What is competitive negotiations? What is the point of competitive negotiations? Example of an application for participation in competitive negotiations

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Chapter 11. Procurement through competitive negotiations

Article 58. Competitive negotiations

1. When using the method of competitive negotiations, the Customer, the organizer of the order placement, negotiates with at least two participants in the procurement procedure in order to ensure effective competition. 2. Placement of an order in the form of competitive negotiations is used in cases where it is intended to conclude a procurement agreement in order to obtain information or consulting services, conduct scientific research, experiments or developments when it is difficult for the Customer to formulate detailed product specifications or determine the characteristics of services or if due to technical features products need to be negotiated with suppliers. 3. Competitive negotiations are conducted in accordance with the legislation of the Russian Federation, but are not a reduction or competition and their conduct is not regulated by Articles 447-449 of Part One Civil Code Russian Federation. Competitive negotiations are also not a public competition and are not regulated by Articles 1057-1061 of Part Two of the Civil Code of the Russian Federation. Thus, this procedure does not impose on the Customer a corresponding amount of civil legal obligations for the mandatory conclusion of an agreement with the winner of the request for proposals or another participant. 4. The procedure for conducting specific competitive negotiations is established in the Documentation on conducting competitive negotiations (hereinafter referred to as the “Documentation”) in accordance with the requirements of this Standard. 5. A participant in competitive negotiations can be any person who meets the requirements established in this Standard and Documentation, who has timely submitted an Application for participation in competitive negotiations (hereinafter referred to as the “Application”) to the order placement organizer, drawn up in accordance with the requirements of the Documentation. 6. The customer, the authorized body, has the right to refuse to conduct competitive negotiations at any stage by posting the relevant information on the official website.

Article 59. Stages of competitive negotiations

1. Competitive negotiations are carried out in the following sequence: - posting the full text of the notice of competitive negotiations on the official website for placing orders; - provision of documentation procurement procedures to participants; - preparation by potential participants of their applications for participation in competitive negotiations; - submission of applications, acceptance and opening of envelopes; - selection of participants in competitive negotiations, evaluation of applications, conducting competitive negotiations and selection of the Winner; - signing an Agreement with the Winner of competitive negotiations; - notification of Participants about the results of competitive negotiations.

Article 60. Posting a notice of competitive negotiations

1. Notice of competitive negotiations is posted on the official website for placing orders at least 15 days before the closing date for accepting Applications. Simultaneously with the posting of the Notice on the official website about placing orders, the Notice of competitive negotiations, at the discretion of the Customer or the organizer of the order placement, may be published periodically printed edition. 2. The notice of competitive negotiations must contain the following information: 1) the form of the procurement procedure; 2) name, location, mailing address and address Email, contact telephone and fax numbers of the Customer, order organizer, specialized organization; 3) the subject of the contract indicating the scope of work performed and services provided; 4) place of performance of work, provision of services; 5) the initial (maximum) price of the contract (if it is determined by the Customer, the organizer of the order); 6) the deadline, place and procedure for providing the Documentation, the official website for placing orders on which the Documentation is posted; 7) the deadline for submitting applications, the place, date and time of opening envelopes with applications for participation in competitive negotiations, the place and date of consideration of such applications and summing up the results of competitive negotiations; 8) information about the provision of preferences. 3. The order placement organizer has the right to make changes to the Notice of competitive negotiations. If changes are made to the Notice of Competitive Negotiations, such changes must be posted on the official ordering website on which the Notice of Competitive Negotiations was posted no later than five days before the closing date for submission of applications for participation in competitive negotiations.

Article 61. Documentation on competitive negotiations, procedure and deadline for its submission

1. Documentation on competitive negotiations must contain all the requirements for the subject of procurement established by the order placement organizer and the conditions for participation in competitive negotiations, requirements for an application for participation in competitive negotiations, the timing and location of competitive negotiation procedures, the criteria and procedure for evaluating and comparing applications for participation in competitive negotiations indicating the indicators and scale of possible assessment values or the procedure for its determination, as well as other conditions determined by the order placement organizer. The documentation may contain a list of information and documents that must be submitted to participants, including information about the co-executors they engage (subcontractors, subsuppliers), confirming their compliance with the requirements of the documentation and this Standard, and required to be submitted as part of the participant’s application. In the case of competitive negotiations with an initial (maximum) contract price of 100 million rubles including VAT or more, at the customer’s decision, the documentation for competitive negotiations may provide for the possibility for a participant in the procurement procedure to submit alternative proposals as part of the application for participation. An alternative is a proposal that is additional to the main one and contains one or more organizational and technical solutions modified relative to those contained in the main proposal, commercial solutions, characteristics of the supplied products or terms of the contract. An alternative offer cannot differ from the main one only in price. Alternative proposals are permitted only in relation to established product requirements or contract terms. The customer must determine which aspects of the requirements or contract conditions allow alternative proposals. If the customer has not identified aspects of the requirements or terms of the contract under which the submission of alternative proposals is permissible, the documentation for competitive negotiations must indicate that the submission of alternative proposals is not permitted. The customer has the right to limit the number of alternative proposals submitted by one participant. Documentation on competitive negotiations must provide for the rules for the preparation and submission of alternative proposals, incl. the obligation of the participant in the procurement procedure to clearly distinguish them as part of the application for participation in competitive negotiations. 2. Documentation on competitive negotiations is provided from the day the Notice of competitive negotiations is posted on the official website and until the closing date for accepting applications in written form at the request of participants in competitive negotiations sent in writing. Documentation must be provided within two working days upon the participant’s request, duly executed. Participants who have received Documentation on competitive negotiations in writing are subject to registration in the appropriate journal for issuing Documentation. 3. The order placement organizer has the right to make changes to the Documentation on competitive negotiations. Changes must be posted on the official ordering website, which contains the Notice and Documentation of Competitive Negotiations. The customer, the order placement organizer, on his own initiative or in accordance with the request of a participant in the procurement procedure, has the right to decide to make changes to the Documentation no later than five days before the deadline for submitting applications for participation in competitive negotiations.

Article 62. Requirements for participants in competitive negotiations

1. Any persons may take part in competitive negotiations
timely submitting duly completed applications and documents in accordance with the notice and documentation of competitive negotiations posted on the official website for placing orders.

Article 63. Preparation of an application for participation in competitive negotiations

1. A potential participant in competitive negotiations prepares an application for participation in competitive negotiations in accordance with the requirements established by the Documentation for conducting competitive negotiations. 2. A participant in competitive negotiations has the right to send a written request to the order placement organizer for clarification of the Documentation on competitive negotiations. The order placement organizer is obliged to respond to such a request by sending a copy of the response indicating the essence of the request, simultaneously to all potential participants who have officially received the Documentation for conducting competitive negotiations and registered in the Journal for issuing such Documentation. In this case, the response to the request must be sent to potential participants within a time period sufficient for potential participants to take into account the clarifications received. If necessary, the order placement organizer may extend the deadline for submitting applications. 3. The response to the request must also be posted on the official website for placing orders no later than two working days from the date of receipt of the request by the organizer of the order.

