Based on Federal Law No. 44, open or closed bidding may be held. Their main purpose is to search for customers and contractors. Auctions are held for public procurement or other major purposes. According to the Federal Law No. 44, a closed auction consists in the fact that a limited number of participants participate in it. The customer independently chooses which companies will offer their goods or services. Other firms do not have access to bidding.
Grounds for
According to Federal Law No. 44, a closed auction is held only if there are good reasons. Not in all situations, the customer can independently determine which suppliers can participate in the auction. This is due to the fact that such a procedure leads to limited competition in the market. Therefore, there must be significant reasons for the auction.
Such grounds include the following:
- it is required to purchase various goods for state needs, but this is related to state secrets;
- services related to the transportation or insurance of precious metals or precious stones that belong to the Russian Federation are provided, as well as various museum collections that have either historical or cultural significance;
- requires the services of cleaners or drivers, providing the work of judges or bailiffs.
The use of such a scheme should correspond to the main purpose of the purchase, represented by the acquisition of various goods or services. In this case, the principle of free competition must be respected.
Closed bid features
According to the law 44-FZ, a closed auction has many features compared to open bidding:
- if purchases are made with the preservation of any state secret, then it is required to publish a notice of tenders 30 days before the direct auction;
- often access to documentation laid out by the customer is provided on a paid basis, but the size of this fee cannot exceed the cost of the customer to create copies of documents;
- The documentation is transmitted only on the basis of a request from potential participants, who are required to provide information that they have the right to receive information presented by state secret.
If the above rules are not followed, then the process is recognized as inadequate, so the auction is canceled.
Process
The procedure for holding a closed auction under Federal Law No. 44 is not considered to be too complicated. It consists of the following steps:
- the grounds and need for such purchases are determined;
- a future auction is being agreed with representatives of the executive branch;
- description of the subject of purchase;
- a list of participants who can act as suppliers or performers is compiled, for which the relevant criteria and requirements are developed in advance;
- the winner with whom the contract is concluded is selected.
A feature of a closed auction under Federal Law No. 44 is that it can be conducted electronically. All applications submitted by participants are considered during one stage, and its duration should not exceed 10 days. The winner of such an auction cannot submit a protocol of disagreements to the contract.
What actions are performed by the customer?
According to the Federal Law No. 44, a closed auction in electronic form can be conducted by any customer, therefore, the personal presence of all participants is not required. The customer planning to conduct such tenders must perform the following actions:
- the preliminary stage is carried out, consisting in the development of the necessary documentation, coordination of tenders with the Federal Antimonopoly Service of the Russian Federation, publication of information in the UIS and the distribution of invitations
- opening envelopes received from potential participants;
- study of applications received;
- conclusion of an agreement with the winner.
Each stage has its own nuances. The terms of a closed auction, according to the Federal Law No. 44, may be different, since they depend on the subject of procurement, the number of participants and other features.
How is the preliminary stage performed?
Closed electronic auction, according to the Federal Law No. 44, is allowed, therefore, applications can be submitted in paper or electronic form.
The preliminary stage consists of the following steps:
- documentation is being developed that describes the subject of the purchase, method of purchase, terms of reference, conditions for concluding the contract, the initial price of the contract, a list of potential participants, the number of which should not be less than 10, criteria for evaluating participants, the form of invitations and the rules for admitting companies to receive data from customer;
- bidding is agreed with the FAS of the Russian Federation, for which purpose prepared documentation with a statement is sent to this organization, after which the decision is made within 10 days;
- information on tendering in the UIS is published;
- each bidder that meets the requirements of the customer is sent an invitation containing information that allows you to participate in the auction, and also indicates the rules for submitting an application, the nuances of the formation of applications and features of security.
Additionally, the customer must form a commission, appoint a responsible person, and also distribute responsibilities among all members of the commission.
Application Review
Based on the invitations sent to participants, special applications are compiled by companies. They are sent in paper form to the customer. After this, the closed auction scheme, according to Federal Law No. 44, is as follows:
- opening of envelopes is carried out at a predetermined time by all members of the commission;
- the list of available applications is announced;
- all envelopes open within one day, and the actions of each member of the commission are recorded;
- Do not use audio or video;
- if one participant sends more than one application, then all documents will be returned to him;
- unscrupulous participants are eliminated;
- all proposals are considered by members of the commission within 20 days, but an extension of 10 days is allowed in difficult situations;
- during the study of the documentation, the customer must make sure that the application form is followed, and also all information is reliable.
