Agreement on holding joint auctions by an authorized body. Joint bidding. Rules for holding joint competitions and auctions

GOVERNMENT OF THE RUSSIAN FEDERATION

ABOUT APPROVAL OF THE RULES
CONDUCTING JOINT COMPETITIONS AND AUCTIONS

№ 533)

In accordance with the Federal Law "On contract system in the field of procurement of goods, works, services to meet state and municipal needs" Government Russian Federation decides:

1. Approve the attached Rules for conducting joint competitions and auctions.

2. To recognize as invalid:
Decree of the Government of the Russian Federation dated October 27, 2006 No. 631 “On approval of the Regulations on the interaction of state and municipal customers, bodies authorized to perform functions of placing orders for state or municipal customers, during joint bidding"(Collected Legislation of the Russian Federation, 2006, No. 44, Art. 4602);
Decree of the Government of the Russian Federation dated October 5, 2007 No. 647 “On amendments to the Regulations on the interaction of state and municipal customers, bodies authorized to perform functions of placing orders for state or municipal customers, during joint tenders” (Collection of Legislation of the Russian Federation , 2007, No. 42, Art. 5048).

3. This resolution comes into force on January 1, 2014, with the exception of paragraph 4 of the Rules for conducting joint competitions and auctions approved by this resolution, which comes into force on January 1, 2015.

Chairman of the Government
Russian Federation
D.MEDVEDEV

Approved
Government resolution
Russian Federation
dated November 28, 2013 No. 1088

RULES FOR CONDUCTING JOINT COMPETITIONS AND AUCTIONS

(as amended by Decree of the Government of the Russian Federation dated 06/09/2014 No. 533)

1. These Rules establish the procedure for conducting joint competitions and auctions.

2. When two or more customers purchase the same goods, works, services, such customers have the right to hold joint tenders or auctions.

3. To organize and conduct a joint competition or auction, customers, authorized bodies, authorized institutions, the relevant powers of which are determined in accordance with Article 26 Federal Law"On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter referred to as customers, Federal Law), enter into an agreement among themselves to conduct a joint competition or auction (hereinafter referred to as the agreement) before the approval of the tender documentation or documentation about the auction (hereinafter referred to as documentation). In this case, the authorized body, authorized institution, which is entrusted with the authority only to identify suppliers (contractors, performers), can act as a party to the agreement only as the organizer of a joint competition or auction. The agreement contains the information specified in Part 2 of Article 25 of the Federal Law.

4. After signing the agreement, customers enter into the schedule information about the name of the organizer of the joint competition or auction (hereinafter referred to as the organizer).

5. The organization and conduct of a joint competition or auction is carried out by the organizer, to whom other customers have transferred, on the basis of an agreement, part of their powers to organize and conduct such a competition or auction. A joint competition or auction is held in the manner established by Federal Law in relation to competitions or auctions.

6. For the purpose of holding a joint competition or auction, the organizer:
a) approves the composition of the procurement commission, which includes representatives of the parties to the agreement in proportion to the volume of purchases carried out by each customer in the total volume of purchases, unless otherwise provided by the agreement;
b) develops and places in a single information system in the field of procurement, a notice of procurement, develops and sends an invitation to take part in a closed competition or auction, and also develops and approves documentation prepared in accordance with Federal Law. The initial (maximum) price indicated in such notice, invitation and documentation for each lot is determined as the sum of the initial (maximum) contract prices of each customer, and the justification for such price contains the justification for the initial (maximum) contract prices of each customer;
c) provides documentation to interested parties;
d) provides explanations of the provisions of the documentation;
e) if necessary, makes changes to the procurement notice and (or) documentation;
f) carries out placement in the unified information system in the field of procurement of information and documents, the placement of which is provided for by the Federal Law when determining the supplier (contractor, performer);
g) sends copies of the protocols drawn up during the joint tender or auction to each party to the agreement no later than the day following the day of signing of these protocols, as well as to the authorized federal body executive power in cases established by Federal Law;
h) exercises other powers delegated to him by the agreement.

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

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

9. If a joint tender or auction is declared invalid in cases established by Federal Law, a decision is made to conclude a contract with sole supplier(contractor, performer) and approval of such a decision is carried out by customers independently in accordance with Federal Law.

