Procurement under Federal Law No. 223-FL is traditionally considered more flexible than the contract system. Customers independently form the purchase regulations, determine procedures and requirements for participants. However, this flexibility has limits. One of the mandatory regulatory elements is the national regime, which restricts the purchase of foreign products and introduces priority for goods of Russian origin.
The legal basis of the national regime is fixed in Article 3.1 of Federal Law No. 223-FL. The specific rules for its application are established by resolutions of the Government of the Russian Federation.
Why is the national regime important for procurement under 223-FL
Unlike the contract system, procurement under 223-FL is carried out by large state and quasi-state companies: state corporations, natural monopolies, companies with state participation. Such customers have a significant volume of purchases and have a serious impact on the industrial products market.
Therefore, the State applies the mechanism of the national regime to these purchases as well. Its task is to ensure priority for Russian-made products and to stimulate the localization of production within the country.
However, the mechanism itself does not apply to all purchases automatically. The national regime applies only in cases where the object of purchase falls under the lists of goods established by the Government.
How does the national regime affect the purchase
If the purchased product is included in the relevant lists of Resolution No. 1875, the customer is obliged to take into account the origin of the product and apply special protective measures.
Depending on the product category, several mechanisms are used.
The first is a direct ban on the purchase of foreign products. In this case, the customer is not entitled to conclude a contract for the supply of goods of foreign origin. If a participant offers a foreign product, his application is rejected regardless of other parameters.
The second mechanism is the restriction of the admission of foreign goods. It is applied according to the principle of competition of offers. If at least two participants with goods of Russian or Eurasian origin participate in the purchase, applications with foreign products are rejected.
The third mechanism is to provide advantages to Russian products. In such cases, foreign goods are not directly prohibited, but Russian products gain an advantage when evaluating applications.
Which mechanism is used depends on the product category and the requirements of the government decree.
Confirmation of the origin of the goods
For the application of the national regime, the key issue is the confirmation of the origin of the goods.
The main proof is the presence of products in the register of Russian industrial products, which is maintained by the Ministry of Industry and Trade of Russia. The Eurasian Register of Industrial Goods is used for goods produced in other states of the Eurasian Economic Union. In some cases, it is allowed to confirm the origin by means of a certificate of the ST-1 form or other documents provided for by regulatory enactments.
It is important to keep in mind that product registration documents, certificates of conformity, or other technical documents do not confirm the origin of the product. For the application of the national regime, only special documents provided for by law are used.
