What is the difference between an auction and a competition? E-Tendering: Auction, Competition, Request for Quotations What is the difference between open tender and auction

If the purchased goods (works, services) are included in the List approved by the Decree of the Government of the Russian Federation of October 31, 2013 No. 2019-r (hereinafter - the List No. 2019-r), the institution must announce an electronic auction. In addition, the highest executive body of state power in the region can draw up its own list in addition to the federal one. For example, such a list was approved by the Decree of the Government of the Irkutsk Region dated December 19, 2013 No. 584-rp.

However, exceptions are still provided for goods (works, services) from the lists. They can be purchased as a result of a request for quotations or a request for proposals. Another option is to contract with a single supplier. But at the same time, the institution must take into account the requirements of the Federal Law of April 5, 2013 No. 44-FZ (hereinafter - Law No. 44-FZ). It is impossible to announce a tender for such a purchase.

Please note: the customer has the right, at will, to conduct electronic auctions for the purchase of goods (works, services) that are not included in the specified lists (part 3 of article 59 of Law No. 44-FZ).

Competition or auction: in what cases is a competition held

An open tender is resorted to in any procurement of goods, works or services, except for situations in which the legislation directly requires the supplier to be determined in a different way (part 2 of article 48 of Law No. 44-FZ). For example, when, due to the specifics of the subject of the contract, the institution is obliged to announce an electronic auction or determine the contractor in a closed way.

In addition, Law No. 44-FZ lists cases when the customer must hold a tender with limited participation. These include, in particular, the purchase of goods (works, services) of special complexity, innovative or specialized nature.

How not to make a mistake when choosing a competition or auction

Judicial practice shows that customers are often confused about how to determine the supplier. And this, according to judges and controllers, leads to a restriction of competition. Moreover, institutions often try to justify themselves by saying that they held a competition only in order to receive quality services. The courts never listen to such arguments.

Follow these three steps to avoid violations.

Carefully study the List No. 2019-r

Having determined the object of the purchase, check whether it is included in the auction list. If so, then an auction should be held.

It would seem that everything is simple. However, in practice, difficulties still arise, mainly during construction and repair. Therefore, study the list thoroughly.

Example:

The customer purchases work on the overhaul of the road fence.

The initial (maximum) price of the contract (NMTsK) is 3 million rubles.

The contract manager checked whether such works are included in the List No. 2019-r. And I saw that the document contains code 45 “Construction works” of the All-Russian classifier of products by type of economic activity (OKPD) (except for code 45.12). At the same time, the following are excluded from the list:

• construction, reconstruction, overhaul of especially dangerous, technically complex capital construction projects, as well as artificial road structures that are part of federal, regional, intermunicipal or local roads;
• works included in grouping 45 "Construction works" (except for code 45.12), if the initial (maximum) contract price for procurement for state needs exceeds 150 million ₽, for municipal needs - 50 million ₽.

Conclusion: the institution is obliged to conduct an electronic auction, since the NMCC for the overhaul of the road fence is less than the established limit values.

The result of an insufficiently thorough analysis will most likely be the claims of the antimonopoly authority. Thus, the state institution held an open competition for the implementation of work on the inventory and certification of road facilities. Officials of the OFAS considered that the customer had violated contract law. Indeed, for services for technical inventory and technical certification of non-residential stock, OKPD provides code 70.32.12.130. And objects of procurement with such a code are included in the List No. 2019-r. Therefore, in this case, an electronic auction should have been announced. The judges supported the controllers (decision of the Ninth Arbitration Court of Appeal dated May 6, 2015 No. 09AP-13282/2015).

Check the list of especially dangerous and technically complex facilities

Let us turn to paragraph 5 of Appendix No. 2 to Decree of the Government of the Russian Federation of February 4, 2015 No. 99. It follows from it that a competition with limited participation is held if two conditions are met simultaneously:

• procurement object - performance of works on construction, reconstruction, overhaul of especially dangerous, technically complex capital construction facilities, as well as artificial road structures included in the composition of federal, regional or intermunicipal, local roads;
• NMTsK for state needs exceeds 150 million rubles, for municipal needs - 50 million rubles.

As an example, I will cite the decision of the FAS Russia dated November 9, 2015 in case No. K-1493/15. In St. Petersburg, they planned the reconstruction of the bridge with the preliminary preparation of working documentation. NMTsK amounted to more than 2 billion rubles. To select a contractor, the state institution decided to hold a competition with limited participation. The controllers came to the conclusion that this did not contradict the requirements of the legislation on the contract system. After all, the above conditions were met simultaneously. Firstly, the representative of the customer at the meeting of the commission of the FAS Russia proved that the object of procurement relates to the construction, reconstruction, overhaul of especially dangerous, technically complex capital construction projects. Secondly, the NMCC exceeded the established limit values.

