Agreement on joint bidding 44 fz. On approval of the rules for holding joint tenders and auctions

Full-time and distance learning (on a computer, online).

Definition:

Decree of the Government of the Russian Federation of October 27, 2006 N 631 (as amended on October 5, 2007) "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, during joint bidding":
"... the organizer of joint bidding is one of the customers, authorized bodies, to which other customers, authorized bodies transferred, on the basis of an agreement, part of their functions for organizing and conducting joint bidding"

Joint tenders are held for the purchase of products of the same name of the same name. If several state customers of the city have a need to purchase one item of products (having the same codes according to the All-Russian Classifier of Economic Activities, Products and Services), in this case, these state customers of the city have the right to conduct joint bidding or transfer joint bidding to the authorized body. At the same time, the needs of the state customers of the city are combined into one lot, the state contract is concluded with each state customer of the city in proportion to its needs.

For example, four government agencies have a need to purchase beef meat. The first state institution needs 1000 kg, the second - 800 kg, the third - 1200 kg, the fourth - 1300 kg. The average market price of one kilogram of beef meat is 250 rubles. The total demand of all four customers is 4300 kg. The total initial (maximum) price is 1,075,000 rubles. (more than 1 million rubles).

Under these conditions, the state customers of the city have the right to hold joint tenders. In this case, their total demand is combined into one lot, and based on the results of the placement, separate state contracts are concluded with the winner of the auction with each state customer of the city in part of its need, laid down in the terms of reference.

1.3. Joint bidding can be held if at least two state customers of the city have a need for goods of the same name, works of the same name, services of the same name.
To conduct joint bidding, state customers of the city conclude an agreement on joint bidding (hereinafter referred to as the agreement) on the basis of an approximate form of an agreement on joint bidding developed by the Committee for Economic Development, Industrial Policy and Trade

The agreement specifies:

• a) information about customers and the authorized body conducting joint bidding (hereinafter referred to as the parties to the agreement);
• b) information about the types and expected volumes of orders in respect of which joint bidding is held;
• c) the rights, duties and responsibilities of the parties to the agreement;
• d) information about the organizer of joint bidding, including a list of functions transferred to it by the parties to the agreement for the purpose of conducting bidding;
• e) the procedure and term for the formation of a competitive (auction) commission for placing an order (hereinafter referred to as the commission);
• f) the procedure and terms for the development and approval of tender (auction) documentation;
• g) approximate dates for holding joint tenders;
• h) the procedure for payment of expenses related to the organization and holding of joint tenders;
• i) the duration of the agreement;
• j) procedure for consideration of disputes and appeals;
• k) other information that determines the relationship between the parties to the agreement during joint bidding.

2.3. The agreement on joint bidding must be signed by all state customers of the city, in whose interests joint bidding is held, as well as by the authorized body

The parties to the agreement bear the costs of joint bidding in proportion to the share of the initial (maximum) price of the contract of each state customer of the city in the total amount of the initial prices of contracts for the placement of orders, in respect of which joint bidding is held.

The following functions are transferred to the organizer of joint bidding:

• making a decision on the creation of a tender, auction commission, approval of its composition with the mandatory inclusion of representatives of customers in it;
• approval of the regulation on the work of the commission, appointment of its chairman in accordance with the requirements of the Federal Law of July 21, 2005 No. 94-FZ "On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs";
• development and approval of tender documentation, auction documentation;
• making a decision on establishing a fee for the provision of tender documentation, auction documentation and its amount in cases provided for by Federal Law No. 94-FZ of July 21, 2005 “On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs” ;
• making a decision on establishing the requirement to secure applications for participation in the tender (auction);
• making a decision to establish a requirement to ensure the execution of a municipal contract, the term and procedure for its provision;
• publication in the official printed edition of the Rostov region and placement on the official website of the Rostov region on the Internet within the established time limits of information on placing orders;
• provision of tender documentation, auction documentation to interested parties;
• development with the involvement of customers and sending clarifications of the provisions of the tender documentation, auction documentation to the order placement participant who made the corresponding request, and posting the clarification of the provisions of the tender documentation, auction documentation on the official website of the Rostov Region on the Internet;
• making changes to the tender documentation, auction documentation in the manner prescribed by the legislation of the Russian Federation;
• receipt and registration of applications for participation in the competition (auction) ensuring their storage;
• ensuring the confidentiality of information contained in applications for participation in the competition before opening the envelopes with applications for participation in the competition;
• audio recording of the opening of envelopes with applications for participation in the competition, audio recording of the auction;
• organization of verification of applications for participation in the competition (auction) for compliance with their requirements of the legislation of the Russian Federation;
• a request from the relevant authorities and organizations for information on the liquidation of an order placement participant - a legal entity that submitted an application for participation in a tender or an application for participation in an auction, a bankruptcy procedure in relation to such an order placement participant - a legal entity, an individual entrepreneur, on the suspension of the activities of such participant in the manner prescribed by the Code of the Russian Federation on Administrative Offenses, on the presence of debts of such a participant in the placement of an order for assessed taxes, fees and other obligatory payments to budgets of any level and to state non-budgetary funds for the past calendar year, on appealing against the presence of such debts and on the results consideration of complaints;
• sending to participants in the placement of an order who submitted applications for participation in the tender (auction) notifications of decisions taken by the tender (auction) commission for placing orders on admission to participate in the tender (auction) or on refusal to admit to participation in the tender (auction);
• providing participants of the competition (auction) with explanations of the results of the competition (auction);
• storage of minutes drawn up during the tender (auction), applications for participation in the tender (auction), tender documentation and auction documentation, changes made to the tender documentation and auction documentation, clarifications of tender documentation and auction documentation, as well as audio recording opening envelopes with applications for participation in the competition and an audio recording of the auction.

