, then technically, of course, such organizations have the opportunity to post a notice of the procurement of audit services on the Official website, but is this legal?

According to the author of the article, this is illegal. Information on the procurement is published on the Official website due to the fact that its placement is provided for by Law No. 223-FZ, but by virtue of clause 3 of the Decree of the Government of the Russian Federation of 10.09. hereinafter - Decree No. 908) it is not allowed to post information on the Official Website, the publication of which is not provided for by this law. Therefore, information on the procurement, which is carried out outside the framework of Law No. 223-FZ, is not subject to placement on the Official Website.

However, this position is not always reflected in the decisions of the antimonopoly authorities when considering cases of violation by the customer of the procedure for conducting an open tender procedure, the subject of which is the selection of an audit company for a mandatory audit of accounting (financial statements). Thus, the applicant’s complaint, which pointed out that an open tender, the subject of which is the procurement of services for a mandatory audit of accounting (financial) statements, should have been carried out within the framework of the Law on the contract system and, accordingly, information on procurement should also be placed in the appropriate section of the Official site, was recognized by the Kaluga OFAS as unfounded (decision dated September 11, 2014 in case No. 02-31t / 2014). The OFAS Commission found that the norms of Part 4 of Art. 5 of Law No. 307-FZ cannot be applied to such an organizer of the auction, since the company is not a state corporation, state company, state unitary enterprise or municipal unitary enterprise, and the share of state ownership in the authorized capital of the company is less than 25%. Having motivated (in our opinion, quite rightly) by these circumstances the refusal to satisfy the applicant's complaint, the Kaluga OFAS nevertheless did not reveal a violation of clause 3 of Resolution No. 908, despite the fact that the organizer of the auction in his explanation directly indicated that that the company held the above competition on a voluntary basis, not based on the norms of Law No. 223-FZ by virtue of paragraph 7 of part 4 of Art. 1 of the above law. The customer substantiated this by the fact that the information about the open tender was posted on the Official website www.zakupki.gov.ru in the section devoted to Law No. 223-FZ in order to attract as many potential bidders as possible, since the publication of information holding an open tender only on the official website of the company would reduce the circle of potential participants in the open tender.

Despite the fact that some customers do not have the obligation to carry out procurement activities in the manner prescribed by Law No. 223-FZ or the Law on the contract system, nevertheless, in order to save money, the service for conducting a mandatory audit of accounting (financial) statements can be purchased by conducting competitive methods for determining the supplier . In this case, it makes sense to use your standard procurement documentation and modify it taking into account the specifics of the procurement of this type of service. If the organization does not have standard documentation, then you can use the experience of other customers who publish such notices on the Official Website. Information on the procurement, including notice, documentation, draft contract, can be published on the corporate website of the organization. In the absence of a relevant section on such a site, as well as in order to attract the largest number of participants, a notice of the procurement can be placed on one of the commercial electronic platforms.

So, if you wish an organization may announce an open tender for the right to conclude an agreement on a mandatory audit of accounting (financial) statements, even if there is no obligation to carry out this procedure in the manner prescribed by the current legislation in the field of procurement. However, the notice of purchase should be posted either on your own corporate website, or on trading floors, or in any other media, but not on the Official Website, as recommended by the author of the article. At the same time, the purchase can be carried out in any other way (auction, request for proposals, etc.) and in any other form, including electronic.

Standard documentation is a documentation template that customers use when placing various purchases, since it is rather laborious to develop new documentation for each purchase. Each customer has, as a rule, its own standard documentation, which is periodically finalized and changed.

When is an audit mandatory? In what “other cases” provided for by Federal Law No. 307-FZ of December 30, 2008 “On Auditing Activities” (hereinafter referred to as Law No. 307-FZ), is the company obliged to conduct an audit?

An exhaustive list of grounds for conducting a mandatory audit of the accounting (financial) statements of companies is given in Article 5 of Law No. 307-FZ.

How to find out if a company is subject to mandatory audit or not? Article 5 of Law No. 307-FZ highlights the following grounds for conducting a mandatory audit.

Organizational and legal form of the company

Recall that Federal Law No. 403-FZ of December 1, 2014 (entered into force on December 2, 2014) expanded the type of organizations for which a mandatory , clause 5, article 67.1 of the Civil Code of the Russian Federation).