Article 64. Filing an application to participate in competitive negotiations

1. An application for participation in competitive negotiations must be submitted to the address of the order placement organizer in writing, in a sealed envelope on which the name of the participant and the subject of competitive negotiations are indicated. 2. The Customer accepts applications for participation in competitive negotiations from participants in competitive negotiations within the time frame and in the manner established in the Notice of competitive negotiations and Documentation. The order placement organizer, at the request of a potential participant, issues a receipt to the person who delivered the envelope indicating its receipt, indicating the date and time of receipt. 3. A participant has the right to submit only one application to participate in competitive negotiations. If a Participant has submitted more than one application for participation in competitive negotiations, all applications for participation in competitive negotiations of this Participant are rejected without consideration (except for documents submitted in accordance with the provisions of Part 7 of this article). If the documentation for competitive negotiations provides for the possibility of submitting alternative proposals, the participant in the procurement procedure as part of the application for participation in competitive negotiations, in addition to the main proposal, has the right to prepare and submit alternative proposals, and alternative proposals are accepted only if the main proposal is available. The main proposal should be the one that best satisfies the requirements and conditions specified in the documentation for competitive negotiations. If one proposal is submitted with parameters acceptable in the documentation for competitive negotiations, such proposal is considered the main proposal. 4. Applications submitted after the deadline for submitting applications and not accepted by the order placement organizer are returned to the Participant on the same day along with a list of documents (with a note indicating refusal of acceptance) by handing them to the Participant or his authorized representative against signature or by sending them by mail with notification of delivery. 5. A participant has the right to change or withdraw his application for participation in competitive negotiations after its submission at any time before the deadline for submitting applications for participation in competitive negotiations. If changes are submitted to the application for participation in competitive negotiations, the change must be executed and sealed in an envelope in accordance with the requirements of the Documentation with the additional inscription “Change of the application for participation in competitive negotiations.” 6. The Commission, at the time and date established in the Documentation on competitive negotiations and the Notice of competitive negotiations, carries out the procedure for opening received envelopes with applications for participation in competitive negotiations. 7. During the procedure of opening envelopes, a protocol is kept that reflects all the information disclosed. The protocol is signed by all present members of the Commission and the Customer immediately after opening the envelopes with applications for participation in competitive negotiations and is posted on the official website for placing orders no later than the day following the day of opening the envelopes. 8. If only one application is submitted to participate in competitive negotiations, the competitive negotiations are deemed not to have taken place. An agreement is not concluded with a single potential participant in competitive negotiations.

Article 65. Selection of participants in competitive negotiations, conduct of competitive negotiations

1. The Commission reviews applications for participation in competitive negotiations for compliance with the requirements established in the documentation on conducting competitive negotiations for the design and content of applications for participation in competitive negotiations and for participants in competitive negotiations, as well as for co-executors (subcontractors, subsuppliers) attracted by them, including in the event that the customer or authorized body allows participants in the procurement procedure to involve co-executors (subcontractors, sub-suppliers) and if the requirements for co-contractors (subcontractors, sub-suppliers) were established by the documentation on competitive negotiations. 2. As part of the selection stage, the commission may request participants to clarify or supplement their applications for participation in competitive negotiations, including the submission of additional documents. 3. Based on the results of the selection stage, the commission has the right to reject applications for participation in competitive negotiations that: do not meet the requirements of documentation on the subject of competitive negotiations, on the design and composition of applications; submitted by participants in competitive negotiations who do not meet the requirements of the documentation for conducting competitive negotiations, or the co-executors (subcontractors, subsuppliers) hired by them to execute the contract do not meet the requirements of the documentation (if the requirements for co-executors (subcontractors, subsuppliers) were established in the documentation). When considering applications for participation in competitive negotiations, the commission considers separately (in terms of the presented alternatives) the main and alternative proposals of the participant. If any alternative proposal differs from the main or other alternative only in price, then all alternative proposals of such participant are rejected. 4. Upon completion of the selection stage, the members of the commission draw up a List of participants in competitive negotiations admitted to the negotiation stage (hereinafter referred to as the List), indicating the participant’s proposals (main/alternative), if any were submitted.” 5. Based on the results of the selection stage, the commission draws up a protocol, which indicates a list of participants who submitted applications for participation in competitive negotiations, information about rejected applications for participation in competitive negotiations, indicating the reasons for rejection, and information about participants admitted to competitive negotiations who entered to the List specified in part 4 of this article. The specified protocol is posted on the official website for placing orders no later than the day following the day the protocol is signed. At the same time, in the protocol posted on the official website, it is allowed not to indicate information about the composition of the commission and data on the personal voting of the commission.

Article 66. Conducting competitive negotiations

1. After considering applications for participation in competitive negotiations, persons authorized by the commission conduct recorded negotiations with participants in competitive negotiations identified in the List. 2. Negotiations may be held in one or several rounds. The order of negotiations is determined by the commission. Negotiations can be conducted in relation to any requirements of the Customer and any proposals of the participant regarding the properties and characteristics of work, services, conditions for performing work, provision of services and payment, terms and form of the contract, conditions and procedure for attracting co-contractors (subcontractors, subsuppliers) by the participant in the event that if the customer or authorized body allows participants in the procurement procedure to involve co-executors (subcontractors, subsuppliers) for the execution of the contract. 3. Participants admitted to negotiations must be sent notices indicating the date, time and place of competitive negotiations. 4. When conducting negotiations, all participants in these negotiations are required to maintain confidentiality and the following requirements: any negotiations between persons authorized by the commission and a participant in competitive negotiations are confidential; neither party to the negotiations discloses to any other person any technical, pricing or other information relating to these negotiations without the consent of the other party; in the process of negotiations between persons authorized by the commission and the participant in competitive negotiations, the participant’s proposal (main/alternative) must be selected, if such proposals are reflected in the List. 5. Negotiations are recorded, each protocol of negotiations is signed by persons authorized by the commission and participants in the negotiations present at the competitive negotiations.

Article 67. Selection of the Winner of competitive negotiations

1. The assessment of applications for participation in competitive negotiations is carried out taking into account the results of negotiations recorded in the protocol in accordance with the procedures and criteria established in the documentation on competitive negotiations. The criteria for assessing and comparing applications for participation in competitive negotiations may be the criteria specified in Part 1 of Article 13.1. 2. Based on the results of the assessment of applications for participation in competitive negotiations, each application for participation in competitive negotiations relative to others, as the degree of profitability of the terms of the contract contained in them and the negotiation protocols decreases, is assigned a serial number. An application for participation in competitive negotiations, which (taking into account the information specified in the protocols of negotiations with the participant who submitted it) contains Better conditions, the first number is assigned. The winner of competitive negotiations is the participant whose application for participation in the competitive negotiations is assigned the first number. 3. The commission maintains a protocol for the evaluation of applications for participation in competitive negotiations, which reflects information about the place, date, time of the evaluation of such applications, the procedure for evaluating applications for participation in competitive negotiations, the names and postal addresses of the participants whose applications were evaluated, accepted on the basis of the results of the assessment for participation in competitive negotiations on assigning serial numbers to such applications, the name and postal address of the participant in the competitive negotiations recognized as the Winner, which is signed by the members of the commission. The specified protocol is posted on the official website for placing orders no later than the day following the day the protocol is signed. At the same time, in the protocol posted on the official website, it is allowed not to indicate information about the composition of the commission and data on the personal voting of the commission.

