Types of public procurement under 44-FZ

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Published: 08/23/2018

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A competition is one of the types of government procurement according to the norms of 44-FZ. It involves posting information about procurement and competitive documentation in the public domain in the Unified Information System. Today, this is the priority way to identify suppliers under Federal Law-44.

Types of competitions under 44-FZ
The difference between a competition and an auction
Preparation of documentation and publication of notice of the competition
Submitting applications
Review of applications
Cancellation of purchase
Repeated competition under 44-FZ
Document retention periods

Types of competitions under 44-FZ

There are the following types of competitions under 44-FZ:

open competition;
closed competition (including with limited participation).

The rules for conducting closed and open competitions are largely the same. But the difference is that anyone can take part in an open competition, while an invitation is required to participate in a closed competition. The invitation to participate in the competition is sent to potential suppliers by the customer. Information about the results of the procedure in a closed manner is not subject to publication.

The peculiarities of a closed competition with limited participation are that this procedure involves additional pre-qualification selection of participants.

In an open competition, information about government procurement becomes available to a wide range of people, and standard uniform requirements are imposed on its participants. The customer can always conduct purchases through an open tender, with the exception of some exceptions that are listed in Part 2 of Art. 48 FZ-44.

The procedure and features of holding an open competition are regulated by Art. 48-55 44-FZ. The rules and cases when there is a need to hold a competition with limited participation are contained in Art. 56 44-FZ, two-stage competition - in Art. 57 44-FZ, closed competition - Art. 84 44-FZ.

Conducting public procurement through open competition is not allowed in the following cases:

when the procurement object is listed in auction list No. 471-r of 2021: in this situation, it is allowed to purchase goods only through an electronic auction;
if necessary, purchase technically complex, high-tech and innovative goods for concluding contracts for cultural and historical monuments, museum exhibits: such purchases are made through competitions with limited participation;
if the procurement object is a state secret or it is necessary to conclude a contract for holding exhibitions, providing insurance services and transporting cultural property, then a closed supplier selection procedure must be used.

In some cases, the customer has the right to conduct a request for quotations, proposals, or purchase from a single supplier instead of a tender (the list of situations for procurement through a non-competitive method is specified in Part 1 of Article 93 of the 44-FZ).

One of the varieties of the competition is a two-stage competition. It has few differences from a classic open competition, except that participants submit their applications in two stages: in the first stage, they submit proposals for their candidacy and confirmation of the supplier’s compliance with established requirements. At the second stage, pre-qualified participants submit applications indicating a price offer.

Another subtype of competition is a joint competition. According to Art. 25 44-FZ, customers have the opportunity to combine and jointly purchase goods not through several, but through a single tender procedure. The point of such a purchase is to attract large wholesale companies to participate and achieve budget savings.

The advantage of a competition as a procurement method is that the determining factor here is the qualifications of the participants and the quality characteristics of the purchase, and not just the factor of the price of the goods, as in an auction.

There are two large groups of criteria for evaluating applications for participation in the competition:

Cost criteria are the contract price, as well as the costs associated with the operation of the product.
Non-cost ones are quality characteristics, as well as functional parameters.

Other advantages include:

certain procurement functions can be entrusted to a specialized organization;
During the competition, technical failures are excluded (as, for example, during an electronic auction).

At the same time, the competition imposes higher responsibility on the customer for the result of the procedure. It also involves a complex and multi-stage procurement procedure compared to other methods.

Procurement methods under 44-FZ + table and deadlines

The procurement methods used in the contract system are determined by Article 24 of Federal Law No. 44 of 04/05/2013. They are divided into two groups: competitive and non-competitive.

Non-competitive procurement

Non-competitive procurement refers to procurement from a single supplier. They can be carried out on various grounds, defined in Article 93 of Federal Law No. 44. Most often in practice there are purchases that are made on the following points:

1. Clause 1 of Article 93 - purchases from natural monopolies can be made for any amount. However, the contractor/contractor/supplier must be included in the appropriate register, which can be found on the website of the federal tariff service: www.fstrf.ru. Otherwise, the procurement under this clause is unlawful.