When conducting joint bidding, tender documentation, auction documentation must separately determine the subject of bidding (lot) for each customer. Customers develop terms of reference and draft government contracts. The organizer of joint bidding summarizes the proposals submitted by customers on the subject of joint bidding and forms a consolidated subject of bidding with indication of lots for each customer. When conducting joint bidding, information on the name of customers, the quantity of goods supplied, the place, conditions and terms of delivery of goods, the initial price of the municipal contract is given separately for each lot. In the notice of the competition, auction, the Organizer of the joint auction publishes and places both general information about the subject of the auction, and detailed information on each lot. Draft municipal contracts must be attached to the tender documentation, documentation of the auction.

11/19/2012 Services provided in different territories cannot be included in one lot if this limits the number of bidders

Two or more state (municipal) customers, authorized bodies have the right to conduct joint tenders for the supply (performance, provision) of goods (works, services) of the same name.
The organizer of joint tenders for the provision of home care services for the disabled and the elderly formed 3 lots. At the same time, services provided in several municipal districts were combined into 1 lot.
The antimonopoly body decided that such actions limit competition, reduce the number of bidders, and issued an order. The district court agreed with this conclusion.
By law, tender documents must not contain trademarks, service marks, trade names, patents, utility models, industrial designs, manufacturer's name or place of origin. Also, it cannot contain requirements for goods, information, works, services, entailing a restriction on the number of participants in placing an order. Lots cannot include goods, works, services that are technologically and functionally not related to the subject of the auction.
In a disputable case, due to the enlargement of lots, the amount of security for an application for participation in the auction also increased. This has led to the displacement of economic entities that do not have the financial ability to contribute large amounts of collateral. The significance of the latter has developed due to the artificial combination of services provided in different territories into one lot.

Decree of the Federal Arbitration Court of the Urals District dated September 25, 2012 N F09-7482/12 in case N A50-25886/2011 (key topics: joint bidding - tender documentation - bidding organizer - public services - order placement participant)

Ekaterinburg

Case N А50-25886/2011

Federal Arbitration Court of the Urals District, consisting of:

presiding Yashchenok T.P.,

judges Cherkezova E.Oh., Vasilenko C.N.

considered in court the cassation appeal of the Territorial Department of the Ministry of Social Development of the Perm Territory for the city of Perm (OGRN 1065902055746, TIN 5902293361; hereinafter referred to as the Department) against the decision of the Arbitration Court of the Perm Territory dated March 14, 2012 in case No. A50-25886 / 2011 and the decision of the Seventeenth Arbitration Court of Appeal dated May 28, 2012 in the same case.

The persons participating in the case were duly notified of the time and place of the consideration of the cassation appeal, including publicly, by posting information about the time and place of the court session on the website of the Federal Arbitration Court of the Urals District.

The hearing was attended by representatives of management - Kochegarova D.F. (power of attorney dated 16.01.2012 N 02-138), Patlay M.V. (power of attorney dated September 17, 2012 N 02-9243).

The Department applied to the Arbitration Court of the Perm Territory with an application to invalidate the decision and order of the Office of the Federal Antimonopoly Service for the Perm Territory (OGRN 1025900536749, TIN 5902290360; hereinafter referred to as the antimonopoly body) dated 11/18/2011.