Article 68. Conclusion of an agreement based on the results of competitive negotiations

1. The winner of competitive negotiations must ensure the signing of the Agreement on his part within a period of no more than 10 (ten) calendar days from the date of signing the protocol for evaluating applications for participation in competitive negotiations by the Customer. The customer signs the contract on his part after receiving the contract signed by the winner of the competitive negotiations within the period established in the documentation for the competitive negotiations, but not earlier than 10 days from the date of publication of the protocol for evaluating applications for participation in the competitive negotiations. 2. The terms of the Agreement are determined in accordance with the Customer’s requirements specified in the Documentation on competitive negotiations and the information contained in the application for participation in competitive negotiations, taking into account the results of negotiations recorded in the protocol of negotiations with this participant. 3. In cases where the Winner refuses to sign the Agreement, including in the case of failure to sign the Agreement within the time period established in Part 1 of this article, the Customer has the right to conclude an Agreement with the participant in the competitive negotiations, whose application was assigned the second serial number, then the third number. In this case, the specified participants in competitive negotiations must ensure the signing of the Agreement within no more than 10 (ten) calendar days from the date of receipt of notification of the Customer’s decision to conclude the Agreement. In case of refusal of the participants who took first, second and third places to sign the Agreement, the procedure for conducting competitive negotiations is recognized as not having taken place. 4. If the parties do not agree on the terms of the Agreement, the Customer has the right to refuse to conclude the Agreement without giving reasons, without reimbursing the Participant for the expenses incurred in connection with participation in the competitive negotiations procedure. 5. The organizer of the order placement, after signing the Agreement, as well as in cases where competitive negotiations are recognized as failed, publishes a Notice of the results of competitive negotiations on the official website for placing orders, in which it indicates:

summary

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The process of selecting a counterparty can be simplified if the procurement regulations, in addition to a competition or auction, provide for other procurement methods, including:

This can be done by the Federal Law of July 18, 2011 No. 223-FZ “On the procurement of goods, works, services by certain types of legal entities” (hereinafter referred to as the Procurement Law).

Request for quotation

The enterprise informs an unlimited number of persons about the request for quotation by posting a notice on official website . The participant who offers the most wins the quotation request. low price(Clause 1 Article 72 Federal Law dated April 5, 2013 No. 44-FZ “On contract system in the field of procurement of goods, works, services to meet state and municipal needs"; hereinafter referred to as Law No. 44-FZ).

To determine the rules for requesting quotations in the procurement regulations, you can be guided by the norms of Law No. 44-FZ, but this is not necessary. In the provision, the enterprise has the right to independently determine the specific conditions for conducting a request for quotation, for example:

the procedure for requesting quotations does not impose an obligation on the enterprise to enter into an agreement with the winner of the request for quotations or any other participant;

An enterprise has the right to refuse to conduct it at any stage of the quotation request procedure by posting a message about this on the official website. In this case, the enterprise is not responsible to procurement participants, including for reimbursement of costs associated with the preparation and submission of a quotation application;

the enterprise is not responsible if bidders or procurement participants have not familiarized themselves with the notice of refusal to conduct a request for quotation;

Each procurement participant has the right to submit only one quotation request, changes to which are not permitted.

A request for quotations should be carried out in cases where, for example, all technical and functional requirements for the purchased products have been precisely defined and a decision has been made to use the only criterion when selecting the winner - the contract price.

The Procurement Law does not contain rules on requesting quotations. Therefore, the enterprise has the right to independently determine the procedure and cases of its implementation. However, when describing the conditions for requesting quotations in the procurement regulations, it is necessary to take into account the requirements of antimonopoly legislation. They are established in Article 17 of Federal Law No. 135-FZ “On the Protection of Competition” (hereinafter referred to as the Law on the Protection of Competition).

This article prohibits, when requesting quotes and take actions that lead or may lead to the prevention, restriction or elimination of competition. Including when:

— the enterprise has created preferential conditions for participation by one or more participants, including through access to information. Conditions are not considered preferential if the requirements for participants are not personalized and apply to all possible participants without exception;

An example from practice: the court upheld the decision of the antimonopoly authority, indicating that the requirement for competition participants to register compulsorily in the territory of the ZATO violates antimonopoly and procurement laws

FSUE "S." posted on a specialized website a notice of an open competition to carry out design, construction and installation work on the territory of a closed administrative-territorial entity (hereinafter - CATO). LLC "D.", whose application for participation was rejected, filed a complaint with the OFAS for the Penza region (hereinafter referred to as the antimonopoly authority).

The antimonopoly authority satisfied the complaint, indicating the following. FSUE "S." stipulated in the tender documentation that participants must be registered at the place of performance of work (provision of services). Participants who did not have such registration were not allowed to participate in the competition. This means that the tender documentation violates the requirements of paragraph 2 of part 1 of Article 17 of the Law on Protection of Competition.

Having disagreed with the decision and order of the antimonopoly authority, FSUE "S." went to court.

The court rejected the claim, citing the following. ZATO is the territory where it is established special treatment safe functioning of organizations and facilities (Article 3 of the Law of the Russian Federation of July 14, 1992 No. 3297-1 “On a closed administrative-territorial entity”). In particular, entry into its territory is limited. Therefore, employees of the winning bidder will, if necessary, be required to obtain an entry permit. This fact must be taken into account by the participants and unconditionally observed if they are recognized as winners. At the same time, these conditions cannot be interpreted as excluding the very possibility of carrying out activities and participation in competitive procedures of Russian business entities, not registered on the territory of ZATO.

Thus, the requirement for competition participants to register compulsorily on the territory of a closed administrative entity violates not only the Law on Protection of Competition, but also the goals and principles of the Procurement Law (Articles 1, 3 of the Procurement Law) (definition Supreme Court RF dated January 21, 2015 in case No. 306-KG14-1616, A49-8135/2013).

— the enterprise violated the procedure for determining the winner of the request for quotation;

Example from practice: the court came to the conclusion that the decision of the antimonopoly authority was legal, since the company, when determining the winner of the request for proposals, used an additional criterion that was not provided for in the procurement documentation

Four applications were submitted from LLC "R.", OJSC "S.", LLC "N." and LLC "R.G." The procurement commission accepted the application of LLC "R." not meeting the requirements of procurement documentation. Negotiations in absentia were held with admitted participants to reduce the contract price and confirm compliance with the delivery schedule. LLC "R.G." was recognized as the winner.

OJSC "S." did not agree with this result and filed a corresponding complaint with the FAS Russia.

The antimonopoly authority conducted an inspection and came to the conclusion that the winner of the request for proposals should have been OJSC "S."

