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

Regulatory framework

In accordance with Part 5 of Article 25 of Law No. 44-FZ, Resolution of the Government of the Russian Federation dated November 28, 2013 No. 1088 “On approval of the Rules for conducting joint competitions and auctions” (hereinafter referred to as Resolution No. 1088) regulates the organization and conduct of joint competitions and auctions.

In connection with the adoption of the new resolution, the 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 functions of placing orders for state or municipal customers, during joint bidding" and dated October 27, 2006 No. 631 "On approval of the Regulations on the interaction of state and municipal customers, bodies authorized to perform functions of placing orders for state or municipal customers, during joint tenders."

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

Conditions for joint competitions and auctions

According to paragraph 1 of Resolution 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, or services. To do this, they must enter into an agreement among themselves to hold a joint competition or auction before the approval of the competition documentation or auction documentation. The agreement must contain the information specified in Part 2 of Article 25 of Law No. 44 Federal Law. 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 competition or joint auction is being held;

3) the initial (maximum) price of the contract or contracts and the justification for such a price;

4) rights, duties and responsibilities of the parties to the agreement;

5) information about the organizer of such a competition or auction, including a list of powers transferred to the specified organizer by the parties to the agreement;

6) the procedure and deadline for the formation of a procurement commission, the rules of work of such a commission;

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

8) approximate dates for holding a competition or auction;

9) the procedure for paying expenses related to the organization and conduct of a joint competition or auction;

10) duration of the agreement;

11) the procedure for considering arising disputes;

12) other information defining the relationship between the parties to the agreement during the competition or auction.

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

Organization of auctions

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

To conduct a joint competition 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 procurement in the unified information system in the field of procurement or send an invitation to take part in a competition or auction.

In addition to the above functions, the organizer is also entrusted with the responsibilities of 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, making changes to the procurement notice and (or) documentation.

According to subparagraph “b” of paragraph 6 of Resolution 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 justification for such a price contains the justification 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 unified 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 not later in the day, following the day of signing of these protocols, as well as to the authorized federal executive body in the cases established by Law No. 44-FZ.

Costs of holding a competition or auction

According to paragraph 7 of Resolution 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) prices of contracts for the purpose of concluding which a joint tender or auction is held. Each customer enters into a contract with the winner independently.

If a joint competition or auction is declared invalid in the cases established by Law No. 44 FZ, then a decision to conclude a contract with sole supplier(contractor, performer) and the approval of such a decision is carried out by the customers independently.

Continuing the conversation about innovations in the field of public procurement related to the entry into force of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (Law on KS), Today we will talk about how this law reflects the issues of holding joint competitions and auctions.

Art. is devoted to the topic of joint competitions and auctions. 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, or services, such customers have the right to hold joint competitions or auctions. The rights, obligations and responsibilities of customers when conducting joint competitions or auctions are determined by agreement of the parties, concluded in accordance with Civil Code Russian Federation and this Federal Law. A contract with the winner or winners of a joint competition or auction is concluded by each customer.
2. The organizer of a joint competition 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 competition or auction. This agreement must contain:
1) information about the parties to the agreement;
2) information about the procurement object and the expected volume of procurement in respect of which a joint competition or joint auction is being held;
3) the initial (maximum) price of the contract or contracts and the justification for such price;
4) rights, obligations and responsibilities of the parties to the agreement;
5) information about the organizer of a joint competition or auction, including a list of powers transferred to the specified organizer by the parties to the agreement;
6) the procedure and deadline for the formation of a procurement commission, the rules of work of such a commission;
7) the procedure and timing for the development and approval of procurement documentation;
8) approximate dates for holding a joint competition or auction;
9) the procedure for paying expenses associated with organizing and conducting a joint competition or auction;
10) duration of the agreement;
11) procedure for resolving disputes;
12) other information defining the relationship between the parties to the agreement during a joint tender or auction.
3. The organizer of a joint competition 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 carried out by each customer in the total volume of purchases, unless otherwise provided by the agreement.
4. 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) prices of contracts for the purpose of concluding which a joint tender or auction is held.
5. The procedure for holding joint competitions and auctions is established by the Government of the Russian Federation.
From the content of this article it follows that joint bidding occurs when two or more customers have needs for the same goods, works, services and such customers unite to hold a joint competition or auction, concluding an appropriate agreement for this purpose (Part 1 Art. 25 of the Law on the Constitutional Court). The organizer of such tenders 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 tenders (Part 2 of Article 25 of the Law on the Constitutional Court).