Information on procurement from natural monopolies is posted on the official website www.zakupki.gov.ru using a notice, data on the concluded and executed contract is entered into the appropriate register. An example of a purchase from a single supplier who is a subject of a natural monopoly can be a purchase with registration number 0328300005215000001.

2. Clause 4 of Article 93 - purchases up to 100 thousand rubles. Moreover, the total amount of such purchases should not exceed 500 thousand rubles per year.

Information about them is not posted on the official website and is not entered into the register of contracts. In fact, you can find out about such purchases only at the request of the customer. He also chooses the contractor/contractor/supplier independently.

Competitive procurement

All competitive procurement carried out on the basis of Federal Law No. 44 can be divided into two groups: closed and open.

1. Closed procurements are carried out in accordance with the requirements of Article 84. Only auctions and tenders (including pre-selection and two-stage tenders) can be conducted in this way. Requests for proposals and quotations cannot be closed.

In order to become a participant in a closed auction/competition, you must receive an invitation from the customer. At the same time, until the documentation is posted on the official website, you can only find out that a closed competition/auction will be held from the schedule, procurement plan or from the organizer himself.

Not all procurements can be carried out using a closed method; their list is defined in Part 2 of Article 84. An example of closed tenders is a competition with registration number 0343100005316000038 or an auction with registration number 0373100039216000107.

2. Open procurement is most popular among customers and participants. Information about them is posted on the official website, the procedure is determined by the relevant articles of Federal Law No. 44. Types of open procurement:

The request for proposals is regulated by paragraph 4 of Chapter 3. Information about it is posted on the official website. Applications are submitted to the customer in paper form or sent by email. The contractor/contractor/supplier specifies not only the price, but also the terms of the contract. An example of a request for proposals is a purchase with registration number 0347300029316000013.
The request for quotations is regulated by paragraph 3 of Chapter 3. It is carried out on the same principle as the request for proposals. However, the customer makes a decision based on a single criterion - price. The winner will be the one who offers the lowest.
The electronic auction is carried out in accordance with paragraph 2 of Chapter 3. It consists of several stages: preparation and placement of notices and documentation; submission and acceptance of applications; evaluation of the first parts of applications; auction; summing up, evaluating the second parts of applications; conclusion and execution of the contract. Everything related to electronic auctions is paperless. The winner is determined based on a single criterion - price.
Contest. It can be one-stage or two-stage, with limited or unlimited participation. Conducted in accordance with the requirements of paragraph 2 of Chapter 3. The first difference between an auction and a competition is that applications are submitted not to the site, but directly to the auction organizer (customer/authorized body) in paper form or by email. The second difference is the procedure for evaluating applications. Here the criterion is not only the price, but also other points established by the customer in the documentation.

There are a lot of requests for quotations, auctions and competitions on the website zakupki.gov.ru, so it makes no sense to give examples of specific registration numbers.

Attention! Large-scale amendments were made to 44-FZ as of July 1, 2018, which update the list of procurement methods and set new deadlines.

