For the execution of various state or commercial contracts, open competitions are held in accordance with Federal Law No. 44. This legislative act indicates what actions are performed by customers and potential performers. When conducting such purchases, various suppliers may participate, and they may be located in different regions of the country. Due to the openness of the competition, any company can receive information about the nuances of the procedure.
Competition Stages
Holding an open tender, in accordance with Federal Law No. 44, is a strictly regulated procedure, which must take into account the numerous requirements of the law. Violation of the basic rules leads to the recognition of the results of this process as invalid. Understanding the rules should be both customers and contractors. The step-by-step instruction of the open tender in the Federal Law No. 44 is to perform the following actions:
- initially a decision is made to purchase a specific product in the form of an open tender;
- a tender commission is being formed, for which its composition and rules of work are preliminarily determined;
- competition documentation is developed and approved;
- information on its implementation is published in open sources, and this notification should contain information on the timing of the process;
- publication is required within the framework of the EIS;
- Further, for a limited period of time, applications from all potential suppliers are accepted;
- all offers are carefully considered and studied;
- a decision is made on the basis of the criteria for evaluating applications, and all these criteria should be prescribed in the tender documents;
- all participants are notified of the results of the process;
- information about the decision is published on the public procurement website;
- a contract is signed with the winner.
Each stage has its own characteristics and nuances. Criteria for an open tender, according to Federal Law No. 44, are developed by the direct buyer. They should be registered in the documentation sent to each potential supplier.
When is not allowed to use an open competition?
According to the law of the Federal Law No. 44, an open tender cannot be held in the following situations:
- Purchased goods included in the auction list;
- it is required to purchase items that are technically sophisticated, technological, specialized or innovative;
- the procurement object is a state secret, therefore it is not allowed to disseminate information about it in open sources.
In all other situations, it is allowed to use this method of purchasing different goods. Different contests can vary significantly in time, but usually it takes about one month.
What information is indicated in the notice?
If a decision is made to use an open tender, the customer must draw up competently the tender documentation. For this, a notice is initially generated, which is studied by each potential supplier.
Based on Federal Law No. 44, documentation for an open tender should include the following information:
- information on the purchaser provided by the company name, TIN, registration certificate number and legal address;
- conditions on which a contract will be concluded with the winner of the competition;
- individual purchase number;
- amount of security;
- basic requirements for potential participants;
- a list of key documents that should be prepared by the participants;
- the way by which you can get the tender documentation, for which you can use the mail, courier service or even send an e-mail;
- deadline for sending documents;
- place and date when envelopes are opened in which there are applications from potential suppliers;
- lists the various prohibitions and restrictions that suppliers will have to face;
- details of the account to which funds should be transferred in the form of collateral.
All this information is carefully examined by potential suppliers. After that, a decision is made on the advisability of participating in Federal Law No. 44 in an open competition.
Can the notice be amended?
Various adjustments by the customer can be made to the notice, and an unlimited number of times. The ban is imposed only on changing the procurement object and the size of the application security in an open tender (in accordance with Federal Law No. 44). The amendment rules include:
- the latest adjustments are made no later than 5 days before the end of the period during which suppliers can submit applications;
- on the day the changes are made, all updates must be posted to the UIS;
- after amendments, the deadline for filing applications is increased.
When all conditions are taken into account, an open tender is promptly held. According to the Federal Law No. 44, each potential supplier has the right to send different requests to the customer, on the basis of which clarifications are provided in writing regarding a particular issue. The customer is given only two days to draw up an answer.
Application preparation rules
According to Federal Law No. 44, an open tender is that any supplier has the right to participate in this process. To do this, you only need to meet the requirements of the customer, as well as competently draw up an application. The exact dates are set by the customer for filing applications. An open tender, in accordance with Federal Law No. 44, begins after the end of this period.
When preparing the application, the following requirements are taken into account:
- information about the direct supplier is recorded;
- data on the goods being sold are indicated;
- rules for the supply of products are given.
The application must provide the information requested by the customer in the notice. If important information is not available, then such an application will not be accepted.
What documents are attached?
Numerous documentation is attached to a well-formed application. The following documents belong to it:
- extract from the register, which confirms that the bidder is represented by an officially functioning company;
- protocol of appointment to the position of the head of the company;
- the decision of the organization, which indicates the approval of participation in the tender and the conclusion of a major transaction for the supply of goods;
- declaration of conformity;
- documentation proving that the bidder is in good faith if, for various reasons, the NMC was reduced by 25%;
- confirmation of the provision of security, moreover, it may be represented by a bank payment order or a bank guarantee included in a special register;
- a description of the main characteristics that the subject of procurement has
- other documents that are attached to the application by the supplier for various reasons.