Joint competitions and auctions has the right to organize customers purchasing the same goods, works or services.

information about all parties to the agreement and identification code;

data on the object and volume of joint procurement, as well as conditions for the implementation of the contract;

NMTsK of each customer with its justification;

the rights and obligations of each party to the agreement;

information about the auction organizer and the powers delegated to him;

the procedure for forming the commission and the rules of its work;

timing and procedure for developing procurement documentation and its approval;

timing of joint competitions or auctions;

the procedure for paying expenses associated with organizing and conducting a tender;

validity period of the concluded agreement;

procedure for resolving disputes;

any other conditions defining the relationship between the parties to the contract.

Each customer adds information about the name of the organizer of such a tender to the procurement schedule, based on a signed agreement.

The organizer of a joint competition or auction approves the composition of the commission, which must include representatives of all customers, in an amount proportional to the initial maximum contract price of each of them in the total purchase volume.

The organizer's responsibilities include:

control of the work of the commission;

information support for procurement - from the development of documentation to its clarification;

posting information about a joint competition or auction in the Unified Information System;

after the procedure, the organizer must send copies of the protocol to all parties to the agreement no later than one day after signing these protocols.

Each customer concludes a contract with the winner separately.

The initial price is determined by each customer independently, and the amount of NMCC, which is indicated in the notice and procurement documentation, is the sum of the initial maximum price of all customers and its justification contains the justification of each of them.

The costs required for holding a joint tender or auction are borne by all customers in an amount proportional to their share of the initial maximum price in the total volume of NMCC.

Important: if the winner evades signing the contract, cash, contributed as security for the application, are divided between customers according to the same principle, i.e. in proportion to the share of NMCC in the total volume.

If, to secure an application for participation, money is deposited into a special bank account, then when depositing security for the execution of the contract, the winner must provide the money or a bank guarantee to each customer separately, based on the NMCC of each of them.

Advantages and disadvantages of joint auctions and competitions

The advantages include the fact that without the use of joint procurement, some procedures would not have been carried out at all.

For example, when it is necessary to purchase a small volume of goods or services, and therefore it is inappropriate to organize tenders due to the costs of them. Also, small volumes of purchased goods, works or services are not always profitable and interesting for suppliers, and applications for participation may not be received.

Another example, if several customers located in the same city need a product or some specific work, but the supplier or contractor is located only in a remote region and it is not profitable for him to enter into a contract with one customer. Joint procurement is beneficial for both parties, since due to the same delivery time or work completion from the supplier or contractor, logistics costs are reduced, and customers save budget funds.

For example, delivery of food products to villages or villages: if the supplier had to deliver his products to only one place, then it would be unprofitable and the costs would be more than they were. But if delivery will be carried out in several settlements located nearby, the contract will be profitable and procurement participants will show greater interest in it.

At the same time, a significant drawback may be that not every customer is ready to act as an organizer of a joint competition or auction, because rests with him big job and responsibility.

In view of this, an inexperienced customer simply will not cope with the responsibilities assigned to him, but a qualified one will be able to independently organize a tender.

In the UIS, such purchases are marked with a special icon under the purchase number.

Responsibility for violations

Administrative liability for violation is provided for both the tender organizer and members of the joint procurement commission.

Most often, violations are detected in terms of documentation and information support bidding

As practice shows, the main industry for this type of procurement is healthcare. At the same time, joint auctions are almost always held, and joint competitions are quite rare.

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The rules for holding a joint auction or competition are established by Article 25 of the Law on the Contract System, as well as Government Decree No. 1088 dated November 28, 2013. The same regulatory legal acts explain who is the organizer of such a purchase. First of all, it may be one of the customer organizations. Also, according to, together by decision customers may assign the organizer's responsibilities to other authorized bodies or institutions. In the multilateral treaty, the above-mentioned third-party bodies are noted only as the organizer, and their main task is a direct determination of the executors of the contract. After this, all institutions must make changes to the schedule indicating the full name of the auction organizer.

Features of joint procurement

In order to economize budget resources and minimize costs, customers who purchase the same goods, works or services make purchases jointly in the format of a competition or auction. A prerequisite is that the merging organizations enter into a bilateral or, depending on the number of participants, a multilateral agreement, which is based on the rules of Federal Law-44 and the Civil Code of the Russian Federation. The form of such an agreement can be downloaded at the end of the article.