All joint-stock companies without exception (regardless of the type - CJSC, OJSC, PJSC and JSC) are subject to mandatory audit.

Important!

The current legislation of the Russian Federation provides for a special procedure for conducting a mandatory audit in a joint-stock company, in the authorized capital of which there is a certain share of state participation (clause 4, article 5 of Law No. 307-FZ).

An agreement to conduct a mandatory audit of the accounting (financial) statements of an organization in whose authorized (share) capital the share of state ownership is at least 25%, as well as to conduct an audit of the accounting (financial) statements of a state corporation, state company, state unitary enterprise or municipal unitary enterprise is concluded following the results of placing an order by holding tenders in the form of an open tender in the manner prescribed by Federal Law No. 44-FZ of 05.04.2013 “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (hereinafter referred to as the Law No. 44-FZ).

Starting January 1, 2016, it is envisaged that companies carry out procurement planning, including planning for the acquisition of audit services. And according to Article 16 of Law No. 44-FZ, the costs of conducting a mandatory audit should be included in the procurement plan formed by the company - the organizer of the tender for the period of the budget, i.e. for a period of at least 3 years. An open competition for the selection of an external auditor is held at least once every five years.

Carrying out certain activities

Credit, insurance, clearing organizations, mutual insurance companies, organizations that are professional participants in the securities market, funds (NPFs (except for state non-budgetary funds), mutual funds, AIFs) are subject to mandatory audit.

Compliance with the established indicators of financial and economic activity

with the volume of proceeds from the sale of products (goods, works, services) for the previous reporting year more than 400 million rubles (with the exception of state authorities and local governments, state and municipal institutions, state unitary enterprises and municipal unitary enterprises, agricultural cooperatives and their unions) or

with the amount of assets in the balance sheet at the end of the previous reporting year, more than 60 million rubles.

Recall that at present companies - "simplifiers" are required to maintain and draw up accounting (financial) statements. And if the revenue of the "simplified" exceeds 400 million rubles. or the amount of assets in the balance sheet at the end of the year exceeds 60 million rubles, then such companies are required to conduct an audit (letter of the Ministry of Finance of the Russian Federation dated January 30, 2013 No. 07-02-05 / 1677).

Implementation of certain actions by companies

The following companies are subject to mandatory audit:

whose securities are admitted to organized trading;

representing and (or) publishing summary (consolidated) accounting (financial) statements. Exceptions are state authorities and local self-government, the state off-budget fund, as well as state and municipal institutions.

Other cases established by federal laws

In some cases, the obligation to conduct an audit is enshrined in the provisions of federal law.

For example, for the organizers of gambling, the obligation to conduct an audit is established by clause 12, article 6 of the Law of December 29, 2006 No. 244-FZ “On state regulation of the organization and conduct of gambling and on amendments to certain legislative acts of the Russian Federation”, for political parties - Federal Law No. 95-FZ of July 11, 2001 "On Political Parties", for the Russian Science Foundation - Federal Law No. 291-FZ of November 2, 2013 "On the Russian Science Foundation and Amendments to Certain Legislative Acts RF".

Accounting (financial) statements of SUEs and MUPs are subject to mandatory audit in cases determined by the owner of such property. Thus, according to paragraph 1 of Article 26 of the Federal Law of November 14, 2002 No. 161-FZ “On State and Municipal Unitary Enterprises” (hereinafter referred to as Law No. 161-FZ), the accounting (financial) statements of a unitary enterprise in cases determined by the owner of the property of a unitary enterprise, is subject to mandatory annual audit by an independent auditor. At the same time, the owner of the property of a unitary enterprise in relation to the specified enterprise makes decisions on conducting audits, approves the auditor and determines the amount of payment for his services (clause 16, clause 1, article 20 of Law No. 161-FZ).

In practice, this means that regardless of the indicators of financial and economic activity (in terms of revenue and amount of assets), the accounting statements of MUPs and SUEs are subject to mandatory audit in cases determined by the owner of the property.

If companies are subject to mandatory audit, it must be carried out annually (clause 2, article 5 of Law 307-FZ).

For the procurement of audit services, the customer is obliged to leave the field of Law No. 223-FZ and hold a tender according to the rules of Law No. 44-FZ. But what if the customer does not have the tools to work according to these rules? Let's talk about some relaxations in the Law for the purchase of audit services.