Think about the arguments about the classification of the work you need, otherwise there will be problems. Thus, the Eleventh Arbitration Court of Appeal indicated that low and medium pressure gas pipelines do not fall under the concept of especially dangerous and technically complex capital construction projects (decree of January 15, 2016 No. 11AP-17190/2015). Therefore, the customer had to announce an electronic auction, because the procurement object is mentioned in the List No. 2019-r. A table will help you understand how to purchase construction work.

Table. Ways to purchase construction works: tender or auction*

* Joint letter of the Ministry of Economic Development of Russia, FAS Russia dated August 28, 2015 No. 23275-EE/D28i, No. АЦ/45739/15.

Choose the correct OKPD code

Each subject of the state contract corresponds to a specific classifier code. Choosing it, customers often make mistakes.

Consider the decision of the Ninth Arbitration Court of Appeal dated October 21, 2015 No. 09AP-42546/2015. In the terms of reference, the institution defined the procurement object as " performance of work to eliminate the consequences of physical, mechanical and climatic impacts on technical means of organizing traffic after the autumn-winter period of operation, installed on the roads of the city of Moscow". The customer applied code 74.20.60.000 "Project management services related to the construction of buildings and structures" OKPD. The selected grouping includes certain types of work. However, none of them in the sense does not correspond to the terms of reference. Moreover, the contractor had to perform the work and services indicated in it independently. And the OKPD code chosen by the institution assumes exclusively managerial activity. The court found that the works and services named in the terms of reference relate to code 45.23.12.160 “Works on the installation of protective fences, installation of road signs, road route indicators and similar works” OKPD and are included in the auction list. This means that the customer did not have the right to hold an open tender. The judges paid attention to this moment. Suppose the object of procurement is services that are complex (multi-component) in nature, and they cannot be classified in strict accordance with one OKPD code. Then they should be classified according to the component that most fully characterizes the largest or most specific part of their components.

And one more interesting detail. The institution referred to the fact that the OKPD code was automatically assigned in the Unified Automated Information System for Trading in Moscow. However, the court did not accept this argument. He pointed out that the assignment of such a code is due to the description of the procurement object, which depends directly on the actions of the customer.

For the most effective sale and purchase of goods and services, companies and individuals take part in various competitions and auctions. In each specific case, one or another form of bidding is more profitable. In order not to make a mistake with the choice, you should have a good understanding of the differences between auctions and competitions, and their features.
Auction- This is a "sale" of items that have any value, at the highest possible price.
Initially, auctions were intended for the sale of debt property. Today, antiques, objects of art, folk art are most often put up for auction; they are common as an instrument of foreign trade for the sale of single goods.
In addition to goods, the rights to conclude contracts can also be put up for auction.
There are many different types of auctions, the most common of which are:
English (direct);
first price auction;
second price auction;
reverse auction (reduction);
auction "everyone pays", etc.
The tender, which is gaining popularity in use, is also one of the types of auction, called the “auction of its price”.
competition called the competition of several applicants, the purpose of which is the choice of a more worthy option that will provide the best conditions for the execution of the contract.
Competitions are:
open (anyone can participate);
selective (everyone can apply, but only applicants selected by the customer directly participate in the competition);
closed (participants are invited by the organizers).

Confidentiality

The competition assumes the confidentiality of all information contained in the application. The application has a rather complex structure, its incorrect execution is one of the most common reasons for refusal to participate in the competition.
The application for participation in the auction reflects the personal information about the participant requested by the organizers, sometimes copies of some documents, but the price that the participant is willing to pay for this lot does not contain, and therefore does not need confidentiality.

victory condition

To determine the winner of the competition, they consider the conditions for the performance of the work by all participants, their rating, analyze the expected quality of the work, and, based on this, draw a conclusion.
An auction is a competition of offers by price: whoever is ready to pay more or offer the lowest price for the performance of any services by him will receive the lot put up.
An auction is considered a more transparent form of bidding. Competitors are more likely to get the desired lot than when participating in a competition, where the subjective opinion of the organizers decides the fate of the participants. In addition, it often happens that the competition is held only for the sake of formality, while the performer is initially determined.

Participation costs

To participate in the competition, it is necessary to develop a quality proposal. In this case, there are material and time costs, sometimes even very significant ones. However, only one contestant wins the lot, the rest of their costs are not compensated in any way.
To participate in the auction, as a rule, material costs are not required. However, sometimes the organizers collect some non-refundable fee as a confirmation of the seriousness of the intentions. There is also such a type of auction, where each applicant pays the amount named by him, although the lot goes only to the participant who evaluated it as expensive as possible.
Among other things, the final purchase price of a lot at an auction, as a rule, is 20-30 percent less than when purchasing a similar product through a tender.

