How is a competition different from an auction? What is the difference between e-competition and auction? Open or closed competition

According to the norms of Russian legislation, there are two main forms of public auctions - a competition and an electronic auction. The main difference between them lies in the principle by which the winner is chosen. We will talk more about this in this article.

Auction and competition: differences

During the implementation of the state order by holding an auction, the winner is the participant who offers to fulfill the terms of the contract for the most low price. The winner in this case is determined by stepwise lowering the initial price, which is also the maximum. Another name for such a procedure within the terminology of the Civil Code is reduction.

If a participant mistakenly or deliberately indicates in his auction application a price that exceeds the value of the NMC, then he is denied admission.

Auctions are the only form of state order implementation in a number of areas. One of them is capital construction, in which all major tenders are required by law to be conducted through an electronic auction.

At the same time, a competition is a form of bidding in which:

• The winner is determined not by the customer, but by the tender commission;
• The winner is the contractor who offered not just a low price, but the most optimal conditions for the performance of work or delivery.

Thus, we can summarize:

• When distinguishing between the concepts of competition and auction, what matters is who decides on the appointment of the winner of the auction;
• Low price is only one of the components of the concept of "best conditions" in the competition;
• Another very important point- this is financial security and related capabilities of the performer. When submitting an application for the auction, each participant must ensure it without fail by making Money at the expense of the customer. If we are talking about a competition, then instead of this pledge, you can use an official bank guarantee. At the same time, the provision of liability for the execution of the contract in both cases can be formalized by providing a bank guarantee.

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What is common to all the terms presented is that they are all:

- are forms of competitive, market competition between participants for the right to conclude an agreement;

– are carried out after the collection of a package of documents received from potential participants according to the conditions previously announced in the documentation; within the time limits set by the commission; on the principles of competitiveness, fairness and efficiency.

Tender is a synonym for the words "auction", "competition". The definition of this term was taken from in English. The term has been used in Russia since the 1990s. In 1994, the UNCITRAL Model Law on Procurement of Goods (Works) and Services was adopted at the international level. The Model Law summarized the experience in the field of public procurement abroad and proposed a model for the organization of procurement activities for national legislations. In Russian business practice, along with international tenders in which Russian companies participate, there are state and commercial tenders.

A tender is a competitive form of placing orders for the supply of goods, the provision of services or the performance of work according to the conditions previously announced in the documentation, within the agreed time frame, on the principles of competitiveness, fairness and efficiency. The concept of "tender" is also used in relation to non-competitive (but competitive) procedures, such as requests for quotations, requests for prices, requests for proposals. The contract is concluded with the winner of the tender - the participant who submitted a proposal that meets the requirements of the documentation, in which the best conditions are offered.

There is no concept of "tender" in Russian legislation. Instead, the concepts of "bidding", "competition" are used. So, in articles 447-449 of the Civil Code of the Russian Federation, the features of conducting public auctions in Russia are determined. Article 447 of the Civil Code of the Russian Federation states that the owner of a thing or the owner of a property right or a specialized organization can act as an organizer of the auction. Bidding is carried out in the form of an auction or competition. The form of the auction is determined by the owner of the thing being sold or the owner of the property right being sold, unless otherwise provided by law. Auction and competition, in which only one participant participated, are declared invalid. Article 448 defines the procedure for conducting an auction, according to which "the person who won the auction and the organizer of the auction sign on the day of the auction or competition a protocol on the results of the auction, which has the force of a contract." Article 449. "Consequences of Violating the Rules for Conducting an Auction" characterizes an auction held in violation of the rules established by law as invalid on a lawsuit of an interested person. Recognition of the auction as invalid entails the invalidity of the contract concluded with the person who won the auction.

How is a tender different from an auction?

Auction - the competition of bidders is carried out only on one criterion - the price. The auction offers prices and offers for all participants. It differs from the tender by the possibility of participants to change the submitted offer. Each participant of the auction can change his offers, offering more favorable conditions than his competitors. The auction is held by reducing the initial (maximum) contract price (lot price) specified in the notice of an open auction by an "auction step". The auction step is fixed and is 0.5% of the maximum contract price specified by the customer. The supplier with the lowest price wins.

