The Joint Purchasing Agreement must contain. New rules for holding joint tenders and auctions
1. When two or more customers purchase the same goods, works, services, such customers have the right to hold joint tenders or auctions. The rights, obligations and responsibilities of customers in joint tenders or auctions are determined by an agreement between the parties concluded in accordance with the Civil Code of the Russian Federation and this Federal Law. The contract with the winner or winners of a joint competition or auction is concluded by each customer.
2. The organizer of a joint tender or auction shall be an authorized body, an authorized institution if they are vested with powers in accordance with Article 26 of this Federal Law, or one of the customers, if other customers transferred to such an authorized body, authorized institution or customer, on the basis of an agreement, part of their powers to organizing and holding a joint competition or auction. This agreement must contain:
1) information about the parties to the agreement;
1.1) procurement identification code;
2) information about the object of procurement and the estimated volume of procurement, in respect of which joint tenders or auctions are held, the place, conditions and terms (periods) of the supply of goods, performance of work, provision of services in relation to each customer;
3) the initial (maximum) contract prices of each customer and the rationale for such prices by the respective customer;
4) rights, duties and responsibilities of the parties to the agreement;
5) information about the organizer of a joint tender or auction, including a list of powers transferred to the said organizer by the parties to the agreement;
6) the procedure and term for the formation of a procurement commission, the rules of work of such a commission;
7) the procedure and terms for developing a notice of procurement, an invitation to take part in a joint closed tender or a closed auction, procurement documentation, as well as the procedure and terms for approving procurement documentation;
8) approximate dates for holding a joint tender or auction;
9) the procedure for paying expenses related to the organization and holding of a joint tender or auction;
10) the term of the agreement;
11) procedure for consideration of disputes;
12) other information that determines the relationship between the parties to the agreement during a joint tender or auction.
3. The organizer of a joint tender or auction approves the composition of the procurement commission, which includes representatives of the parties to the agreement in proportion to the volume of purchases made by each customer, in the total volume of purchases, unless otherwise provided by the agreement.
4. The parties to the agreement shall bear the costs of holding a joint tender or auction in proportion to the share of the initial (maximum) contract price of each customer in the total amount of the initial (maximum) prices of contracts for the conclusion of which a joint tender or auction is held.
5. The procedure for holding joint tenders and auctions is established by the Government of the Russian Federation.
In continuation of the conversation about innovations in the field of public procurement related to the entry into force of the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (Law on the CC), today we will talk about how the issues of holding joint tenders and auctions are reflected in this law.
Art. 25 of the Law on the Constitutional Court. It consists of the following five parts:
1. If two or more customers have a need for the same goods, works, services, such customers have the right to hold joint tenders or auctions. The rights, obligations and responsibilities of customers in joint tenders or auctions are determined by an agreement between the parties concluded in accordance with the Civil Code of the Russian Federation and this Federal Law. The contract with the winner or winners of a joint competition or auction is concluded by each customer.
2. The organizer of a joint tender or auction is one of the customers to whom other customers have transferred, on the basis of an agreement, part of their powers to organize and conduct such a tender or auction. This agreement must contain:
1) information about the parties to the agreement;
2) information on the object of procurement and on the expected volume of procurement, in respect of which a joint tender or joint auction is held;
3) the initial (maximum) price of the contract or contracts and the rationale for such a price;
4) rights, duties and responsibilities of the parties to the agreement;
5) information about the organizer of a joint tender or auction, including a list of powers transferred to the said organizer by the parties to the agreement;
6) the procedure and term for the formation of a procurement commission, the rules of work of such a commission;
7) the procedure and terms for the development and approval of procurement documentation;
8) approximate dates for holding a joint tender or auction;
9) the procedure for paying expenses related to the organization and holding of a joint tender or auction;
10) the term of the agreement;
11) procedure for consideration of disputes;
12) other information that determines the relationship between the parties to the agreement during a joint tender or auction.
3. The organizer of a joint tender or auction approves the composition of the procurement commission, which includes representatives of the parties to the agreement in proportion to the volume of purchases made by each customer, in the total volume of purchases, unless otherwise provided by the agreement.
4. The parties to the agreement shall bear the costs of holding a joint tender or auction in proportion to the share of the initial (maximum) contract price of each customer in the total amount of the initial (maximum) prices of contracts for the conclusion of which a joint tender or auction is held.