An application with documents must be sent to the customer within strictly established deadlines. According to the Federal Law No. 44, an open tender can be extended if the customer makes changes to the tender documentation. All amendments are notified to potential suppliers. They must, if necessary, amend their applications.
All documents are stacked in one envelope. Sheets must be stitched and numbered. A signed application with other papers is sealed in an envelope, and an opaque envelope is selected for this, so that it is impossible to see the contents. No information about the company is registered on the envelope itself.
Application Evaluation Rules
All purchasers should know how to conduct an open tender (in accordance with Federal Law No. 44). The instruction for this process is considered simple and straightforward. The buyer independently determines by what criteria all incoming requests from suppliers will be evaluated. The basic rules are prescribed in Art. 32 of Law No. 44. All criteria are divided into two large groups:
- Cost indicators. This includes the final price of the contract, the costs associated with repairs or maintenance, as well as the costs that the customer will have to face when concluding the energy service contract. Additionally, the life cycle price of a particular product is taken into account.
- Not worth it. This includes other product parameters that may be functional, quality, or environmental. Additionally, it takes into account how long the company has been working on the market, as well as what qualifications its employees have.
When choosing a particular supplier, the customer should be guided by at least two criteria, among which price is a mandatory factor. The buyer independently determines the significance of a criterion.
For example, if the order is the implementation of construction work, then an important criterion is the experience of a particular construction company in the past.
The nuances of security
To participate in the tender, each supplier must provide security for an open tender. Federal Law No. 44 contains information that for this purpose funds may be transferred to a special account opened by the customer, and the use of a bank guarantee is also allowed.
The use of collateral guarantees that the participant will not give up his obligations if he is selected as the winner. Other companies with which no contract is drawn up will be able to receive their funds back.
Rules for concluding an agreement
The winner is determined only after evaluating all the criteria based on the applications received. A contract is signed with him by the customer.
Information about the winner will certainly be published on the public procurement website.
Under what conditions is a process recognized as failed?
According to the Federal Law No. 44, an open tender is declared invalid in two cases:
- there are no applications, therefore it is impossible to determine the winner;
- there is only one application, but the participant does not meet the requirements of the purchaser.
If during the period established for filing applications, there are no companies ready to deliver goods or perform other actions, then a repeated competition is held. If it does not end with the signing of a contract with the supplier, the information in the buyer’s notice is changed.
If only one application is submitted, but the supplier meets the requirements of the purchaser, then an agreement is concluded with him. In this case, there is no violation of the requirements of the law.
Can the contest be canceled?
Often, customers have various unforeseen circumstances, due to which there is no opportunity for an open tender. In this case, a decision may be made to cancel it. The procedure is performed no later than five days before the end of the period during which participants can submit applications.
Information about the cancellation of the tender is published in the UIS the day after the decision by the purchaser. If the customer misses the deadline established by law, the cancellation is allowed only if there is evidence of the occurrence of force majeure circumstances. They are listed in Art. 401 GK. To refuse the competition, it is important to draw up a formal notice. It indicates the reason for making such a decision, and it should be significant. For this, the basis may be used in the form of military operations in the country, the introduction of quarantine in companies or the impact on the organization of natural disasters.
Contract term
Initially, all applications are collected, which are further considered and studied by the buyer within 10 days. All companies are evaluated according to a number of criteria, after which a winner is selected from all the proposed options.
Based on the process, a protocol is published in the UIS. It contains information about who is the winner of this competition. A contract is concluded with this company within 10 to 20 days from the date of publication of this protocol.
An agreement is concluded only after the winner ensures the execution of the contract.
What to do if only one application is submitted?
Any number of suppliers may participate in open tenders. But often, buyers have to deal with a situation where only one company applies. Federal Law No. 44 provides for the possibility of concluding an agreement with a single supplier.
For this, it is important that the company that submitted the application meets the requirements of the tender documentation. She must provide the necessary security.
Conclusion
Open competitions are held only on the basis of the requirements of Federal Law No. 44. The procedure involves the opportunity to participate in the process to any number of suppliers. They must meet the requirements of the tender documentation, and security is required.
Customers determine the winner based on several criteria and only after studying the received applications. Information about the winner is published in the UIS. The contract is concluded only after the winner ensures the execution of the agreement.