Regulated deadlines in the table

*Procedure stage*	Purchasing method
*Procedure stage*	Request for quotation	Auction	Open competition	Request for proposals
Publication of a notice of procurement in the Unified Information System	If the starting price of the contract does not reach 250,000 rubles, the documentation is posted 4 or more days before the date of transfer of applications. If the NMCC exceeds 250,000 rubles, then the period is extended to 7 days (Article 74 part 1)	If the starting price does not reach 3 million rubles, then the documentation is posted for public viewing more than a week before the end date of the application transfer stage. If the NMCC exceeds 3,000,000 rubles, the period is extended to 15 days (Article 63 parts 2 and 3, 65 part 1)	At least 20 days before the finish date of the application transfer stage (Article 49 part 1)	Five or more days before the deadline for submitting applications (Article 83 Part 3)
Participant requests clarification of documentation	Not provided	No later than three days before the end date of the proposal submission stage (Article 65 part 4)	Five or more days before the end of the application transfer stage (Article 50, Part 7)	Not provided
The customer provides a response to the participant’s request	Not provided	Within two days from the date the question was received (Article 65 part 4)	Within two days from the receipt of the request (Article 50 part	Not provided
Making adjustments to procurement documentation	2 or more days before the end of the application transfer stage (Article 74 Part 6)	2 or more days before the end of the application transfer stage (Article 63 Part 6)	5 or more days before the end of the proposal submission stage (Article 49 part 4)	Not provided
Extension of the period for submitting proposals	When the NMCC does not exceed 250,000 rubles - more than 4 days. If the starting price of the contract is more than 250,000 rubles - more than 7 days (Article 74 part 6)	If the starting price of the contract does not reach 3 million rubles, the period is extended so that there are more than 7 days left until the end of the transfer of applications. If the starting price exceeds 3 million rubles - 15 days (Article 63 part 6)	The deadline for submitting proposals must remain at least 10 days (Article 50 Part 6)	Not provided
Opening access to participants' proposals for the customer	On the day of the end of the application stage (Article 78 Part 1)	The first half of the application is considered within 7 days (Article 67 part 2). The second half is assessed within three days after the end of the auction (Article 69 part 5)	On the finishing day of the application submission stage (Article 52 Part 1). In this case, the period for consideration and evaluation of proposals should not exceed 20 days (Article 53 part 1)	Upon completion of the application transfer procedure (Article 83, Part 9)
Publication of the final protocol in the EIS	On the day of its signing (Article 78 part	No more than a day from the date of its endorsement (Article 69 part	No later than one day from the date of its endorsement (Article 52 part 7)	On the next working day after the completion of the transfer of final proposals (Article 83 parts 15 and 16)
Final deadline for execution of the contract	Not less than a week and not more than 20 calendar days (Article 78 part 13)	Not less than ten and not more than twenty days from the date of putting the final protocol on public display (Article 70 part 9)	Not less than 10 and not more than twenty days from the publication of the final protocol (Article 54 part 2)	Not less than a week and not more than 20 days (Article 83 part 17)

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The difference between a competition and an auction

It is competitions and auctions that are the most competitive ways of conducting public procurement among customers, which are financed from state and municipal budgets.

With an open tender and auction method, they allow a wide range of suppliers to take part in the procurement. The main difference between an auction and a competition is the criterion for selecting the winner.

During an auction, the determining factor is the supplier's price offer: the participant who offers the lowest price wins. During the competition, the winner is the participant who offered the most optimal condition for the execution of the contract (i.e., not only the price, but also the supplier’s experience in the market, time frame, etc. can be taken into account).

There are some other differences between a tender and an auction that the supplier should consider:

the auction is carried out entirely electronically (from posting information to summing up the results of the auction), information about competitions is also published in the Unified Information System, but applications for participation are transmitted in paper form, the decision of the commission is also in written form;
the auction may involve a gradual reduction in the price offer, in accordance with the established step from the NMCC ; During the competition, the participant initially indicates his price offer, which, if desired, can be changed or withdrawn at the beginning of the procedure.

Preparation of documentation and publication of notice of the competition

At the preliminary stage, the customer decides on the need for procurement and selects the optimal option for its implementation; forms a competition commission (if necessary) and determines its composition and job responsibilities; approves the regulations on the commission and attracts experts (if required by the procurement).

Next, the customer can begin to develop the necessary documentation. Initially, the customer needs to include the object in the procurement plan and provide for it in the schedule, as well as justify this purchase. The NMCC is also defined and its rationale is given.

Then a notice of an open competition is published in the Unified Information System. The deadline for publishing such a message is at least 20 days before the opening of the envelopes containing applications for participation in the competition.

Federal Law No. 44 allows the customer to publish information about the order on the Internet or in the media, but this, unlike publication in the Unified Information System, is an optional condition for placing an order.

In the terms of reference for delivery, it is necessary to describe the item being ordered in as much detail as possible: what type, class, brand the item is required, what GOST it must comply with.