How it was
Although, at the federal legislative level, the first mention of joint tenders appeared in Federal Law No. 94-FZ (Part 6, Article 10 FZ-94), there were attempts to conduct joint tenders even before the adoption of the 94th. In one of recent years Since the implementation 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 have been 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, such a practice not only did not take root, but, in a number of cases, simply led to incidents. For example, a case was described as a kind of legend 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 a “leader” and a “follower”, and divided the competition into two lots, each of which was equal to the needs of each of the departments, respectively. Two applications were submitted for each lot, both from the same companies. Of course, in independent companies, at first glance, something was discernible in common. Whether there was a conspiracy at that time or not, no one knows for certain, but the results of the competition were discouraging - for both lots one of the companies was recognized as the winner, but the price of a unit of product (ration) for the lot for department X was several times higher than the price offered to department Y. Considering the total volume of purchases, the company could easily “donate” one lot, while still being a huge winner. Having seen the results of such joint tenders, Department X flatly refused to enter into a contract. History is silent about how this experience of joint bidding ended, 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 development of this norm, in 1994, the Government of the Russian Federation issued Decree No. 631 dated October 27, 2006 “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 tenders.” Since Federal Law No. 94-FZ provided customers with such a right only when placing orders for the supply of goods of the same name, performance of work of the same name, and provision of services of the same name, this norm of 1994 served as the starting point for the appearance of the order of the Ministry of Economic Development of Russia dated December 1, 2010 No. 601 “ On approval of the range of goods, works, services for the needs of customers" (registered with the Ministry of Justice on July 15, 2011 No. 21367).

The problem of lack of demand
However, interest in joint trading faded away as quickly as it appeared. Why? After all, at first glance, this tool would be very effective when purchasing goods, works, and services of the same name, since many of them are needed by almost all customers. Well, really, judge for yourself, all customers use the same office products, they repair cars the same way, etc. The large volumes of purchases inherent in joint tenders would undoubtedly arouse increased interest from large companies. Those, in turn, due to their capacity, will be able to offer a more favorable price, and, in the end, large company is able to provide security for the application and contract, either without diverting working capital at all or attracting them on terms more favorable to itself than a small and not very well-known company. Finally, the amount of work for the merged customers should be significantly reduced, because “one head is good, but two (three, eight) are better.” But joint auctions have practically never been held and are not being held. So what's the problem? In many ways. Let's try to simulate the situation.
In order to conduct a joint auction, customers must, at a minimum, agree on the subject, timing, performer of the event (organizer) and much more, and enter into an agreement. Part 2 of Article 25 of the Law on the Constitutional Court regulates the content of such an agreement.
But then customers may encounter sometimes insurmountable difficulties. For example, the limits of budget obligations will be updated to customer X in January, and to customer Y in March. It turns out that customer X will have to wait until March, because, despite the absence in the legislation of barriers to holding tenders even in the absence of the necessary finances, many departments have, if not an official, then an unspoken ban on holding tenders until the limits are reached.
Let’s say both customers are equally loved by financial authorities and have the necessary funds in their accounts. Now they need to start working on technical issues and here again misunderstanding arises. 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” doesn’t want to hear anything at all about the wishes of colleagues from the information technology department of another customer. Managers, forced to listen to accusations against the employees of their “companion” every day, simply remove themselves from the problem, cursing the moment when the idea of ​​​​joint bidding came to the initiator’s mind.
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 sending of explanations , formation of protocols, etc.
In addition, especially in light of recent trends, customers almost certainly come under the scrutiny of various regulatory authorities, because when placing an order through joint bidding, the bidding organizer sets the starting (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 customers were in the same weight category, located in the same geographical space, they were given the same limits, they performed similar functions, etc.
Thus, we have to admit that it is far from new idea about holding joint tenders, as before, remains only a theoretical development, which, due to various objective and subjective reasons, cannot yet be applied in our government procurement system to the extent that it was intended.

