Agreement for collective participation in tenders sample form. Sample form of an agreement on joint bidding

A collective procurement participant is a group of legal entities united into a single participant. Begins to act on the basis of the agreement.

What is a collective participant (CHP)

KUZ can be the following associations:

• YL Group. Forms one participant. The group may include legal entities with different forms, registration addresses, and different sources of capital.
• FL Group. This can be either a sole proprietor or an individual entrepreneur. Also combined into one participant.

The right to education of a community health center is stipulated by part 5 of article 3 of Federal Law No. 223 “On the purchase of products” dated July 18, 2011.

In what cases is the association in question practiced? Groups can be created when you need to perform an extensive range of diverse works. This is relevant when they cannot be performed by one company. For example, it is necessary to carry out a complex of works in various directions. The company operates in only one profile, and therefore it will not be able to cope with a global task. Also, the firm may not have enough production capacity to operate.

KUZ is relevant for any procurement. The exception is cases when the competition documentation prohibits collective participation. The law does not stipulate a detailed procedure for drawing up documents on the basis of which the merger is carried out. However, legislators have prescribed the obligation of the KUZ to draw up documents that spell out the rights and responsibilities of each representative of the association. The main document is the agreement to the simple partnership agreement. It is drawn up in accordance with the Civil Code of the Russian Federation.

Drawing up an agreement for a collective procurement participant

Article 1041 of the Civil Code of the Russian Federation states that a simple partnership agreement can be drawn up by both an individual entrepreneur and a legal entity. On its basis, collective obligations are formed to conduct activities necessary to make a profit. The agreement contains these provisions:

• Rights and obligations of each representative of the association. They will concern both the fulfillment of the terms of the agreement and the distribution of the products of activity.
• The size and timing of the work performed by each participant.
• The main participant who is responsible for conducting negotiations, signing documents, and working with customers.
• The procedure for performing calculations and transferring funds.

There are no legal requirements for drawing up this agreement. That is, the document can be drawn up in free form depending on the needs of the participants of the association. However, it must contain essential provisions. Must be dated and signed. The subject of the agreement, the contributions of the participants, and the nuances of the use of joint property are specified. Responsibility for compliance with the provisions of the agreement will be joint.

Contract with several participants in the procurement procedure

To approve a collective application, these conditions must be met:

• All members of the association agreed to participate in the competition.
• All KUZ representatives are capable of fully performing the work assigned to them under the terms of the agreement.
• The application meets all the requirements established by the competition documentation.

If these conditions are not met, the application is rejected. If the requirements are met, a contract is concluded between the participants and the customer. The procedure for its execution is established by the customer himself. The corresponding rule is stipulated in the letter of the Ministry of Economic Development No. D-28i-2071 dated August 16, 2016. The contract is concluded with the main participant, who has the authority obtained on the basis of the agreement.

IMPORTANT! A copy of the KUZ agreement must be attached to the collective application.

ATTENTION!
The application must provide the procedure for the distribution of supplies and work within the representatives of the association.

Algorithm for organizing joint participation

The procedure for submitting an application to the KUZ is not established by Federal Law No. 223. The letter of the Ministry of Economic Development No. D28-i-993 dated April 12, 2016 states that this procedure must be specified in the customer’s documents. For example, he can approve the form of a collective proposal. It must indicate the person who is the main person within the association. To participate in joint procurement, you need to take these steps:

1. Conclusion of a simple partnership agreement. You will also need to draw up a power of attorney for one member of the association.
2. Drawing up a collective application, which must comply with the provisions of the competition documentation.
3. Copies of various papers are attached to the application: constituent and permitting documentation. For example, these are licenses, permits, qualification papers.
4. Placing the signature of each representative of the association on the application.
5. Filing an application.
6. Waiting for the results of the competition.
7. If KUZ wins the competition, a contract is concluded.

IMPORTANT! The qualifications of the HGC are determined not by the total qualifications of all participants, but by the highest indicator of one of the representatives.

ATTENTION! Participants belonging to the association cannot submit individual applications for the competition. If this rule is violated, the commission members will reject all applications.

Requirements for participants

Requirements for collective participants are determined by the customer himself. Let's look at their approximate list:

• Each of the representatives of the association has legal capacity. Confirmation of legal capacity may include licenses, permits, availability of equipment and relevant professionals.
• One of the representatives of the association must be given the right to submit an application, sign documents and protocols.