Tenders are held on the reverse principle. Each participant submits a proposal in a "closed envelope". Offers are hidden from competitors and are available only to the tender commission. The purpose of the candidates is to provide the tender commission with favorable terms of delivery. The contract will be concluded with the company that offered the best conditions for the execution of the contract. The best conditions are several criteria: price (served by the participant in advance), consumer properties, quality of goods, works, services, qualification of the participant of the competition, terms, guarantee. An important role is played by the tender documentation submitted by the enterprise. It must meet all the requirements of the tender documentation, that is, contain the technical and commercial parts. In the technical part, you need to provide a description and general information about the object of the auction, set out instructions for suppliers, provide an information card. The commercial part should indicate prices, conditions, payment schedules, sources of financing the contract. The specific content of the tender documentation is determined by the tender committee.

How is a tender different from a competition?

In fact, they are synonyms. Unlike "tender", the concept of "competition" is defined in the main document regulating property relations in Russia - the Civil Code of the Russian Federation. The concept of "tender" is widely used in Russian business practice and is absent in Russian legislation.

Summarizing our analysis, we can draw the following conclusions:

- the concepts of "tender", "auction", "competition", "bidding" are widely used in business practice as a form of competitive competition between participants for the right to conclude an agreement;

- the concept of "bidding" is used in Russian legislation and is divided into two types: auction and competition;

- the concept of "auction" means a type of auction held by an auctioneer who organizes a direct competition of bidders on only one criterion - price; differ in the ability of participants to change the submitted proposal;

- the concept of "competition" means a type of auction in which the competition of participants is carried out according to several criteria: price (submitted by the participant in advance), consumer properties, quality of goods, works, services, qualifications of the participant in the competition, terms, guarantee. Offers are hidden from competitors and are available only to the tender committee, which evaluates the tender documentation packages of bidders at a closed meeting;

- the concept of "tender" means a competitive form of bidding and is widely used in international and Russian business.

According to article 447 of the Civil Code of the Russian Federation, auctions can be held in the form of an auction or a competition.
In this case, the winner of the tender is the person who, according to the conclusion of the tender commission appointed in advance by the organizer of the auction, offered the best conditions. At the same time, the person who offered the highest price is recognized as the winner of the auction. There are no other fundamental differences between an auction and a competition in Russian legislation.

Since the highest price is essential part better conditions, we can conclude that "an auction is a special case of a competition. And since when conducting purchases of both state and commercial structures, this special case used very densely, it was isolated separately.
First, it is appropriate to give the following definitions of terms.
The word "auction" translated from Latin means "I raise".
As mentioned above, Article 447 of the Civil Code of the Russian Federation defines an auction as a form of bidding in which the winning
the person who offered the highest price is recognized.

auctioneer- a potential buyer at the auction.
Auctioneer- the person conducting the auction.
Auction Rules- the rules in accordance with which the delivery of goods to the auction, the sale of goods from the auction, the execution of contracts and the receipt of the purchased goods are carried out. Auction rules are set out in special information materials transmitted to participants in the auction.
Auction price- the highest price offered for the goods at the auction. It is believed that the auction price is largely dependent on the skill of the auctioneer.
Auction step- the interval within which the price of the goods being sold announced by the auctioneer changes. The auction step is announced before the start of the auction.
auction- public auction, which is carried out according to the auction rules. During the auction, the numbers of lots and strings offered for sale are announced; further bidding is directed by the auctioneer, depending on the method of conducting this auction (open or closed).

Auctions are most often used to organize the sale of goods and valuables, as well as limited resources (quotas, licenses). However, the right to conclude a contract or supply goods (performance of works, services) may well be the subject of an auction; the exception is the reverse auction (reduction).

Like competitions, auctions are open and closed. The definitions of open and closed tenders and auctions are formally similar in form, but in essence they are fundamentally different.
The procedures for holding closed and open tenders are practically the same. The main difference is that open tenders are announced in the mass media (mass media) and anyone can take part in them, while a limited number of suppliers, predetermined by the Customer, is allowed to participate in a closed tender.

In closed and open auctions there are no such restrictions for participants. The difference is that in closed auctions, auctioneers submit bids in sealed envelopes and do not know the bids, including price ones, of other participants, while in open auctions each bid is announced and becomes known to all participants.
Closed auctions are most often used to reduce the risks of the Customer, primarily related to the possible collusion of participants. To pay for this kind of safety net is a decrease in efficiency for the Customer.
By the time of the auctions are conventionally divided into simultaneous and sequential. Several lots, especially identical ones, can be put up for auction both simultaneously and sequentially - one after another. As practice shows, in the second case, the price of each successively sold lot, as a rule, is lower than the previous one.
Auction rates can be discrete, i.e. with a certain step, or continuous. Sometimes there are restrictions on the step, both minimum and maximum.