Thus, the difference between an auction and a tender can be formulated as follows:

The bidder is more likely to win the lot than the bidder.
Participation in the competition requires more material costs than participation in the auction.
The competition is a demonstration of the capabilities of the participants, their conditions and the quality of work. The owner of the auction lot is the participant who offered the highest price, regardless of his personal qualities and skills.

The end of the 20th century was marked by the revolutionary introduction of Internet technologies into the sphere of economic activity. Virtual trading has become an element of everyday life. With the development of the digital economy, the regulation of public procurement relations is increasingly becoming formal. The sphere of preparation and conclusion of contracts is shifting to electronic platforms.

Features of legislative regulation

Starting from 2011, state regulation of relations on procurement from organizations with state participation, as well as natural monopolies with commercial organizations, is regulated by the law: FZ-223 of 07/08/2011 "On the procurement of goods, works, services by certain types of legal entities".

The procedure for competitive procurement is being formalized. The basic concepts of the forms of relationship between the customer and the contractor are introduced. From Article 3.2 of this law follows the basic concepts of how the "competition" differs from the "auction", what is the "request for quotations", how it differs from the "request for proposals". The activities of electronic platforms that operate on the Internet and provide competitive procurement services are regulated.

In 2013, the relevant law was adopted - FZ-44 dated March 22, 2013 "On the procurement of goods, works, services to meet state and municipal needs."

It regulates purchases if the customers are state or municipal authorities. The concepts of "open competition" and "competition with limited participation" are introduced. The clarification of the difference between an electronic auction and an open tender has been further formalized.

Using the concepts of two fundamental laws, electronic platforms develop their own regulations, which describe in detail the technology of interaction between the customer and the contractor.

Electronic trading platforms

The current legislation provides for a gradual transition in the field of public procurement from paper documents to electronic procedures, which are carried out through specialized platforms developed for the Internet.

In fact, any resource that provides intermediary services for document flow between the customer and the contractor can be defined as an electronic platform. All documents are certified using an electronic signature. In this case, two classes of sites can be distinguished:

• B2G, when government agencies can act as a customer.
• B2B, regulating the interaction of commercial organizations.

Some large customers have their own specialized trading platforms. These include Gazprom or Russian Railways.

Currently, there are 5 such Internet resources:

1. ZAO Sberbank, a subsidiary of Sberbank of Russia.
2. EETP JSC, the largest trading platform established by the Government of Moscow.
3. FSUE "SET", started as an operator serving the government structures of the Republic of Tatarstan.
4. LLC "RTS - Tender", among other things, works on servicing property auctions.
5. ETP "MICEX-IT", specializing in work with the Federal Treasury and defense orders.

The regulations of all sites contain similar concepts that describe general procurement procedures and formalize how an auction differs from a competition.

Procedure types

All types of procurement procedures are formally described by the concepts:

• Request for quotations, when the customer fully formalizes the requirements for the terms of the contract, and the contractor is selected only according to the criterion of the proposed price. The opportunity to offer a price to the contractor is provided only once.
• Request for proposals.
• The competition provides several criteria for choosing the winner. At the same time, according to the price criterion, the customer can go through a multi-stage procedure. The plurality of criteria is the main difference between a competition and an auction.
• Auction (for the purposes of FZ-44) - under this concept, a price reduction procedure is carried out, which is somewhat different from the generally accepted trading practice. As a rule, auctions by commercial structures were held to increase supply at prices. For the price reduction procedure, the concept of reductions was used. And how auctions differ from competitions is well spelled out in the law itself. For the auction, only one indicator is taken as a basis - the price.
• Competitive negotiations are used when an urgent execution of an order is required or the competition did not lead to the conclusion of a contract.
• Purchasing from a single source.
• Preliminary selection.
• Complex purchase.
• Collection of commercial proposals.
• Competitive selection.

One of the most popular is the competition. The customer conducts it when it is necessary to choose the most worthy among the applicants according to several criteria. For example, the experience of performing similar work by the contractor or the availability of appropriate resources to carry out the required work. For the implementation of the defense order and some other types of work, the legislation provides for the holding of closed tenders. Otherwise, only the presence of several criteria for selecting the winner is what distinguishes an open tender from an auction.

Auction

As already mentioned, an auction is a form of bidding, when the only criterion for evaluating the winner is the proposed bidding price. For the purposes of FZ-44, trading is conducted only for a decrease, and for FZ-223, prices can also be raised. The remaining bidding criteria are used only for the admission of the participant to the bidding and do not affect the further decision-making. And this gives an answer to the question of how an electronic auction differs from a competition.

Reduction

When working with trading platforms, it should be borne in mind that FZ-44 and FZ-223 interpret the concept of an auction differently. For the purposes of public procurement, only price reduction for bidding is allowed. At the same time, FZ-223 provides for working with such types of proposals when an increase in the initial price is required. For example, conducting an offer for the sale of goods and services by the customer. For a reduction, as well as for an auction, the requirements for the qualification of the contractor are put forward only at the stage of determining the possibility of participating in the procurement procedure. For the purchase of goods and services, the reduction procedure is used. This is the main difference between competition and auction and reduction in terms of FZ-44 and FZ-223.