5. The procedure for holding joint tenders and auctions is established by the Government of the Russian Federation.
It follows from the content of the said article that joint bidding occurs when two or more customers have needs for the same goods, works, services and such customers unite to conduct a joint tender or auction, concluding an appropriate agreement for this (Part 1 article 25 of the Law on Constitutional Courts). The organizer of such auctions is one of the customers, to whom other customers transferred, on the basis of an agreement, part of their powers to organize and conduct such auctions (Part 2, Article 25 of the Law on the Constitutional Court).
How it was
Although, at the federal legislative level, the first mention of joint auctions appeared in Federal Law No. 94-FZ (part 6 of article 10 of FZ-94), there were attempts to conduct joint auctions even before the adoption of the 94th. In one of the last years of the Federal Law of May 6, 1999 No. 97-FZ “On tenders for placing orders for the supply of goods, performance of work, provision of services for state needs”, a number of joint tenders were held, mainly among law enforcement agencies. However, due to the imperfection of the legislation in force at that time, insufficient qualifications of customers and a number of other reasons, both objective and subjective, this practice not only did not take root, but, in some cases, simply led to incidents. For example, as a kind of legend, they described the case when two law enforcement agencies agreed to hold joint tenders for the supply of army rations on a very large scale. Without delving into the complexity of such events, these departments chose the "leader" and "slave", and divided the competition into two lots, each of which was equal to the needs of each of the departments, respectively. For each of the lots, two applications were submitted, and from the same firms. Of course, in independent, at first glance, companies guessed something in common. Whether there was collusion then or not, no one knows for sure, but the results of the competition were discouraging - for both lots, one of the firms was recognized as the winner, but the unit price (ration) for the lot for department X was many times higher than the price offered by department Y. Considering the total volume of the purchase, the company could easily “give away” one lot, while still remaining in the excess. After seeing the results of such joint bidding, Office X flatly refused to enter into a contract. How this experience of joint bidding ended, history is silent, but the fact remains that the next surge of interest in joint bidding arose only at a time when Federal Law No. 94-FZ was already fully in force.
In the development of this norm, the 94th was issued Decree of the Government of the Russian Federation of October 27, 2006 No. 631 "On approval of the regulation on the interaction of state and municipal customers, bodies authorized to carry out the functions of placing orders for state or municipal customers, when conducting joint bidding." Since Federal Law No. 94-FZ granted customers such a right only when placing orders for the supply of goods of the same name, the performance of works of the same name, the provision of services of the same name, this norm of the 94th served as the starting point for the appearance of the order of the Ministry of Economic Development of Russia dated 01.12.2010 No. 601 " On approval of the range of goods, works, services for the needs of customers” (registered in the Ministry of Justice on July 15, 2011, No. 21367).
The problem of lack of demand
However, interest in joint bidding faded as quickly as it appeared. Why? After all, at first glance, this tool would be very effective when purchasing goods, works, services of the same name, because many of them are needed by almost all customers. Well, really, judge for yourself, all customers use the same stationery, cars are repaired the same way, etc. The large volumes of purchases typical of joint bidding would undoubtedly arouse increased interest on the part of large companies. Those, in turn, due to their capacities, will be able to offer a better price, and, in the end, a large company is able to secure the application and the contract, either without diverting working capital at all or attracting them on terms more favorable to itself than a small and not too well-known company. Finally, for united customers, the amount of work should be significantly reduced, because “one head is good, but two (three, eight) is better.” But, joint auctions, as, in practice, were not held, and are not being held. So what's the problem? In many ways. Let's try to simulate the situation.
In order to hold a joint auction, customers must, at a minimum, agree on the subject, timing, performer of the event (organizer) and much more, conclude an agreement. Part 2 of Article 25 of the Constitutional Law regulates the content of such an agreement.
But here, customers may encounter sometimes insurmountable difficulties. For example, for customer X, the limits of budget commitments will be adjusted in January, and for customer Y in March. It turns out that customer X will have to wait until March, because, despite the absence of legal barriers to bidding even in the absence of the necessary finances, many departments have, if not an official, then an unspoken ban on bidding until the limits are increased.
Suppose both customers are equally loved by financial authorities and have the necessary funds in their accounts. Now they need to work on the technical issues, and here again there is a misunderstanding. Legal services start a "war" over the content of the notice or documentation. Accountants profess a different approach to the rules for processing payment orders. The "IT department" does not want to hear anything about the wishes of colleagues from the information technology department of another customer. Managers, who are forced to listen daily to accusations against the employees of the “comrade-in-arms,” simply remove themselves from the problem, cursing the moment when the idea of a joint auction came to the initiator.