Based on Art. 51 of the Arbitration Procedure Code of the Russian Federation, the Specialized Consulting Limited Liability Company (hereinafter referred to as the Specialized Consulting Company) was involved in the case as a third party that does not declare independent claims regarding the subject of the dispute.

By a court decision dated March 14, 2012 (Judge A.N. Saksonova), the stated requirements were denied.

By the decision of the Seventeenth Arbitration Court of Appeal dated May 28, 2012 (judges Gribinichenko O.G., Vaseva E.E., Shchekleina L.Yu.), the decision of the court was upheld.

In the cassation appeal, the department asks the appealed judicial acts to be canceled, referring to the incorrect application of substantive law by the courts and the inconsistency of the courts' conclusions with the actual circumstances of the case.

According to the applicant of the cassation appeal, the norms of the Federal Law of July 21, 2005 N 94-FZ "On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs" (hereinafter - Federal Law of July 21, 2005 N 94-FZ) there is no ban on combining lots on a territorial basis.

The applicant of the cassation complaint believes that the tender documentation complies with the requirements of the Federal Law of July 21, 2005 N 94-FZ, and points to the lack of proof by the antimonopoly authority of limiting the number of participants in placing an order, in connection with the merger of the auction organizer into one lot of services on a territorial basis.

The antimonopoly body submitted a response to the cassation complaint, in which it asks to dismiss the complaint, noting that the circumstances of the case were established by the courts of the first and appellate instances completely and comprehensively, the dispute was resolved with a full study of the evidence available in the case file and with the correct application of substantive and procedural law .

Having studied the arguments of the applicant of the cassation appeal, the court of cassation did not see any grounds for canceling the contested judicial acts.

In accordance with Part. 2.1 of Art. 10 of the Federal Law of July 21, 2005 N 94-FZ, when placing orders for the supply of goods, performance of work, provision of services through tenders, lots may be allocated, in respect of which the notice of the tender or auction, tender documentation, auction documentation separately indicate subject, initial (maximum) price, terms and other conditions for the supply of goods, performance of work or provision of services. An order placement participant submits an application for participation in a tender or auction in relation to a specific lot. A separate contract is concluded for each lot.

Part 6 of Art. 10 of the Federal Law of July 21, 2005 N 94-FZ provides that two or more customers, authorized bodies have the right to place orders for the supply of goods of the same name, performance of works of the same name, provision of services of the same name through joint bidding.

The procedure for interaction between persons participating in the organization of joint bidding is established by 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 exercise the functions of placing orders for state or municipal customers, when conducting joint auction", according to which the competition should be held by only one entity, the so-called organizer of the auction. The bidding organizer is determined by an agreement between the customers, which is concluded before the approval of the tender documentation, and it is the bidding organizer who is responsible for the course of the tender, develops and approves the tender documentation for joint bidding in accordance with the procedure and conditions established by the agreement.

The rights, obligations, responsibilities of customers, authorized bodies during joint bidding, the procedure for holding joint bidding are determined by agreement of the parties in accordance with the Civil Code of the Russian Federation and Federal Law No. 94-FZ of 21.07.2005. The contract with the winner or winners of the joint bidding is concluded by each customer who conducted such bidding; or by each customer for whom the placement of an order through bidding was carried out by an authorized body.

In accordance with Part. 1, 2 Article. 22 of the Federal Law of July 21, 2005 N 94-FZ, tender documentation is developed by the customer, the authorized body, the specialized organization and approved by the customer, the authorized body.

The tender documentation must contain the requirements established by the customer, the authorized body for the quality, technical characteristics of goods, works, services, requirements for their safety, requirements for the functional characteristics (consumer properties) of the goods, requirements for dimensions, packaging, shipment of goods, requirements for results works and other indicators related to the determination of the conformity of the supplied goods, work performed, services rendered to the needs of the customer.

According to part 3 of Art. 22 of the Federal Law of July 21, 2005 N 94-FZ, tender documentation should not contain an indication of trademarks, service marks, trade names, patents, utility models, industrial designs, appellation of origin or manufacturer's name, as well as requirements for the product, information , works, services, if such requirements entail limiting the number of participants in placing an order.

In accordance with Art. 17 of the Federal Law of July 26, 2006 N 135-FZ "On Protection of Competition" (hereinafter - the Federal Law of July 26, 2006 N 135-FZ), actions that lead or may lead to the prevention, restriction or elimination of competition are prohibited during the auction.

