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

The rules for holding a joint auction, competition are established by Article 25 of the Law on contract system, as well as Government Decree No. 1088 of November 28, 2013. The same legal acts explain who nevertheless acts as the organizer of such a purchase. First of all, it can be one of the customer organizations. Also, according to , jointly decision Customers may assign the responsibilities of the organizer to other authorized bodies or institutions. In the multilateral agreement, the above-mentioned third-party bodies are noted only as the organizer, and their main task is to directly determine the executors of the contract. After that, all institutions need to make changes to the schedule indicating the full name of the auction organizer.

Features of joint procurement

To save budgetary funds and minimize costs, customers who purchase the same goods, works or services make purchases together in the format of a competition or auction. Required condition consists in the fact that the merging organizations conclude a bilateral or, depending on the number of participants, a multilateral agreement, which is based on the rules of FZ-44 and the Civil Code of the Russian Federation. The form of such an agreement can be downloaded at the end of the article.

Joint tenders and auctions under 44-FZ have a number of features:

• , calculation of the quantity and volume of goods, works or services, preparation of technical specifications and tender documentation necessary for the tender, justification of the procurement object is carried out by each customer organization independently and until the moment of signing the multilateral agreement;
• the costs of conducting are distributed taking into account the proportional share ratios of the NMCC of each participant in the total initial (maximum) price of the contract;
• each participant concludes a contract independently upon the identification of the winner (or winners) of competitive procedures.

How to organize

Order of conduct joint competitions and auctions is established by the Government and the current legislation, namely 44-FZ in part of Article 25, as well as Decree of the Government of the Russian Federation of November 28, 2013 No. 1088, and is a sequence of specific actions.

In this way, step by step algorithm bidding by two or more customers at the same time can be presented in the form of a table.

Requirements for a joint procurement agreement

The agreement on holding a joint tender must contain information of the following nature (part 2 of article 25 44-FZ):

• information about the parties involved in the contractual relationship;
• materials characterizing the object of the tender, its quantitative and volume indicators, organizational conditions of procurement for each customer in particular;
• NMCC of each participant with detailed calculations and justifications;
• an indication of the rights, duties and responsibilities of each party;
• a certificate about the organizer and about the powers granted to him in relation to the competitive procedures;
• notification of the procurement commission, its members, terms of operation and working conditions;
• detailed information about the notice, the timing of its formation, agreement on the possibility of participation in closed competition or a closed auction, as well as deadlines for the development of tender or auction documentation;
• approximate time frame;
• distribution of costs for the conduct and the procedure for their payment;
• the duration of this agreement;
• regulations for resolving disputes;
• other provisions.

EXPLANATORY NOTE

to the draft government decree Russian Federation

"On approval of the Orderholding joint competitions and auctions”

Draft Decree of the Government of the Russian Federation “On Approval of the Procedure for Conducting Joint Tenders and Auctions » (hereinafter - the draft resolution) was developed in accordance with paragraph 5 of Article 25 of the Federal Law of April 5, 2013 No. 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law No. 44-FZ) in pursuance of paragraph 31 of the action plan for the implementation of the Law, approved by order of the Government of the Russian Federation dated May 21, 2013 No. DM-P13-3339.

Law No. 44-FZ establishes that the Procedure for holding joint tenders and auctions is established by the Government of the Russian Federation (hereinafter referred to as the Procedure).

For the purpose of holding a joint tender or joint auction, the Procedure establishes that the same goods, works, services are understood as goods, works, services that have the same characteristics (functional, technical, quality, operational).

In addition, the Procedure establishes that an agreement concluded between customers during a joint tender or joint auction (hereinafter referred to as the agreement) is signed by all parties to the agreement.

The initial (maximum) price of the contract or contracts, which is indicated in the agreement, is determined as the sum of the initial (maximum) contract prices of each customer.

The Procedure also defines the functions of the organizer of a joint tender or joint auction, including:

development and approval of tender documentation or documentation on electronic auction and making changes to it;

development of documentation for the repeated tender (if necessary);

sending the relevant protocols to each party to the agreement.

In addition, the Procedure establishes that the approval of the decision to conclude a contract with a single supplier (contractor, performer), in the event that a joint tender or joint auction is declared invalid in accordance with parts 1, 7 of Article 55, parts 1-3 of Article 71 of Law No. 44-FZ carried out by the customers themselves.

