Negotiation procedure for selecting a contractor. On conducting a repeated negotiation procedure for the selection of a contractor and an engineering organization. Procedure for carrying out the negotiation procedure

Negotiation procedure for selecting a contractor. On conducting a repeated negotiation procedure for the selection of a contractor and an engineering organization. Procedure for carrying out the negotiation procedure

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at the contractor's choice

for current (overhaul, other type) repairs

Due to the need to select a contractor for the project: "_____________ _____________", located at: _____________________, and the allocation of budget funding, in order to rationally, efficiently and transparently spend budget funds cash, ensuring fair competition, compliance with the principles of transparency, objectivity of assessment, unity of requirements and creation of equal conditions, selection of the optimal contractor

I ORDER:

1. Carry out a negotiation procedure to select a contractor to perform work on the facility: “________”, located at: ____________________.

2. Negotiations shall be conducted in accordance with the requirements of the Resolution of the Council of Ministers of the Republic of Belarus dated 03.03.2005 N 235 “On approval of provisions on the procedure for the formation of the negotiated (contract) price and settlements between the customer and the contractor during the construction of facilities and on the procedure for organizing and conducting contract tenders for construction objects."

3. Negotiations to be held "___" __________ 20___

4. Invite the following potential bidders to participate in the negotiations: - ______________________________, location: __________________; (indicate full name and legal form) - ___________________________, location: _____________________; - ___________________________, location: _____________________.

5. Send invitations to potential applicants __________________ (option: by fax (with mandatory confirmation of receipt of the invitation from potential applicants to whom such invitations were sent), by email (electronic document (if there are approved rules for the preparation, registration and sending of such documents)) , by mail (registered letter with acknowledgment of receipt), by courier (indicate the person responsible for sending this method), by other means).

6. Appoint ___________________________________________________________________ as the person responsible for organizing and conducting negotiations.

7. In order to prepare and conduct negotiations in compliance with the principles of transparency, objectivity of assessment, unity of requirements, creating equal competitive conditions, developing competition in construction, ensuring a reduction in its cost, in order to select the optimal contractor, create a competition commission (hereinafter referred to as the Commission) to select the contractor at the object: "_________________", located at the address: _____________________________.

8. The composition of the Commission should be formed in the number of ____ people:

Chairman of the Commission - _____________________________________;

Deputy Chairman - ___________________________________;

Secretary of the Commission - ________________________________________;

members of the Commission: _________________________________________________.

The activities of the Commission are managed by its Chairman. During his absence - deputy chairman.

The Chairman of the Commission is personally responsible for the implementation of the tasks and functions assigned to the Commission.

In the absence of specialists of the relevant profile, the Commission has the right to attract specialists from the authorities public administration of the Republic of Belarus or other organizations for inclusion in the Commission or to work as experts.

Representatives of the Committee state control The Republics of Belarus have the right to participate as observers in the work of the Commission at any stage of the negotiations.

In its activities, the Commission is guided by the current legislation, this Order, the regulations of the Commission’s activities on organizing negotiations, local acts, decisions made by the customer’s manager.

9. Determine the powers of the Commission based on the purposes of its creation:

Determines the list of requirements for potential bidders, based on the subject of the order, the procedure for carrying out the procedure, procedure, form, final time for submitting proposals, time for opening and consideration of proposals, criteria and methods for evaluating proposals;

Develops an invitation to participate in negotiations, provides __________________________ for signature (indicate the person authorized to sign such documents), registers it and sends it to potential applicants on the day of signature with a technical specification attached;

Determines the final time for submission of proposals by applicants;

Appoints the person responsible for sending, in accordance with the procedure established by this Order, an invitation to negotiations, additional sources for publishing the invitation;

Provides clarification of questions that applicants have regarding the information specified in the negotiation documents;

Determines the criteria for assessing the qualifications of applicants and the list of documents submitted by applicants to confirm the qualifications;

Checks proposals for their compliance with the requirements of the invitation and technical specifications;

Establishes criteria for determining the best offer;

Decides to prohibit the withdrawal or modification of proposals by applicants before the deadline for their submission;

Determines the possibility of bidders using goods and (or) works with technical solutions alternatively set out in procurement documents in proposals, as well as submitting proposals for part of the purchased goods, works or services;

Receives proposals and registers them;

Opens proposals at the time specified in the invitation;