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

• , calculation of the quantity and volume of goods, works or services, drawing up the technical characteristics and competition documentation necessary for the tender, justification of the procurement object is carried out by each customer organization independently and until the signing of a multilateral agreement;
• costs for the implementation are distributed taking into account the proportional shares of the NMCC of each participant in the total initial (maximum) price of the contract;
• Each participant enters into a contract independently upon identification of the winner (or winners) of the competitive procedures.

How to organize

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

Thus, step-by-step algorithm bidding by two or more customers simultaneously can be presented in the form of a table.

Requirements for a joint procurement agreement

The agreement on holding a joint competition must contain the following information (Part 2 of Article 25 44-FZ):

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

Decree of the Government of the Russian Federation of November 28, 2013 N 1088
"On approval of the Rules for conducting joint competitions and auctions"

In accordance with the Federal Law "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" the Government of the Russian Federation decides:

2. To recognize as invalid:

Decree of the Government of the Russian Federation of October 27, 2006 N 631 “On approval of the Regulations on the interaction of state and municipal customers, bodies authorized to perform functions of placing orders for state or municipal customers, during joint tenders” (Collection of Legislation of the Russian Federation, 2006 , N 44, art. 4602);

Decree of the Government of the Russian Federation of October 5, 2007 N 647 "On amendments to the Regulations on the interaction of state and municipal customers, bodies authorized to perform functions of placing orders for state or municipal customers, during joint tenders" (Collected Legislation of the Russian Federation , 2007, N 42, Article 5048).

Rules
holding joint competitions and auctions
(approved by Decree of the Government of the Russian Federation of November 28, 2013 N 1088)

With changes and additions from:

3. To organize and conduct a joint competition or auction, customers, authorized bodies, authorized institutions, the corresponding powers of which are determined in accordance with Article 26 of the Federal Law “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (hereinafter respectively - customers, Federal Law), enter into an agreement among themselves to conduct a joint competition or auction (hereinafter - the agreement) before the approval of the tender documentation or documentation about the auction (hereinafter - the documentation).

In this case, the authorized body, authorized institution, which is entrusted with the authority only to identify suppliers (contractors, performers), can act as a party to the agreement only as the organizer of a joint competition or auction. The agreement contains the information specified in Part 2 of Article 25 of the Federal Law.

5. The organization and conduct of a joint competition or auction is carried out by the organizer, to whom other customers have transferred, on the basis of an agreement, part of their powers to organize and conduct such a competition or auction. A joint competition or auction is held in the manner established by Federal Law in relation to competitions or auctions.

6. For the purpose of holding a joint competition or auction, the organizer:

a) approves the composition of the procurement commission, which includes representatives of the parties to the agreement in proportion to the volume of purchases carried out by each customer in the total volume of purchases, unless otherwise provided by the agreement;

b) develops and places in a unified information system in the field of procurement a notice of procurement, develops and sends an invitation to take part in a closed tender or auction, and also develops and approves documentation prepared in accordance with the Federal Law. The initial (maximum) price indicated in such notice, invitation and documentation for each lot is determined as the sum of the initial (maximum) contract prices of each customer, and the justification for such price contains the justification for the initial (maximum) contract prices of each customer;

c) provides documentation to interested parties;

d) provides explanations of the provisions of the documentation;

e) if necessary, makes changes to the procurement notice and (or) documentation;

f) carries out placement in the unified information system in the field of procurement of information and documents, the placement of which is provided for by the Federal Law when determining the supplier (contractor, performer);

g) sends copies of the protocols drawn up during the joint competition or auction to each party to the agreement no later than the day following the day of signing of these protocols, as well as to the authorized federal executive body in cases established by Federal Law;

h) exercises other powers delegated to him by the agreement.

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

9. If a joint tender or auction is declared invalid in cases established by Federal Law, the decision to conclude a contract with a single supplier (contractor, performer) and the approval of such a decision is carried out by the customers independently in accordance with the Federal Law.

In pursuance of the new Law on the contract system in the field of procurement of goods, works, services for state and municipal needs, a procedure has been established for holding joint competitions and auctions.

If 2 or more customers have a need for the same goods, works, services, they have the right to hold joint competitions or auctions.

For this purpose, customers enter into a special agreement among themselves. This must be done before the approval of the tender or auction documentation.

After signing the agreement, customers enter into the schedule information about the name of the organizer of the joint competition or auction.