An auction may consist of several rounds, in each of which participants have the opportunity to make new rate. If no new bids are placed at the end of the round, the auction ends. The frequency of rounds varies, but usually does not go beyond 10-20 minutes between one round, as well as one round per day.
To confirm the seriousness of the intentions of auction participants, they usually take a non-refundable monetary contribution, a deposit or other security for bids.
The main differences between an auction and a competition:
orientation of the auction for sale;
the use of price in the auction as a criterion for determining the winner;
dynamism: each bidder has the right to change his price quotation if a competitor has made a better offer.

Gostorgs can be held by many different ways. Auction and competition are among the most common, but many people still confuse these two tendering systems. Let's take a look at how they differ from each other.

victory condition

The primary difference is in the conditions of winning the tender. By the way, those who determine the winner also differ. In auctions, this is directly the customer, and in competitions - the tender commission.

In an auction, according to the law, the company that offered the lowest contract price, regardless of other conditions, wins. Evaluation of proposals in the competition is much more complicated, which requires a tender commission. It evaluates not only the price of the contract, but also the reputation of the company, the proposed materials and projects, the experience of employees and other factors. In the end, the winner of the competition is the one who will be considered the most optimal contractor for the execution of this particular contract. It is not always the one who offered the lowest price.

Data protection

An auction bid contains only brief information about the participants requested by the customer. Since the main factor in determining the winner is the proposed price, the confidentiality of all information is not provided.

The application for the competition, as it is right, is very complex and must be correctly and in detail drawn up. It contains a huge amount of information about each participant, on the basis of which the winner is selected. All this information is confidential.

Financial support

An auction bid can only be secured by depositing funds to the customer's account, while a bank guarantee can be used for the tender. However, to ensure the performance of the contract in both cases, the law allows the use of an official bank guarantee.

It can also be concluded that participation in a tender is more time-consuming than participation in an auction. Filling out an application requires experience, care and a lot of time. On the other hand, payment for a contract can be more cost-effective if your company has enough skills and funds to provide best performance contract.

"RosTender" offers you to profitably and quickly issue an official bank guarantee for an auction or competition! Online!

If the purchased goods (works, services) are included in the List approved by the Decree of the Government of the Russian Federation of October 31, 2013 No. 2019-r (hereinafter - the List No. 2019-r), the institution must announce an electronic auction. In addition, the highest executive body of state power in the region can draw up its own list in addition to the federal one. For example, such a list was approved by the Decree of the Government of the Irkutsk Region dated December 19, 2013 No. 584-rp.

However, exceptions are still provided for goods (works, services) from the lists. They can be purchased as a result of a request for quotations or a request for proposals. Another option is to contract with sole supplier. However, the institution must take into account the requirements federal law dated April 5, 2013 No. 44-FZ (hereinafter - Law No. 44-FZ). It is impossible to announce a tender for such a purchase.

Please note: the customer has the right, at will, to conduct electronic auctions for the purchase of goods (works, services) that are not included in the specified lists (part 3 of article 59 of Law No. 44-FZ).

Competition or auction: in what cases is a competition held

An open tender is resorted to in any procurement of goods, works or services, except for situations in which the legislation directly requires the supplier to be determined in a different way (part 2 of article 48 of Law No. 44-FZ). For example, when, due to the specifics of the subject of the contract, the institution is obliged to announce an electronic auction or determine the contractor in a closed way.

In addition, Law No. 44-FZ lists cases when the customer must hold a tender with limited participation. These include, in particular, the purchase of goods (works, services) of special complexity, innovative or specialized nature.

How not to make a mistake when choosing a competition or auction

Judicial practice shows that customers are often confused about how to determine the supplier. And this, according to judges and controllers, leads to a restriction of competition. Moreover, institutions often try to justify themselves by saying that they held a competition only in order to receive quality services. The courts never listen to such arguments.

Follow these three steps to avoid violations.

Carefully study the List No. 2019-r

Having determined the object of the purchase, check whether it is included in the auction list. If so, then an auction should be held.

It would seem that everything is simple. However, in practice, difficulties still arise, mainly during construction and repair. Therefore, study the list thoroughly.

Example:

The customer purchases works overhaul road barriers.

The initial (maximum) price of the contract (NMTsK) is 3 million rubles.