The adoption and implementation of the submitted draft resolution will not require additional costs from the federal budget.

GOVERNMENT OF THE RUSSIAN FEDERATION

RESOLUTION

from "____" _____________ No. ______

On the approval of the Order

In accordance with Article 25 of the Federal Law of April 5, 2013 No. 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" The Government of the Russian Federation p o s t a n o v l i a t:

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

2. Recognize as invalid:

Decree of the Government of the Russian Federation of October 27, 2006 No. 631 “On approval of the Regulations on the interaction of state and municipal customers, bodies authorized to carry out the functions of placing orders for state or municipal customers during joint bidding” (Collected Legislation of the Russian Federation, 2006 , No. 44, item 4602; 2007, No. 42, item 5048);

Decree of the Government of the Russian Federation of October 5, 2007 No. 647 “On Amendments to the Regulations on the Interaction of State and Municipal Customers, Bodies Authorized to Perform the Functions of Placing Orders for State or Municipal Customers in Joint Bidding” (Collection of Legislation of the Russian Federation , 2007, No. 42, item 5048).

3. This Resolution shall enter into force on January 1, 2014, with the exception of paragraph 4 of the Procedure for holding joint tenders and auctions, which shall enter into force on January 1, 2015.

APPROVED

Government Decree

Russian Federation

dated ____________ No. _________

ORDER

holding joint competitions and auctions

1. This Procedure defines the rules for holding joint tenders and auctions.

2. A joint tender or a joint auction may be held if two or more customers have a need for the same goods, works, services. For the purposes of holding a joint tender or joint auction, the same goods, works, services are understood to mean goods, works, services that have the same basic features characteristic of them (functional, technical, quality, and operational characteristics). When holding a joint tender or joint auction, it is allowed to include in the composition of one lot goods, works, services that are technologically and functionally related to each other.

3. In order to conduct a joint tender or joint auction, the customers shall conclude an agreement between themselves on holding a joint tender or joint auction (hereinafter referred to as the agreement) prior to the approval of the tender documentation or electronic auction documentation.

4. After signing the agreement, the customers enter into the schedule for the procurement of goods, works, services to meet state or municipal needs the relevant information about the name of the organizer of the joint tender or joint auction.

5. The agreement specifies:

1) information about the parties to the agreement - name, location, TIN, PSRN and Bank details customers holding a joint tender or joint auction (hereinafter referred to as the parties to the agreement);

2) information on the object of procurement and on the expected volume of procurement (quantity of goods, scope of work, services), in respect of which a joint tender or joint auction is held;

3) the initial (maximum) price of the contract or contracts, which is determined as the sum of the initial (maximum) contract prices of each customer and the rationale for such a price, containing the rationale for the initial (maximum) contract prices of each customer;

4) the rights, duties and responsibilities of the parties to the agreement in accordance with Civil Code of the Russian Federation and the Federal Law "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs";

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

6) the procedure and term for the formation of a commission to determine the supplier (contractor, performer) (hereinafter referred to as the commission), the rules of work of such a commission;

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

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

9) the procedure for payment of expenses related to the organization and holding of a joint tender or joint auction;

10) the term of the agreement;

11) procedure for consideration of disputes;

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

6. Determination of the supplier (contractor, performer) by holding a joint tender or joint auction is carried out by the organizer of a joint tender or joint auction in the manner prescribed by the legislation of the Russian Federation on the contract system in the field of procurement.

7. In order to determine the supplier (contractor, performer), the organizer of joint tenders and auctions is obliged:

1) approve the composition of the commission, which includes representatives of the parties to the agreement in proportion to the volume of purchases made by each customer, in the total volume of purchases, unless otherwise provided by the agreement;

2) develop and approve, prior to the start of the procurement, tender documentation or documentation on an electronic auction for holding a joint tender or joint auction, containing the rationale for the initial (maximum) price of the contract, and, if necessary, documentation for conducting a repeat tender, in accordance with the procedure and terms set out in the agreement. In the tender documentation or documentation on an electronic auction, drawn up in accordance with the legislation of the Russian Federation on the contract system in the field of procurement, for each party to the agreement, the name of the customer, the quantity of goods, the amount of work, services, place, conditions and terms (periods) of delivery of goods, performance of work, provision of services;