Law No. 223-FZ does not apply to the customer. Organizations with a share of state property in the authorized capital of more than 25% must enter into an agreement with an audit company or an individual auditor every 5 years (part 4 of article 5 of Law No. 307-FZ). To do this, it is necessary to hold an open competition within the framework of the Law on the contract system.

A separate item is the question of what law other types of state-owned companies should apply for the procurement of statutory audit services. For example, who has less than 25% share of state property in the authorized capital. Or there is no share of state property in the authorized capital, but there is a share of municipal property.

We will tell you why the customer has the right to take advantage of the indulgence of the law on almost all of the above points. Companies with a state share in the authorized capital of more than 25% do not need to create a contract service. In the same way, they do not need to coordinate the purchase from a single supplier with the regulatory authority. But the competition commission is necessary.

As for legal entities with a share of state property of less than 25%, they have the right to purchase statutory audit services on the basis of the Civil Code of the Russian Federation, without applying the Law on the contract system.

Important

Auditing services - activities for conducting an audit and providing audit-related services. Auditing services are provided by audit organizations, individual auditors. Only procurement for the selection of an organization for a mandatory audit of accounting (financial) statements was excluded from the scope of Law No. 223-FZ. When purchasing other audit services, customers must apply Law No. 223-FZ.

On the contract service and the tender commission for the purchase of audit services

When purchasing a mandatory audit of financial statements, customers do not need to create a contract service.

The law on the contract system means by the customer a state or municipal customer or a budgetary institution that makes purchases in accordance with Part 1 of Art. 15 of Law No. 44-FZ (clause 7, article 3 of Law No. 44-FZ).

State customer- this is a state body, a management body of a state off-budget fund or a state public institution that acts on behalf of the Russian Federation or a constituent entity of the Russian Federation, is authorized to accept budget obligations in accordance with budget legislation and make purchases.

Municipal customer- this is a municipal body or a municipal state institution that acts on behalf of the municipality, is authorized to accept budgetary obligations in accordance with budgetary legislation and carry out purchases.

Thus, the economic company is not a customer within the meaning of Law No. 44-FZ. As a result, when purchasing audit services, it is not obliged to form a contract service and appoint a contract manager.

At the same time, when conducting a tender, the customer must create a tender commission, which must comply with the rules for holding a tender, established in § 2 of Law No. 44-FZ. The duty of the commission is to open the envelopes with applications for participation in the competition (or open access to submitted electronic applications) after the deadline and record this. In addition, members of the commission must consider and evaluate applications for participation in the competition, while also keeping a protocol.

About purchasing from a single supplier

If the customer purchases statutory audit services from a single supplier after a tender declared invalid, he has the right to do this without the consent of the regulatory authorities.

Articles 214 and 215 of the Civil Code of the Russian Federation clearly distinguish between the concepts of state and municipal property.

Thus, state property in the Russian Federation is property owned by the Russian Federation (federal property). As well as property owned by the right of ownership of the constituent entities of the Russian Federation - republics, territories, regions, cities of federal significance, an autonomous region, autonomous districts (the property of a constituent entity of the Russian Federation).

Property owned by urban and rural settlements, as well as other municipalities, is municipal property.

That is why the customers referred to above have the right to select an audit organization for a mandatory audit of accounting (financial) statements on the basis of the provisions of the Civil Code of the Russian Federation, without being guided by either the norms of Law No. 44-FZ or the norms of Law No. 223-FZ.

Make a new purchase, the obligatory form for it is an open tender.

The text of the joint letter of the Ministry of Finance of the Russian Federation N 24-04-06 / 3691, the Federal Antimonopoly Service of the Russian Federation N RP / 4072/18 of 01/24/2018

MINISTRY OF FINANCE OF THE RUSSIAN FEDERATION

N 24-04-06/3691

FEDERAL ANTIMONOPOLY SERVICE

N RP/4072/18

LETTER

ABOUT POSITION

OF THE MINISTRY OF FINANCE OF RUSSIA AND THE FAS OF RUSSIA FOR APPLICATION

"ON THE CONTRACT SYSTEM IN THE SPHERE OF PROCUREMENT OF GOODS, WORKS,

SERVICES TO PROVIDE STATE AND MUNICIPAL

WORKS, SERVICES BY CERTAIN TYPES OF LEGAL ENTITIES"