If necessary, requests from applicants additional information regarding the clarification of the proposals they submitted;

Rejects proposals in cases of non-compliance with the requirements of the technical specifications and invitation, failure to provide or refusal of the applicant to provide information specified in the technical specifications and invitation, or submission of unreliable information;

Determines the timing, procedure, method, form of negotiations with applicants to reduce the prices of their proposals;

Evaluates proposals in accordance with the criteria, evaluation methods and in the manner specified in the invitation;

Selects one best offer and, accordingly, one contractor;

Decides on the outcome of negotiations;

Draws up a protocol based on the results of negotiations and submits it to the customer’s manager within one working day from the date of preparation for approval;

If it is not possible to determine the best offer, makes a conclusion on the advisability of a repeat procedure;

If necessary, sends materials to research institutes, scientific societies, associations, organizations and individual specialists to receive written opinions on them within the established time frame;

Determines the rules of its work.

Members of the Commission:

If they disagree with the Commission’s decision, they have the right to submit reasoned objections in writing;

They are responsible (as well as the specialists involved in its work) for compliance with the established rules in their activities, for the objectivity of decision-making, as well as for the disclosure of information that, according to the terms of the procedure, is a trade secret;

Participate in meetings of the Commission without the right to be replaced.

A member of the Commission cannot be:

An employee of the customer who has the status of an individual entrepreneur;

A representative of the applicant, including one who works part-time for the customer on a employment contract(contract);

Spouse, relative up to the third degree inclusive of any of the applicants;

An employee of the customer who owns shares (stakes) in the authorized capital of one of the applicants, or for the last three years according to records in work book carried out activities on the basis of an employment agreement (contract) with one of the applicants, or was a member of the governing or administrative body of the applicant;

An employee of the customer who is not familiar with this Order.

The Commission is not responsible to applicants when announcing a procurement procedure that has not taken place due to circumstances beyond the control of the Commission.

10. Meetings of the Commission are held as necessary.

11. The organization of the meeting of the Commission, drawing up minutes, sending and receiving requests, drawing up, receiving and distributing letters regarding the negotiation procedure, as well as other duties according to the decision of the Commission, shall be provided to the Secretary of the Commission. To perform these functions in whole or in part, the Commission may authorize (appoint) another person, including from among the members of the Procedure Commission or the customer’s employees.

12. The decision of the Commission is made by open vote, subject to the presence of at least 2/3 of its members, and is considered adopted if more than half of the members of the Commission participating in the meeting vote for it. In the event of an equal distribution of votes, a decision is made for which the chairperson at the meeting of the Commission voted.

13. Decisions of the Commission are documented in minutes, which are signed by the chairman of the meeting of the Commission, the secretary of the Commission, members of the Commission and approved by the head of the customer.

14. After the customer’s manager approves the protocol(s), based on the results of the negotiations, together with ______________________ (the customer’s employee, if necessary, with the involvement of a third-party organization), within two working days, develop a draft contract agreement taking into account the negotiations and the proposals of the bidder selected by the contractor.

15. Agree on the draft contract in accordance with the current procedure with services and departments, submit it to the customer’s manager for signature, and then send it to the selected contractor for conclusion in accordance with set deadline to his conclusion.

16. After its conclusion, appoint _______________ as the contractor under the work contract, who will be charged with the responsibility of ensuring control over its implementation on the part of the contractor, as well as over the fulfillment of obligations on the part of the customer.

17. All services, departments, employees of the customer, due to their competence, provide, upon request from the Commission, assistance for the proper conduct of negotiations on the selection of a contractor for the project: “________________________”.

18. This Order is brought to the attention of interested parties for painting.

Customer manager ___________________ Contractor __________________ /______________/ "___" ________ 20__

Conducting negotiation procedures in construction

The procedure for placing orders for the procurement of works, services and goods for construction is regulated by the “Regulation on the procedure for organizing and conducting contract bidding for the construction of facilities” (hereinafter referred to as the “Regulation on Bidding”), approved by Resolution of the Council of Ministers of the Republic of Belarus dated 03.03.2005 No. 235 “On approval of provisions on the procedure for the formation of the negotiated (contract) price and settlements between the customer and the contractor during the construction of facilities and on the procedure for organizing and conducting contract tenders for the construction of facilities.” To place such orders, the said Regulations provide for two procedures: contract bidding and negotiations.