The contract manager checked whether such works are included in the List No. 2019-r. And I saw that the document contains code 45 “Construction works” of the All-Russian classifier of products by type economic activity(OKPD) (except code 45.12). At the same time, the following are excluded from the list:

• works on construction, reconstruction, overhaul of especially hazardous, technically complex objects capital construction, as well as artificial road structures that are part of highways of federal, regional, intermunicipal or local significance;
• works included in grouping 45 "Construction works" (except for code 45.12), if the initial (maximum) contract price for procurement for state needs exceeds 150 million ₽, for municipal needs - 50 million ₽.

Conclusion: the institution is obliged to conduct an electronic auction, since the NMCC for the overhaul of the road fence is less than the established limit values.

The result of an insufficiently thorough analysis will most likely be the claims of the antimonopoly authority. Thus, the state institution conducted open competition to carry out work on the inventory and certification of road facilities. Officials of the OFAS considered that the customer had violated contract law. Indeed, for services for technical inventory and technical certification of non-residential stock, OKPD provides code 70.32.12.130. And objects of procurement with such a code are included in the List No. 2019-r. Therefore, in this case, an electronic auction should have been announced. The judges supported the controllers (decision of the Ninth Arbitration Court of Appeal dated May 6, 2015 No. 09AP-13282/2015).

Check the list of especially dangerous and technically complex facilities

Let us turn to paragraph 5 of Appendix No. 2 to Decree of the Government of the Russian Federation of February 4, 2015 No. 99. It follows from it that a competition with limited participation is held if two conditions are met simultaneously:

• procurement object - performance of works on construction, reconstruction, overhaul of especially dangerous, technically complex capital construction facilities, as well as artificial road structures included in the composition of federal, regional or intermunicipal, local roads;
• NMTsK for state needs exceeds 150 million rubles, for municipal needs - 50 million rubles.

As an example, I will cite the decision of the FAS Russia dated November 9, 2015 in case No. K-1493/15. In St. Petersburg, they planned the reconstruction of the bridge with the preliminary preparation of working documentation. NMTsK amounted to more than 2 billion rubles. To select a contractor, the state institution decided to hold a competition with limited participation. The controllers came to the conclusion that this was not contrary to the requirements of the legislation on contract system. After all, the above conditions were met simultaneously. Firstly, the customer's representative at the meeting of the FAS Russia Commission proved that the procurement object relates to construction, reconstruction, overhaul of especially dangerous, technically complex capital construction projects. Secondly, the NMCC exceeded the established limit values.

Think about the arguments about the classification of the work you need, otherwise there will be problems. Thus, the Eleventh Arbitration Court of Appeal indicated that low and medium pressure gas pipelines do not fall under the concept of especially dangerous and technically complex capital construction projects (decree of January 15, 2016 No. 11AP-17190/2015). Therefore, the customer had to announce an electronic auction, because the procurement object is mentioned in the List No. 2019-r. A table will help you understand how to purchase construction work.

Table. Ways to purchase construction works: tender or auction*

* Joint letter of the Ministry of Economic Development of Russia, FAS Russia dated August 28, 2015 No. 23275-EE/D28i, No. АЦ/45739/15.

Choose the correct OKPD code

Each subject of the state contract corresponds to a specific classifier code. Choosing it, customers often make mistakes.

Consider the decision of the Ninth Arbitration Court of Appeal dated October 21, 2015 No. 09AP-42546/2015. In the terms of reference, the institution defined the procurement object as " performance of work to eliminate the consequences of physical, mechanical and climatic impacts on the technical means of organizing traffic after the autumn-winter period of operation, installed on the roads of the city of Moscow". The customer applied code 74.20.60.000 "Project management services related to the construction of buildings and structures" OKPD. The selected grouping includes certain types of work. However, none of them in the sense does not correspond to the terms of reference. Moreover, the contractor had to perform the work and services indicated in it independently. And the OKPD code chosen by the institution assumes exclusively managerial activity. The court found that the works and services named in the terms of reference relate to code 45.23.12.160 “Work on the installation of protective fences, installation of road signs, road route indicators and similar works” OKPD and are included in the auction list. This means that the customer did not have the right to hold an open tender. The judges paid attention to this moment. Suppose the object of procurement is services that are complex (multi-component) in nature, and they cannot be classified in strict accordance with one OKPD code. Then they should be classified according to the component that characterizes the most in full most or most specific part of their components.

And another one interesting detail. The institution referred to the fact that the OKPD code was automatically assigned in the Unified Automated Information System for Trading in Moscow. However, the court did not accept this argument. He pointed out that the assignment of such a code is due to the description of the procurement object, which depends directly on the actions of the customer.