The customer must prepare a contract notice and tender documentation. The contract notice must include the following information:

conditions of a contract;
quantity and characteristics of the public procurement object;
NMCC;
place and time of receipt of tender documentation;
method of applying for participation in the competition;
list of documents that is requested from the participant;
Application deadlines;
time and place for printing envelopes with applications;
details for depositing security for participation in the competition;
types of prohibitions and restrictions for participation in this procurement;
list of preferential categories of participants and preferences for them;
how changes are made to procurement notices.

Amendments may be made to the published notice. However, such parameters of the published contract as the object of public procurement and the amount of security are not allowed to be changed. Amendments to the notice can be made no later than 5 days before the deadline for submitting applications for participation in the procurement.

The competition documentation for the competition, which is subject to placement in the Unified Information System, must include:

name, detailed description of what is being purchased with justification for the NMCC;
the currency in which the contract price is determined and in which settlements with the winner are made;
sometimes instructions for filling out an application for participation in the competition are included;
information about how the application for participation in the competition will be assessed, as well as the significance of various criteria;
information on methods for withdrawing an application and the procedure for making changes to them;
the amount of security for the application and the terms of the bank guarantee (the latter has a limited validity period);
indication of the possibility of unilateral withdrawal from the contract;
technical specification containing all the requirements for the subject of purchase.

Tender documentation for closed tenders is not published in the public domain and is provided upon receipt of a request from an interested party. There may be a fee for providing tender documentation.

It is also possible to make changes to the competition documentation, but no later than 5 days before the deadline for submitting applications. Changes must be published in the Unified Information System within one business day. All participants must also be notified via registered mail or email within 2 business days.

Limited Participation Competition

Like a regular open competition, a procedure with limited participation is available to a wide range of people, that is, it is open. The difference is that the procurement documentation contains not only general, but also additional requirements for participants . Based on these requirements, the customer carries out a pre-qualification selection of candidates, and subsequently evaluates the applications that have passed this selection according to the usual competitive rules.

When is it carried out?

Already in the name of the procedure there is a message about an additional restriction. And it is clear that any procurement cannot be carried out in this way, because the essence of the government procurement system is precisely to ensure that there are no restrictions on competition. But some work within the framework of meeting state needs must be carried out by persons with the appropriate level of qualifications . Therefore, anyone who wishes to participate in the procedure cannot be allowed.

Registration in the ERUZ UIS
From January 1 2020 , in order to participate in bidding under 44-FZ, 223-FZ and 615-PP, registration in the ERUZ register (Unified Register of Procurement Participants) on the EIS (Unified Information System) portal in the field of procurement zakupki.gov is .ru.
We provide a service for registration in the ERUZ in the EIS:
Order registration in the EIS

Works and services are purchased through a “limited” competition in two cases:

If they are included in the list from Government Decree No. 99 of 02/04/2015. There are nine types of high-tech, complex, innovative and specialized work. Here are some of them:
nuclear waste disposal;
organization of children's recreation;
nutrition services in schools, hospitals and so on.
If they are related to the preservation of historical and cultural monuments, restoration of valuable documents and museum collections. Also if works are purchased that require access to the databases of museums, libraries, archives, and so on.

Peculiarities

So, the main difference from a simple open competition is the presence of additional requirements for participants and special reasons for holding it. Additional requirements are listed in Part 2 of Article 31 of Law 44-FZ . In particular, this is the presence of:

work experience;
qualified personnel;
resources - finances or equipment (including leasehold ownership).

In their applications, participants must document that they meet additional requirements.

In the first 10 days after the opening of applications, the customer conducts pre-qualification selection . He sums up the results, formalizes them in a protocol and places it in the Unified Information System within 3 days.

Further, the selection rules provided for an open competition are applied to the participants who have passed the selection. Applications are evaluated according to the criteria established in the documentation . Additional prequalification requirements cannot be taken into account at this stage.

As for the deadlines, they are as follows:

the application evaluation protocol must be published no later than 10 days ;
the contract is concluded no earlier than 10 days, but no later than 20 days after the protocol;
10 days to appeal from the date the protocol appears in the EIS.