About commission and cost sharing
Part 3 of Article 25 of the Law on the Constitutional Court contains innovations regarding the formation of the commission. It has been established that representatives of the parties to the agreement must 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 provides that the parties can provide in the agreement a different procedure for forming a commission. This norm is new in relation to its predecessor (Federal Law No. 94-FZ), but it is present in the by-laws (Resolution 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 talks about the distribution of costs for joint bidding between customers, again almost verbatim repeats the norm of the mentioned 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 ) contract prices of each customer in the total amount of initial (maximum) contract prices.
Part 5 of Article 25 of the Law on the Constitutional Court delegates to the Government of the Russian Federation the authority to establish the procedure for holding joint competitions and auctions.

Alexander Stroganov

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 during joint tenders or auctions are determined by agreement of the parties, concluded in accordance with the Civil Code of the Russian Federation and this Federal Law. A contract with the winner or winners of a joint competition or auction is concluded by each customer.

2. The organizer of a joint competition or auction is 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 have transferred part of their powers to such an authorized body, authorized institution or customer on the basis of an agreement. organizing and conducting joint competitions or auctions. 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 competitions or auctions are held, the place, conditions and terms (periods) of supply of goods, performance of work, provision of services in relation to each customer;

3) initial (maximum) contract prices for each customer and justification for such prices by the relevant customer;

4) rights, obligations and responsibilities of the parties to the agreement;

5) information about the organizer of a joint competition or auction, including a list of powers transferred to the specified organizer by the parties to the agreement;

6) the procedure and deadline for the formation of a procurement commission, the rules of work of such a commission;

7) the procedure and timing for developing a notice of procurement, an invitation to take part in a joint closed competition or closed auction, procurement documentation, as well as the procedure and timing for approving procurement documentation;

8) approximate dates for holding a joint competition or auction;

9) the procedure for paying expenses associated with organizing and conducting a joint competition or auction;

10) duration of the agreement;

11) procedure for resolving disputes;

12) other information defining the relationship between the parties to the agreement during a joint tender or auction.

3. The organizer of a joint competition 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 carried out by each customer in the total volume of purchases, unless otherwise provided by the agreement.

4. 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) prices of contracts for the purpose of concluding which a joint tender or auction is held.

5. The procedure for holding joint competitions and auctions is established by the Government of the Russian Federation.

On January 1, 2014, Federal Law No. 44-FZ dated 04/05/13 “On the contract system in the field of procurement of goods, works and services for state and municipal needs” (hereinafter referred to as Law No. 44-FZ) came into force. In this regard, the Government of the Russian Federation has adopted a number of resolutions that relate to the actions of customers when making purchases within the framework of the new law. (RF GOVERNMENT DECREE dated November 28, 2013 No. 1088)

Regulatory framework

In accordance with Part 5 of Article 25 of Law No. 44-FZ, Resolution of the Government of the Russian Federation dated November 28, 2013 No. 1088 “On approval of the Rules for conducting joint competitions and auctions” (hereinafter referred to as Resolution No. 1088) regulates the organization and conduct of joint competitions and auctions.

In connection with the adoption of the new resolution, Decree of the Government of the Russian Federation dated October 5, 2007 No. 647 “On introducing amendments to 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 tenders” and dated October 27, 2006 No. 631 “On approval of the Regulations on the interaction of state and municipal customers, bodies authorized to perform functions of placing orders for state or municipal customers, during joint tenders.”

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

Conditions for joint competitions and auctions

According to paragraph 1 of Resolution 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, or services. To do this, they must enter into an agreement among themselves to hold a joint competition or auction before the approval of the competition 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 competition or joint auction is being held;

3) the initial (maximum) price of the contract or contracts and the justification for such price;

4) rights, obligations and responsibilities of the parties to the agreement;

5) information about the organizer of such a competition or auction, including a list of powers transferred to the specified organizer by the parties to the agreement;

6) the procedure and deadline for the formation of a procurement commission, the rules of work of such a commission;

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

8) approximate dates for holding a competition or auction;

9) the procedure for paying expenses related to the organization and conduct of a joint competition or auction;

10) duration of the agreement;

11) the procedure for considering arising disputes;

12) other information defining the relationship between the parties to the agreement during the competition or auction.

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

Organization of auctions

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

To conduct a joint competition 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 procurement in the unified information system in the field of procurement or send an invitation to take part in a competition or auction.

In addition to the above functions, the organizer is also entrusted with the responsibilities of 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, making changes to the procurement notice and (or) documentation.