By virtue of h. 3 Article. 17 of the Federal Law of July 26, 2006 N 135-FZ, along with the prohibitions established by Parts 1 and 2 of the said article, when bidding for placing orders for the supply of goods, performance of work, provision of services for state or municipal needs, it is prohibited to restrict competition between bidders by including in the composition of the lots of products (goods, works, services), technologically and functionally not related to goods, works, services, supplies, performance, the provision of which are the subject of bidding.

According to Part 1 of Art. 27, part 1, art. 12 of the Federal Law of 21.07.2005 N 94-FZ, a participant in the placement of an order is not allowed to participate in the tender if his application does not meet the requirements of the tender documentation.

When examining the circumstances of the present case, the courts of the first and appellate instances established that by orders of the Ministry of Social Development of the Perm Territory dated September 6, 2011 N SED-33-01-02-217, dated October 21, 2011 N SED-33-01-02-276 "O placement of the state order for the provision of the public service "Home-based care for the disabled and the elderly" in 2012-2014 "approved the state order for the provision of public services in the field of social policy in 2012-2014 and budget allocations to state customers (territorial departments, interterritorial departments of the Ministry social development of the Perm region).

The joint bidding agreement dated October 24, 2011 N 1 determines the management as the organizer of the joint bidding.

On October 28, 2011, on the official website www.zakupki.gov.ru, the department posted a notice N 0156200001511000029 on an open tender for the provision of the state service "Home-based services for the disabled and the elderly."

According to the tender documentation, the organizer of the auction formed 3 lots, while the place for the performance of services was determined by the territory of several municipal districts of the region.

According to the data of Section 5 of the Information Card for Lot No. 1, the Office has established the place of provision of services as the territory: - Perm (Dzerzhinsky, Industrialny, Kirovsky, Leninsky, Sverdlovsky, Motovilikhinsky, Ordzhonikidzevsky districts); Krasnokamsky and Nytvensky municipal districts; Bereznikovsky urban district and Usolsky municipal district; Solikamsk urban district and Solikamsk municipal district; Krasnovishersky municipal district; Cherdynsky municipal district. Services under Lots No. 2, 3 must also be rendered in the united territories of the municipal districts of the Perm Territory.

On November 11, 2011, the antimonopoly authority received a complaint from the Specialized Consulting company about the actions of the state customer when placing an order for the provision of services to meet state needs: combining into one lot services provided in several territories remote from each other.

Based on the results of consideration of the complaint, the antimonopoly authority came to the conclusion that the contested actions of the department led to the restriction of the circle of persons participating in the competition, and made a decision dated 11/18/2011 to recognize the actions of the department as violating Part 3 of Art. 22 of the Federal Law of July 21, 2005 N 94-FZ. The basis for the decision was the conclusion of the antimonopoly authority that the consolidation into one lot of services provided in the territories under the jurisdiction of several territorial bodies of the Ministry of Social Development of the Perm Territory entails a limitation in the number of participants in order placement, since due to the consolidation of lots, the size of the orders also increases. securing the application; at the same time, the size of the security for the performance of contracts entails the exclusion of economic entities that are not able to fulfill the requirement to secure the application, performance of contracts.

On the basis of this decision, the management issued an order to eliminate violations, according to which the management was ordered to cancel the auction by 30.12.2011 (notice N 0156200001511000029); post the relevant information on the official website www.zakupki.gov.ru, as well as submit to the antimonopoly authority documentary confirmation of the fulfillment of the order before 09.12.2011.

As follows from the case file and established by the courts, the subject of the competition was the placement of an order for the provision of public services "Home care for the disabled and the elderly" in 2012-2014. One lot includes services rendered in different territories of the Perm Territory. The need to combine services into one lot on a territorial basis was determined by the organizer of the auction by the fact that not all territories of state customers have organizations capable of providing such services, which, in his opinion, may lead to the impossibility of implementing the state order in a particular territory, as well as the lack of technical the possibility of holding a large number of committee meetings.

At the same time, the courts noted that the department did not provide a rationale for the criteria, other indicators related to determining the compliance of the services provided with the needs of the customer.

When examining the evidence available in the case file according to the rules of Art. 65, 71 of the Arbitration Procedure Code of the Russian Federation, the courts of first and appeal instances took into account that such an association should not be in conflict with the general principles of the Federal Law of July 21, 2005 N 94-FZ in terms of providing guarantees to potential applicants for the exercise of their right to participate in the auction.