WHEN PROCURING FOR PROVISION OF SERVICES, MANDATORY

AUDIT OF ACCOUNTING (FINANCIAL) STATEMENTS

In connection with incoming questions about the application of the provisions of Federal Laws of April 5, 2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services for state and municipal needs" (hereinafter - Law N 44-FZ), dated 18 July 2011 N 223-FZ "On the procurement of goods, works, services by certain types of legal entities" (hereinafter - Law N 223-FZ) when making purchases for the provision of services for the mandatory audit of accounting (financial) statements (hereinafter - the mandatory audit) of the Ministry of Finance Russia and FAS Russia report the following.

1. On the application of Law N 44-FZ and Law N 223-FZ by legal entities that purchase statutory audit services in accordance with the Federal Law of December 30, 2008 N 307-FZ "On Auditing" (hereinafter - Law N 307 -FZ).

Law N 223-FZ regulates the procurement of a wide range of legal entities specified in part 2 of article 1 of this law. At the same time, in accordance with clauses 3, 7 of part 4 of article 1, Law N 223-FZ does not regulate relations related to:

procurement of goods, works, services in accordance with Law N 44-FZ;

selection of an audit organization for a statutory audit in accordance with Article 5 of Law N 307-FZ.

Article 5 of Law N 307-FZ establishes the cases of a mandatory audit in relation to individual organizations.

In accordance with Part 4 of Article 5 of Law N 307-FZ, an agreement to conduct a mandatory audit of the accounting (financial) statements of an organization in whose authorized (share) capital the share of state ownership is at least 25 percent, as well as to conduct an audit of accounting (financial) statements state corporation, state company, public company, state unitary enterprise or municipal unitary enterprise is concluded based on the results of an open tender at least once every five years in the manner established by the legislation of the Russian Federation on the contract system in the field of procurement, goods, works, services to meet state and municipal needs.

Thus, Part 4 of Article 5 of Law N 307-FZ contains an exhaustive list of certain types of legal entities that conclude an agreement for a mandatory audit in the manner prescribed by the legislation of the Russian Federation on the contract system in the field of procurement. It should be taken into account that such legal entities, in cases established by the legislation of the Russian Federation, may at the same time be subjects of regulation of Laws N 44-FZ, N 223-FZ.

Considering that clause 7 of part 4 of article 1 of Law N 223-FZ excludes from the scope of Law N 223-FZ only the selection of an audit organization carried out in accordance with article 5 of Law N 307-FZ, the Ministry of Finance of Russia and the FAS Russia come to the following conclusions:

1) legal entities that are customers in accordance with Law N 223-FZ and specified in part 4 of article 5 of Law N 307-FZ select an audit organization for a statutory audit in accordance with the procedure established by the legislation of the Russian Federation on the contract system in the field of procurement;

2) legal entities that are customers in accordance with clause 7 of article 3 of Law N 44-FZ and specified in part 4 of article 5 of Law N 307-FZ, carry out procurement for the provision of statutory audit services in the manner established by the legislation of the Russian Federation on the contract system in the field of procurement, including planning, regulation of procurement, execution of the contract, control in the field of procurement;

3) legal entities that are customers in accordance with Law N 223-FZ, but not specified in part 4 of article 5 of Law N 307-FZ, carry out procurement for the provision of statutory audit services in the manner established by Law N 223-FZ, the customer's regulation on purchase.

2. On the issue of selecting an audit organization by a legal entity that is a customer in accordance with Law N 223-FZ and specified in part 4 of article 5 of Law N 307-FZ.

Law N 44-FZ establishes a different content of the terms "purchase" and "definition of the supplier (contractor, performer)". The term "determining the supplier (contractor, performer)", established by paragraph 2 of Article 3 of Law N 44-FZ, includes a set of actions that are carried out, starting with the placement of a notice of procurement and ending with the conclusion of a contract, that is, in essence, they involve directly selecting a supplier (contractor, performer).