In what cases the negotiation procedure is carried out, and what documents need to be drawn up for its implementation, we will consider in this article.

When deciding on the choice of negotiation procedure for placing an order, it is necessary, first of all, to take into account two initial criteria - the cost of the order and the source of financing.

The norm of part one of paragraph 10 of the Bidding Regulations regulates the placement of an order on the basis of negotiations when they are financed from the funds of the republican and (or) local budgets, state target budget funds, state extra-budgetary funds, external government loans and loans from banks of the Republic of Belarus under guarantees of the Government of the Republic of Belarus (hereinafter referred to as “budget funds”).

According to this standard, during construction at the expense of budget funds objects costing 3,000 basic units or more, the negotiation procedure is used to place orders for the provision of engineering services, supply of building materials, products, structures, inventory and equipment with a cost of each type of less than 3,000 basic units.

Also, in accordance with the above norm of part one of paragraph 10 of the Bidding Regulations, negotiations are carried out to place orders for the construction at the expense of budgetary funds of objects costing less than 3,000 basic units, as well as for the performance of work, services and the purchase of goods necessary for the construction of these objects.

The use of negotiations when placing orders for the construction of facilities financed from funds not related to the budget is regulated by paragraph two of part two of clause 10 of the Bidding Regulations. According to this norm, negotiations are carried out when placing orders for the construction of objects financed from such funds, costing less than 50,000 basic units, as well as for design and survey work necessary for these objects.

Other rules of the second and third parts of paragraph 10 of the Bidding Regulations determine cases of placing orders through a negotiation procedure, regardless of the cost of the order and the source of its financing. In accordance with them, negotiations are carried out when placing construction orders:

In order to eliminate emergency situations or prevent them (subject to the conclusion of the authorized body);

Residential buildings in which 50 percent or more of residential premises are built for citizens registered as needing improved housing conditions;

Residential buildings of panel, large-panel and volumetric block housing construction;

Facilities in agricultural organizations, agricultural towns and others populated areas with a population of up to 20 thousand people.

Negotiations are also carried out in the following cases:

Conclusion of subcontract agreements by the general contractor for the implementation individual species design and survey, construction, installation, special and other works (services);

Supply of goods used in the construction of facilities produced by organizations of the Republic of Belarus according to the list of such goods approved by the Council of Ministers of the Republic of Belarus;

If contract tenders, held in accordance with the established procedure at least two times, are declared invalid due to the lack of the required number of applicants;

Placement of orders for the construction of facilities, performance of work, provision of services and supply of goods carried out for military purposes;

Use by the contractor - the winner of the contract auction of goods that are products of its own production or its subsidiaries unitary enterprises, subsidiaries and affiliates.

By Resolution of the Council of Ministers dated March 13, 2009 No. 313, paragraph 10 of the Bidding Regulations was supplemented with part four, according to which negotiations are not mandatory when placing orders for the construction of facilities fully financed by foreign investors.

The procedure for organizing and conducting negotiations is regulated by Chapter 11 of the Bidding Regulations.

First of all, you should pay attention to the fact that, in contrast to contract bidding, where the participation of at least two bidders is necessary for the bidding procedure to be recognized as valid, clause 63 of the Bidding Regulations provides for the participation in negotiations of both several and only one bidder. Thus, if, in response to invitations sent to several applicants to participate in the negotiation procedure, an offer was received from only one of them, the customer has the right to negotiate with this applicant and conclude an agreement with him.

The customer’s decision to carry out the negotiation procedure must necessarily be preceded by the preparation of the design and estimate documentation or technical specifications justifying the placement of the order. Part two of paragraph 65 of the Bidding Regulations contains mandatory requirements for the content of such technical specifications. According to this norm terms of reference must at least contain:

Name, list, quantity (volume) and cost of work performed, services provided and goods supplied;

Technical, technological, design or other consumer indicators and characteristics of works, services and goods.

Clause 64 of the Tender Regulations defines the list of customer functions to be performed when placing an order on the basis of negotiations. So, to carry them out, the customer is obliged to make an appropriate decision to place an order based on negotiations. This could be, for example, an order or instruction from the customer’s manager or another authorized person. If necessary, the customer’s decision can be formalized in another document, including, for example, an assignment for conducting a negotiation procedure. The same decision should determine:

Date of negotiations;

Procedure for notifying applicants;

The competition commission or the person responsible for the negotiations;

Powers of the commission or person responsible for conducting negotiations.