The powers of the named organizer are specified. Thus, he approves the composition of the procurement commission. Provides documentation to interested parties and explains its provisions. Places in a unified information system in the field of procurement information and documents necessary when identifying a supplier (contractor, performer).

The parties to the agreement bear the costs of holding a joint tender or auction in proportion to the share of the initial (maximum) contract price of each customer in the total price.

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

If a joint tender or auction is declared invalid, the decision to conclude a contract with a single supplier (contractor, performer) is made by the customers independently.

The previous provision on holding joint tenders was declared invalid.

The resolution comes into force on January 1, 2014, with the exception of the requirement to include information about the name of the organizer in the schedule. It applies from January 1, 2015.

Decree of the Government of the Russian Federation of November 28, 2013 N 1088 “On approval of the Rules for conducting joint competitions and auctions”

This resolution comes into force on January 1, 2014, with the exception of paragraph 4 of the Rules for conducting joint competitions and auctions approved by this resolution, which comes into force on January 1, 2015.

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

Definition:

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

Joint bidding are carried out for the purchase of products of the same name of the same name. If several government customers cities have a need to purchase one type of product (having the same codes for All-Russian classifier species economic activity, products and services), in this case, these government customers of the city have the right to hold joint tenders or transfer the holding of joint tenders to an authorized body. At the same time, the needs of the city’s government customers are combined into one lot, and a government contract is concluded with each city’s government customer in proportion to its needs.

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

Under these conditions, the city's government customers have the right to hold joint tenders. In this case, their total needs are combined into one lot, and based on the results of the placement, separate government contracts are concluded with the winning bidder with each government customer of the city regarding its needs, as specified in the technical specifications.

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

The agreement specifies:

• a) information about customers and the authorized body conducting joint tenders (hereinafter referred to as the parties to the agreement);
• b) information about the types and expected volumes of orders in respect of which joint tenders are held;
• c) rights, obligations and responsibilities of the parties to the agreement;
• d) information about the organizer of joint tenders, including a list of functions transferred to him by the parties to the agreement for the purpose of conducting tenders;
• e) the procedure and deadline for forming a competitive (auction) commission for placing an order (hereinafter referred to as the commission);
• f) the procedure and timing for the development and approval of competitive (auction) documentation;
• g) approximate dates for holding joint tenders;
• h) the procedure for paying expenses associated with organizing and conducting joint tenders;
• i) the duration of the agreement;
• j) the procedure for considering disputes and appeals;
• k) other information defining the relationship between the parties to the agreement during joint bidding.

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

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

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

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

When conducting joint auctions, the tender documentation and auction documentation must separately determine the subject of the auction (lot) for each customer. Customers develop technical specifications and government contract projects. The organizer of joint bidding summarizes the proposals submitted by customers on the subject of joint bidding and creates a consolidated subject of bidding indicating the lots for each customer. When conducting joint tenders, information about the name of the customers, the quantity of goods supplied, the place, conditions and terms of delivery of goods, the starting price of the municipal contract is provided for each lot separately. In the notice of a competition or auction, the Organizer of joint auctions publishes and places as follows: general information about the subject of the auction, and detailed information for each lot. Draft municipal contracts must be attached to the tender documentation and auction documentation.

11/19/2012 Services provided in different territories cannot be included in one lot if this limits the number of bidders

Two or more state (municipal) customers or authorized bodies have the right to hold joint tenders for the supply (performance, provision) of goods (works, services) of the same name.
The organizer of joint bidding for the provision of home care services for disabled people and the elderly has formed 3 lots. At the same time, services provided in several municipal districts were combined into 1 lot.
The antimonopoly authority decided that such actions limit competition, reduce the number of bidders, and issued an order. The district court agreed with this conclusion.
According to the law, tender documentation should not indicate trademarks, service marks, trade names, patents, utility models, industrial designs, name of the manufacturer or place of origin of the goods. Also, it cannot contain requirements for goods, information, works, services that entail a limitation on the number of participants in placing an order. Lots cannot include goods, works, services that are technologically and functionally unrelated to the subject of the auction.
In the controversial case, due to the enlargement of lots, the size of the bid security increased. This has led to the displacement of business entities that do not have the financial ability to contribute large sums of security. The significance of the latter arose due to the artificial combination of services provided in different territories into 1 lot.