The customer filed a lawsuit demanding that the decision of the Federal Antimonopoly Service of Russia be declared illegal. The court rejected the application, citing the following. The procurement documentation provides for two criteria for evaluating applications: the contract price and the experience of the participant. However, when determining the winner, the procurement commission used an additional criterion - compliance or non-compliance with the delivery schedule in the final bid of the participants. Therefore, the conclusions of the antimonopoly authority that the plaintiff violated both the procurement documentation and paragraph 3 of part 1 of Article 17 of the Law on Protection of Competition are legitimate (resolution of the Moscow District Arbitration Court of January 21, 2015 No. F05-15169/2014 in case No. A40-34303 /14).

- the enterprise as the customer or the organizer of the request for quotation authorized by it and (or) their employees participate in it. It should be borne in mind that if any of these persons is the founder legal entity, such legal entity has the right to participate in the request for quotations that they conduct. This conclusion follows from judicial practice;

Example from practice: the court invalidated the decision and order of the antimonopoly authority, since the law does not establish a ban on participation in tenders for legal entities whose founders are auction organizers or customers and (or) their employees

Applications were submitted from LLC "B." and LLC "I."

The commission rejected the application of I. LLC, since it was submitted directly to the customer, but was not posted on the website. In addition, the application did not contain the approval of the Corporate Protection Department.

Application of LLC "B." was admitted to participate and was recognized as the winner of the request for proposals.

By decision of the Federal Antimonopoly Service the customer’s actions were declared illegal. One of the grounds for making the decision and issuing the order was the conclusion of the Federal Antimonopoly Service that the application for participation in the request for proposals was signed on behalf of G. LLC. citizen S. At the time of filing the application, he was also an adviser to the general director of the customer, which violates the requirements of paragraph 4 of Article 17 of the Law on Protection of Competition.

LLC "G." appealed the decision of the Federal Antimonopoly Service in court.

The court granted the application, citing the following. The Law on Protection of Competition contains a ban on direct participation in tenders by the organizer, customer or their employees. However, it does not contain a ban on participation in tenders by legal entities whose heads are employees of the organizer or customer. Therefore, the fact that the customer’s employee S. was at the same time general director participant in the request for proposals cannot be considered illegal (resolution of the Federal Antimonopoly Service of the North-Western District dated September 26, 2013 in case No. A52-326/2013).

— the enterprise, as the customer or the organizer of the request for quotation authorized by it, coordinates the activities of its participants.

It should be borne in mind that the customer and organizer also do not have the right to:

conduct negotiations with the participant from the moment the procurement is announced until the winner is determined, unless otherwise provided by the procurement regulations;

provide participants with information about the proposals of other participants, the progress of the procurement and decisions made. The prohibition does not apply to information that is in the public domain.

This conclusion follows from paragraph 1 of section V of the Procurement Standard individual species legal entities (approved by the FAS Russia on July 21, 2015).

An example from practice: the antimonopoly authority made a decision to hold the customer accountable for coordinating the activities of tender participants and requesting quotes. The basis for overturning this decision in court was the receipt of evidence of coordination in violation of the law

After this, the antimonopoly authority received information that the customer and the bidders acted in concert during their organization and conduct. The evidence was presented telephone conversations officials and bidders.

The antimonopoly authority came to the conclusion that there was a violation of Article 16 of the Law on Protection of Competition. This led to the prevention of competition in the market for professional retraining services. The perpetrators were given orders.

TU applied to the court to invalidate the decision and order of the antimonopoly authority. The court satisfied the requirements, indicating that the evidence presented (recordings of conversations) did not comply with the principle of admissibility. There was no court sanction to carry out operational-search activities, which did not make it possible to establish the legality of the interception.

The cassation court upheld the decision (resolution of the Federal Antimonopoly Service of the North-Western District dated September 17, 2012 in case No. A56-57760/2011, the decision of the Supreme Arbitration Court of the Russian Federation dated December 29, 2012 No. VAS-16913/12 refused to transfer the case to the Presidium Supreme Arbitration Court of the Russian Federation for review in the order of supervision).

Competitive negotiations

To determine the winner, the company negotiates with at least two participants in the procurement procedure. The main features of this procurement method:

during negotiations, the participants make their proposals on the procedure for implementing the contract;

all negotiation requirements, guidelines, documentation, clarifications or other information must be communicated to all participants;

Negotiations between the enterprise and the participant are confidential. By general rule neither party discloses technical, pricing or other market information to others without the consent of the other party;

Typically, after negotiations have been completed, the enterprise will ask all participants to submit their best and final offer regarding all aspects of their proposals by a specified date. Of these, the company chooses the best one.

Such features of competitive negotiations are listed in article 49 of the UNCITRAL Model Law on the Procurement of Goods, Works and Services. This document can be used as a guideline when preparing procurement regulations.

In general, competitive negotiations are similar to requests for proposals. However, in negotiations, real communication occurs. As a rule, a protocol is drawn up. It is important for an enterprise to establish that competitive negotiations are not tenders. Otherwise, they will be subject to antitrust laws.

An example of the wording of the condition that competitive negotiations are not tenders

“Competitive negotiations are conducted in accordance with the legislation of the Russian Federation, but are not an auction or competition and their conduct is not regulated by articles 447-449 of part one of the Civil Code of the Russian Federation. Competitive negotiations are also not a public competition and are not regulated by Articles 1057-1061 of Part Two of the Civil Code of the Russian Federation. Thus, this procedure does not impose on the Customer a corresponding volume of civil legal obligations for the mandatory conclusion of an agreement with the winner of competitive negotiations or another participant.”

Request for proposals

When requesting proposals (proposal to make offers), the commission establishes in the text of the request for proposals the criteria and procedure for evaluating offers. Based on them, it determines the participant who offered the best terms of the contract.

In this case, the person who initiated the request for proposals is not obliged to enter into an agreement with the participant who offered the best conditions. This is the difference between a request for proposals and a bidding process. This must be reflected in the procurement regulations. The wording may be , as well as to describe the specifics of competitive negotiations.

If this is not provided for in the procurement regulations, then the request for proposals may be qualified as a tender. And then the enterprise will be subject to the full scope of relevant civil obligations.

Case study: the court rejected a request to oblige the customer to enter into an agreement with the winner of an open request for proposals, since the request was not a tender

LLC "R." was declared the winner of the request. The customer refused to sign the contract due to the fact that he had leased the building.

LLC "R." appealed to the court with a demand to oblige the customer to enter into an agreement.

The court rejected the claim based on the following. The request for proposals procedure is not a tender, as is expressly stated in local acts regulating purchases of JSC "D." This procedure does not impose on the customer a corresponding amount of civil obligations, including the mandatory conclusion of an agreement with the winner of the request for proposals or another participant. This means that JSC "D." had the right to refuse to conclude an agreement in the event of a change in its needs or other justified reasons (resolution of the Arbitration Court of the Ural District dated December 12, 2014 No. F09-8172/14 in case No. A34-1410/2014).

It is especially worth noting that the request for proposals is subject to antitrust laws.

Purchasing from a single supplier

When purchasing from sole supplier(performer, contractor), the enterprise offers to conclude an agreement with only one person.