As practice shows, in organizations that regularly conduct such negotiations, it is advisable to issue an order to create a permanent commission that carries out negotiation procedures, or to appoint an appropriate official authorized to carry out such procedures. If necessary, the customer may grant the right to negotiate to several persons. With the same order, it is advisable to define the powers of the commission or persons authorized to conduct negotiations, including establishing the circle of persons who have the right to make a decision on choosing the best offer.

The next step of the customer during negotiations is to determine the list of invited applicants.

Here we should dwell on one significant point. As is known by the main document established since the beginning of 2009 new order procurement at the expense of budgetary funds (public procurement), is the Decree of the President of the Republic of Belarus dated November 17, 2008 No. 618 “On public procurement in the Republic of Belarus" (hereinafter referred to as "Decree No. 618"). At the same time, in accordance with paragraph 4 of this Decree, only paragraph 3 of the Decree, which establishes the list and conditions for choosing procurement procedures, does not apply to public procurement of goods, works and services carried out during the construction of facilities. Other norms of Decree No. 618 apply, inter alia, to contract tenders and negotiations in construction, if they are financed in whole or in part from budget funds. In addition, it should be recalled that Resolution of the Council of Ministers of the Republic of Belarus dated December 20, 2008 No. 1987 “On some issues of public procurement” (hereinafter referred to as “Resolution No. 1987”) was adopted in accordance with paragraph 11 of Decree No. 618, to implement it requirements. Thus, paragraph 2 of Resolution No. 1987 also applies to public procurement of goods, works and services in construction.

In connection with the above, when determining the list of applicants invited to participate in the negotiation procedure in construction, it is necessary to take into account the norm of subclause 2.3. paragraph 2 of Decree No. 1987. In accordance with this norm, government procurement at the expense of budgetary funds can only be carried out from suppliers who are manufacturers of goods, as well as their official sales representatives who sell goods in accordance with contracts (agreements) with these manufacturers.

After the customer has determined the list of invited applicants, he sends them invitations to participate in negotiations, and submits design estimates or technical specifications, as well as other documents, if necessary. In addition, if necessary, the customer can develop a draft of the relevant agreement or government contract to be sent to applicants. It should be noted that the development of a draft contract is not a mandatory requirement for the customer. In practice, quite often a draft contract is presented to the customer by the contractor (performer, supplier) himself, selected based on the results of the negotiation procedure. The customer has the right to provide these documents both to all invited applicants, for example, simultaneously with sending an invitation to participate in negotiations, and only to those of them who have agreed to participate in the procedure.

The next step is to directly conduct the negotiations themselves. The regulations on auctions do not contain strict rules regulating the procedure for their organization and conduct. The customer has the right to conduct them both through meetings with applicants and oral discussion of the terms of the contract being concluded, and through the exchange of documents in writing. However, it should be borne in mind that in accordance with paragraph 67 of the Tender Regulations, the bidder is obliged to submit its proposals in accordance with the requirements set out in the invitation to participate in negotiations. Thus, in the invitation sent by the customer to participate in negotiations, it is advisable to indicate in what manner and in what form the applicant is obliged to submit his proposals.

After the negotiations are completed, the customer evaluates the resulting bidders’ proposals and makes a decision on the results of the negotiations. A situation may arise when one of the applicants participating in the negotiations refuses to submit their proposal. Also, based on the results of the negotiations, the customer can receive an offer from only one candidate. In this case, if the received proposal suits the customer, as indicated above, the negotiations are considered valid.

Based on the results of the negotiations, the customer draws up a protocol that reflects the content and results of the negotiations. The protocol is submitted for approval to the customer’s manager or another authorized person, who must make a decision on approval of the results of the negotiations within three days. After approval of the negotiation protocol, the customer and the candidate chosen by him are required to conclude an agreement within ten days ( government contract). It should be taken into account that in accordance with paragraph 72 of the Bidding Regulations, the concluded agreement (government contract) includes essential conditions formed as a result of negotiations. By mutual agreement of the parties, separate conditions may be included in the contract that were not the subject of consideration of contract tenders or negotiations, but do not change their conditions. In this regard, it is necessary to pay attention to the following legal norms governing the procedure for changing concluded contracts.