Requirements can be divided into these categories:

• Performed by each of the participants. For example, this may be the absence of unscrupulous organizations in the register.
• Performed by at least one participant. For example, the presence of a certificate that the company is allowed to organize ventilation systems. This certificate is relevant if a construction contract is concluded.
• Requirements that can be summarized. For example, this may be the number of works performed under similar agreements, an assessment of financial stability. For example, an association includes two representatives. The tender documentation states that the number of successfully completed orders should be 20 pieces. One participant has 11 orders, and the second has 12. Individually, they do not correspond to the competition documentation, but when joining the association, these indicators can be summed up.

FOR YOUR INFORMATION! The customer may include in the documentation the right to reject the application. It is also recommended that he include in the agreement a clause stating that he has the right to terminate the contract if any participant is unable to fulfill the terms of the agreement.

Relationships between representatives of the association

There are two forms of joint participation:

• Association members submit one application. If KUZ wins the competition, the customer must enter into an agreement with each representative of the group. In this case, you need to draw up a draft agreement that distributes the work between all participants.
• The application is submitted under a simple partnership agreement. The latter is regulated by Chapter 55 of Article 1041-1054 of the Civil Code of the Russian Federation. Participants must independently agree on their relationships. However, the adopted provisions must not contradict the Civil Code of the Russian Federation and the Procurement Regulations.

Collective participation in the competition involves a joint contribution to the work of all representatives of the association.

Participation in the competition of collective participants

1. 
   If the Bid is submitted by a collective participant, the following requirements must additionally be met.
2. 
   Each organization that is part of a collective participant must meet the requirements of this Competitive Documentation (subsection 4.5).
3. 
   Organizations representing a collective participant conclude among themselves an Agreement on the creation of an association (collective participant) (hereinafter referred to as the Agreement), which complies with the norms of the Civil Code of the Russian Federation and meets the following requirements:
   1. 
      the Agreement must clearly define the rights and obligations of the parties both within the framework of participation in the competition and within the framework of the execution of the Agreement;
   2. 
      the Agreement must provide a clear distribution of the list, volumes and costs of work and supplies performed by each organization, as well as the deadlines for the completion of work and supplies;
   3. 
      must be specified in the Agreement Leader, who subsequently represents the interests of each of the organizations included in the collective participant in relations with the Competition Organizer and the Customer;
   4. 
      the Agreement must establish the subsidiary liability of each organization for obligations related to participation in the competition, and joint liability for the timely and complete execution of the Agreement;
   5. 
      The Agreement must provide that all operations for the implementation of the Agreement as a whole, including payments, are carried out exclusively with Leader, however, at the request of the Customer or on his initiative, this scheme can be changed.
4. 
   Any organization can be a member of only one collective participant and does not have the right to take part in the competition independently.
5. 
   An organization that is part of a collective participant does not have the right to take part in the competition as a General Contractor or Subcontractors (subsection 5.3). If these requirements are not met, Bids involving such organizations will be rejected without consideration on their merits.
6. 
   In connection with the above, the collective participant (Leader of the collective participant, Leader) prepares a Competitive Application taking into account the following additional requirements:
   1. 
      The competitive application must include information confirming the compliance of each organization that makes up the collective participant with the established requirements (clause 4.5.2);
   2. 
      The competitive application is prepared and submitted by the Leader on his own behalf with reference to the fact that he represents the interests of the collective participant;
   3. 
      the Competitive Bid additionally includes a notarized copy of the Agreement between the organizations that make up the collective participant;
   4. 
      The competitive application must additionally include information on the distribution of work volumes (supplies) between the organizations that make up the collective participant, according to the form established in this Competition documentation (Plan for the distribution of work volumes among members of the collective participant (Form 13)).
7. 
   List of documents and forms submitted by the Competition Participant for each member of the collective participant:
   1. 
      Copies of documents certified by a member of the collective participant (orders, minutes of the meeting of founders on the appointment of a manager, etc.) confirming the authority of the person for each member of the collective participant who signed the Agreement between the members of the collective participant. If the Agreement is signed by a person acting under a power of attorney when signing the relevant contracts (agreements), an original or a notarized copy of the power of attorney and the above documents are provided to the person who issued the power of attorney (mandatory requirement);
   2. 
      An original or a notarized copy of an extract from the Unified State Register of Legal Entities (USRLE) (or a similar document for individual entrepreneurs), issued by the relevant division of the Ministry of the Russian Federation for Taxes and Duties no earlier than 60 (sixty) days before the deadline for accepting Competitive Applications (mandatory requirement).