Considering that part 4 of article 5 of Law N 307-FZ establishes the obligation of the legal entities specified in this part to conclude an agreement in the manner established by the legislation of the Russian Federation on the contract system in the field of procurement based on the results of an open tender, the Ministry of Finance of Russia and the FAS Russia consider that in in relation to such legal entities (with the exception of customers in accordance with paragraph 7 of Article 3 of Law N 44-FZ), the provisions of Law N 44-FZ are applied exclusively in terms of determining the supplier (contractor, performer) by holding an open tender, as well as the relevant regulatory legal acts on contract system in the field of procurement. At the same time, the provisions of Law N 44-FZ regarding planning, standardization of purchases, execution of concluded contracts are not subject to application.

1) part 1 of article 55 of Law N 44-FZ establishes cases in which a contract is concluded with a single supplier (contractor, performer) in accordance with paragraph 25 of part 1 of article 93 of Law N 44-FZ, which in turn provides for the coordination of the conclusion of a contract with by the relevant control body in the field of procurement, depending on the level of state, municipal needs provided;

3) part 4 of article 55 of Law N 44-FZ establishes cases in which the procurement is subsequently carried out by conducting a request for proposals in accordance with paragraph 8 of part 2 of article 83 of Law N 44-FZ or otherwise in accordance with Law N 44-FZ.

Considering that part 4 of article 5 of Law N 307-FZ establishes the obligation of the legal entities specified in this part to conclude an agreement solely on the basis of the results of an open tender, the Ministry of Finance of Russia and the Federal Antimonopoly Service of Russia consider that the legal entities specified in part 4 of article 5 of Law N 307- FZ (with the exception of customers in accordance with paragraph 7 of Article 3 of Law No. 44-FZ of Law No. 44-FZ):

1) conclude a contract with a single supplier (contractor, performer) in the cases provided for by part 1 of article 55 of Law N 44-FZ, in accordance with paragraph 25 of part 1 of article 93 of Law N 44-FZ without the consent of the control authority in the field of procurement, since Law N 44-FZ does not provide for the implementation of the specified coordination with such a control body by a person who is not a customer in accordance with paragraph 7 of Article 3 of Law N 44-FZ;

2) do not apply the provisions of Parts 2, 4 of Article 55 of Law N 44-FZ in terms of conducting procurement in a manner other than an open tender, in connection with the establishment by Law N 307-FZ of the obligation to carry out procurement exclusively through an open tender;

3) do not apply the provisions of part 4 of article 55 of Law N 44-FZ in terms of conducting a request for proposals in connection with the above circumstance.

3. On the issue of procurement for the provision of statutory audit services by a legal entity that is a customer in accordance with clause 7 of Article 3 of Law N 44-FZ and specified in part 4 of Article 5 of Law N 307-FZ.

Federal Law No. 321-FZ of 03.07.2016 includes unitary enterprises in the number of customers that make purchases in accordance with Law No. 44-FZ (except for the cases established in part 2.1 of Article 15 of Law No. 44-FZ). Thus, as a general rule, Law N 44-FZ regulates all the relations specified in part 1 of Article 1 of Law N 44-FZ when purchasing by a unitary enterprise.

It should be noted that, according to Part 4 of Article 5 of Law N 307-FZ, when concluding a contract for the provision of statutory audit services, establishing a requirement for securing bids for participation in the tender and (or) for securing the performance of a contract is not mandatory.

However, in accordance with part 1 of article 2 of Law N 44-FZ, the rules of law contained in other federal laws and governing relations specified in part 1 of article 1 of Law N 44-FZ must comply with Law N 44-FZ, which contains special requirements for securing bids, execution of the contract, their size.

The Ministry of Finance of Russia and the FAS Russia come to the conclusion that the customers specified in paragraph 7 of Article 3 of Law N 44-FZ, including unitary enterprises, when making purchases for the provision of statutory audit services, apply the provisions of Law N 44-FZ, establishing the requirements to secure bids, execution of the contract.

4. On the issue of the procedure for appealing, as well as control in relation to the actions (inaction) of legal entities procuring statutory audit services.

Chapter 6 of Law N 44-FZ establishes the procedure for appealing against actions (inaction) of subjects of control provided for by Law N 44-FZ. Chapter 5 of Law N 44-FZ establishes the content of subjects of control, types and grounds for control measures. The provisions of Chapters 5, 6 of Law N 44-FZ apply to customers specified in paragraph 7 of Article 3 of Law N 44-FZ, since such customers are classified as subjects of control provided for by Law N 44-FZ.