As stated above, the norms of Decree No. 618, with the exception of the norms of paragraph 3, apply to all public procurement, regardless of whether they are carried out in construction or in other areas. In accordance with paragraph 9 of this Decree, when carrying out public procurement, it is not allowed to change the terms of the public procurement contract, which entails additional expenditure of funds from the republican and (or) local budgets, state extra-budgetary, innovation funds or a decrease in the number of goods purchased (volume of work performed, services provided) or deterioration in their quality, unless otherwise provided in acts of the President of the Republic of Belarus, laws of the Republic of Belarus and resolutions of the Council of Ministers of the Republic of Belarus. In development of this norm, the Council of Ministers of the Republic of Belarus established cases when changes to the terms of public procurement contracts are allowed. So sub-clause 2.1. Clause 2 of Resolution No. 1987 established that the customer, during the public procurement procedure, has the right, within the limits of funds allocated from the republican and local budgets, including state target budget funds, as well as from state extra-budgetary and innovation funds, to increase (decrease) up to 10 percent volume of this purchase. In addition, this norm gives the customer the right to change the purchase price specified in the contract. The specified changes in the volume of purchase or its cost are possible in the event of a change in the cost of purchased raw materials, materials, components and other goods (works, services), which could not be foreseen at the beginning of the procurement procedure, as well as in the event of changes in legislation.

With regard to contracts concluded as a result of contract tenders or negotiations in construction, regardless of the sources of their financing, the Council of Ministers has established special norms regulating changes in the price of such contracts. In accordance with paragraph 11 of the Regulations on the procedure for forming the negotiated (contract) price and settlements between the customer and the contractor during the construction of facilities (hereinafter referred to as the “Regulations on the procedure for forming prices”), approved by Resolution of the Council of Ministers of the Republic of Belarus dated 03.03.2005 No. 235, the negotiated price adjusted in cases:

Making changes to the design and estimate documentation in accordance with the established procedure;

Changes in tax legislation;

Changes in the cost of materials, products and structures, operation of machines and mechanisms compared to those included in the contract price (with the consent of the customer);

Changes in forecast price indices in construction, approved in accordance with the established procedure.

Thus, taking into account the above norm of paragraph 72 of the Regulations on Bidding, after concluding a contract based on the results of the negotiation procedure in construction, the price of the contract can be changed only in the cases provided for in paragraph 11 of the Regulations on the procedure for pricing. Other essential terms of the contract that were the subject of negotiations cannot be changed, including by agreement of the parties. This was confirmed by paragraph 33 of the resolution of the Plenum of the Supreme Economic Court of the Republic of Belarus dated December 23, 2005 No. 33 “On some issues of consideration of disputes arising from a construction contract.” As stated in this resolution, the consequences of non-compliance with the specified legal requirements, it may be possible to establish the fact that the parties’ agreement to amend the terms of the construction contract is null and void.

So, to carry out the negotiation procedure in construction, the customer needs to draw up at least two documents:

An order (order or other document) on the negotiation procedure, which, if necessary, may contain a list of invited applicants;

Protocol of negotiations.

Let us give examples of order forms and protocols used for negotiations in construction.

Sample order form

________________________

Organization name

____________ № _________

(date) (number)

_______________________

(place of publication)

About placing an order on _______________________________

(name of order item)

based on negotiations

I order:

1. In accordance with paragraph 10 of the Regulations on the procedure for organizing and conducting contract tenders for the construction of facilities”, approved by Resolution of the Council of Ministers of the Republic of Belarus dated 03.03.2005 No. 235 “On approval of provisions on the procedure for forming the negotiated (contract) price and settlements between the customer and the contractor during the construction of facilities and on the procedure for organizing and conducting contract tenders for the construction of facilities" conduct a negotiation procedure to select a contractor for _________________________

(name of order item)

2. The negotiation procedure should be carried out in the period from ___________ to _____________.

3. Assign _____________________________ responsible for negotiations

(position full name of the responsible person or name of the competition committee)

4. _____________________________________________ determine the list of applicants

to participate in the negotiations and send them invitations by mail.

5. Send the terms of reference and draft agreement to applicants who have expressed a desire to participate in negotiations.

6. Provide ________________________________________________________________

(position full name of the responsible person or name of the competition committee)

powers to conduct negotiations with applicants, receive and evaluate proposals submitted by them, and select the winner of negotiations.

7. _____________________________________________ draw up a protocol on the results

(position full name of the responsible person or name of the competition committee)

conduct negotiations and submit it for approval to the director of the organization.