Submitting applications

All persons interested in participating in the competition must submit applications for participation in the competition. At the same time, they must comply with the stipulated deadlines for submitting applications and adhere to the recommended notice formats.

Applications can be submitted in person or using the services of the Russian Post or courier service. They can be submitted for consideration both in advance and on the day the envelopes are opened.

The application for participation is submitted in writing and sealed in an envelope. A typical application for the competition contains the following details:

name and location of the legal entity (full name, residential address and passport details for individuals);
information about the founders of the individual , members of the executive body;
TIN;
an extract from the Unified State Register of Individual Entrepreneurs or the Unified State Register of Legal Entities (which was requested no later than 6 months before posting information in the Unified Information System);
notarized translation if the public procurement participant is a foreign individual;
copy of the decision on the appointment of a manager;
price offer;
a declaration that indicates the participant’s compliance with the procurement requirements: the absence of debts on taxes and fees; that he is not on the register of unscrupulous suppliers; about the subject’s belonging to a small business; on non-involvement of top management to criminal liability, etc.;
payment order with a bank mark confirming the fact of depositing security under the contract.

The completed application sheets should be bound and numbered. It must be sealed and signed by the procurement participant.

The customer is obliged to register each envelope received within the established time frame and assign it a number. It is worth noting that the absence of information about the participant on the envelope itself does not serve as a basis for refusing to accept it .

All late applications must be returned to the applicant.

Review of applications

Opening of envelopes with applications must take place publicly within the time limits specified in the competition documentation. In this case, an audio recording of this process must be made.

Participants in the competition can, if desired, take part in opening the envelopes and also record this process on video. Immediately before the opening, they are warned that they have the right to withdraw their applications.

After printing each envelope, the procurement organizer should announce the participant’s data, the availability of information in the application, which is provided for in the tender documentation, and the proposed conditions for the execution of the contract.

Based on the results of opening all envelopes, a protocol is drawn up. It must be signed by all participants of the competition committee. This protocol is subject to placement in the Unified Information System.

The customer has 20 days to sum up the results of the competition. When holding a competition in the field of art, science and culture, the specified time frame may be extended by another 10 days. But all participants must be notified of the need to increase the processing time for applications.

The decision to admit a participant to the competition or to reject his candidacy is made by the established commission based on consideration of the compliance of his competition documentation, the reliability of the submitted documents, and the justification of the contract price (to prevent dumping).

All participants who provide false information must be disqualified from participation. Applications that meet the requirements of the competition documentation are evaluated according to the approved criteria.

Each application is assigned its own number, the best proposal is assigned the first number, etc.

Any participant can appeal the results of the competition to the FAS after preliminary clarification of the results of the competition with customers.

The rules for evaluating applications received from procurement participants are contained in Resolution No. 1085 of 2013. According to this document, the best proposals are determined and a system of criteria for evaluating applications is developed.

This document contains the minimum and maximum weighting criteria for evaluating applications for participation.

When considering an application, cost and non-cost criteria are assessed. Cost criteria include the contract price; expenses for carrying out repair work, operating facilities or using the results of work; product life cycle cost; amount of costs under the energy service contract.

Non-cost criteria include both those related to the qualitative characteristics of the subject of procurement and those related to the qualifications of the contractor. The first group includes the quality of goods or services, their functional and consumer properties, and compliance with environmental standards.

The criteria that apply to the order executor include:

level of qualification of labor resources;
experience of the procurement participant in the supply of goods or provision of related services;
provision of participants with material and technical resources , availability of their own or leased facilities for the provision of services or performance of work;
availability of the required number of labor resources;
business reputation of participants.

The number of criteria used for evaluation must be at least two, one of which is price (in some cases, “life cycle cost”). The sum of the significance of all evaluation criteria must be 100%.

The results of the consideration and evaluation of received applications are documented in the protocol. It is drawn up in two copies: one of them is given to the winner, and the second remains in the custody of the customer. The protocol must be sent to the winner no later than three working days after signing the protocol.

All members of the competition commission must sign the protocol the next day after consideration of applications. This document is also subject to publication in the EIS.