But, even if the customers have agreed on everything, the “leader” (the organizer of joint bidding), as a rule, is faced with the whole layer of problems associated with the implementation of the plan: the development and approval of documentation, the preparation and direction of clarifications , formation of protocols, etc.
In addition, especially in the light of recent trends, customers almost certainly fall under the scrutiny of various regulatory authorities, because when placing an order through joint bidding, the bidding organizer sets the initial (maximum price) for each of the contracts concluded, and also indicates the total price of such contracts, which is subject to reduction as a result of bidding. It would be tolerable if the customers were in an equal weight category, located in the same geographical area, they were given the same limits, they performed similar functions, etc.
Thus, we have to admit that the idea of holding joint tenders, as before, is far from being a new one, so far remains only a theoretical development, which, due to various objective and subjective reasons, cannot yet be applied in our system of state orders to the extent that it was conceived. .
About commission and cost sharing
Part 3 of Article 25 of the Constitutional Law contains innovations in terms of the formation of the commission. It has been established that representatives of the parties to the agreement are to be included in the composition of the commission approved by the organizer in proportion to the volume of purchases made by each customer. However, the article immediately contains a rule of law that has a different form of implementation - use, namely, it is provided that the parties may provide in the agreement for a different procedure for the formation of the commission. This norm is new in relation to its predecessor (Federal Law No. 94-FZ), but it is present in a by-law (Decree of the Government of the Russian Federation of October 27, 2006 No. 631).
Part 4 of Article 25 of the Law on the Constitutional Court, which refers to the distribution of costs for joint bidding among customers, again almost verbatim repeats the norm of the aforementioned resolution (No. 631), namely, it establishes that the costs of joint bidding are distributed between the parties in proportion to the share of the initial (maximum ) the contract price of each customer in the total amount of the initial (maximum) contract prices.
Part 5 of Article 25 of the Law on the Constitutional Court delegated to the Government of the Russian Federation the authority to establish the procedure for holding joint tenders and auctions.
Alexander Stroganov
Law N 44-FZ, when 2 or more customers purchase the same goods, works, services, such customers have the right to hold joint tenders or auctions (hereinafter also referred to as tenders). The rights, obligations and responsibilities of customers during joint bidding are determined by an agreement concluded in accordance with the Civil Code of the Russian Federation and Law N 44-FZ.
The powers that are compulsorily transferred to the organizer of the joint auction in accordance with the agreement, and his obligations arising from this, are defined by Part 3 of Art. 25 of Law N 44-FZ, clause 6 of the Rules. According to these norms, in order to conduct joint auctions, their organizer:
Approves the composition of the procurement commission, which includes representatives of the parties to the agreement in proportion to the volume of purchases made by each customer, in the total volume of purchases, unless otherwise provided by the agreement (part 3 of article 25 of Law N 44-FZ, paragraph "a" clause 6 of the Rules);
Develops and places in a single information system (hereinafter referred to as the UIS) a notice of procurement, develops and sends an invitation to participate in closed auctions, and also develops and approves documentation prepared in accordance with Law N 44-FZ. The initial (maximum) price indicated in such notice, invitation and documentation for each lot is determined as the sum of the NMTsK of each customer, while the rationale for such a price contains the justification of the NMTsK of each customer (paragraph "b" of clause 6 of the Rules);
Provides documentation to interested parties (clauses "c" clause 6 of the Rules);
Provides explanations of the provisions of the documentation (clauses "d" clause 6 of the Rules);
If necessary, makes changes to the notice of procurement and (or) documentation (clauses "d" clause 6 of the Rules);
Places in the EIS in the field of procurement information and documents, the placement of which is provided for by Law N 44-FZ when determining the counterparty (clauses "e" of clause 6 of the Rules);
Sends copies of the protocols drawn up during the joint auction to each party to the agreement no later than the day following the day of signing the said protocols, as well as to the authorized federal executive body in the cases established by Law N 44-FZ (
Joint bidding is a procedure for the purchase of goods, works and services for several organizations, which is carried out by the organizer of the purchase on the basis of an agreement concluded between such organizations
Despite the variety of purchased goods, works and services, both in the field of state orders and corporate purchases, the bulk are quite typical goods, works and services that are required by almost every customer. Considering this moment and guided by the principle of efficiency, the legislator has provided and established such a tool as joint bidding, which allows the customer to minimize their time and financial costs for making identical purchases. The organization of joint bidding can significantly reduce the costs associated with the need to conduct competitive procedures. Therefore, we will consider in detail the procedure for conducting joint tenders, and also note the key positive and negative aspects of this institution.