The Procurement Law does not limit the cases in which this procurement method can be used. Therefore, the company should provide appropriate conditions in the procurement regulations. You can indicate, for example, the cases listed in Article 93 of Law No. 44-FZ, and others.

Article 42. Competitive negotiations

1. Placement of an order through competitive negotiations is carried out when purchasing complex products or purchasing in difficult situations when the customer, for some reason, is unable or does not consider it appropriate to clearly and clearly establish the requirements for the purchased product or the terms of the contract being concluded.

2. Competitive negotiations can be open or closed. When conducting closed competitive negotiations, the provisions of this chapter are applied, taking into account the provisions of Article 13 of these Regulations.

3. Competitive negotiations are not a type of bidding. The decision on the possibility of purchasing through competitive negotiations is made in the manner provided for in Part 4 of Article 9 of these Regulations.

Article 43. Procedure for conducting competitive negotiations

1. The procedure for conducting specific competitive negotiations is established in the invitation to participate in competitive negotiations and in the procurement documentation in accordance with the requirements of these Regulations.

2. Competitive negotiations are carried out in the following sequence:

1) an invitation to participate in competitive negotiations;

2) provision of procurement documentation to potential participants in competitive negotiations;

3) preparation by potential participants of competitive negotiations of their applications for participation in competitive negotiations;

4) clarification of procurement documentation, making changes to procurement documentation;

5) conducting competitive negotiations;

6) selection of participants in competitive negotiations, evaluation of applications and selection of the winner;

7) performing final procedures.

3. An invitation to participate in competitive negotiations is posted by the procurement organizer on the company’s website and the official website at least 15 (fifteen) calendar days before the deadline for submitting applications for participation in competitive negotiations. An invitation to participate in closed competitive negotiations must be made in such a way that all persons invited to participate in closed competitive negotiations would learn about it within a reasonable time.

4. The procurement organizer has the right to additionally publish an invitation to participate in competitive negotiations in any media, including electronic ones.

5. The invitation to participate in competitive negotiations must contain the information provided for in Part 7 of Article 6 of these Regulations.

6. Changes may be made to the invitation to participate in competitive negotiations and procurement documentation no later than 5 (five) calendar days before the deadline for submitting applications to participate in competitive negotiations. Changing the subject of competitive negotiations is not allowed.

7. Changes in the invitation to participate in competitive negotiations and procurement documentation are posted on the company’s website and official website within 3 (three) calendar days from the date of the decision to make such changes and are sent in writing or in the form electronic document simultaneously to all potential participants who have officially received an invitation and procurement documentation.

8. The customer has the right to refuse to conduct competitive negotiations no later than 5 (five) calendar days before the deadline for submitting applications, unless a different period is established in the invitation to participate in competitive negotiations. A notice of refusal to conduct competitive negotiations is posted on the company’s website and the official website within 3 (three) calendar days from the date of the decision to refuse to conduct competitive negotiations.

9. Procurement documentation is provided by the procurement organizer during the entire period from the date of publication of the invitation to the closing date for accepting applications for participation in competitive negotiations at the request of potential participants in competitive negotiations, sent in writing or in the form of an electronic document. Procurement documentation must be made available upon request from any potential competitive negotiator.

10. An invitation to participate in competitive negotiations and procurement documentation must contain all the requirements and conditions for participation in competitive negotiations established by the procurement organizer, requirements for an application to participate in competitive negotiations, an indication of the timing and, if necessary, location of competitive negotiation procedures. The use of requirements or procedures within the framework of competitive negotiations that are not provided for by the legislation of the Russian Federation, the terms of the invitation to participate in competitive negotiations and procurement documentation is not permitted.

11. Applications for participation in competitive negotiations submitted by potential participants in competitive negotiations must comply with the requirements of the procurement documentation.

12. A potential participant in competitive negotiations has the right to send to the procurement organizer a request for clarification of the procurement documentation. The procurement organizer is obliged to respond to the request in writing or in the form of an electronic document, sending a copy of the response indicating the essence of the question (but without indicating the name or address of the potential participant in competitive negotiations who asked this question) simultaneously to all potential participants who officially received the procurement documentation. A response to a request for clarification of procurement documentation is sent to potential participants and posted on the company’s website and official website within 3 (three) calendar days from the date of receipt of the request.

13. Negotiations are conducted by the authorized body of the procurement organizer, at its discretion, separately with each of the participants or together with all participants after the deadline for submitting applications in accordance with the negotiation schedule established by the procurement organizer. Negotiations can be conducted in relation to any requirements of the procurement organizer and any proposals of the participant regarding the properties and characteristics of the product, the cost of the product and the terms of its delivery and payment, the terms and form of the contract. Negotiations are recorded, the protocol is signed by the authorized body and a representative of the participant in competitive negotiations.

14. The selection of participants in competitive negotiations is carried out from among potential participants in competitive negotiations, whose applications were received within the established time frame and with whom competitive negotiations were held. As part of the selection, the procurement organizer checks submitted applications for participation in competitive negotiations (taking into account the results of negotiations recorded in the protocol of negotiations with this participant) for compliance with the established requirements and conditions of the invitation to participate in competitive negotiations and procurement documentation, in particular:

1) availability and execution of the required documents;

2) compliance of the offered products and the proposed terms of the contract;

3) suitability of the potential participant.

15. If the application of a potential participant in competitive negotiations (taking into account the results of negotiations recorded in the protocol of negotiations with this participant) or the potential participant himself does not meet any of the above requirements, his application is rejected.

16. If the application of a potential participant and the participant in the negotiations meets all the above requirements, this potential participant is recognized as a participant in the negotiations, and his application (taking into account the results of negotiations recorded in the protocol of negotiations with this participant) is subject to further evaluation. The decision to reject applications or to evaluate is made by the authorized body and documented in a protocol. All potential participants in competitive negotiations are immediately informed of the decision made in their respect in writing or in the form of an electronic document.

17. If, based on the results of the selection, only one potential participant or no potential participant is recognized as a participant in competitive negotiations (including in the case when not a single application was submitted for competitive negotiations), the competitive negotiations are recognized as failed.

Article 44. Evaluation of applications for participation in competitive negotiations and the procedure for concluding an agreement based on the evaluation results

1. The assessment of applications for participation in competitive negotiations is carried out taking into account the results of negotiations with this participant recorded in the protocol of negotiations in accordance with the procedures and criteria established in the invitation to participate in competitive negotiations and procurement documentation. Criteria for assessing applications for participation in competitive negotiations may relate to:

1) the cost of the proposed product, considered either directly or taking into account the customer’s costs when accepting this proposal (for example, price plus operating, maintenance and repair costs, required additional costs, etc.);

2) economic, technical, organizational, financial, legal attractiveness of the application from the point of view of meeting the customer’s needs (including the proposed contractual terms);

3) the reliability of the participant and the declared co-executors (subcontractors), based on the participant’s work experience, his business reputation, and the availability of material, technical, production, human, financial, and information resources.