1. 
   A notarized copy of the Charter in the current version with all changes and additions (mandatory requirement);
2. 
   Notarized copies of the relevant permitting documents approved by the legislation of the Russian Federation for the performance of types of work under the Agreement performed by members of the collective participant:

• 
  notarized copies of valid certificates of admission to work performed under the Agreement that is the subject of the competition, along with appendices describing specific types of activities for which a member of the collective participant has certificates issued by a self-regulatory organization (SRO) in accordance with the Urban Planning Code of the Russian Federation and Federal Law No. 315 “On Self-Regulatory Organizations”) ( mandatory requirement);

1. 
   Copies of balance sheets certified by the Subcontractor with a tax service mark (Form 1) together with profit and loss statements (Form 2) for the last completed year and for the completed reporting period of the current year (mandatory requirement);

• 
  for those with a simplified taxation system - copies of documents similar to balance sheets and profit and loss statements, with a mark from the tax service, for the last completed year and for the completed reporting period of the current year (mandatory requirement);

1. 
   A questionnaire in the form established in this Tender Documentation - Collective Participant Questionnaire (Form 7) (mandatory requirement);
2. 
   Original certificate of execution of contracts similar in nature and scope of work for the last 3 (three) years and for the completed reporting period of the current year in the form established in this Tender Documentation - Certificate of the list and annual volumes of execution of similar contracts (form 8) (provided subject to the requirements specified in clause 4.5.2.8 of the Tender Documentation) (mandatory requirement);
3. 
   The original certificate of material and technical resources that will be used as part of the implementation of the Agreement in the form established in this Tender Documentation - Certificate of Material and Technical Resources (Form 9) (mandatory requirement);
4. 
   The original certificate of human resources that will be attracted during the implementation of the Agreement, in the form established in this Tender Documentation - Certificate of Human Resources (Form 10) (provided subject to the requirements specified in clause 4.5.2.8 of the Tender Documentation) (mandatory requirement);
5. 
   The original information letter on whether a member of a collective participant has ties of affiliation with employees of the Customer or the Competition Organizer in the form established in this Competition documentation - Information letter on whether a member of a collective participant has ties of affiliation with employees of the Customer (Tender Organizer) (form 11 ) (mandatory requirement);
6. 
   Original certificate of financial stability for the last completed financial year and for the completed reporting period of the current year in the form established in this Tender documentation - Certificate of financial stability (form 14) (mandatory requirement);
7. 
   Information about the owners of the collective Participant (including ultimate beneficiaries) (Form 15) (mandatory requirement);
8. 
   Copies of letters of feedback from counterparties on the performance of similar contracts by a member of the collective participant (if the member of the collective participant has them) ( desirable requirement).
1. 
   When assessing the quantitative parameters of the activities of the members of the association, these parameters are summed up. Indicators that are not subject to summation must be available to at least one member of the collective participant.
2. 
   A competitive application submitted by a collective participant may be rejected if during the competition process, before signing the Agreement, it turns out that one or more organizations have left the collective participant, and the remaining organizations, from the Customer’s point of view, are not capable of independently fulfilling the Agreement.
3. 
   The Customer has the right to unilaterally refuse to sign the Agreement if one or more organizations have left the collective participant.

It happens that participants in public procurement, conducting trade and procurement activities, are faced with a situation where it is necessary to implement a contract that has conditions that are difficult to fulfill by one supplier. Such a supplier does not have the ability to supply or perform a wide range of services, or as part of the work it is necessary to perform specific services that are unique and not all suppliers provide them. To fulfill all the conditions of such a procurement, a participant in such a procedure can create an association of legal entities that has the necessary qualifications or human resources, the necessary licenses, permits, logistics, experience in the relevant subject of the tender, experience in performing similar types of work. Such a procurement participant is an association of a group of persons (consortium), acting as a collective participant.

The European Parliament and the Council of the EU, in their directives on procurement procedures of 31.03.04 N 2004/17/EC and N 2004/18/EC, procurement related to water supply, energy, postal services, transport services, as well as procedures the subject of which is the provision of services, the supply of goods involves the submission of collective applications.