joint bidding process
Initially, we will cover the issue of holding joint tenders under 44 Federal Laws. Article 25 of the Law on the contract system establishes the general provisions for holding joint tenders. In particular, it is stipulated that only contests or auctions can be the form of determining the winner. Other ways for joint tenders are not provided by the Law on the contract system.
Since the interaction of customers is carried out only in terms of the procedural aspects of determining the supplier (executor, contractor), then after they have been carried out, further actions of the customers are no longer subject to coordination and, in particular, each customer concludes a contract with the winner independently. Also, the norm of the law determines that the main document defining the rights, duties and responsibilities of the organizer and participants of mutual tenders is an agreement that must be concluded in accordance with civil law, taking into account the Law on the contract system. Additionally, it was established that either one customer or an authorized body or institution from the sphere of centralized trading can act as organizers of mutual auctions. Who should be the organizer in specific tenders is determined by the agreement between the participants.
Despite other regulatory and legal regulation for legal entities operating in accordance with Law 223-FZ, the institution of joint bidding almost completely corresponds to the field of state and municipal procurement, with minor differences, which will be clarified further if they are available.
Joint bidding agreement
In order to conduct general bidding in accordance with the Contract System Law, it will be necessary to conclude an agreement with other customers. In accordance with Part 2 of Article 25 of the Law on the Contract System, such an agreement must contain some mandatory information, in particular: IPC (purchase code), essential conditions, NMCC in relation to each customer, information about the organizer, the procedure for sharing costs, the term of the agreement, and so or other information. The form of the agreement must be in writing. If it is technically possible, it may be concluded in the form of an electronic document, subject to the requirements of the Electronic Signature Law.
In addition to the agreement, the rules for conducting the procedure are also established by Decree of the Government of the Russian Federation of November 28, 2013 No. 1088. In particular, these rules define the powers of the organizer, which include, among other things, the creation and approval of a procurement commission that will have to evaluate the applications of bidders . The composition of such a commission includes members of each of the customer participants in relation to the volume of ongoing purchases in the total volume. Also, the procurement organizer carries out all procedural actions to determine the winner, draws up documentation, protocols, gives explanations, makes changes and other actions provided for by the Law on the contract system or Law 223-FZ.
The subject of an agreement under Law 223-FZ can only be goods, works and services with the same codes of the All-Russian classifiers. The needs of several customers are summed up and presented as one lot. Based on the results of joint bidding, contracts are concluded with the winner by customers individually.
Positive and negative aspects of joint tenders
The indisputable advantages of such tenders naturally include the possibility of participation in them of large business representatives, to whom the tenders of customers individually could not be so interesting. Also, the possibility of corruption factors is significantly reduced, since the procurement organizer takes all the necessary steps to determine the winner, and the interest of an individual customer can in no way affect the final result of the procedure. The efficiency of procurement is of course also greatly improved, since contracting authorities are then significantly exempted from many of the requirements of the Contract System Law, which allows them to concentrate on their core business.
But, despite these advantages, such auctions also have a number of significant disadvantages. For example, in the process of preparing documentation, different customers will inevitably formulate the description of the procurement object in different ways and prepare a price justification. And the organizer will have to bring all these data to a common form and type, which can significantly complicate the process of preparing procurement documentation. Also, such tenders practically close participation in them for representatives of small businesses, which ultimately negatively affects economic processes.
Decree of the Government of the Russian Federation of November 28, 2013 N 1088
"On Approval of the Rules for Conducting Joint Tenders and Auctions"
In accordance with the Federal Law "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs", the Government of the Russian Federation decides:
2. Recognize as invalid:
Decree of the Government of the Russian Federation of October 27, 2006 N 631 "On approval of the Regulations on the interaction of state and municipal customers, bodies authorized to carry out the functions of placing orders for state or municipal customers, when conducting joint bidding" (Collected Legislation of the Russian Federation, 2006 , N 44, item 4602);
Decree of the Government of the Russian Federation of October 5, 2007 N 647 "On Amendments to the Regulations on the Interaction of State and Municipal Customers, Bodies Authorized to Perform the Functions of Placing Orders for State or Municipal Customers in Joint Bidding" (Collection of Legislation of the Russian Federation , 2007, N 42, item 5048).
