All
 
|
 
 


Issues Of Legal Regulation Of Energy Companies In Corporate Control Of Procurement
 
PIIS231243500022340-2-1
DOI10.18572/2410-4396-2020-1-84-88
Publication type Article
Status Published
Authors
Snezhana M. Saushkina 
Affiliation: Saint Petersburg State University of Economics
Address: Russian Federation, St. Petersburg
Journal nameEnergy law forum
EditionIssue 1
Pages84-88
Abstract

As of today, effective Russian laws contains a range of measures for controlling activities of major energy companies. These may include optional rules allowing major companies to decide on control forms and methods, as well as obligatory ones violation of which can cause negative consequences for the company. It often makes transactions too long, sometimes even impossible. The article describes issues related to procurement by energy companies in accordance with Federal Law No. 223-ФЗ on Procurement of Goods, Works, Services by Specific Types of Legal Entities dated July 18, 2011, discovers excessive provisions in current laws, inconsistencies in rules in this field of legal regulation. The author proposes ways to improve legal regulation of internal procurement control.

Keywordsenergy law; legal status of energy companies; contractual regulation in the energy sector; procurement provisions
Received06.02.2020
Publication date29.03.2020
Number of characters18065
Cite     Download pdf
1 Several laws were adopted to promote competition, including: Federal Law No. 135-ФЗ on Competition Protection dated 2006 (hereinafter referred to as Federal Law No. 135-ФЗ), Federal Law No. 223-ФЗ on Procurement of Goods, Works, Services by Specific Types of Legal Entities dated July 18, 2011 (hereinafter referred to as Federal Law No. 223-ФЗ), and Federal Law No. 44-ФЗ on the Contract System for Procurement of Goods, Works, and Services for State and Municipal Needs dated April 5, 2013 (hereinafter referred to as Federal Law No. 44-ФЗ).
2 The Expert Board for the Procurement Law (223-ФЗ) will be created within the Federal AntiTrust Service responsible for improvement of the procurement legislation, discussion of the law enforcement practice and preparation of anti-trust compliance during procurement under 223-ФЗ. [1] The Federal Anti-Trust Service expects companies to develop an industry-specific document on procurement in cooperation with the regulator, thereby creating standards of operation, their activities are to be checked against by the companies themselves and the Federal Anti-Trust Service, implement antitrust compliance during procurement under 223-ФЗ, which will reduce the number of violations during procurement by state companies, considering that, in 2019, the Anti-Trust Service received over 13.6 thousand complaints under the Procurement Law, 91% more than in 2018. [2]
3 Overall, almost 13.7 thousand complaints were received under 223-ФЗ in 2019, which is 91.3% more than in 2018, about 4.4 thousand of them were considered reasonable. [3]
4 Legal studies are rightly focused on various aspects of legal regulation of procurement. Thesis research by A.V. Molchanov addresses anti-trust requirements for bidding; M.S. Solovyev studies administrative and legal grounds of public procurement; A.Yu. Misak explores legal problems of corporate procurement regulation with state participation. [4]
5 The state-owned energy companies listed in Article 1 of Federal Law No. 223-ФЗ shall perform procurements in accordance with the Procurement Regulation approved by the company. According to Article 2 of Federal Law No. 223ФЗ, it is the Customers’ responsibility to develop and approve a document on procurement procedures (Procurement Regulation).
6 Generally, state-owned energy companies are large holdings comprised of a number of subsidiaries located in Russia’s further-flung regions and abroad. [5]
7 Therefore, there is always a problem with parent company’s controlling compliance of subsidiaries with procurement laws, as well as internal regulations reflecting the entire holding’s interests.
8 This problem can be solved by implementing a number of measures. For instance, it may be made by developing a standard procurement regulation for the entire corporation that will be recommended for approval by all subsidiaries of the holding.
9 In addition, each company should have a structural unit responsible for correct arrangement of procurements, while the parent company should have a procurement management center (hereinafter referred to as the PMC) which, apart from conducting procurements for the company itself, will be responsible for guidance, development and improvement of local company regulations, control and prevent violations by subsidiaries.
10 Depending on the tasks to be performed by each energy company, main procurement issues can be approved by the PMC only or partially delegated to structural units to be dealt with locally.
11 The most important procurement issues include procurement planning by the Group of Companies for which the PMC shall:
12 Develop and approve an annual procurement plan of the Group, quarterly amendments or addenda thereto;
13 Establish procurement methods under the effective Procurement Regulation;
14 Determine Organizers of specific procurements, as well as single-source procurements by marketing research;
15 Issue recommendations or instructions to the procurement initiator on forming of lots for planned Procurements, form the lots itself, if necessary;
16 Decide on joint procurements by the Group Companies.
17 The PMC should be responsible for methodological support of the Group Companies’ procurement activities, including the following functions:
18 Development of standard forms, templates and sample documents used by the Group Companies during Procurements and included in Procurement documents, notices of invitation to tender;
19 Compilation of a set of standard draft contracts/agreements (standard terms and conditions) used for Procurement;
20 Development of standard evaluation methods to be used by the Group Companies during procurements, included in procurement documents, notices of invitation to tender;
21 Development of draft orders, instructions, recommendations and regulations on specific procurement arrangement issues;
22 Interaction with state authorities and organizations, state corporations and other stakeholders on methodological issues of the Group’s procurement activities;
23 Clarification of the procedure of application of the Procurement Regulation and other issues governing seminars holding.

views: 209

Readers community rating: votes 0 

1. Russia’s Federal Antimonopoly Service Creates an Expert Board for Procurement Laws // Federal Antimonopoly Service. 2020. February 19. URL: http://fas.gov.ru/news/29353. 
2. Russia’s Federal Antimonopoly Service Creates an Expert Board for Procurement Laws // Federal Antimonopoly Service. 2020. February 19. URL: http://fas.gov.ru/news/29353. 
3. Federal Antimonopoly Service: Number of Procurement Complaints Continues to Rise, Customers Misuse the Right to Blacklist Contractors // Federal Antimonopoly Service. 2020. February 18. URL: http://fas.gov.ru/news/29350. 
4. A.V. Molchanov. Anti-Trust Bidding Requirements: Law Aspect : Thesis of a PhD (Law) / A.V. Molchanov. Moscow, 2019. P. 188 ; M.S. Solovyev. Administrative and Legal Grounds of Public Procurement : Thesis of a PhD (Law) / M.S. Solovyev. Yekaterinburg, 2019 ; A.Yu. Misak. Topical Legal Issues of Regulation of Procurements Performed by Specific Legal Entities (Based on Procurements by the RZD Holding) : a Scientific Paper on Main Results of a Prepared Qualifying Research Paper (Thesis) / A.Yu. Misak. Moscow, 2019. URL: http://ui-miit.ru/files/docs/aspirantura/dokladi/misak_au.  pdf.
5. Gazprom. Procurement. URL: https://www.gazprom.ru/tenders/;  Rosseti. URL: https://www.roseltorg.ru/personal/ros-  seti ; Rosatom. URL: https://zakupki.rosatom.ru/. 
6. Court Rulings in Case No. A43-24013/2019. URL: http://kad.arbitr.ru/Card/a5644378-6319-4c4c-9ea9-c1cf084fdc72. 
7. Official Web Portal of Legal Information. URL: http://www.pravo.gov.ru  (accessed on November 13, 2015).

Система Orphus

Loading...
Up