______________________________ _________________ ___________________

Name of the position of the head of the organization Signature Explanation of the signature

I have read the order _________________ ___________________

Signature Explanation of signature

___________________

Sample form of the negotiation protocol

I APPROVED

______________________________

(job title)

_____________ ___________________

(signature) (initials, surname)

__________________

PROTOCOL

based on the results of negotiations

to place an order for __________________________

(item of order)

___________________________________ __________ _________

(venue, address, telephone) (date) (time)

Active

(position full name of the responsible person)

on the basis of ___________________________________________________ held negotiations with

(order, decision, instruction or other document placing an order based on negotiations)

applicants who submitted their proposals for the negotiation procedure for obtaining an order for _______________________________________________.

(item of order)

1. The following applicants were invited to participate in the negotiations: _______________

__________________________________________________________________________________

2. Invitations to applicants were sent to ___________________________________

(by mail, by fax, etc.)

3. The invitation to participate in the negotiations was published in ______________________

(name of product mass media, if such publication was carried out)

4. Applicants who participated in the negotiations and submitted their proposals:

- ______________________________________;

(full name and address of applicants)

6. Having studied and evaluated the proposals and materials presented by the applicants, the proposal _______________________________________ was considered the most profitable for the customer

(full name of the negotiation winner)

with the following conditions:

negotiated (contract) price ____________________________ rubles;

order completion time:

Beginning _______________________ 200_,

End _______________ 200_;

Other conditions __________________________________________________________

_________________ ________________________

(signature) (position full name of the responsible person)

Applications:

- ______________________________________;

- ______________________________________.

Leading Legal Advisor

LLC "Legal-consulting

Bureau Kuntsevich and Partners"

On the repeated negotiation procedure for the selection of a contractor and an engineering organization

In accordance with clauses 1.1, 1.4 (paragraph 3) of the Decree of the President of the Republic of Belarus dated 01.01.01 No. 000 and in pursuance of Chapter No. 11 “Organization of negotiations” of the Regulations on the procedure for organizing and conducting procurement procedures for goods (works, services) during the construction of facilities , approved by the Resolution of the Council of Ministers of the Republic of Belarus dated 01.01.01 No. 88 “On the organization and conduct of procedures for the procurement of goods (works, services) and settlements between the customer and the contractor during the construction of facilities”, regarding the selection of a contractor to carry out work on the “Thermal modernization of the facades of hostel No. 1 on the street. Y. Kolasa, 28 in Minsk" 3rd stage, as well as in accordance with Resolutions of the Council of Ministers of 2014 No. 4 and dated 01.01.01 No. 000, regarding the selection of an engineering organization to provide certain types of engineering services in construction for the same object

I ORDER:

1. Repeat the negotiation procedures:

1.1 at the choice of a contractor for routine repairs for the project “Thermal modernization of the facades of hostel No. 1 on the street. Y. Kolasa, 28 in Minsk” 3rd stage;

1.2 at the choice of an engineering organization to provide engineering services for the integrated management of construction activities with the implementation of technical supervision functions during construction for the project “Thermal modernization of the facades of hostel No. 1 on the street. Y. Kolasa, 28 in Minsk” 3rd stage;

2. Approve the negotiation procedures specified in paragraph 1 of this order in accordance with Annexes 1 and 2.

3. Entrust the negotiation procedure to the permanent competitive negotiation commission created by the university.

4. Determine the procedure for the work of the commission, including the functional responsibilities of each of its members, in accordance with the Regulations on the competition commission for negotiations and the regulations of the competition commission for negotiations, approved by order of the rector of the university.

5. Establish that, if necessary, the competition commission may involve other university employees to work as part of the commission or expert group.