Auction, competition and request for quotations are integral concepts of modern Russian business practice. They are fixed by law, the concepts carry a different semantic load. These terms are united by the fact that these are forms of competitive competition between suppliers. Participants submit their proposals and packages of documents according to predetermined conditions. Activities within these concepts are based on fairness and efficiency. However, it is necessary to understand the differences between an auction, a tender and a request for quotation.

What is an auction?

The main criterion in the competition between suppliers during the auction is the price. Participants' offers are available to everyone, so they can quickly change their price in order to “outbid” a competitor. Before the start of the auction, the initial maximum price is set, which is indicated in the notice. The cost is reduced by the auction step, which is 0.5% of the customer's price. The winner of the auction is the one who offers the lowest price.

Initially, the auctions were organized with the aim of selling debt property, but over time, the policy of the event changed. Now you can take part in the auction for the sale of art objects, antiques, certain goods in foreign trade, etc. At the same time, there are such types of auction as direct (English), first price, second price, reverse and "all pay" auction. It is believed that this is the most transparent form of trading.

Competition features

The concept of "competition" is often used in the same context as a tender. Do not forget that the tender is not enshrined in legislation, it is a foreign concept. Therefore, it is easier to use the definition of “competition”, which is regulated by the Civil Code of the Russian Federation.

Several suppliers are participating in the competition. The customer needs to choose a worthy applicant, focusing on the terms of the contract. The difference between a tender and an auction is that participants cannot change their conditions during the auction.

Competitions are divided into:

• open: the customer invites everyone to participate;
• selective: after submitting applications for participation, the customer independently selects applicants who will continue the fight;
• closed: the customer sends invitations to a limited number of people.

Bidders don't know what competitors are offering, which is why it's so important to prepare documentation carefully. It is recommended to invite specialists who help to verify the information and arrange it properly. These are additional material costs that will not be compensated in case of a loss, but will significantly increase the chances of winning.

Quote request

The criterion for selecting a bidder when requesting quotations is the lowest price. The difference from the auction is in the very mechanics of the procedure. The request for quotations is published by the state customer and informs an unlimited number of participants about it. Documentation is posted on the electronic trading platform, where the maximum initial price, terms and other conditions are indicated. Suppliers prepare a proposal indicating the cost for a given scope of work. The supplier cannot change its terms.

The request for quotation is the second most popular form of order placement that an electronic marketplace can offer. On the first position - auction in an electronic form. At the same time, the Federal Antimonopoly Service has a negative attitude towards the request for quotations, considering it a potentially convenient procedure for corrupt officials.

Thus, in an auction, the determining factor is the price, and suppliers have the opportunity to change their offer. During the competition, suppliers do not have the opportunity to familiarize themselves with the competitor's documentation and influence the price, while the customer takes into account not only the cost factor, but also the reputation of the supplier, the quality of the goods. The request for quotations is carried out in a short time, the minimum price wins, while the participants cannot change the initial cost.

We will tell you how the customer can decide to conduct an open procurement procedure under 44-FZ: tender or auction, closed or open tender.

Further, an open tender is carried out, according to, always, except for the cases described in articles 56, 57, 59, 72, 83, 84 and 93 of this Federal Law. Article 59, part 2, specifies the conditions under which, instead of an open tender, the customer is obliged to conduct an electronic auction.

This procedure is applied if the object of procurement is included in one of the two lists established by the Government of the Russian Federation and the highest executive authority of a particular subject of the Russian Federation and is aimed at meeting the needs of this subject. The current version of the specified list from the Government of the Russian Federation was approved by order of 03/21/2016, the current version of the list from the subject of the Russian Federation in each case needs to be specified by the customer independently.

Competition or auction under 44-FZ

Goods, as well as works and services that are included in these two lists, get there on the basis of simultaneous compliance with two criteria: firstly, the object of procurement can be described in a detailed and clear formulation, secondly, the winner of such an auction is determined solely by price, others same factors, in contrast to the competition, are not taken into account.

Exceptions are provided by Law No. 44-FZ for cases of procurement through a request for quotations or proposals, as well as procurement from a single contractor.

A closed tender for the purchase of goods is used only in strictly defined cases, each of which is indicated in the law and implies the relationship of the subject (or documentation) of the purchase to state secrets or state interests.

Open or closed competition?

If the object of procurement does not fall under the conditions described above, it is not yet a fact that it is time to announce an open tender under 44-FZ. It is necessary to check the confidentiality factors and other conditions that determine whether this procedure requires secrecy (Article 84 of Law No. 44-FZ).