Rules
holding joint competitions and auctions
(approved by Decree of the Government of the Russian Federation of November 28, 2013 N 1088)
With changes and additions from:
3. To organize and conduct a joint tender or auction, customers, authorized bodies, authorized institutions whose respective powers are defined in accordance with Article 26 of the Federal Law "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter respectively - customers, Federal Law), conclude an agreement between themselves on holding a joint tender or auction (hereinafter - the agreement) before the approval of the tender documentation or auction documentation (hereinafter - the documentation).
At the same time, the authorized body, authorized institution, which are entrusted with the authority only to determine suppliers (contractors, performers), may act as a party to the agreement only as the organizer of a joint tender or auction. The Agreement contains the information specified in Part 2 of Article 25 of the Federal Law.
5. The organization and conduct of a joint competition or auction shall be carried out by the organizer, to whom other customers have transferred, on the basis of an agreement, part of their powers to organize and conduct such a competition or auction. A joint tender or auction shall be held in accordance with the procedure established by the Federal Law in respect of tenders or auctions.
6. For the purpose of holding a joint competition or auction, the organizer:
a) approves the composition of the procurement commission, which includes representatives of the parties to the agreement in proportion to the volume of purchases made by each customer, in the total volume of purchases, unless otherwise provided by the agreement;
b) develops and places in the unified information system in the field of procurement a notice of procurement, develops and sends an invitation to take part in a closed tender or auction, and also develops and approves documentation prepared in accordance with the Federal Law. The initial (maximum) price indicated in such notice, invitation and documentation for each lot is determined as the sum of the initial (maximum) contract prices of each customer, while the rationale for such a price contains the rationale for the initial (maximum) contract prices of each customer;
c) provide documentation to interested parties;
d) provides explanations of the provisions of the documentation;
e) if necessary, makes changes to the notice of procurement and (or) documentation;
f) carries out placement in the unified information system in the field of procurement of information and documents, the placement of which is provided for by the Federal Law when determining the supplier (contractor, performer);
g) send copies of the protocols drawn up in the course of a joint tender or auction to each party to the agreement no later than the day following the day of signing the said protocols, as well as to the authorized federal executive body in the cases established by the Federal Law;
h) exercise other powers assigned to it by agreement.
7. The parties to the agreement shall bear the costs of holding a joint tender or auction in proportion to the share of the initial (maximum) contract price of each customer in the total amount of the initial (maximum) prices of contracts for the conclusion of which a joint tender or auction is held.
9. When a joint tender or auction is declared invalid in the cases established by the Federal Law, the decision to conclude a contract with a single supplier (contractor, performer) and the approval of such a decision is carried out by the customers independently in accordance with the Federal Law.
In pursuance of the new Law on the contract system in the field of procurement of goods, works, services for state and municipal needs, a procedure has been established for holding joint tenders and auctions.
If 2 or more customers have a need for the same goods, works, services, they have the right to hold joint tenders or auctions.
To do this, customers enter into a special agreement among themselves. This must be done prior to the approval of the tender or auction documentation.
After signing the agreement, the customers enter into the schedule information about the name of the organizer of the joint tender or auction.
The powers of the named organizer are spelled out. Thus, he approves the composition of the procurement commission. Provides documentation to interested parties and explains its provisions. Places in the unified information system in the field of procurement information and documents necessary for determining the supplier (contractor, performer).
The parties to the agreement shall bear the costs of holding a joint tender or auction in proportion to the share of the initial (maximum) contract price of each customer in the total price.
The contract with the winner of a joint tender or auction is concluded by each customer independently.
If a joint tender or auction is declared invalid, the decision to conclude a contract with a single supplier (contractor, performer) is made by the customers themselves.
The previous provision on holding joint auctions was declared invalid.
The Decree comes into force on January 1, 2014, with the exception of the requirement to include information about the name of the organizer in the schedule. It applies from January 1, 2015.
Decree of the Government of the Russian Federation of November 28, 2013 N 1088 "On approval of the Rules for holding joint tenders and auctions"
This Resolution shall enter into force on January 1, 2014, with the exception of paragraph 4 of the Rules for Conducting Joint Tenders and Auctions approved by this Resolution, which shall enter into force on January 1, 2015.