Assessing the evidence presented in the case file according to the rules of Art. 71 of the Arbitration Procedure Code of the Russian Federation, the courts of first and appeal instances found unfounded the consolidation into one lot of services provided in different territories of the Perm Territory, rightfully concluding that such a combination entails a restriction of competition in bidding due to a reduction in the number of business entities that can take part in the auction, but do not have the financial ability to contribute to the security of participation in the auction and to secure the contract amounts, the significance of which has developed due to the artificial combination of services provided in different territories of the Perm Territory, into one lot, which indicates a violation of the ban by the organizer of the joint auction, established h. 3 Article. 22 of the Federal Law of July 21, 2005 N 94-FZ.

Thus, the courts took into account that the principle of combining lots across the territory applied by the customer limits the range of economic entities, including contractors belonging to small and medium-sized businesses, who will not be able to take part in the auction due to a significant increase in the size of the application security and contract performance.

In addition, the courts noted that such formation of lots and further provision of social services by one person in the territory under the jurisdiction of several territorial bodies of the Ministry of Social Development of the Perm Territory is not aimed at effectively resolving issues that fall within the independent competence of the territorial bodies of the Ministry of Social Development of the Perm Territory, obliged to organize the direct provision of public services within the territory under their jurisdiction.

Under such circumstances, the courts rightfully denied the stated requirements.

The factual circumstances of the case were established and investigated in full by the courts, the conclusions of the courts correspond to the evidence available in the case file.

The arguments of the administration, set out in the cassation appeal, were the subject of consideration by the courts of first and appeal instances, they were given a proper legal assessment, there are no grounds for not accepting it at the cassation court. In addition, these arguments are aimed at reassessing the factual circumstances of the case established by the courts and the evidence taken, which is unacceptable due to the requirements provided for by Art. 286 of the Arbitration Procedure Code of the Russian Federation.

The norms of substantive law were correctly applied by the courts of the first and appellate instances. Violations of the rules of procedural law, which are due to h. 4 Article. 288 of the Arbitration Procedure Code of the Russian Federation, an unconditional basis for canceling the decision, the decision of the arbitration court, was not identified.

In view of the foregoing, the appealed judicial acts should be left unchanged, the cassation appeal - without satisfaction.

Guided by Art. 286, 287, 289 Arbitration Procedure Code of the Russian Federation, court

RESOLVED:

the decision of the Arbitration Court of the Perm Territory dated March 14, 2012 in case N A50-25886 / 2011 and the decision of the Seventeenth Arbitration Court of Appeal dated May 28, 2012 in the same case are left unchanged, the cassation appeal of the Territorial Administration of the Ministry of Social Development of the Perm Territory for the city of Perm - without satisfaction.

presiding

T.P. lizard

E.O. Cherkezov
S.N. Vasilenko

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:

1. Approve the attached Rules for holding joint tenders and auctions.

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 Exercise the Functions of Placing Orders for State or Municipal Customers in Joint Bidding" (Collection of Legislation of the Russian Federation , 2007, N 42, article 5048).

3. 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.

Prime Minister
Russian Federation
D. Medvedev

Note. red.: the text of the resolution is published on the official Internet portal of legal information http://pravo.gov.ru/, 02.12.2013.

Rules for holding joint competitions and auctions

1. These Rules establish the procedure for holding joint tenders and auctions.

2. If 2 or more customers have a need for the same goods, works, services, such customers have the right to hold joint tenders or auctions.

3. To conduct a joint tender or auction, customers enter into an agreement between themselves on holding a joint tender or auction (hereinafter referred to as the agreement) prior to the approval of the tender documentation or auction documentation (hereinafter referred to as the documentation). The agreement contains the information specified in Part 2 of Article 25 of the Federal Law "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter referred to as the Federal Law).

4. After signing the agreement, the customers enter into the schedule information about the name of the organizer of the joint tender or auction (hereinafter referred to as the organizer).

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) places a notice of procurement in the unified information system in the field of procurement or 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;

E) 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;

3) exercise other powers assigned to it by the 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.