2. If this is provided for in the invitation to participate in competitive negotiations, the procurement organizer has the right to refuse to conduct them within the period specified in this invitation before summing up the results of competitive negotiations.

3. Based on the results of evaluating applications for participation in competitive negotiations, the authorized body ranks applications (assigns places) according to the degree of decrease in the attractiveness of applications, starting with the most attractive and ending with the least attractive. The winner of competitive negotiations is the participant whose application for participation in competitive negotiations is awarded first place. Solution authorized body documented in a protocol.

4. On the day the winner is selected, the procurement organizer sends a message to the winner of competitive negotiations by registered mail, telegram or in the form of an electronic document about his selection as the winner and the timing of signing the contract.

5. Protocols drawn up in the process of competitive negotiations are posted on the company’s website and official website within 3 (three) calendar days after their signing.

6. If the winner of competitive negotiations refuses to conclude an agreement, the right to conclude which was the subject of competitive negotiations, the procurement organizer has the right to conclude an agreement with the participant in competitive negotiations who took second place, and if he refuses to conclude an agreement, with the participant who took third place, and so on.

7. The contract, the right to conclude which was the subject of competitive negotiations, is signed by the customer and the winner of competitive negotiations within the period established in the invitation to participate in competitive negotiations and procurement documentation. The terms of such an agreement are determined in accordance with the invitation to participate in competitive negotiations and procurement documentation, on the one hand, and the application for participation in competitive negotiations, taking into account the results of negotiations recorded in the protocol of negotiations with this participant, on the other hand.

8. After signing an agreement, the right to conclude which was the subject of competitive negotiations, the refusal of all participants in competitive negotiations to sign the agreement or recognition of competitive negotiations as invalid, the procurement organizer must make a notification about the results of competitive negotiations in the same manner as the invitation to participate in competitive negotiations was made negotiations The notification of the results of competitive negotiations must indicate exactly how the competitive negotiations ended, and if, as a result of the competitive negotiations, an agreement was concluded, the name and address of such participant and the total cost of products under this agreement.

Chapter 10. "Competitive Negotiations"

10.1. Competitive negotiations (hereinafter - Negotiations) are a competitive method of procurement, in which the Customer informs suppliers in advance about the need for products, invites them to submit applications, and the procurement commission appointed by the Customer reviews them and rejects the procurement documentation that does not meet the requirements, conducts Negotiations with at least two procurement participants unaffiliated with each other, evaluates the relevant applications (taking into account the results of the Negotiations) and determines the winner based on a set of criteria announced in the procurement documentation. For the purposes of these Regulations, the winner is the person who offered the best terms for the execution of the contract.

The customer of competitive negotiations may refuse to conduct them, without compensating the procurement participants for any losses.

Competitive negotiations are not auctions under the legislation of the Russian Federation and the organizer or customer has the right, but not the obligation, to enter into an agreement with the winner.

Competitive negotiations as a procurement method are used in the following cases:

When it is impracticable to formulate detailed specifications of goods (works) or, in the case of services, to determine their characteristics, and to identify the most appropriate solution to meet your procurement needs;

Based on the results of consideration of proposals from participants in other procurement procedures, the procurement commission decided to conduct such Negotiations;

Due to the technical nature of the goods (works) or due to the nature of the services, it is necessary to negotiate with suppliers (contractors);

When procurement procedures have been carried out but no proposals have been submitted or all proposals have been rejected by the procuring party and when the implementation of new procurement procedures is unlikely to lead to the conclusion of a procurement contract;

As the second stage of the procurement procedure.

The customer can conduct procurement through competitive negotiations also in the case where there are several proposals that contain the same conditions for the execution of the contract.

The customer has the right to purchase goods, works, and services through competitive negotiations in an amount not exceeding three million rubles.

10.2. Before the start of negotiations structural subdivision The Customer, in whose interests the procurement will be carried out, develops and sends to the Customer the following information (if such information was not previously provided when planning procurement in accordance with Chapter 3 of these Regulations):

Requirements for purchased goods, works, services, including description of goods, works, services, their functional, quantitative and quality characteristics, timing and/or scope of providing quality guarantees; place, conditions and terms (periods) of delivery of goods, performance of work, provision of services; the initial (maximum) price of the contract and the procedure for its formation; form, terms and procedure of payment;

Requirements for suppliers (contractors, performers), taking into account the provisions of paragraphs. 4.2.-4.2.2.1 of these Regulations;

Criteria for evaluating applications, as well as the methodology for their evaluation and comparison.

10.3. The customer may establish a requirement to deposit funds as security for an application for participation in Negotiations and to ensure the execution of the contract. In this case, the amount of security for an application for participation in Negotiations cannot exceed five percent of the initial (maximum) contract price (lot price), and the amount of contract security cannot exceed thirty percent of the initial (maximum) contract price. The way to ensure the execution of the contract is to transfer funds to the Customer as collateral, including in the form of a contribution (deposit) in the amount of security for the execution of the contract provided for in the documentation.

If the Customer has established a requirement to secure an application for participation in Negotiations and to ensure the execution of the contract, such a requirement applies equally to all procurement participants and is indicated in the notice of Negotiations and procurement documentation.

10.4. Notice of the Negotiations is posted in the unified information system no less than five days before the deadline for submitting applications.

The Customer has the right to refuse to conduct Negotiations at any time in accordance with the terms published in the notice of Negotiations.

The notice of refusal to conduct Negotiations is posted by the Customer in the unified information system within two working days from the date of the decision.

10.5. The notice of Negotiations must indicate the information contained in these Regulations, as well as information on the amount of security for the application for participation in the Negotiations and/or security for the execution of the contract (clause 7.3 of the Regulations), the deadline and procedure for depositing funds as security for the application for participation in Negotiations and/or security for the execution of the contract, account details for transferring the specified funds, if such security is established by the Customer.

10.6. The procurement documentation must indicate the information contained in these Regulations, as well as information on the amount of security for the application for participation in the Negotiations and/or security for the execution of the contract (clause 7.3 of the Regulations), the deadline and procedure for depositing funds as security for the application for participation in Negotiations and/or security for the execution of the contract, account details for the transfer of the specified funds, if such security is established by the Customer.

The documentation must be accompanied by a project, which is an integral part of both the procurement documentation and the notice of negotiations. The procurement documentation is posted in the unified information system simultaneously with the posting of the notice of Negotiations. Documentation must be available for review in a unified information system without charging a fee.

Changes to the notice of Negotiations and/or documentation are made by the Customer in the manner established by clause 5.7 of these Regulations.

Any participant in the Negotiations has the right to request clarification of the provisions of the documentation. Clarifications are posted by the Customer in the unified information system no later than within three days from the date of the decision to provide these clarifications.

