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Problems of Legal Regulation of Activities of Energy Companies in the Procurement at Small- and Medium-Size Enterprises
 
PIIS231243500022148-0-1
DOI10.18572/2410-4396-2019-3-86-91
Publication type Article
Status Published
Authors
Snezhana M. Saushkina 
Affiliation: Saint Petersburg State University of Economics
Address: Russian Federation, Saint Petersburg
Journal nameEnergy law forum
EditionIssue 3
Pages86-91
Abstract

In accordance with the Provisions On Peculiarities of Participation of Small-size Enterprises in Procurement of the Goods, Work, and Services by Legal Entities of Individual Types, Annual Volume of This Procurement and the Procedure for Calculation of This Volume approved by Decree No. 1352 of the Government of the Russian Federation dated December 11, 2014, major energy companies shall purchase some goods, work (services) from the small- and medium-size enterprises.

The work studies amendments to Decree No. 1352 of the Government of the Russian Federation dated December 11, 2014, prepared by the Ministry of Finance of the Russian Federation, as related to increase in percentage of purchases from small and medium-size enterprises up to 20% (instead of the current 18%) of the total annual volume of contract for purchases from small and medium-size enterprises in terms of value and 18% (instead of the current 15%) of purchases arranged only for small and medium-size enterprises. The article examines the conditions of the current legal regulation of purchases of energy corporations from small and medium-size enterprises with due account for possible legal risks, the specific nature of activities of the energy companies, and suggests possible options for minimizing legal risks and improvement of current models of legal regulation of the procurement activities of energy companies.

 

Keywordsenergy law, energy law order, subjects of energy law, small- and medium-size enterprises, procedure for conclusion of contracts, contractual regulation in the energy sector, procurement of the goods, work, services
Received15.05.2019
Publication date01.09.2019
Number of characters20931
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1 Along with the consumers, the energy companies are key subjects of energy law. [1] The most important element of legal regulation in the energy sector is contractual regulation, the distinctive feature of which is significant influence of the state on the contractual relations. [2] Considering legal framework for contractual regulation in the energy sector as one of the major elements forming energy law order, V.V. Romanova rightly notes that contractual regulation in various branches of the power industry is currently characterized by detailed setting of both the procedure and the terms and conditions of the contract, including significant ones, in the relevant federal laws and subordinate regulations. [3] Legal research of peculiarities of contractual regulation are performed [4-8], however, many aspects deserve to be the subject of separate legal study. It particularly concerns peculiarities of the procedure for conclusion of contracts to be concluded by energy companies with the smalland medium-size enterprises. To develop competition and maintain business in Russia, Federal Law No. 223-ФЗ dated July 18, 2011, On Procurement of the Goods, Work, Services by Certain Types of Legal Entities (hereinafter referred to as Federal Law 223-ФЗ) was adopted. To support the smalland mediumsize enterprises in the Russian Federation, Decree No. 1352 of the Government of the Russian Federation dated December 11, 2014, On Peculiarities of Participation of Smalland Medium-Size Enterprises in Procurement of Goods, Work, and Services by Legal Entities of Individual Types approved the Provisions On Peculiarities of Participation of Small-Size Enterprises in Procurement of the Goods, Work, and Services by Legal Entities of Individual Types, Annual Volume of This Procurement and the Procedure for Calculation of This Volume (hereinafter referred to as Provisions No. 1352), according to which the legal entities specified in clause 2 of Provisions No. 1352 shall have not less than 18 percent of the total annual volume of contracts for procurement in terms of value with the smalland medium-size enterprises, herewith, not less than 15 percent of the total annual volume of contracts in terms of value should be concluded following the results of procurement procedures implemented only for smalland medium-size enterprises.
2 In accordance with Article 4 of Federal Law of the Russian Federation No. 209-ФЗ dated July 24, 2007 On Development of Smalland Medium-Size Enterprises in the Russian Federation, to the small-size enterprises shall include business entities, business partnerships, economic partnerships, cooperatives, consumer cooperatives, owner-operated farms, and individual entrepreneurs meeting the following criteria:
3 First, the average number of employees of the contractor should not exceed 15 people for microenterprises, 100,000 people for small-size enterprises, and 250,000 people for medium-size enterprises.
4 Second, the legislator has established the limits of income of the mentioned entities. In accordance with Decree No. 265 of the Government of the Russian Federation dated April 4, 2016 On the Limit Values of Income Received from Entrepreneurial Activities per Category of Smalland Medium-size Enterprises, the amount of income should not exceed 120 million Rubles in case of a microenterprise, 800 million Rubles in case of a small-size enterprise and 2 billion Rubles in case of a medium-size enterprise.
5 It should be noted that the above-mentioned income was set since August 1, 2016, and for many companies, it certainly made it possible to attract the required percentage of contracts with smalland medium-size enterprises. However, it should be taken into account that some energy companies are fairly large enterprises with relevant turnover and the cost of the contracts. These measures significantly improved the situation of 2014-1015, having expanded the range of smalland medium-size enterprises, but they have not settled the issue in full.
6 Conclusion of a contract with a major energy company for the whole volume of work/services/goods required for it may by itself increase the turnover of the contracting companies to such a level that it will no longer be deemed a smalland medium-size enterprise or increase the number of employees so that the company will exceed the required number of full-time positions. These facts do not allow it to take part in procurement available exclusively for the smalland mediumsize enterprises next year even if it is a reliable company. Or vice versa, the Customer will have to arrange for procurement for any participants, including smalland medium-size enterprises, which will have a negative impact on the percentage of purchases from these entities exclusively.
7 Introduction of the rules obliging major energy companies to attract the contractors from among smalland medium-size enterprises certainly supports the economic situation at the national level. This state policy makes it possible for small firms to actively participate in the market, forces to create new working places and provides these companies with the opportunity to work with reliable solvent customers actually making possible to conduct business on the breakeven level.

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