8. The contract with the winner of a joint tender or auction is concluded by each customer independently.

9. If 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.

On January 1, 2014, Federal Law No. 44-FZ dated April 5, 2013 “On the contract system in the field of procurement of goods, works and services for state and municipal needs” (hereinafter - Law No. 44-FZ) came into force. In this regard, the Government of the Russian Federation adopted a number of resolutions that relate to the actions of customers when making purchases under the new law. (Decree of the Government of the Russian Federation of November 28, 2013 No. 1088)

Normative base

In accordance with Part 5 of Article 25 of Law No. 44-FZ, Decree of the Government of the Russian Federation of November 28, 2013 No. 1088 “On Approval of the Rules for Conducting Joint Tenders and Auctions” (hereinafter referred to as Decree No. 1088) regulates the organization and holding of joint tenders and auctions.

In connection with the adoption of a new resolution, Decree of the Government of the Russian Federation dated 05.10.07 No. 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 during Joint Bidding” became invalid and dated October 27, 2006 No. 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 during joint bidding”.

Decree No. 1088 entered into force on January 1, 2014, with the exception of paragraph 4, which will come into force on January 1, 2015.

Conditions for holding joint competitions and auctions

According to paragraph 1 of Decree No. 1088, customers have the right to appoint joint tenders and auctions if two or more customers have a need for the same goods, works, services. To do this, they must conclude an agreement among themselves on holding a joint tender or auction before the approval of the tender documentation or auction documentation. The agreement must contain the information specified in Part 2 of Article 25 of Law No. 44 FZ. Namely:

1) information about the parties to the agreement;

2) information about the object of procurement and 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) data on the organizer of such a tender or auction, including a list of powers transferred to the specified organizer by the parties to the agreement;

6) the procedure and term for the formation of a commission for the implementation of procurement, the regulations for the work of such a commission;

7) the procedure and terms for the development and approval of procurement documentation;

8) approximate dates for holding a 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 emerging disputes;

12) other information that determines the relationship between the parties to the agreement during the tender or auction.

After signing the agreement, the customers enter into the schedule information about the name of the organizer of the joint tender or auction.

Organization of bidding

The organizer is responsible for organizing and holding a joint competition or auction, to which other customers transfer part of their powers on the basis of an agreement.

To conduct a joint tender or auction, the organizer must approve 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. And also place a notice of the purchase in the unified information system in the field of procurement or send an invitation to take part in a tender or auction.

In addition to the above functions, the organizer is also responsible for developing and approving documentation prepared in accordance with Law No. 44-FZ, providing it to interested parties, providing clarification of the provisions of the documentation, amending the notice of procurement and (or) documentation.

According to subparagraph "b" of paragraph 6 of Decree No. 1088, the initial (maximum) price indicated in the notice, invitation and documentation for each lot is determined as the sum of the initial (maximum) contract prices of each customer. At the same time, the rationale for such a price contains the rationale for the initial (maximum) contract prices of each customer.

When determining a supplier (contractor or performer), the organizer is obliged to place the information and documents provided for by Law No. 44-FZ in a single information system in the field of procurement.

After holding a joint tender or auction, he must send copies of the protocols 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 No. 44-FZ.

Expenses for holding a competition or auction

According to paragraph 7 of Decree No. 1088, the parties to the agreement 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) contract prices, for the conclusion of which a joint tender or auction is held. Each customer concludes a contract with the winner independently.

If a joint tender or auction is declared invalid in the cases established by Law No. 44 FZ, then 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.

The legislation on the contract system provides for the possibility of conducting joint purchases, namely, joint tenders and auctions - a separate article is devoted to this in the law, and the procedure for such purchases has been approved by the Government of the Russian Federation 1 . These purchases can be carried out if two or more customers purchase the same GWS. It is believed that due to the larger volume of ongoing purchases, this design allows customers to purchase GWS at a lower (“more wholesale”) price, if they each carried out their own purchases. Please note that in 44-FZ, joint purchases are possible only in the form of a tender or auction, that is, those methods of purchase that have no restrictions on the amount. But, let's say, to conduct a joint purchase in the form of a request for quotations, where the purchase amount is limited to 500 thousand rubles. 2, 44-FZ no longer allows.

At the same time, according to the letter of the law, either an authorized body (authorized institution) can act as the organizer of a joint tender or auction, in which case the purchase will actually have all the signs of a centralized purchase, or one of the customers. And it is precisely in the latter case, when one of the customers is also the organizer of the purchase, that it can really be called joint. In this case, we will consider the rules and practice of holding joint competitions and auctions in this article.