No earlier than 10 days after publication of the document, but no later than 20 days, it is necessary to sign a contract with the winner.

Joint procurement - what is it and what are the rules for it?

When two or more customers purchase the same products, they have the right to hold joint electronic auctions or competitions. In this article we will talk about the features of such a purchase.

When two or more customers purchase the same products, they have the right to conduct joint electronic auctions or competitions. Why do customers unite? This is economically beneficial, since a large purchase will be more interesting to potential suppliers than a contract for a small amount. If a significant number of participants participate in the procedure, they can significantly reduce the price. In this article we will tell you how suppliers can take part in them and what features they will have to face.

In accordance with Art. 25 of Law No. 44, it is allowed to conduct joint electronic auctions and competitions. Government Resolution No. 1088 of November 28, 2013 approved the Rules that clearly regulate the conduct of joint auctions and competitions (hereinafter referred to as the Rules).

Which items are “the same” for joint purchases?

After conducting an analysis of the “Review of the judicial practice of applying the legislation of the Russian Federation on the contract system in the field of procurement of goods (works, services) to meet municipal and state needs,” approved by the Presidium of the Russian Armed Forces on June 28, 2021, we can say the following.

For the purpose of joint bidding by two or more government customers for the same goods, goods that have common generic characteristics or constitute a set of similar goods are called.

In accordance with the Law on the Contract System (Article 25, Part 1), customers held a joint competition for the purchase of computer and interactive equipment: short-throw multimedia projectors, interactive whiteboards, document cameras, wall mounts for short-throw projectors, multifunctional devices, interactive tables ( training centers), laptops, workstations and voting systems.

The Antimonopoly Service recognized the actions of the customers as inconsistent with the law and contrary to the requirements contained in the Law on the Contract System (Article 25, Part 1), since the purchased goods are not included in the “same goods” category.

When challenging the decision of the antimonopoly service, the customers indicated that the specified goods were combined into one lot, since they have a general purpose and are technologically interconnected. In addition, due to their consumer properties and functional characteristics, these products are intended to achieve a common goal - the formation by customers of a complex of computer and interactive equipment that is used in the educational process.

The court of first instance and the court of appeal rejected the claim.

In accordance with the Law on the Contract System (Part 1, Article 25), when two or more customers purchase the same goods (services, works), such customers have the right to hold auctions or joint tenders. Each customer concludes a government contract with the winner or winners of a joint competition (auction).

The courts noted that when holding auctions and competitions, this rule allows for a balance between the rational and efficient use of funds, including making it possible to reduce the costs of conducting auctions, as well as prevent unreasonable restrictions on the number of procurement participants.

In the context of this norm, “the same goods” should be considered goods that have the same generic characteristics (for example, blackboards, including marker boards, chalk boards) or that form a set of goods (for example, a “student chair-desk”). Meanwhile, the goods that were declared in the tender documentation by customers (laptops, projectors, interactive whiteboards) do not have uniform generic characteristics.

Thus, if customers have a common goal of equipping classrooms with complexes of computer and interactive equipment, then this is not yet a sufficient basis for holding a joint competition provided for by the Law on the Contract System (Article 25, Part 1).

The inclusion in a single lot of a procurement object for goods (services, works) that are not functionally and technologically related to each other is an administrative offense for which liability is provided in accordance with the Code of Administrative Offenses of the Russian Federation (Part 4.1, Article 7.30). That is, penalties in the amount of 1 (one) percent of the NMCC, but not less than 10 thousand rubles, may be applied to the violator. and no more than 50 thousand rubles.

It is also necessary to note the opinion of the Kurgan OFAS, which believes that the exercise of the right of state customers to conduct joint procurements cannot be limited by their territorial affiliation, provided that the rules for the procurement of “the same goods” have been observed. That is, joint procurement for the supply of goods (services, works) by customers located in areas that do not have common borders is not a violation of the requirements of the Law on the contract system in the field of procurement of goods (services, works) to meet municipal and state needs.