10.7. The procedure for submitting applications for participation in competitive negotiations:

1) to participate in the Negotiations, the procurement participant submits an application within the time frame and in the form established by the documentation;

2) the procurement participant submits an application in writing in a sealed envelope. All application sheets must be stitched, numbered and sealed by the procurement participant and signed by the procurement participant or a person authorized by such procurement participant. The procurement participant has the right to submit only one application;

3) the application must contain information in accordance with the terms of the documentation, including:

Name (company name), information about the organizational and legal form, location, postal address (for a legal entity), last name, first name, patronymic, passport details, information about place of residence (for an individual), contact telephone number;

An extract from the unified state register of legal entities received no earlier than three months before the date of posting in the unified information system of the notice of negotiations, an extract from the unified state register individual entrepreneurs or their notarized copies, copies of identity documents (for other individuals);

A document confirming the authority of a person to carry out actions on behalf of the procurement participant (a copy of the decision on appointment or election, in accordance with which this person has the right to act on behalf of the procurement participant without a power of attorney or a power of attorney to carry out actions on behalf of the procurement participant),

Copies of the constituent documents of the procurement participant (for legal entities);

A decision on approval of a transaction (including the provision of security) by the management bodies of a legal entity if the requirement for the need for such a decision to complete a transaction is established by the legislation of the Russian Federation and the constituent documents of the legal entity;

Description of the supplied product, its functional characteristics (consumer properties), its quantitative and qualitative characteristics, description of the work performed, the service provided, their quantitative and qualitative characteristics, as well as other proposals on the terms of the contract, including a proposal on the contract price, price units of goods, services or work;

Documents confirming the deposit of funds as security for the application ( payment order, confirming the transfer of funds as security for the application or a certified copy of such an order), in cases where the documentation provides for the provision of security;

Copies of documents confirming the procurement participant’s compliance with the requirements of Chapter 4 of these Regulations.

Failure to provide the specified information and documents is grounds for refusal of admission to participation in the Negotiations of the procurement participant.

At the request of the procurement participant who submitted the application, he is given a receipt of the application indicating the date and time of its receipt;

4) acceptance of applications for participation in the Negotiations ceases on the day of opening the envelopes with such applications. An application received by the Commission after the deadline for submitting applications for participation in the Negotiations has not been opened and is returned to the person who submitted it;

5) the procurement participant who submitted the application has the right to change or withdraw it at any time before the Commission opens the envelopes with applications;

6) if, after the deadline for submitting applications, only one application is submitted or no application is submitted, the Negotiations are recognized as failed and the Customer has the right to purchase goods, works, services that were the subject of the Negotiations from a single supplier (contractor, performer).

10.8. The procedure for opening envelopes with applications:

1) applications are opened by the Commission on the date and time specified in the notice of negotiations and in the documentation, or on the expiration of any extended deadline, at the place and in accordance with the procedures specified in the documentation;

2) procurement participants who submitted applications or their representatives have the right to be present when the envelopes with applications are opened;

3) the name and address of each procurement participant whose application is opened, the availability of information and documents provided for in the procurement documentation, the terms of execution of the contract specified in such an application and which are the criterion for evaluating applications, are announced when opening envelopes with applications and are entered into the protocol of opening envelopes with applications;

4) the protocol for opening envelopes with applications is signed by all present members of the Commission immediately after opening the envelopes with applications.

The protocol must be posted by the Customer no later than one business day following the day of signing such a protocol in the unified information system.

10.9. Procedure for consideration of applications:

1) The Commission reviews applications for participation in Negotiations for compliance with the requirements established by the documentation and compliance of procurement participants with the requirements established by Chapter 4 of these Regulations;

2) as a result of consideration of applications by the Commission, a decision is made on admission to participation in the Negotiations of the procurement participant or on refusal of admission;

3) The Commission draws up a protocol for considering applications, which is signed by all members of the Commission present at the meeting on the day the consideration of applications ends and must be posted by the Customer in a unified information system. The protocol must contain information about the procurement participants who submitted applications to participate in the Negotiations, the decision on the admission of the procurement participant to participate in the competition or on the refusal to allow the procurement participant to participate in the competition. The protocol must contain a schedule of Negotiations with admitted participants.

4) Negotiations are considered invalid if:

None of the applications match the documentation. In this case, the Customer has the right to purchase goods, works, services that were the subject of negotiations from a single supplier (contractor, performer);

Only one procurement participant who submitted an application is recognized as a participant in the Negotiations. In this case, the Customer enters into an agreement with such participant after signing the protocol for reviewing applications. The contract is drawn up by including the terms, including the price, proposed by such participant in the application, into the draft contract. The contract price cannot exceed the initial (maximum) price specified in the notice of negotiations.

10.10. Conducting Negotiations with participants.

Negotiations are carried out in order to clarify applications or improve them in the interests of the customer. Negotiations can be conducted in relation to any requirements of the customer and any proposals of the participant regarding the properties and characteristics of products, terms of their delivery and (or) payment, terms and form of the contract, conditions and procedure for attracting subcontractors (suppliers, co-contractors) by the participant, if this was provided for in the documentation about the purchase. At the same time, Negotiations aimed at including in the supply contract products that are functionally and (or) technologically unrelated to the products specified in the procurement documentation are not allowed.

When conducting Negotiations, the Customer and all participants in these Negotiations are required to maintain confidentiality and the following requirements:

any Negotiations between the Customer and a participant in competitive negotiations are confidential;

neither party to the Negotiations discloses to any other person any technical, pricing or other information relating to these Negotiations without the consent of the other party;

in the process of negotiations between the Customer and the participant in competitive negotiations, the main or alternative proposal of the participant must be selected, if competitive negotiations are conducted with the right to submit alternative proposals and the participant has submitted such an alternative proposal.

Negotiations are conducted by the Customer, but with the mandatory involvement of at least three members of the procurement commission and, if necessary, with the involvement of experts and authorized representatives of the customer.

Negotiations with each participant are documented in a separate Negotiation Protocol, which reflects information about the volume, initial (maximum) price of the contract, deadline for the contract, as well as the agreements reached. This protocol is signed by the Customer, members of the procurement commission present at the Negotiations and the participant. All such protocols are posted simultaneously in a unified information system within 1 day after the completion of the Negotiations.

If during the Negotiations the Customer, by decision of the procurement commission, changes the previously announced requirements for products and (or) the terms of the contract, such changes are agreed upon and approved in the same manner as the procurement documentation, and no later than 2 days from the date of approval by the Customer simultaneously and in the same amount to all participants in the Negotiations.

Based on the results of the Negotiations, the Customer has the right to request final applications from all participants with whom Negotiations were held, setting deadlines for their submission and requirements for their form and content.

The Participant has the right to refuse to participate in the Negotiations or not to submit a final bid. In this case, the initial application is reviewed and assessed by the procurement committee in accordance with the conditions set out in it.