Rules for holding joint competitions and auctions 3

First of all, all customers must conclude an agreement with the organizer of a joint tender or auction (one of the customers) - on the basis of this agreement, the organizer transfers part of the powers of other customers to organize and conduct the purchase. The agreement must contain the following information:

1. information about the parties to the agreement;
2. procurement identification code;
3. 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;
4. NMTsK of each customer and justification of such prices by the respective customer;
5. rights, duties and responsibilities of the parties to the agreement;
6. information about the organizer of a joint tender or auction, including a list of powers delegated to the said organizer by the parties to the agreement;
7. the procedure and terms for the formation of a procurement commission, the rules of work of such a commission;
8. 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;
9. approximate dates for holding a joint tender or auction;
10. the procedure for paying expenses related to the organization and holding of a joint tender or auction;
11. duration of the agreement;
12. dispute resolution procedure;
13. other information that determines the relationship between the parties to the agreement during a joint tender or auction.

The signing of this agreement is the basis for each of the customers (including the organizer of the tender or auction) to include in their procurement schedules information about the name of the organizer of the tender or auction in relation to a particular purchase. Recall that the form of the schedule provides for the introduction of such information (column 33) 4 .

As established in the requirements for the content of the agreement (see above), the NMCC is determined and justified by each customer independently. Also, according to the results of a joint competition or auction, a contract with the winner is concluded by each customer separately. Thus, these powers cannot be transferred to the organizer of a joint tender or auction.

In turn, the organizer of a joint tender or auction "by default" is assigned the authority to approve 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. In addition, according to the established rules, the organizer of the competition or auction must perform the following actions:

1. Develops and places in the EIS a notice of procurement, develops and sends an invitation to take part in a closed tender or auction, and also develops and approves tender or auction documentation. At the same time, the NMTsK, indicated in such notice, invitation and documentation for each lot, is determined as the sum of the NMTsK of each customer, and the rationale for such a price contains the rationale for the NMTsK of each customer.
2. Provides documentation to interested parties.
3. Provides explanations of the provisions of the documentation.
4. If necessary, makes changes to the notice of procurement and (or) documentation.
5. Places in the EIS in the field of procurement information and documents, the placement of which is provided for by 44-FZ when determining the supplier (contractor, performer) - here we mean the relevant protocols, etc.
6. Sends 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 established cases.
7. Exercises other powers assigned to it by the agreement.

There is also a rule according to which the parties to the concluded agreement bear the costs of holding a joint tender or auction in proportion to the share of the NMTsK of each customer in the total amount of the NMTsK, in order to conclude which a joint tender or auction is held. For example, nothing forbids the organizer of a competition or auction to involve a specialized organization 5 in their organization, but in this case, all customers must bear the costs of attracting it in the indicated manner.

It should be noted that the same rule also applies to a situation where the winner of a joint tender or auction can be recognized as evading the conclusion of a contract, and customers will need to somehow “share” the application security among themselves. According to the position of the Ministry of Economic Development of the Russian Federation when holding joint auctions, if the winner of the auction is recognized as evading the conclusion of the contract, his funds deposited as security for the application are transferred to the accounts specified by the customers in proportion to the share of the NMTsK of each customer in the total amount of the NMTsK 6 .

Finally, when a joint tender or auction is declared invalid in the cases established by 44-FZ, 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 7 .

The practice of holding joint tenders and auctions

For clarity, we will consider several cases of joint procurement under 44-FZ from practice (based on material available for review in the EIS).

In January 2017, the state budgetary healthcare institution of the Republic of Bashkortostan "City Hospital No. 1 of the city of Oktyabrsky" held a joint electronic auction for the purchase of a drug (alteplase) 8 . In addition to this organizer of the auction, the customers were three more central district hospitals in various territories of the republic. Each of the four customers purchased from 6 to 18 vials of the indicated medicinal product, the NMCC of individual customers ranged from 165 to 495 thousand rubles, and the total NMCC - 1 million 320 thousand rubles. The conditions of purchase were the same for all customers, except for the delivery time. Three suppliers entered the auction, two of which were allowed to participate. As a result, the winner was the participant who offered the lowest contract price (1 million 141 thousand rubles), it was with him that each of the customers concluded a separate contract for the supply of the volume of medicine he needed.