After considering all the applications, a decision is made about who will be admitted to the auction. After that, it is decided who is the winner of the auction.
Conclusion of a contract with the winner
Based on the content of the applications, the winner of the auction is determined. For this, all available proposals in the documentation are evaluated. The decision is necessarily recorded, after which the contract is sent within three days to the selected participant for signing.
The price of the contract should not be more than the amount contained in the documentation sent to the participants. An agreement is drawn up within 20 days. The customer must receive from the selected winner:
- security;
- signed contract;
- licenses and permits for activity.
Information on the bank guarantee received is entered in a special register. If the winner for various reasons avoids concluding an agreement, the contract is transferred to another participant. For this, a special rating of ratings is taken into account.
A participant who has refused to conclude a contract may be sued in court to demand compensation. Additionally, information about the company is sent to the FAS of the Russian Federation.
What actions are performed by the participants?
As follows from the Federal Law No. 44, a closed auction has many features. Not all companies can participate in such tenders, so the procedure is performed only after receiving the relevant documentation from the customer. After that, the participants take the following actions:
- receiving documents from a potential customer;
- assessment of the ability to fulfill customer requirements on the basis of a predefined technical task;
- preliminary analysis of the customer company and calculation of favorable prices;
- creation of an application, for which you will first have to register an electronic digital signature;
- the application must be submitted within 20 days if the contract price exceeds 3 million rubles, and if the price is less than this value, then all necessary actions must be completed within 7 days;
- further applications are considered by the customer;
- if the participant offers the best conditions, then he becomes the winner with whom the contract is concluded within 20 days;
- the enterprise is obliged to transfer to the customer a bank guarantee, which acts as the security for the execution of the contract.
It is impossible to refuse to conclude an agreement, since in this case a participant may be considered unfair. In addition, information about him is entered into the special register of the FAS RF. Therefore, participation in a closed auction, according to Federal Law No. 44, should be carried out with the clear intention of concluding a contract.
When is the auction canceled?
According to 44-FZ, cancellation of a closed auction is possible only if there are serious reasons. The reasons for performing the procedure by the customer are as follows:
- there was no need to conduct procurement, since priorities were redistributed by the direct municipal or state body acting as the customer;
- the purchase is deemed inappropriate, since the subject of bidding will not be used for various reasons;
- during the auction it is established that the reallocation of budget money is required, therefore, some part of the financing item was reduced;
- after the audit, an overrun of the money allocated to the customer is revealed, therefore an additional audit was appointed or the budget was reduced, which made it impossible to carry out the purchase;
- there are fewer than 10 participants matching the requirements of the ToR.
Information on the cancellation of a closed auction, according to the Federal Law No. 44, should be published in open sources. Only in this case the official cancellation is really carried out. Such a publication is required to indicate the reason for this decision.
Differences from electronic auction
Closed bidding is significantly different from a standard electronic auction. The main such differences include:
- process timelines;
- order of conduct;
- number and selection rules of participants.
It is standard electronic auctions that are the most popular among many customers and participants. But almost every company wants to participate in closed tenders, since large public procurements are usually carried out on them. Additionally, participation in such an auction increases the prestige of the company.
Tips for participants
To win such an auction, follow the recommendations:
- competent choice of trading tactics;
- the correct filling of the documentation required by the customer;
- execution of an application according to customer requirements;
- providing guarantees for the fulfillment of contract requirements;
- the use in documents of charts or tables that simplify the perception of information.
Given these tips, you can count on winning the bid.
Conclusion
Closed auctions can be held in electronic form, but participants are selected only by the direct customer. The scheme for conducting such tenders has many features that all procurement participants should be aware of. To use a closed auction, there must be good reason, therefore, all participants must understand how to conduct a closed auction under Federal Law No. 44.
If a participant who becomes the winner of the tender refuses to sign the contract, then he is recognized as unscrupulous, and information about him is transmitted to the FAS of the Russian Federation, so all companies must responsibly approach their obligations.