By letter of the Federal Antimonopoly Service dated September 28, 2020 No. IA/83689/20, clarifications were given on the procurement of disposable medical devices (use) made of polyvinyl chloride plastics.
The reason for the adoption of this clarification was the changing market situation, including the rise in exchange rates, as a result of which the market prices for procured medical devices made of PVC plastic in some cases exceeded the price determined by the customer in accordance with the methodology approved by the joint order of the Ministry of Health of Russia No. 759n, Ministry of Industry and Trade of Russia No. 3450 dated October 4, 2017, which became the reason for the recognition of the procurement as invalid due to the lack of the procurement participants to submit bids with a proposal for a price below market.
The Analytical Center under the Government of Russia annually calculates the weighted average price used to justify the initial maximum contract price by November 1, as of the corresponding settlement period. Currently, weighted average prices calculated before November 1, 2019 are used to justify the initial maximum contract price.
The current rules do not contain the specifics of the formation of the initial maximum contract price in case of recognition of the purchase as invalid, as provided, for example, by order of the Ministry of Health of Russia dated December 19, 2019 No. 1064n in the case of procurement of drugs, and does not provide for the possibility of justifying the initial maximum contract price based on the market price of medical devices.
These circumstances lead to an actual disruption in the procurement of socially significant medical products used in the daily work of medical institutions and the impossibility of ensuring their uninterrupted functioning.
In the opinion of the FAS Russia, if the procurement is declared invalid for the above reasons, the customers have the right to re-purchase while maintaining the requirements and conditions of the previously failed purchase, using the method of comparable market prices (market analysis) during the re-purchase to justify the initial maximum contract price in accordance with Article 22 of the Law No. 44-FZ, which will not be the basis for recognizing signs of violation of current legislation in the actions of the customer.
Note that this decision may be temporary, since it is obvious that it is necessary to adjust the Government Decree of February 5, 2015 No. 102 and the methodology approved by the joint Regulation of the Ministry of Health of Russia No. 759n, the Ministry of Industry and Trade of Russia No. 3450 of October 4, 2017, in order to avoid such interruptions in supplies due to fluctuations in exchange rates and changes in the market situation.
October 7, 2020
Lawyers of the practice “Healthcare and Pharmaceuticals” of
BRACE Law Firm ©
