The difference between a public auction and an auction. What is the difference between tenders and tenders? Open or closed competition

Greetings, Dear friends!

How often have you had to deal with the question of how competitions differ from auctions and tenders? No, you didn't have to? Then you are luckier than me. And I often enough email similar questions come up, I don’t keep exact statistics, but there were definitely a dozen such letters. Therefore, I decided to take an hour of free time to write this article.

And so let's move on to our question. I will say that contests and tenders are essentially the same thing. Those. they differ from each other as well as “top manager” from “director” or “cleaning” from “cleaning”, I think you get the point. The word "tender" (tender) came to us from of English language and denotes bidding. In Russian law this term not used, but widely used in the business environment, and in Everyday life too.

But the difference between tenders and bidding is a more delicate point. As part 4 of article 447 says Civil Code Russian Federation(Civil Code of the Russian Federation) "bidding is carried out in the form of an auction or competition." It follows from this that contests are a type of bidding, as well as auctions, requests for quotations, etc.

In Decree of the President of the Russian Federation No. 305 of 04/08/1997 "On priority measures to prevent corruption and reduce budget expenditures when organizing the purchase of products for state needs", such a term was used as "auctions (competitions)", which meant the designation of all possible placement procedures state order.

Therefore, in order to avoid confusion in these concepts in your future work, you should equate the concepts of "bidding" and "tenders", and contests, auctions, requests for quotations, etc. consider it a type of trade. Even in newspaper articles, the authors, describing the procedure for conducting an electronic auction, can use terms such as tender, competition and auction, which can completely confuse a novice public procurement specialist.

I hope my short article has clarified, and now you can freely navigate these concepts.

I wish you success and new victories!

”, which is so often used in business. it foreign word did not find a place in Russian legislation. For him there is an equivalent word in Russian - "bidding", so the article is devoted to electronic trading and terms of electronic commerce.

There are several types of purchases ( electronic trading):

The winner in this type of electronic auction is the participant who offers the lowest price. So the main criterion here is still the price. However, there are higher requirements for participants. The customer has the right to require each participant to have licenses and certificates for products. The bulk of this type of electronic trading is construction tenders.

Open competition - form of procurement, where the proposals of the participants are evaluated comprehensively, and the price offer is only one of the criteria for choosing the winner. Through an open competition electronic form hold tenders for the design of exhibitions or tenders for development.

In this way, electronic trading are present only in the electronic auction, where participants submit their price offers repeatedly.

Auction and competition of distinction

The difference between an auction and a competition is that you can win in a competition at a price higher than that of a competitor due to quality. Auction and competition are held by the same customer for different needs. The auction procedure involves competition, when electronic auctions take place and participants make bids several times.

The difference between a tender and an auction is that there is no bidding. Participants of the competition submit their proposal on the conditions once, they do not see the proposals of other participants and cannot change it.

The end of the 20th century was marked by the revolutionary introduction of Internet technologies in the field 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

Since 2011 state regulation procurement relationships with organizations state participation, as well as natural monopolies with commercial organizations are regulated by the law: FZ-223 of 07/08/2011 "On the procurement of goods, works, services certain types 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 electronic platform. All documents are certified using 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 offers.
• 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.

In Russian industrial and business practice, there are several concepts that describe practically the same process. The competition between companies for the right to conclude an agreement in a strictly defined manner, limited by specific deadlines, is auctions, tenders, auctions, competitions and more. But there is a significant difference between them: the main difference between a tender and a competition is that the first concept is not regulated by Russian law, but these events themselves are widely used in business practice.

Regulated sign

Federal Law No. 94-FZ defines the concept of a competition and the procedure for conducting it. Participation in it imposes certain legal obligations on the organizer and participant, in contrast to the tender, the consequences of which arise only after the conclusion of the contract between the parties. Therefore, the customer has the right to carry it out in any form convenient for him, which can only be regulated by internal regulatory documents, for example, the Regulations developed on the basis of the standard one.

The difference also lies in the fact that the winner is determined by comparing bids, which cannot be changed or specified after they have been opened. When tendering, there is additional competition, the customer may try to reduce the price or ask Better conditions execution of the application. Thus, as a result of the tender, it is possible to achieve more beneficial cooperation for the customer.

Deadlines and paperwork

Another reason why you need to know how a tender differs from a competition is the unlimited duration of the first event, while the time frame of the second and the date of conclusion of the contract with the selected contractor are always precisely known in advance. The tender committee may deliberately delay the time before making a decision in order to obtain a better offer from suppliers. However, usually the tender period is shorter than the competitive one and ranges from a week to a month, and the time to determine the winner in the tender is at least 30 days.

A government agency has the right to reject a bid because it is inappropriately formatted, while commercial organizations do not pay close attention to the application form for participation.

Competition result

When holding a competition, a state or municipal organization must choose a performer in any case if the number of participants is more than one, and the applications meet the requirements. At the same time, a commercial company may not choose a winner - this issue is decided only by the tender commission.

The result of the competitive competition must be officially announced and reflected in the media, and its organizer must conclude an agreement with the winner on previously determined conditions. At the same time, participants who are dissatisfied with the decision can appeal the results to judicial order and recover the costs associated with the preparation. The result of the tender is communicated to the selected service provider by any means, for example, by e-mail or by phone, and other participants cannot have any claims against the tender committee.

Key Findings

Competition or tender? Both of these forms are competitive events, the purpose of which is to find a profitable cooperation option and a reliable service provider.

The differences between these concepts can be briefly summarized as follows:

1. The purpose of organizing the competition is to comply with all regulations and norms, the purpose of the tender is to save money as much as possible.
2. The rights of suppliers are protected in a certain way when participating in the tender, there are no obligations to them in the tender.
3. Conducting a competitive competition always leads to the conclusion of a contract, a tender - at the discretion of the tender commission.
4. Competitive bids cannot be changed during the event, the organizers of the tender may try to reduce the price to the minimum.
5. The winner of the competition becomes known without fail, the winner of the tender - only at the behest of the tender committee.
6. The deadline for the announcement of the result of the competitive competition is known in advance, and the tender period can be any and change in the process.

One way or another, the competition is the prerogative of state and municipal structures, while the tender is chosen by commercial organizations as a more profitable option for holding the competition.

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 agency state power in the region can compile its own list in addition to the federal one. For example, such a list was approved by the Government 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 sole supplier. However, the institution must take into account the requirements federal law dated 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 importance;
• 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 was not contrary to the requirements of the legislation on contract system. After all, the above conditions were met simultaneously. Firstly, the customer's representative at the meeting of the FAS Russia Commission proved that the procurement object relates to 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. AT terms of reference the institution has identified the object of procurement as " performance of work to eliminate the consequences of physical, mechanical and climatic impact on the technical means of the organization traffic after the autumn-winter period of operation, installed on highways Moscow city". 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 works. 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 characterizes the most in full most 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.