6. Entrust control over the implementation of this order to the Vice-Rector for Economics and Construction

University Rector

Vice-Rector

I. o. vice-rector

Head of Legal Department

Appendix 1

__________№________

activities to select a contractor to carry out routine repairs for the project “Thermal modernization of the facades of hostel No. 1 on the street. Y. Kolasa, 28 in Minsk" 3rd stage

Vice-Rector

I. o. vice-rector

Appendix 2

to the order of the university rector

___________№________

activities for the selection of an engineering organization to provide engineering services for the integrated management of construction activities with the implementation of technical supervision functions during construction for the project “Thermal modernization of the facades of hostel No. 1 on the street. Y. Kolasa, 28 in Minsk" 3rd stage

Vice-Rector

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Algorithm of actions during negotiations in construction

From January 1, 2017, purchases of goods (works, services) during the construction of facilities are regulated by the following standards:

* Decree of the President of the Republic of Belarus dated October 20, 2016 No. 380 “On the procurement of goods (works, services) during construction” (hereinafter referred to as Decree No. 380);

* Regulations on the procedure for organizing and conducting procurement procedures for goods (works, services) during the construction of facilities, approved by Resolution of the Council of Ministers of the Republic of Belarus dated January 31, 2014 No. 88 (hereinafter referred to as Regulation No. 88).

Procurement of works and services during construction, including construction, reconstruction, repair, restoration, improvement, demolition of objects, is carried out taking into account the requirements of Decree No. 380 through contract bidding or negotiations, unless otherwise established by Decree No. 380 (subclause 1.1 clause. 1 of Decree No. 380).

Purchases of goods during construction are carried out taking into account the requirements of Decree No. 380 through bidding for the purchase of goods during construction, negotiations or exchange auctions conducted in accordance with the legislation on commodity exchanges, with the exception of centralized government procurement of medical devices carried out in the manner determined by the legislation on state procurement (subclause 1.2 clause 1 of Decree No. 380).

Thus, four types of procedures have been established for the construction sector:

* contract tenders;

* tenders for the purchase of goods during construction;

* exchange trading;

* negotiation.

General characteristics of negotiations

Negotiation- a form for placing orders for the construction of facilities, the purchase of goods (performance of work, provision of services) during the construction of facilities, providing for the identification of a contractor, performer or supplier whose proposal satisfies the requirements and conditions set out in the documentation for negotiations (paragraph 15, clause 2 of Regulation No. 88 ).

Participants in the negotiation procedure:

* organizer of negotiations: investor, developer, customer, contractor or engineer (engineering organization) carrying out (carrying out) the placement of the relevant order during the negotiations;

* actual participant(s): a person who takes part in negotiations for the construction of facilities, the purchase of goods (performance of work, provision of services) and who has submitted their prequalification documents (if necessary, if prequalification is being carried out) and (or) a proposal for negotiations on the subject order.

* operator of the official website of the Republican Information unitary enterprise“National Center for Marketing and Price Study” on the Internet (information system “Tenders”), if the organizer of negotiations, if necessary, places a notice of negotiations in information system"Tenders".

Negotiation cases:

a) when holding contract tenders, tenders for the purchase of goods during construction, exchange trading is not mandatory (subclause 1.6, 1.7 clause 1 of Decree No. 380);

b) when the purchase of goods (works, services) during the construction of facilities financed by own funds customers, with the exception of funds from state organizations and business companies, shares (shares in the authorized capital) of which are state-owned, are carried out at the customer’s choice through contract bidding (bidding for the purchase of goods during construction), exchange bidding, negotiations, unless otherwise established The President of the Republic of Belarus (clause 72 of Regulation No. 88);

c) if holding contract bidding (bidding for the purchase of goods during construction, negotiations), exchange bidding when placing orders necessary for the construction of facilities is not mandatory, the investor, developer, customer, contractor, engineer (engineering organization) has the right to appoint and conduct them (Clause 8 of Regulation No. 88).

During negotiations, to provide an advantage in comparison, a preferential adjustment is applied in the form of a reduction in the offer price in the amount of:

* 15% - in the case of a participant offering goods (works, services) originating from the Republic of Belarus and countries that are granted national treatment in the Republic of Belarus in accordance with international treaties Republic of Belarus;

* 25% - in case the participant offers goods of its own production to organizations in which the number of disabled people is at least 50% of the payroll number of employees (part one of clause 9 of Regulation No. 88).

Document forms

Forms minutes of the meeting of the competition commission and invitations given in the appendices to Regulation No. 88 relate to contract bidding, bidding for the purchase of goods during construction.