Unfortunately, the legislation does not clearly regulate the possibility of submitting an application from an association, which includes both legal entities and individuals, individual entrepreneurs and other types of procurement participants. But if we consider this issue from the point of view of possible discrimination and as confirmation of the lack of competition, equality and fairness in relation to all procurement participants, then such restrictions are unacceptable and unacceptable.

1. Nuances and requirements for members of a collective participant

The possibility of a consortium’s participation in procurement is enshrined in 223-FZ, Article 3, Part 5. Since one or more legal entities/individuals can act on behalf of a procurement participant, literally understanding and interpreting this provision of the law, we have that any legal entity. person or several individuals persons (this also applies to individual entrepreneurs) can act on behalf of one collective participant. The form of association of a collective participant is not defined by the legislation of the Russian Federation, but Article No. 308 of the Civil Code of the Russian Federation defines the possibility of such participation, as well as the obligations that will apply to all these persons, considered as collective participants. When submitting an application by a group of persons, called a collective participant, it is necessary to take into account that it is precisely the whole group, and not its individual participants.

Although, in this case, the organizer of the procedure may encounter significant difficulties, because currently the legislation does not regulate the procedure for conducting procurement with the participation of an association of legal entities. For example, if a collective participant is recognized as the winner, then the contract with the public procurement participant is concluded either with all participants of such a consortium, or with a person who acts on behalf of the entire consortium in accordance with the agreement of the collective participant. This document must define all the necessary responsibilities and rights, joint and several liability for violation and failure to fulfill the terms of the contract signed based on the results of the purchase (this liability is spelled out in articles of the Civil Code of the Russian Federation No. 1047, No. 321 - 325).

2. Responsibility between members of a collective participant

Before participating in the procedure, it is necessary for a collective participant, an association of legal entities, to distribute the volume of work performed, delivery dates within the framework of the contract. In particular, it is better to indicate the inability to submit an application independently or in an association of other legal entities, and to indicate that for violation of the requirements of the collective participant agreement, such applications will be rejected by the customer in order to eliminate the risks of such situations; such procurement participants use this rule if necessary. If a procurement participant has to file a complaint with the FAS or the court with a claim to protect his interests, then the leader of the group participating in the procurement must be prescribed such powers so that the court does not doubt his right to file claims on behalf of all participants in such an association (in accordance with from Article 18.1 of Law No. 135-FZ).

I would also like to note the possibility of risks associated with the interpretation of the second paragraph of Article 447, Clause 4 of the Civil Code of the Russian Federation, which states that the winner is a person, both an individual and a legal entity, constituent entities of the Russian Federation, the Russian Federation itself and municipal organizations. The consortium does not belong to any of the listed “entities”. But by virtue of the procurement law, it is necessary to consider the possibility that allows the participation of such associations, such as the application of a “special law” (when two laws having equivalent legal force are somewhat contradictory to each other), which has priority.

3. Documentation requirements and assessment of the collective participant’s application

If the customer has given the opportunity to submit an application from a group of people, then such a participant must be assessed by summing up all indicators, the volume of services and the quantity of goods, and also evaluating all parameters. The procurement participant provides this description as part of the application. If a situation arises in which the summation of a certain indicator is not possible, the procurement participant shows this same indicator to one of the persons in the group applying for participation in the procedure.

Participants in public procurement or the organizer of a trade procedure, in the documentation that provides for the possibility of participation of such associations, describes the requirements for the composition and description of such an application. These requirements will need to be clearly and clearly interpreted, eliminating errors that could then prevent the completion of such tenders. In accordance with this documentation, applications submitted by such associations must meet all the requirements set by the organizer of the procedure and the selection criteria established in the description, including additional criteria. More detailed recommendations can be found in the letter of the Ministry of Economic Development of Russia dated October 30, 2015 N D28i-3153.

The leader of the consortium, which is determined by the agreement, describes in the application information about each participant in the association of legal entities, confirming their compliance with all the conditions of the documentation, attaching the necessary copies of licenses, copies of SRO, reference information about experience, the composition of human resources, logistical support of documents on succession. To confirm legal succession, a scanned copy or a notarized copy of the agreement is attached, clearly stating that the consortium representative represents the interests of all participants.

The procurement participant, in accordance with clause 4 of Art. 3 44-FZ, can be a legal entity or an individual, including an individual entrepreneur (in the singular).

At the same time, if an open competition is held for the acquisition of a work of literature, art or performance, then a group of citizens who plan to create such a product together can submit a joint application. But in this case they will also act as one participant (Part 8 of Article 51).