Grounds for joint procurement

Customers conduct joint purchases after they have concluded a special agreement among themselves, which defines the procedure for conducting an auction or competition and the mutual rights and obligations of customers. The agreement is concluded before the procurement documentation is approved. The parties to the agreement determine their rights, obligations, and responsibilities. In addition, they determine the powers delegated to the organizer of the auction or joint competition.

Who is the organizer of the joint procurement, and what are his responsibilities?

After the customers sign the agreement, they must ensure that information about the name of the procurement organizer is included in the schedule. The organizer of a joint auction (competition) is authorized institutions or bodies, if they are vested with powers in accordance with Law No. 44 (Article 26). These duties can also be performed by one of the customers. The main condition is that customers transfer to them part of their powers, which relate to the organization and conduct of a joint auction (competition) (letter of the MED No. D28i-2496 dated November 9, 2021). In this case, an authorized institution or a body entrusted with powers only to determine suppliers can be a party to the agreement only as the organizer of a joint procurement.

If the organizer of a joint procurement is an authorized body, then the distribution of powers in accordance with Part 10 of Article 26 of Law No. 44 and the concluded agreement should not contradict Part 1 of Article 26 of Law No. 44. Thus, the organizer cannot be given the authority to justify the conduct of public procurement, determine the conditions of the state contract and calculation of the NMCC. The organizer has the right to engage specialized organizations on a contract basis to perform functions in determining the supplier during joint procurement.

Joint Procurement Commission

The organizer of the joint procurement approves the composition of the commission, which includes representatives of customers. For this purpose, customers send a list of candidates to the organizer for inclusion in the commission. The number of representatives from each customer is determined by the organization’s procurement volume within the scope of the joint procedure. Let us note that customers have the right to provide in the agreement their own procedure, in accordance with which the commission will be formed (Law No. 44, Article 25, Part 3).

How is the NMCC of joint procurement calculated?

When conducting joint procurements, each customer carries out calculations and justification of the contract price independently. The resulting justification and calculation are sent to the purchase organizer. Then they summarize the NMCC of all customers. The final price is indicated in the documentation and notice. In this case, the organizer includes justifications for the NMCC of each of the customers.

In accordance with the Resolution of the Arbitration Court of the North-Western District in case No. A56-22062/2017 dated February 15, 2018, government customers cannot conduct joint purchases from small businesses if the NMCC is more than 20.0 million rubles.

For each of those government customers who took part in the joint procurement, the NMCC was within the limit, but the total amount was more than 20.0 million rubles.

The Arbitration Court of the North-Western District made the following decision: since the winner enters into government contracts with all government customers for the total purchase amount, in this case it is prohibited to conduct it from small businesses. When making a joint purchase, the NMCC should be understood as the sum of the NMCC of all customers. Previously, a similar position was held by the Ministry of Economic Development of the Russian Federation.

If it is impossible to comply with the requirement regarding the minimum volume of purchases from small businesses, in such a situation it will be necessary to conduct several joint purchases or exclude one or more organizations from the list of government customers.

How is the price of a contract concluded with a supplier calculated?

Based on the results of a joint auction or competition, the customer enters into a contract with the winning bidder at a price that is proportional to the share of the NMCC of each of the customers in the total amount of the maximum (initial) prices of the contracts for the conclusion of which a joint purchase was carried out.

The procedure for securing applications for joint procurement

In case of joint procurement, the participants must transfer the amount of the application security to the account of the customers, and not the organizer (letter of the Ministry of Economic Development D28i-443 dated February 25, 2015).

In his notice, the organizer indicates the amount of security for the application and the account to which the participant must transfer funds. If a contract is not concluded with the winner or he does not provide security, then the security for the application will remain with the customers in proportion to the share of each of them. Therefore, the notice of joint procurement (in terms of its security) must contain the account details of each of the customers, but not the procurement organizer (Law No. 44, Article 44, Part 13).

When holding a joint competition, the participant has the opportunity to provide a bank guarantee as security for the application. At the moment, the procedure for providing it in this case is not regulated by law. In practice, the text of the bank guarantee indicates all customers as Beneficiaries, and also specifies the maximum amount of security for each of them.