Part 10 of Article 3 of Law N 223-FZ establishes cases of appealing the actions (inaction) of the customer in the manner established by the antimonopoly authority. Article 18.1 of Federal Law No. 135-FZ of July 26, 2006 "On Protection of Competition" (hereinafter - Law No. 135-FZ) establishes the procedure for consideration by the antimonopoly body of complaints about violations of the tender procedure, which is mandatory in accordance with the legislation of the Russian Federation. Article 6 of Law N 223-FZ establishes the content of control over compliance with Law N 223-FZ.

Based on a systematic analysis of the provisions of these Federal Laws, the Ministry of Finance of Russia and the FAS Russia come to the following conclusions:

1) appeal against actions (inaction) of legal entities that are customers in accordance with Law N 223-FZ and specified in part 4 of article 5 of Law N 307-FZ, is carried out in the manner established by article 18.1 of Law N 135-FZ for consideration by the antimonopoly body of complaints for violation of the bidding procedure, the holding of which is mandatory in accordance with the legislation of the Russian Federation (in particular, Law No. 307-FZ);

2) appeal, as well as control in relation to legal entities that are customers in accordance with clause 7 of article 3 of Law N 44-FZ and specified in part 4 of article 5 of Law N 307-FZ, is carried out in the manner established by Chapters 6, 5 of Law N 44-FZ, respectively;

3) appeal, as well as control in relation to legal entities that are customers in accordance with Law N 223-FZ, but not specified in part 4 of article 5 of Law N 307-FZ, is carried out in accordance with part 10 of article 3, article 6 of Law N 223-FZ;

4) appeal against actions (inaction) of legal entities that are not customers either in accordance with Law N 223-FZ or in accordance with Law N 44-FZ, but specified in part 4 of Article 5 of Law N 307-FZ, is carried out in the manner established by Article 18.1 of Law No. 135-FZ for consideration by the antimonopoly authority of complaints about violations of the bidding procedure, the conduct of which is mandatory in accordance with the legislation of the Russian Federation (in particular, Law No. 307-FZ).

This letter is not a legal act and is for informational purposes only.

Deputy Minister of Finance

Russian Federation

A.M. LAVROV

Deputy Head

Federal Antimonopoly Service

R.A. PETROSYAN

Reading time: 8 min

Public Procurement Law 44-FZ provides for a number of measures aimed at monitoring the implementation of the contract and overseeing procurement activities. One of the innovations in the procurement system is the introduction of a system for monitoring and auditing contracts.

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Audit in the field of public procurement: legislative regulation

There are several types of audit: financial, tax, environmental, managerial, etc. The audit of the public procurement system is a relatively new phenomenon for Russian practice, and its essence remains unclear to many. This is one of the varieties of external state control over public procurement.

The purpose of the audit is, first of all, to analyze the results of procurement activities. It also aims to achieve procurement objectives; assessment in terms of the effectiveness of the procurement activities of institutions; assessment of ongoing purchases and; systematization of the received information and development of proposals for optimizing the current procurement model.

If in the course of the analysis the auditors reveal facts of violation of the norms of criminal or administrative law, they will be obliged to transfer the information they receive to the authorized bodies.

Thus, despite the fact that control is not the task of an audit, auditors can contribute to the disclosure of crimes in the field of public procurement.

Who conducts public procurement audits

According to Part 1 of Art. 97 FZ-44, the authorities authorized to conduct an audit are:

1. Accounts Chamber of the Russian Federation.
2. Accounts chambers of municipalities.
3. Control and Accounts Bodies of the Federal Level.

Responsible persons on the customer's side are recommended to conduct an internal audit of procurement on their own to prevent violations.

The activities of the Accounts Chamber are aimed at exercising control functions of state institutions at the federal level. It is regulated by federal legislation “On the Accounts Chamber” (Law of 2013 No. 41-FZ and regulations).

The activities of regional or municipal local chambers are regulated by local regulations.

The general principles for the functioning of local controllers are prescribed in the Federal Law-6 of 2011. They work closely with the Federal Accounts Chamber.

Responsibility for the evaluation results lies with the officials (auditors).

