The state is offered to pay for IT systems from additional income from them

“It is not yet clear how exactly in practice and how widely the mechanism of competitions for the right to enter into concessions for IT facilities will be used and whether IT companies will participate in such agreements, taking into account the fact that the industry has been granted tax preferences when conducting certain types of activities,”— says Advisor to the General Director of SKB Kontur on legal issues Irina Levitan. In particular, benefits are provided for the development of computer programs, transfer of rights to use them, maintenance, implementation and adaptation of software products, she recalls.

“The purpose of the bill is to potentially reduce the budget burden arising on the public side in connection with the implementation of concession IT projects: in fact, the services of the concessionaire will be paid at the operational stage and only if they brought income to the grantor,” says the head of the directorate for legal support of projects National Center for PPP (VEB.RF group) Alisa Berman. According to her, if the project pays off and a balance of interests of the parties is maintained, such a “new” form of financial participation of the grantor can have a positive impact on individual IT projects (in which high profitability is predicted), but whether there will be many such IT projects is a big question. In particular, it is not clear how the interests of the investor will be protected if the state does not receive the planned income. Without additional guarantees of return on investment, such an initiative may pose additional risks for both investors and banks.

According to the director of the legal practice of Trust Technologies, Anna Batueva, at the moment it is not entirely clear how this mechanism will work, taking into account the fact that other forms of financial participation are not allowed: “This means that under the project the private party will be at high risk of bankruptcy ” Thus, she explains, in the absence of commercial revenue, a minimum guaranteed income is provided, but, according to the project, the only available form of payment in such situations will be payment under “special circumstances” – to obtain it, you must obtain the direct consent of the grantor (it cannot be provided at the start and is provided every time there are reasons for non-receipt of proceeds) or a court decision. At the same time, the effect of the mechanism may be limited: as Anna Batueva notes, the most common way of concluding a concession, including in the IT sector, is not a competition, but a private initiative.

According to the managing partner of the Veta expert group, Ilya Zharsky, the initiative brings clarity to the concept of a profitable concession, which will eliminate the unnecessary expenses of the grantor, which he is obliged to bear in favor of the concessionaire if necessary. As Iskander Binashev, head of the infrastructure, construction and PPP practice at Stonebridge Legal, recalls, changes to the law on concessions that came into force on October 1 limited the opportunity for the financial participation of the grantor in PPP projects, focusing it on compensation for the costs incurred by the concessionaire for the creation and operation of the facility (budget participation should be less than such expenses). Thus, the expert adds, it has become impossible to implement certain types of projects – both “social” (without the possibility for the concessionaire to earn money from the operation of the facility, for example an educational facility), and projects that generate income for the state from the operation of the agreement facility (for example, traffic cameras) . It is precisely to ensure the possibility of implementing the latter type of projects in the IT field that it is proposed to amend the law, believes Iskander Binashev.

In turn, the head of the subcommittee on digital economy and technologies of Business Russia, Alexey Mostovshchikov, notes that in recent years digitalization has been progressing at a high pace, many formats of cooperation between government authorities and IT service providers have developed spontaneously. “The proposed regime somewhat streamlines this situation,” he believes. In addition, the bill creates clear, and therefore more attractive for business, conditions for cooperation with government customers. “But, as always at the stage of settling new markets and areas, risks are possible. For example, it is not yet obvious how effective the restrictions against abuse included in the bill will be,” the expert notes.

Evgenia Kryuchkova, Venera Petrova