Joint purchases can be made for much smaller amounts. For example, in December 2016, the state budgetary institution of the Rostov region "Center for Medical Rehabilitation No. 1" (Taganrog), as the organizer of the purchase and one of the customers, held a joint electronic auction for the purchase of services for individual dosimetric monitoring of personnel 9 . The rest of the customers were two more regional public health institutions. The NMTsK of individual customers ranged from 20 to 56 thousand rubles, and the total NMTsK - 129 thousand rubles. The terms of the purchase were the same for all customers (naturally, with the exception of the scope of the purchased service). It is noteworthy that in the auction documentation the auction organizer did not refer to himself as a customer (the documentation refers only to customer No. 1 and No. 2), however, he indicated a separate NMTsK in relation to himself, which means that he should have also officially called the customer. Only one participant submitted an application for participation in the auction, and three contracts were concluded with him at prices equal to those set by the NMCC. There are also very small joint purchases - for example, in October 2016, the municipal budgetary healthcare institution "City Polyclinic No. 5, Shakhty, Rostov Region" for its own needs, as well as for the needs of 2 more customers (city healthcare institutions) conducted a joint electronic an auction for the purchase of medical cotton wool with a total NMCC in the amount of only 62 thousand rubles, and the smallest NMCC of one of the customers was only 13 thousand rubles. 10 . True, it should be noted that the holding of the auction in this case led to noticeable comparative savings: contracts with its winner were concluded by customers for a total amount that was two times less than the total NMTsK - 30 thousand rubles.

There can be many customers in joint purchases. For example, in the joint electronic auction for the purchase of disinfectants in December 2016 - January 2017, nine public health institutions of the Moscow Region, including the organizer of the auction, the Chekhov District Hospital No. 2 11, acted as customers. The spread of the NMTsK of individual customers here was also very large - from 64 thousand to 1.6 million rubles, while the total NMTsK amounted to almost 4.5 million rubles.

In general, the practice of joint procurement is most often found in the healthcare industry. Although there is it in other industries. For example, in December 2016 in St. Petersburg, a joint electronic auction for the purchase of service maintenance of water treatment equipment was held by one of the city lyceums, and another lyceum and a kindergarten were two more customers 12 . Moreover, we note that this purchase provided for the participation of only small businesses and socially oriented non-profit organizations.

Please note that during a joint auction, the bid security is deposited by the auction participant in one amount to the account of the electronic site operator based on the total NMCC. But as for the contract security, here the auction winner provides such security to each customer separately - either through a bank guarantee or by depositing funds to the customers' accounts indicated in the auction documentation. And the calculation of the amount of security here already comes from the NMCC of each individual customer.

The author of the article could not find examples of joint competitions in the EIS. Apparently, those customers who practice joint purchases are not inclined to unite with each other in order to carry out purchases, where the criteria for evaluating applications are not only price (as in an auction), but also the quality characteristics of GWS. Such characteristics can be very individual for each individual customer.

1 Art. 25 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", Decree of the Government of the Russian Federation of November 28, 2013 No. 1088 "On approval of the Rules for holding joint tenders and auctions" .

2 Ch. 2 Art. 72 of the Federal Law of 05.04.2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”.

3 In accordance with Decree of the Government of the Russian Federation of November 28, 2013 No. 1088 “On Approval of the Rules for Conducting Joint Tenders and Auctions”.

4 Decree of the Government of the Russian Federation of 05.06.2015 No. 553 “On approval of the Rules for the formation, approval and maintenance of a schedule for the procurement of goods, works, services to meet federal needs, as well as requirements for the form of a schedule for the purchase of goods, works, services to meet federal needs”, Decree of the Government of the Russian Federation of 05.06.2015 No. 554 “On the requirements for the formation, approval and maintenance of a schedule for the procurement of goods, works, services to meet the needs of a constituent entity of the Russian Federation and municipal needs, as well as on the requirements for the form of a procurement schedule goods, works, services".

5 In accordance with Art. 40 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”.

6 See Letter of the Russian Ministry of Economic Development No. D28i-443 dated February 25, 2015, Letter No. D28i-3146 of the Russian Ministry of Economic Development dated October 30, 2015.

7 In accordance with the Order of the Ministry of Economic Development of Russia dated March 31, 2015 No. 189 “On Approval of the Procedure for Approving the Use of Closed Methods for Determining Suppliers (Contractors, Performers) and the Procedure for Approving the Conclusion of a Contract with a Single Supplier (Contractor, Performer)”.

8 www.zakupki.gov.ru - purchase No. 0301300280716001197.

9 www.zakupki.gov.ru - purchase No. 0358200019316000192

10 www.zakupki.gov.ru - purchase No. 0358300397716000026.

11 www.zakupki.gov.ru - purchase No. 0348300364716000105.

12 www.zakupki.gov.ru - purchase No. 0372200042216000038.

There are no new versions of the article that have not entered into force.

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.

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 the organization 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 expected 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.

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.