Resolution of the Federal Arbitration Court of the Ural District dated September 25, 2012 N F09-7482/12 in case N A50-25886/2011 (key topics: joint tenders - tender documentation - tender organizer - public services - procurement participant)

Ekaterinburg

Case No. A50-25886/2011

Federal Arbitration Court of the Ural District composed of:

presiding Yashchenok T.P.,

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

considered a cassation appeal at a court hearing Territorial Administration Ministries social development Perm region for the city of Perm (OGRN 1065902055746, INN 5902293361; hereinafter - management) on the decision of the Arbitration Court of the Perm Territory dated 03/14/2012 in case No. A50-25886/2011 and the decision of the Seventeenth Arbitration Court of Appeal dated 05/28/2012 on the same case.

Persons participating in the case are duly notified of the time and place of consideration of the cassation appeal, including publicly, by posting information about the time and place of the court hearing on the website of the Federal Arbitration Court of the Ural District.

Representatives of the management took part in the court hearing - Kochegarova D.F. (power of attorney dated January 16, 2012 N 02-138), Patlay M.V. (power of attorney dated September 17, 2012 N 02-9243).

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

Based on Art. 51 of the Arbitration Procedural Code of the Russian Federation, the limited liability company "Specialized Consulting" (hereinafter referred to as the "Specialized Consulting" company) was invited to participate in the case as a third party who does not make independent claims regarding the subject of the dispute.

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

By the decision of the Seventeenth Arbitration Court of Appeal dated May 28, 2012 (judges O.G. Gribinichenko, E.E. Vaseva, L.Yu. Shchekleina), the court’s decision was left unchanged.

In the cassation appeal, the department asks to cancel the appealed judicial acts, citing the incorrect application of substantive law by the courts and the discrepancy between the court's conclusions and the actual circumstances of the case.

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

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

The antimonopoly authority submitted a response to the cassation appeal, in which it requests that the complaint be dismissed, noting that the circumstances of the case were established by the courts of the first and appellate instances fully and comprehensively, the dispute was resolved with a full study of the evidence available in the case materials and with the correct application of the rules of substantive and procedural law .

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

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

Part 6 of Art. 10 of Federal Law No. 94-FZ of July 21, 2005 provides that two or more customers or authorized bodies have the right to place orders for the supply of goods of the same name, performance of work of the same name, and provision of services of the same name through joint tenders.

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

The rights, obligations, responsibilities of customers, authorized bodies during joint tenders, the procedure for conducting joint tenders are determined by agreement of the parties in accordance with the Civil Code of the Russian Federation and Federal Law of July 21, 2005 N 94-FZ. A contract with the winner or winners of joint bidding is concluded by each customer who conducted such bidding; or each customer for whom the placement of an order through tendering was carried out by an authorized body.

In accordance with parts 1, 2 of Art. 22 of Federal Law No. 94-FZ of July 21, 2005, tender documentation is developed by the customer, authorized body, specialized organization and approved by the customer, authorized body.

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

According to Part 3 of Art. 22 of the Federal Law of July 21, 2005 N 94-FZ, competition documentation must not contain indications of trademarks, service marks, brand names, patents, utility models, industrial designs, the name of the place of origin of the goods or the name of the manufacturer, as well as requirements for the goods, information , works, services, if such requirements entail a limitation on the number of participants in placing an order.

In accordance with Art. 17 of the Federal Law of July 26, 2006 N 135-FZ “On the Protection of Competition” (hereinafter referred to as the Federal Law of July 26, 2006 N 135-FZ), during bidding, actions that lead or may lead to the prevention, restriction or elimination of competition are prohibited.

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

According to Part 1 of Art. 27, part 1 art. 12 of Federal Law No. 94-FZ of July 21, 2005, a procurement participant is not allowed to participate in the competition if his application does not meet the requirements of the competition documentation.

When examining the circumstances of this case, the courts of first and appellate instances established that by orders of the Ministry of Social Development of the Perm Territory dated 09/06/2011 N SED-33-01-02-217, dated 10/21/2011 N SED-33-01-02-276 "O placing a state order for the provision of the state service "Home-based services for disabled people and elderly citizens" in 2012-2014" the state order for the provision of public services in the field social policy in 2012-2014 and budget allocations to government customers (territorial departments, interterritorial departments of the Ministry of Social Development of the Perm Territory).

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

On October 28, 2011, on the official website www.zakupki.gov.ru, the department posted notice N 0156200001511000029 about holding an open competition for the provision of the state service “Home-based services for disabled people and elderly citizens.”

