Н. Н. Талашкевич студентка 4 курса
ИЮИ (ф) А ГП РФ State needs as a qualifying attribute of the state order The concept of the “state needs” and its role in the determining the peculiarity of the relations originated from the procurement process are of great theoretical and practical significance.
The category of state needs is one of the most important characteristics of the state order, one of its key features. The state needs is the essence of the state order. While the state order in its essence is specified requirements (needs) of the state formed in the prescribed manner and fixed in a legal act.
The category “state needs” is wider than the category “state order”; one might even say that the former fully embodies the latter. Not all of the state needs are reflected in the state order. Moreover not all of the satisfied state needs are recorded in the state order due to the existence of the diverse ways to fulfill the state needs. Meanwhile, the state order always aims to meet state needs.
At this point let us take a look at the definition of the state needs that was given in the Law of the Russian Federation “On the state deliveries of production and goods (expired)”. The state needs were defined as “the needs of the Russian Federation in production necessary to solve national problems and to implement the socio-economic, defense, scientific, technical, environmental and other goal-oriented programs, as well as other tasks”812. It was noted that the state needs are provided by the budget and non-budget sources involved to solve these problems.
There was the definition of the state needs in the Civil Code as well. According to Article 525 (expired version) the state needs were identified as the determined in the prescribed manner needs of the Russian Federation and of the regions of the Russian Federation provided by the budget and non-budget funds813.
At this point let’s take a look at the current legislation, the Federal Law “On placing orders for goods, works and services for state and municipal needs”814. According to Article 3 of the Federal Law № 94 the state needs is basically needs of the Russian Federation and government customers for goods, works and services required to implement the functions and powers of the Russian Federation and government customers or the needs of the regions of the Russian Federation and government customers for goods, works and services required to carry out the functions and powers of the regions of the Russian Federation and government customers.
As we can see, the approach of the legislator to the definition of the “state needs” has changed; notably the number of potential customers was extended as the impact of the provisions of the Federal Law № 94 also covers the needs of government customers for goods, works and services required for the implementation of their functions and powers.
In this context, the question of differentiation of the state needs and the own needs of government customers appears to be logical. In this respect there are two main points of view. Thus, one group of scientists (E. A. Sukhanov815, A. E. Sherstobitov, M. F. Ivlieva816, etc.) is inclined to believe that government customers may have their own needs different from the state needs. Another group of experts (L. V. Andreeva817, I. V. Kolesnikov818, P. S. Tarabayev819) denied the existence of the own needs of government customers, or referred such needs to the needs of the state. There was uncertainty on this issue in practice. What is more there was no unanimity among public authorities as well. The problem of differentiation of the state needs and the own needs of government customers was discussed in the legal literature as well.
Thus, there are different views to the concept of “state needs” and to the question of the differentiation of the state needs and the own needs of government customers. In the Federal Law № 94 the legislator filled the concept of the state needs with the wide sense including the needs of the Russian Federation, of its regions and the own needs of the government customers. This approach dictates the “rule”, so to say, that, for instance, in order to meet their own needs public entities have to sign a contract in accordance with the Federal Law № 94. Any purchase on the behalf of government customers must be solely in accordance with the Federal Law № 94. Whether it is a complex technique or paper clips. This indicates that according to the Federal Law№ 94 the own needs of government customers are part of the state needs.
The sphere of implementation of the Federal Law № 94 was expanded with the adjustment of the concept of “state needs”. The institution of the state order itself has changed; it included in its content the relevant needs of government customers.
The duality is visible in this approach as the power of the Federal Law № 94 which is directed towards the needs of the public entities extends over all organizations eligible for budgetary financing. That is contrary to the principles of civil law – the principle of legal equality and free will. In my opinion, the relations originated from the necessity to meet these organizations’ own needs shall be governed by the Civil Code.
If we turn to the project of the new Act of Federal Contract System820, in Article 3 it defines the state needs as “the needs of the Russian Federation or the needs of the regions of the Russian Federation”.
Thus, the definition of “state needs” will be reduced to the needs of public entities, and the needs of legal entities will be out of the question. Such an approach will be more successful than the current one existing in the Federal Law № 94.