In any case, it turns out that the contract system does not provide for collective participation in procurement.

But in 223-FZ the definition of a participant is somewhat different. According to Part 5 of Art. 3, several legal entities or individuals, including individual entrepreneurs, may act on the side of one tender participant. It follows from the same provision that an organization and a citizen cannot unite and become a group supplier.

It is important to understand that the concept under consideration means the conclusion of a contract based on the results of a procurement simultaneously with several persons, and not with a general contractor who engages intermediaries for execution. The customer does not have the right to prohibit the collective submission of applications in the documentation or in the Procurement Regulations, since this violates the norms of 223-FZ and reduces the number of potential suppliers without any reason.

As for the requirements specified in the documentation, in Part 6 of Art. 3 states that they apply equally to all suppliers. However, the law does not provide for their establishment separately for each member of the group that submitted the general proposal. Otherwise, the meaning of group participation is devalued, and Parts 5 and 6 of Art. 3 No. 223-FZ.

Collective participation is possible only in procurement under 223-FZ. The contract system law prohibits this!

How to organize collective participation

The process of filing an application by several persons is not regulated by the provisions of Law No. 223. Therefore, questions may arise here about how and in what form to confirm the fact of group participation within the framework of one proposal, with whom the contract will be concluded based on the results of the bidding.

The letter of the Ministry of Economic Development of Russia No. D28i-933 dated April 12, 2016 states that the customer needs to provide for such nuances in the documentation. For example, you can establish a specific group proposal form, which must be signed by all suppliers, and also contain the name of the person representing the interests of the others with whom the contract will be concluded.

It turns out that in order to participate in the procurement, a group of suppliers must perform the following actions:

1. Conclude a simple partnership agreement with each other and (or) issue a power of attorney for one member (representative).
2. Submit an application in accordance with the documentation requirements.
3. Attach the required additional documents: constituent documents, permits (licenses, permits, etc.), confirming experience and qualifications.
4. Sign each member.
5. Submit an application.
6. Conclude a contract with the customer in case of victory.

It is worth noting that the customer can evaluate the qualifications of the participant in question not by the sum of indicators, but by the best of them. Therefore, in the proposal, group members should indicate the best value for this criterion, unless the documentation says otherwise.

Also, the documentation and Regulations may indicate that suppliers participating in a collective bid do not have the right to submit individual proposals within the framework of one tender. If this prohibition is violated, all listed applications may be rejected.

Distribution of rights and responsibilities among collective participants

If the winning bidder is a collective participant, then the customer must conclude one contract with all suppliers of this group. The document can be signed by one of them (representative), acting on the basis of a power of attorney or a simple partnership agreement.

When fulfilling the terms of the transaction, all members of the team will have equal rights and bear joint liability to the buyer (Articles 321-325 of the Civil Code of the Russian Federation). If they have entered into a simple partnership agreement with each other, then they will have to answer for all obligations, regardless of the reasons for their occurrence (Part 2 of Article 1047 of the Civil Code of the Russian Federation).

This is a bidding between participants, the main goal of which is to select the most financially and qualitatively profitable provider of services or proposals by customers. It can be open or closed, state-owned.

tender support

However, the customer does not always send consent - sometimes it is possible to receive a refusal. Most often, it comes due to the following reasons:

Reason 1. The documents provided and the data indicated in them do not coincide with the real state of affairs.

Reason 2. Minimal information provided.

Reason 3. However, if it contains attractive data, the customer may ask to send additional documentation.

Reason 4. The contents of the documents do not comply with the customer’s conditions.

Reason 5. The participating company is in poor financial condition or on the verge of complete liquidation.

Reason 6. Too little experience to implement the customer's conditions.

Likewise, the participant himself may refuse to participate in the tender. To do this, he must indicate only adequate reasons for refusal. They may be:

1. Inability to meet customer requirements.
2. The invitation was received a couple of days before the competition. This indicates that the participant has already been selected, and the tender is being held to give legitimacy to the choice of customers.
3. A large number of participants. There should be no more than six.

The refusal can be sent either to the customer’s address or to the competition itself. It should be drawn up in a concise form with all the attributes for writing an official letter.

A power of attorney to participate in a tender is issued only if the manager is unable to participate independently.

In this case, the management issues the employee a power of attorney to perform various actions.

If the employee is a third party, then an agency agreement is issued, approved by a notary office.

Consortium agreement, collective participation (223-FZ), agency agreement

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