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

According to the data in section 5 of the Information Map for Lot No. 1, the management has established the place of provision of services as the territory: - Perm (Dzerzhinsky, Industrialny, Kirovsky, Leninsky, Sverdlovsky, Motovilikha, Ordzhonikidze districts); Krasnokamsky and Nytvensky municipal districts; Bereznikovsky urban district and Usolsky municipal district; Solikamsk urban district and Solikamsk municipal district; Krasnovishersky municipal district; Cherdynsky municipal district. Services for lots No. 2, 3 should also be provided in the combined territories of the municipal districts of the Perm Territory.

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

Based on the results of consideration of the complaint, the antimonopoly authority came to the conclusion that the appealed actions of the management lead to a limitation of the circle of persons participating in the competition, and made a decision dated November 18, 2011 to recognize the actions of the management as violating Part 3 of Art. 22 of the Federal Law of July 21, 2005 N 94-FZ. The basis for the decision was the conclusion of the antimonopoly authority that the consolidation into one lot of services provided in territories subordinate to several territorial bodies of the Ministry of Social Development of the Perm Territory entails a limitation on the number of participants in placing an order, since due to the consolidation of lots the size also increases securing the application; At the same time, the size of the security for the execution of contracts entails the displacement of business entities that are unable to fulfill the requirement to secure the application and execution of contracts.

Based this decision the management was issued an order to eliminate violations, according to which the management was ordered to cancel the auction by December 30, 2011 (notice N 0156200001511000029); place the relevant information on the official website www.zakupki.gov.ru, and also submit documentary evidence of compliance with the order to the antimonopoly authority by December 9, 2011.

As follows from the case materials and established by the courts, the subject of the competition was the placement of an order for the provision of public services “Home-based services for disabled people and elderly citizens” in 2012-2014. One lot includes services provided in different territories of the Perm region. The organizer of the auction determined the need to combine services into one lot on a territorial basis by the fact that not all territories of government customers have organizations capable of providing such services, which, in his opinion, could lead to the impossibility of implementing a government order in a specific territory, as well as the lack of technical the possibility of holding a large number of commission meetings.

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

When examining the evidence available in the case materials according to the rules of Art. 65, 71 of the Arbitration Procedural Code of the Russian Federation, the courts of first and appellate instances took into account that such a merger should not conflict with general principles Federal Law No. 94-FZ dated July 21, 2005 in terms of providing potential bidders with guarantees for the exercise of their right to participate in tenders.

Having assessed the evidence presented in the case materials according to the rules of Art. 71 of the Arbitration Procedural Code of the Russian Federation, the courts of the first and appellate instances recognized the unification into one lot of services provided in different territories of the Perm Territory, rightfully concluding that such a combination entails a restriction of competition during bidding due to a reduction in the number of business entities that can take part in the auction, but do not have the financial ability to contribute to secure participation in the auction and to secure the contract amounts, the significance of which was due to the artificial combination of services provided in different territories of the Perm Territory into one lot, which indicates a violation by the organizer of joint auctions of the ban, established by Part 3 of Art. 22 of the Federal Law of July 21, 2005 N 94-FZ.

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

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

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

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

The management's arguments set out in the cassation appeal were the subject of consideration by the courts of first and appellate instances, they were given a proper legal assessment, and the cassation court has no grounds for its rejection. In addition, these arguments are aimed at re-evaluating the factual circumstances of the case established by the courts and the accepted evidence, which is unacceptable due to the requirements provided for in Art. 286 of the Arbitration Procedural Code of the Russian Federation.

The rules of substantive law were applied correctly by the courts of first and appellate instances. Violations of procedural law, which are by virtue of Part 4 of Art. 288 of the Arbitration Procedural Code of the Russian Federation has not identified an unconditional basis for canceling the decision or ruling of the arbitration court.

Taking into account the above, the appealed judicial acts should be left unchanged, the cassation appeal should not be satisfied.

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

DECIDED:

the decision of the Arbitration Court of the Perm Territory dated 03/14/2012 in case No. A50-25886/2011 and the decision of the Seventeenth Arbitration Court of Appeal dated 05/28/2012 in the same case are left unchanged, the cassation appeal of the Territorial Administration of the Ministry of Social Development of the Perm Region for the city of Perm - without satisfaction.

Presiding

T.P. Lizard

E.O. Cherkezov
S.N. Vasilenko