How is the contract concluded, amended and terminated with the winner of a joint procurement?

Each customer independently enters into a contract with the winner(s) of a joint electronic auction or competition.

If a joint procurement is declared invalid, each of the customers makes a decision on the possibility of concluding a government contract with a single supplier in accordance with Law No. 44. The same autonomy must be maintained at all stages of the contract. Changes, termination of the contract, as well as the preparation and publication of reports on the implementation of the contract must be carried out by customers independently. This also applies to control under Law No. 44 (Article 101).

Thus, we can conclude that the participation of suppliers in joint procurement is almost no different from participation in regular tenders or auctions under Law No. 44, since the main changes in the procedure concern mostly customers.

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November 07, 2017

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Cancellation of purchase

Federal Law-44 allows for the possibility of canceling the competition if necessary. The procedure for canceling a purchase largely depends on whether a notice of the tender has been posted at that time. If it was not posted, then it is easier to comply with legal requirements for canceling the purchase. To do this, you simply need to change the procurement plan in accordance with Government Decree No. 554 (if there are more than 10 days left before the notice is posted).

Art. 36 FZ-44 also allows for the possibility of canceling the competition no later than five days before the deadline for submitting applications.

Violation of the specified time frame is permitted, but only if force majeure circumstances arise (for example, an epidemic, strikes, etc.).

Repeated competition under 44-FZ

The competition is declared invalid for the following reasons:

if during the consideration of the submitted applications they were all rejected by the competition commission;
if only one application that meets the requirements of the competition documentation is submitted;
if, based on the results of consideration of applications, only one of them meets the requirements.

In the last two options, the customer has the right to enter into a contract with a single supplier based on the results of such a decision being agreed upon with the Federal Antimonopoly Service.

If all applications are rejected or the only participant evades signing the contract, or FAS refuses to conclude a contract with the only supplier, a re-tender is required.

It is carried out in a standard manner and in accordance with the algorithm that was used during the primary competitive procedure. A notice about holding a repeat competition must be posted in the Unified Information System at least 10 days before the deadline for accepting applications.

When holding a repeat tender, the customer is given the right to increase the NMCC, but not more than 10%. It is also necessary to change the timing of the competition. Other parameters (in particular, the subject of purchase, the quantity and volume of goods supplied, requirements for suppliers) must remain unchanged.

If it is necessary to conduct a closed tender, the customer must re-notify all potential suppliers and invite them to purchase.

If the repeated competition also does not lead to the conclusion of a contract, then the customer has the right to choose another procurement method: for example, through a request for proposals. If the customer needs to change the contract price by more than 10% or change the purchase volume and type of goods supplied, then a re-tender is not held. Instead, a purchase cancellation document is drawn up and new procurement documentation is generated.

Open competition

Holding an open competition allows you to:

obtain more information about potential suppliers, in particular, find out not only the offered price, but also the qualifications of the supplier, possible guarantees, etc.
transfer part of the functions for conducting an open tender to a third party, which is very helpful in complex procurements.

An open competition: its features, rules of participation, stages of implementation - a useful article not only for procurement participants, but also for customers.

Limited Participation Competition

Holding an open competition with limited participation is possible in specific cases:

When purchasing goods, works, services, the implementation of which is technologically complex due to their specific nature, and the sale of such goods, works, services can only be carried out by specialists who have the required level of qualifications and training (Resolution of the Government of the Russian Federation of November 28, 2013 No. 1089) ;
When performing work: To preserve cultural heritage sites;
For the restoration of museum collections of the Museum Fund of the Russian Federation, documents of the Archive Fund of the Russian Federation and especially valuable and rare documents of library collections;
In which the contractor's (performer's) access to library, archive and museum accounting databases and security systems is required.

Two-stage competition

The customer has the right to conduct a two-stage tender while simultaneously meeting two conditions:

The competition is held to conclude:
energy service contract;
contract for the creation of a work of literature or art, performance (as a result of intellectual activity);
To clarify the characteristics of the procurement object, it is necessary to discuss it with the procurement participants (Part 2 of Article 57).