Translated by
2019/11/15 11:46:43

TADetails: What is necessary for a victory in the tender?

In process of nationalization of the Russian market of information technologies skills of participation in state procurements and other competitive procedures become more important for success of the IT company. What nuances should be considered to increase chances of success, Talgat Fakhrutdinov, the head of the tender ICL Services group tells.

Content

What tenders happen

For a start we will decide on "hardware". All public purchases, available to participation in Russia, can be separated into four categories conditionally. The first category is public procurements of the Russian Federation which are carried out under Law 44-FZ. The second — purchases for separate legal entities (223-FZ), and in other words, for state corporations and other organizations in which authorized capital share of the Russian Federation, the subject of the Russian Federation or the municipal entity in total exceeds 50%. The third type of purchases — commercial. They are regulated by the civil legislation and are carried out by voluntarily customers for the purpose of achievement of economy. And the last type — international, them in turn, it is possible to separate into state (are regulated by the relevant laws of other states) and commercial (are regulated by domestic situations about purchases by both the civil and international legislation).

TADetails: What is necessary for a victory in the tender?

Reefs

Depending on with what category of biddings you deal, reefs are absolutely different. The state auction on 44-FZ is held for satisfaction of the state and municipal needs, and the main reef is very high level of bureaucracy here. In spite of the fact that the technical or price proposal can be the best among competitors, it can be rejected all the same for such formality as incorrectly made declaration or mismatch of the technical proposal of the procurement participant of the instruction which sometimes happens on 20 pages. For example, in technical specifications of the customer it can be written: "the maximum number of pixels on the screen not less than 1920x1080". And if at the description of goods the participant specifies "the maximum number of pixels on screen 1920x1080" in the offer, then such request will be rejected for failure to provide information as the indication of an inconcrete indicator (namely the formulation — "the maximum number of pixels" will be regarded so by the commission of the customer) is the basis for a rejection of the request of the participant. Such, at first sight, mere formality can be the reason of multimillion losses. According to practice, when checking the first parts of requests on formal grounds reject every third request.

The second reef of purchases on 44-FZ that changes in the legislation come out more often than glossy magazines. Just every month all new and new changes are added to the law.

Requests on the purchases which are carried out on 223-FZ on formal sign reject much less often, however there is other reef — this federal law much less 44-FZ, in it only the basic principles are defined, and further it grants the right to customers to develop the provisions on the basis of which will be is carried out purchases. And the customer protects own interests. Therefore before moving on purchases on 223-FZ, initially it is necessary to study not only documentation on purchases, but also with provision of the specific customer, i.e. the document in which all procedure will be in details described. Because in provision can such veiled points are registered that having even won an auction for the best price, with the company all the same can not sign the contract. And in 44-FZ it it is excluded: if you won, then the contract should be signed.

The main reef of commercial tenders is that most often such purchases have no legal effects both for the participant, and for the customer. Often in such purchases even the electronic digital signatures (EDS) — an analog of the live signature which gives to documents legal force are not required. Thus, formally at the request of the participant any offer can be withdrawn. In turn, despite procedure results the customer has the right to sign or not to sign the contract with the winner, can select any participant or not select anybody, and sign the contract with any other person.

Difficulties of participation in the international biddings are defined, first of all, by language and legal barriers. Their overcoming will require knowledge of legal English, ownership of the international principles of the organization of such procedures and an opportunity to carry out the legal analysis of the legislation of the country customer and other regulatory legal acts regulating a certain competitive procedure. By the way, Russia has the most developed system of public purchases in the Eurasian Economic Union and there will be enough knowledge of its principles for participation in the biddings which are carried out in the territory of this union. However for participation in the auction held, for example, in England and the USA it will be necessary to get acquainted with bases of an Anglo-Saxon system of law. It should be noted that the concept "tender" came to us from the USA where Americans within fight against corruption and the system of bribes prospering in the USA in the middle of the last century tried to create the process allowing to make a choice of the supplier by the most objective and presented in the form of detailed step-by-step instructions of holding competitive procedures.

What is necessary for a victory

There is no universal rule, conforming to which it would be possible to win at any biddings. It is definitely not one action, but a package of measures which should be provided in advance. And first of all, in the company qualified personnel should work. So in a command there has to be a tenders specialist — the public purchases lawyer. Such expert will be able to see the majority of reefs, accidentally or purposely created by the customer, and in time to bypass them.

Because of the high level of a formalism the great value plays a human factor therefore at multistage expert check of an error it is possible to exclude. Then there will be less risk that the request will be accepted as inappropriate on formal grounds.

Who can participate

All physical persons and legal entities can participate. However there are exceptions — often in documentation requirements to participants according to which not all can already pass are established. And to confirm compliance, it is sometimes rather simple to submit the declaration, and sometimes to attach necessary documents, certificates, certificates.

Basic rules of participation in tenders

There are no general rules for participation in public purchases of all categories. However it is possible to select the general principles in any purchases.

First, it is the principle of information openness. All information on biddings, except for special closed tendering, is open and available to all participants. This principle is often provided with marketplaces which publish notifications on holding competitive procedures for an unlimited number of persons.

Secondly, the principle of ensuring the competition works. All participants of purchases have an opportunity to take part in biddings, and without the bases it is impossible to reject them from participation. This principle is provided with Federal law No. 135 "About protection of the competition". Using this law it is possible to protect the rights and interests.

How to win biddings other things being equal

The victory at biddings more depends on professionalism of the specialists representing the company. Conditionally experts in tenders can be separated into three groups: the first can see reefs and try to bypass them, and the second — by means of legal contacts and requests "force" the customer to edit documentation provisions so that to provide the admission of the request. And the third — specialists of the highest category — have a broad spectrum of knowledge and tools, beginning from drawing up seriously prepared and reasonable requests and submission of complaints in control body (Federal Antimonopoly Service) to the appeal of actions of the customer in courts. Thus, specialists of high category can influence practically any purchase, its documentation and as result, on results of biddings.

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