The timing of the verification activities are determined for the current year and are included in the schedules. 294-FZ indicates the need to notify the customer organization of the upcoming inspection 3 working days in advance or 24 hours in case of an unscheduled inspection.

Who and what is checked

The audit can be aimed at analyzing the effectiveness of procurement activities as a separate institution, as well as assessing the effectiveness of the state and programs, how efficiently targeted funds and additional appropriations were spent, etc.

The following activities are subject to verification:

• government organizations;
• unitary enterprises;
• budgetary and autonomous institutions.

At the same time, the activities of officials of customers, purchasing commissions, contract managers and services are evaluated.

Order of conduct

When conducting audit activities, there are three main stages:

1. Preparatory, which is aimed at the preliminary collection and study of information on procurement activities, as well as drafting an audit.
2. main stage, which provides for verification of all procurement materials and areas of work of the organization. Separately, it is worth paying attention to the issues of efficiency and expediency of the results of procurement and the formation of budgetary savings.
3. The final stage, including summarizing the results of audit activities and preparing a report with conclusions and recommendations based on the results of audit activities.

During the audit, specialists analyze data from open sources, as well as official documents received from government customers. When conducting an audit, regulatory authorities may request the following documents from the organization:

• plans;
• procurement schedules;
• documents substantiating the need for specific goods or services;
• registers of concluded contracts;
• received bank guarantees(registries);
• registries of unscrupulous;
• catalogs of necessary;
• rationing rules;
• original contracts;
• reporting documentation for completed contracts(acts, etc.).

State customers should take into account that for failure to provide the requested information or for providing deliberately false information, criminal or administrative liability is established by law.

Usually, auditors pay the most attention to contracts concluded through non-competitive means.

In the course of audit activities, the work of the customer is evaluated in a number of areas:

• how well contracts are drawn up and concluded(whether mandatory conditions were contained there, whether the deadlines for signing were observed, whether the necessary approvals were obtained, etc.);
• whether suppliers and contractors have complied with the terms of the contract in terms of the quantity and quality of goods, work performed and services rendered, as well as the terms of work and the procedure for paying for the contract;
• whether the planning and procurement procedure meets the requirements(including procurement through competitive procedures);
• whether the calculation of the contract meets the established rules, and how reasonable it is;
• how effectively contracts were managed.

Test results

Based on the results of the audit, a report is generated. The report should contain specific information on the validity and effectiveness of the costs of public procurement carried out in the process of public procurement, as well as conclusions, suggestions and recommendations.

The tasks of the auditors include the need to identify the reasons for the inefficient operation of the public procurement system and prepare proposals aimed at eliminating them and improving the current contract system.

The results of the activities carried out, drawn up in writing, contain an indication of the following data:

1. Number of control measures carried out: the amount of orders that were evaluated; separately, the amount of orders that were recognized as inefficient and ineffective in terms of spending budget funds (for example, unfulfilled or poor-quality work was paid for).
2. Number of prescriptions issued and appeals to regulatory authorities and law enforcement agencies.

During the audit, controllers must record all the violations they have identified: when organizing an order (for example, the requirements for the formation of competitive results, timeliness of work, order, etc.) were ignored.

Also, based on the results of the verification control event, the auditors draw up an act, the content of which is brought to the attention of the heads of the audited authorities and published on the official website of public procurement in the public domain.

The head of the customer institution has the right to disagree with the results of the measures taken, which are reflected in the act. He can attach his explanations and objections to the act. The manager should always be prepared for the fact that he will be required to justify his actions or inaction in public procurement.

When auditors identify violations, they are obliged to send an order to the customer to eliminate them, as well as to transfer information to the Federal Antimonopoly Service, the prosecutor's office or the Federal Tax Service. According to the results of an external audit, the purchase may be recognized as unreasonable.

Inspected institutions may also appeal against the activities of auditors in legislative (representative) bodies or arbitration courts.

Thus, the key point of the audit is to assess the effectiveness and validity of various aspects of the ongoing procurement of an institution that is a customer of public services. During the audit in the field of procurement, a number of important tasks are performed: analysis, evaluation, verification of the validity, legality, expediency and effectiveness of procurement costs and contracts, identification of violations and shortcomings in the conduct of procurement. Based on the results of the audit, an act and a report are drawn up.