3) provide clarifications of the provisions of the tender documentation or electronic auction documentation developed and approved in the manner prescribed by the agreement;

4) if necessary, make changes to the tender documentation or electronic auction documentation prepared and approved in the manner prescribed by the agreement;

5) place in the unified information system the information provided for by the legislation of the Russian Federation on the contract system in the field of procurement in relation to determining the supplier (contractor, performer);

6) send copies of the protocols drawn up in the course of a joint tender or joint auction to each party to the agreement late afternoon following the day of signing the said protocols;

7) send draft contracts drawn up as a result of a joint tender or joint auction, after they are signed by the winner of the tender or auction, for signing by the parties to the agreement;

8) exercise other powers provided for by the agreement.

8. The parties to the agreement shall bear the costs of holding a joint tender or joint auction in proportion to the share of the initial (maximum) contract price of each customer in the total amount of the initial (maximum) prices of contracts for the conclusion of which a joint tender or joint auction is held.

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

10. If a joint tender or a joint auction is declared invalid in accordance with parts 1 and 7 of Article 55, parts 1-3 of Article 71 federal law"On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" the decision to conclude a contract with a single supplier (contractor, performer) and the approval of such a decision is carried out by customers independently in accordance with paragraph 25 of part 1 of Article 93 of the Federal Law " On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.

1. When two or more customers purchase the same goods, works, services, such customers have the right to hold joint tenders or auctions. The rights, obligations and responsibilities of customers in joint tenders or auctions are determined by an agreement between the parties concluded in accordance with the Civil Code of the Russian Federation and this Federal Law. The contract with the winner or winners of a joint competition or auction is concluded by each customer.

2. The organizer of a joint tender or auction shall be an authorized body, an authorized institution, if they are vested with powers in accordance with Article 26 of this Federal Law, or one of the customers, if other customers have transferred, on the basis of an agreement, part of their powers to such authorized body, authorized institution or customer to organizing and holding a joint competition or auction. This agreement must contain:

1) information about the parties to the agreement;

1.1) procurement identification code;

2) information about the object of procurement and the estimated volume of procurement, in respect of which joint tenders or auctions are held, the place, conditions and terms (periods) of the supply of goods, performance of work, provision of services in relation to each customer;

3) the initial (maximum) contract prices of each customer and the rationale for such prices by the respective customer;

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

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

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

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

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

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

10) the term of the agreement;

11) procedure for consideration of disputes;

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

3. The organizer of a joint tender or auction approves the composition of the procurement commission, which includes representatives of the parties to the agreement in proportion to the volume of purchases made by each customer, in the total volume of purchases, unless otherwise provided by the agreement.

4. The parties to the agreement shall bear the costs of holding a joint tender or auction in proportion to the share of the initial (maximum) contract price of each customer in the total amount of the initial (maximum) prices of contracts for the conclusion of which a joint tender or auction is held.

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

1. When two or more customers purchase the same goods, works, services, such customers have the right to hold joint tenders or auctions. The rights, obligations and responsibilities of customers in joint tenders or auctions are determined by an agreement between the parties concluded in accordance with the Civil Code of the Russian Federation and this Federal Law. The contract with the winner or winners of a joint competition or auction is concluded by each customer.

2. The organizer of a joint tender or auction shall be an authorized body, an authorized institution, if they are vested with powers in accordance with Article 26 of this Federal Law, or one of the customers, if other customers have transferred, on the basis of an agreement, part of their powers to such authorized body, authorized institution or customer to organizing and holding a joint competition or auction. This agreement must contain:

1) information about the parties to the agreement;

(Clause 1.1 of Part 2 of Article 25 of this Federal Law shall enter into force on January 1, 2015.)

1.1) procurement identification code;

3) the initial (maximum) contract prices of each customer and the rationale for such prices by the respective customer;

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

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

10) the term of the agreement;

11) procedure for consideration of disputes;

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

3. The organizer of a joint tender or auction approves the composition of the procurement commission, which includes representatives of the parties to the agreement in proportion to the volume of purchases made by each customer, in the total volume of purchases, unless otherwise provided by the agreement.