10.11. Evaluation and comparison of applications.

1) The Commission evaluates and compares applications from procurement participants recognized as participants in the Negotiations. If necessary, the interested structural unit of the institution is involved in the consideration and evaluation of applications;

2) the assessment and comparison of applications is carried out by the Commission in order to identify the best conditions for the execution of the contract in accordance with the criteria established by the tender documentation. The total significance of such criteria should be one hundred percent;

3) assessment and comparison of applications is carried out according to price and other criteria specified in the documentation and proposed by participants as a result of Negotiations. Evaluation criteria in addition to price may include:

Functional characteristics (consumer properties) or quality characteristics of the product;

Quality of work, services and (or) qualifications of the procurement participant;

Operating costs or Maintenance goods;

Terms (periods) of delivery of goods, performance of work, provision of services;

The term and scope of providing a guarantee of the quality of goods, works, services;

4) The commission has the right to evaluate business reputation participant in the Negotiations, experience in performing work, providing services, availability production capacity, technological equipment, labor, financial resources and other indicators necessary to perform work, provide services that are the subject of the contract, including the qualifications of the Negotiation participant’s employees, if this is established by the documentation;

5) based on the results of the assessment and comparison of applications by the Commission, each application relative to others, as the degree of profitability of the contract execution conditions contained in them decreases, is assigned a serial number. The application containing the best conditions for the execution of the contract is assigned the first number. If several applications contain the same conditions for the execution of the contract, a lower serial number is assigned to the application that was received earlier than other applications containing such conditions;

6) The commission maintains a protocol for evaluating and comparing applications. The protocol is signed by all members of the Commission present on the day of the assessment and comparison of applications.

Information on the results of the evaluation and comparison of applications is posted in the unified information system during the working day following the signing of the protocol for the evaluation and comparison of applications.

10.12. The winner of the Negotiations is the participant in the Negotiations who offered the best terms for the execution of the contract, and whose application was assigned the first number.

The contract is concluded with the procurement participant recognized as the winner of the Negotiations. In this case, the Customer, within three working days from the date of signing the protocol, transfers to the winner of the Negotiations a draft agreement, which is drawn up by including the terms of execution of the agreement proposed by the winner of the Negotiations in the application for participation in the competition, in the draft agreement attached to the documentation.

If the Customer establishes a requirement to ensure the execution of the contract, the contract is concluded only after the participant in the Negotiations with whom the contract is concluded provides security for the execution of the contract.

The agreement is concluded no later than ten days from the day following the closing date for submitting applications.

10.13. If the winner of the Negotiations fails to provide the Customer with a signed contract within the period stipulated by the documentation, as well as security for the execution of the contract, if such security was established by the documentation, the winner of the Negotiations is recognized as having evaded concluding the contract.

10.14. If the winner of the Negotiations is found to have evaded concluding an agreement, the Customer has the right to conclude an agreement with the participant in the Negotiations whose application is assigned the second number. In this case, the conclusion of an agreement, as well as ensuring the execution of the agreement, if such security was established by documentation, is mandatory for the Negotiations participant whose application is assigned the second number.

10.15. If a requirement has been established to secure applications for participation in the Negotiations, the customer is obliged to return, within five working days from the date of signing the protocol for assessing and comparing applications for participation in the Negotiations, the funds contributed as security for the application for participation in the Negotiations to the participants of the Negotiations who participated in the Negotiations, but did not become the winners of the Negotiations, with the exception of the participant in the Negotiations whose application for participation in the Negotiations was assigned the second number. Cash, contributed as security for an application for participation in the Negotiations, are returned to the winner of the Negotiations within five working days from the date of conclusion of the contract with him. The funds contributed as security for the application for participation in the Negotiations are returned to the participant in the Negotiations whose application for participation in the Negotiations is assigned the second number, within five working days from the date of conclusion of the agreement with the winner in

Negotiations or with such a participant in the Negotiations.

Competitive negotiations are one of the procurement methods used by customers under 223-FZ. As a rule, it is used if a company has little time to conduct tenders or does not want to spend a lot of money on the procedure. Next, we will talk in more detail about competitive negotiations in procurement.

Competitive negotiations as a procurement method

If 44-FZ directly defines the methods for determining a supplier that can be used, then 223-FZ leaves them at the discretion of the customer. They prescribe all kinds of procedures in their regulations. One way is through competitive negotiations. Under it, the terms of purchase and requirements for participants are determined during negotiations. Before participating in such tenders, study the procurement regulations of the selected customer.

Let's consider competitive negotiations under 223-FZ using the example of three large customers. Pochta Bank is negotiating with at least two participants. As a result, the winner who best meets the requirements is determined.

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This method is used in four cases:

it is difficult for the customer to formulate detailed requirements for the product or determine the characteristics and volume of the product;
It is expected that a contract will be concluded for the purchase of information, consulting, legal services, information systems, carrying out scientific research, experiments or developments, carrying out reconstruction work, carrying out construction and installation works, advertising products (services);
due to the nature of the product, it is necessary to negotiate with participants;
complex products are purchased.

Participants can submit multiple proposals. They are called alternative.

RN-Yuganskneftegaz LLC conducts competitive negotiations when it purchases non-standard products for itself and cannot immediately set requirements for it and its suppliers. Participants formulate their proposals during negotiations.

Law No. 223-FZ changed a lot at the end of last year. From an eight-page document it has tripled in size. Read what changes have already come into force, what just came into force on July 1, 2018, and what has been postponed until January 1, 2019. And also what these changes will mean for the customer, how to insure themselves and how to start preparing for them now.

Open competitive negotiations

Competitive negotiations under 223-FZ can be carried out with all applicants for concluding a contract simultaneously. Representatives of the customer listen to the proposals of all participants who submitted applications, and then ask them to send their terms of execution of the contract, contents, price and delivery procedure. Then the customer analyzes the received data and selects the most profitable ones according to pre-established criteria.

Closed competitive negotiations

In the case of closed competitive negotiations, the customer determines in advance what price will be the maximum for this purchase. Accordingly, participants cannot submit bids with a price higher than the established one. The proposals of the participants are ranked, after which negotiations are held first with the company that took first place. If its conditions suit the customer, an agreement is concluded; if not, competitive negotiations are carried out with the participant who took second place, and so on.

How competitive negotiations take place electronically

Competitive negotiations take place electronically on the ETP. Participants submit applications via Personal Area, put everything Required documents. Each person can submit only one proposal.

See the “Information Card of Competitive Negotiations” for the terms and procedure for consideration of applications. In general, they are assessed by the customer’s commission, but experts can be involved.

The first stage is prequalification of suppliers. Initially, the commission evaluates whether the applications meet the customer's requirements. Based on the selection results, a protocol is drawn up. It indicates the participants who are admitted to competitive negotiations. They are sent notifications with the date and time of negotiations. They can go to one or more rounds. The subject of negotiations can be any requirements, properties and characteristics of products, cost, delivery conditions, etc. All participants are required to maintain confidentiality.

After each negotiation a protocol is drawn up. Further assessment of the submitted proposals of the participants is carried out taking into account the recorded results of the negotiations. Applications are ranked. The winner is the author of the proposal who is assigned the first number.

How a customer conducts competitive negotiations under 223-FZ

Konstantin Edelev, expert of the State Order System

In the procurement regulations, state the reasons why the customer is conducting competitive negotiations. For example: “...if the purchased goods, works or services are complex, there are different ways to satisfy the customer’s needs, or if the customer cannot accurately determine the characteristics and specifications of goods, works, services, or the customer has other difficulties when purchasing goods, works, services that cannot be solved without negotiations with procurement participants».