According to subparagraph “b” of paragraph 6 of Resolution 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 justification for such a price contains the justification 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 unified 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 of these protocols, as well as to the authorized federal executive body in the cases established by Law No. 44-FZ.

Costs of holding a competition or auction

According to paragraph 7 of Resolution 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) prices of contracts for the purpose of concluding which a joint tender or auction is held. Each customer enters into a contract with the winner independently.

If a joint competition 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.

Sometimes several government customers simultaneously need the same product or service. In this case, in accordance with the current legislation in the field of public procurement, they can announce joint tenders. In this article we will look at how this procedure takes place and what are the features of its implementation.

Joint tenders under 44 Federal Laws

According to the current provisions of Law No., if two or more customers obligated to carry out their transactions in accordance with this law want to purchase the same goods or services, they have the right to organize a joint competition or auction.

Coordination of customer relationships

The relationship between customers during these tenders, the distribution of rights, obligations to suppliers, and liability for violation of the terms of the competition must be distributed between them independently, in a separate agreement. Such agreements are regulated either by the norms of 44-FZ or general provisions on the contract provided for by the Civil Code.

Agreement on distribution of responsibilities

Due to the fact that Article 25 of the procurement law allows the government to regulate the procedure for organizing such tenders, on November 28, 2013, the Government Resolution was adopted, which established general and binding rules for all joint procurement. These rules also provide for the obligation of participants, even before entering the auction, to draw up and sign an agreement stipulating their mutual obligations. Agreement in mandatory must contain the information provided for in Article 25 of the law.

Determination of the organizer of joint tenders

The next step after signing the agreement will be for its participants to identify the auction organizer and indicate its name in the schedule. The organizer will be one of the auction participants, determined by them in the agreement. The parties to the agreement transfer to him part of their powers, which will be necessary for the conduct of the auction. The auction itself is fully regulated by Law No. 44-FZ.

Organizer functions

According to the Law and the agreement, the organizer assumes the following functions:

1. Creates a procurement commission and approves the composition of its members. The commission includes representatives from each customer participating in the auction. By general rule, they delegate there a number of members proportional to their share in the procurement, but the agreement of the parties may provide for another way of forming the commission;
2. Develops competition documentation and submits it to a single information system application for bidding. The lower and upper price limits for purchases are determined by the organizer based on the totality of the lower and upper (maximum) price thresholds for each of the customers participating in joint procurement;
3. Interacts with all persons interested in the auction, familiarizes them with the documentation;
4. Explains the provisions of the documentation at the request of interested parties;
5. If necessary, changes the documentation or content of the tender announcement;
6. Places all information and other information provided for by Law No. 44-FZ in the general information system;
7. After the protocols on the results of the auction are drawn up, copies of them are sent to each participant, as well as to state authorized bodies. Copies of the minutes must be sent out no later than the next day after they were signed;
8. Performs other functions assigned to him by this agreement.

Summing up the results of joint bidding under 44 Federal Laws

The costs of holding the auction are distributed among all parties to the agreement proportionally. The proportion is calculated based on the ratio of the initial or upper contract price set by each customer and the total maximum or initial contract price. Each of the parties to the agreement concludes contracts with the supplier independently.

If, for one reason or another, which were specified in the law, the competition was declared invalid, then each of the bidders has the right to independently, having previously agreed upon such a decision in the prescribed manner, conclude a contract with a single supplier.

Joint bidding under Federal Law 223

Carrying out joint tenders in accordance with the norms of Law No. is carried out on the basis of another government decree. To implement the norms of this law in practice, Resolution No. 631 was adopted. It approved the basic norms and regulations governing the relationship between customers, both state and municipal, and bodies that, on the basis of federal laws all authority to place such orders has been delegated. The resolution states that in this case, when holding joint auctions, the participants must enter into an agreement among themselves and appoint one of them as the auction organizer.

Subject of joint bidding under 223 Federal Law

Joint tenders under 223-FZ are held for the purpose of purchasing products of only one type. The same name means that the products have identical codes according to the All-Russian classification. If several customers who work in a given city intend to jointly purchase the same products, they can independently organize procurement tenders and transfer this responsibility to an authorized body in order to save themselves from unusual functions.

Features of bidding

All the needs of each customer are summed up, and one lot is put up for auction. As in the previous case, when determining the winner of the auction, each customer enters into an individual contract with him.