4. The parties to the agreement shall bear the costs of holding a joint tender or auction in proportion to the share of the initial (maximum) contract price of each customer in the total amount of the initial (maximum) prices of contracts for the conclusion of which a joint tender or auction is held.

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

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

Definition:

Decree of the Government of the Russian Federation of October 27, 2006 N 631 (as amended on October 5, 2007) "On approval of the Regulations on the interaction of state and municipal customers, bodies authorized to carry out the functions of placing orders for state or municipal customers, during joint bidding":
"... the organizer of joint bidding is one of the customers, authorized bodies, to which other customers, authorized bodies have transferred, on the basis of an agreement, part of their functions for organizing and conducting joint bidding"

joint bidding are carried out for the purchase of the same name products of the same name. If several state customers of the city have a need to purchase one product name (having the same codes according to the All-Russian classifier of types economic activity, products and services), in this case, these state customers of the city have the right to conduct joint bidding or transfer joint bidding to the authorized body. At the same time, the needs of the state customers of the city are combined into one lot, the state contract is concluded with each state customer of the city in proportion to its needs.

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

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

1.3. Joint bidding can be held if at least two state customers of the city have a need for goods of the same name, works of the same name, services of the same name.
To conduct joint bidding, state customers of the city conclude an agreement on joint bidding (hereinafter referred to as the agreement) among themselves on the basis of an exemplary form of an agreement on joint bidding developed by the Committee economic development, industrial policy and trade

The agreement specifies:

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

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

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

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

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

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

19.11.2012 Services provided on different territories, cannot be included in one lot if it limits the number of bidders

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

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

Yekaterinburg

Case N А50-25886/2011

Federal Arbitration Court of the Urals District, consisting of:

presiding Yashchenok T.P.,

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

considered at the court session the cassation appeal of the Territorial Administration of the Ministry social development Perm Territory for the city of Perm (OGRN 1065902055746, TIN 5902293361; hereinafter referred to as management) against the decision of the Arbitration Court of the Perm Territory dated March 14, 2012 in case N A50-25886 / 2011 and the decision of the Seventeenth Arbitration Court of Appeal dated May 28, 2012 in the same case.

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

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

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

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

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

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

In the cassation appeal, the department asks the contested judicial acts to be canceled, referring to the incorrect application by the courts of the norms of substantive law and the discrepancy between the conclusions of the courts and the actual circumstances of the case.

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

The applicant of the cassation appeal believes that the tender documentation complies with the requirements of the Federal Law of July 21, 2005 N 94-FZ, and points out that the antimonopoly authority has not proved the restriction on the number of participants in placing an order, in connection with the combination of services by the organizer of the auction into one lot on a territorial basis.

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

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

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

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

The procedure for interaction between persons participating in the organization of joint bidding is established by Decree of the Government of the Russian Federation of October 27, 2006 N 631 "On approval of the Regulations on the interaction of state and municipal customers, bodies authorized to exercise the functions of placing orders for state or municipal customers, when conducting joint auction", according to which the competition should be held by only one entity, the so-called organizer of the auction. The organizer of the auction is determined by an agreement between the customers, which is concluded before the approval of the tender documentation, and it is the organizer of the tender that is responsible for the course of the tender, develops and approves the tender documentation for holding joint tenders in accordance with the procedure and conditions established by the agreement.

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

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

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

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

In accordance with Art. 17 of Federal Law No. 135-FZ of July 26, 2006 "On Protection of Competition" (hereinafter referred to as Federal Law No. 135-FZ of July 26, 2006), actions that lead or may lead to the prevention, restriction or elimination of competition are prohibited during auctions.

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

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

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

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

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

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

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

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

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

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

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

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

When examining the evidence available in the case file according to the rules of Art. 65, 71 of the Arbitration Procedure Code of the Russian Federation, the courts of first and appeal instances took into account that such an association should not be in conflict with general principles Federal Law No. 94-FZ of 21.07.2005 in terms of providing guarantees to potential bidders for the exercise of their right to participate in the auction.

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

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

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

Under such circumstances, the courts rightfully refused to satisfy the stated requirements.

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

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

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

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

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

RESOLVED:

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

presiding

T.P. lizard

E.O. Cherkezov
S.N. Vasilenko