The document forms approved in the appendices to Regulation No. 88 are approximate. There is no direct rule obliging the use of these forms of documents for negotiations. However, the author believes that in the part that does not contradict imperative norms, these forms can also be used for negotiations (for example, if the organizer conducts pre-qualification).

order contract appeal defense

Negotiation algorithm


Making a decision by the organizer (order, instruction or other document) on placing the corresponding order based on negotiations, the date of negotiations, the procedure for notifying the participant (participants) about their holding

Formation of a commission by the organizer (appointment of a person responsible for conducting negotiations)

Development by the organizer of documentation for negotiations, a draft of the relevant agreement and, if necessary, documentation for the pre-qualification of participants

Determining the list of invited participants, sending them an invitation to participate in negotiations and (or) posting a notice of negotiations

Submission to participants of documentation for negotiations, which is approved by the head of the organizer of negotiations, and, if necessary, documentation for pre-qualification of participants

Organization and conduct of negotiations

Evaluation of proposals submitted by participants for negotiations and making a decision on the results of negotiations

Drawing up a protocol based on the results of negotiations and notifying participants in writing about the results of their conduct

Conclusion of an appropriate agreement based on the results of negotiations

Step 1. Acceptance organizer solutions (order, order or another document) O placement appropriate order on basis negotiations, date carrying out negotiations, ok notices participant (participants) about their carrying out

Terms to make a decision to conduct negotiations is the availability of documents, the composition of which depends on the subject of the order being placed. The legislator included in Regulation No. 88 a reference rule that the organizer of negotiations makes a decision to conduct negotiations if he has:

1) documents established accordingly:

In the first part of clause 25 of Regulation No. 88 (performance of work during the construction of facilities, with the exception of the construction of turnkey facilities);

In the first part of clause 45 of Regulation No. 88 (performing pre-design, design and survey work);

In parts one and two of paragraph 48 of Regulation No. 88 (for the purchase of goods during construction, with the exception of the results of market research);

In clause 54 of Regulation No. 88 (choice of sub contractors);

In clause 58 of Regulation No. 88 (provision of engineering services), or

2) technical specifications for the purchase of goods (works, services), according to which the justification for placing an order is given, if, in accordance with the law, the development of pre-project (pre-investment) project documentation is not mandatory (clause 64 of Regulation No. 88).

Requirements for technical specifications: must contain information about the name, list, quantity (volume) of work performed, services provided, goods supplied; on the required technical, technological, design or other consumer indicators and characteristics of works, services and goods related to determining the compliance of works, services and goods with the needs of the negotiation organizer.

The approval of the technical specifications is carried out with the republican government body or other state organization subordinate to the Government of the Republic of Belarus, which is subordinate to (the structure (system) of which includes) the developer, the customer, or who manage the shares (shares in the authorized capital) of the developer owned by the Republic of Belarus , the customer, and in the absence of such a republican body or state organization - with regional and Minsk city executive committees (at the location of the facility), when purchasing goods not produced in the Republic of Belarus, during the construction of facilities, including residential buildings, financed in full or partially at the expense of the republican and (or) local budgets, as well as state target budget funds and state extra-budgetary funds, external government loans and external loans raised under guarantees of the Government of the Republic of Belarus, bank loans issued under guarantees of the Government of the Republic of Belarus, regional and Minsk city executive committees.

Step 2. Formation organizer commissions (purpose responsible faces for carrying out negotiations)

Organizer a competition commission is created (a person responsible for conducting negotiations is appointed) defining its (his) powers.

Step 3. Development organizer documentation For negotiations, project appropriate agreement And at necessity documentation For preliminary qualifying selection participants

Preliminary qualifying selection of participants is not mandatory in negotiations, but can be carried out at the initiative of the organizer. Only participants selected based on the results of the preliminary qualification selection will take further participation in the negotiations. The procedure for conducting prequalification is governed by the rules established in Chapter 3 of Regulation No. 88.

Actions of the organizer during prequalification:

1) preparation and approval of documentation for the prequalification of participants, which must contain information:

About the name of the negotiation organizer, his location, bank details, contact numbers and email address;

Name of the item of the order;

The timing and procedure for the preliminary qualification selection of participants;

A list of indicators taken into account during the preliminary qualification selection of participants, as well as the criteria and methodology for assessing the qualifications of participants for their further admission to participation in negotiations.

Validity period of prequalification documents;

2) inviting participants who have applied to participate in negotiations to pre-qualify and register such participants;

3) provision of documentation for pre-qualification to participants in electronic form;

4) consideration of pre-qualification documents received from participants, their analysis and synthesis, as well as making a decision on the participant’s further participation in the negotiations.

The competition commission after the deadline for submitting pre-qualification documents:

1) holds a meeting at which pre-qualification documents are opened (pre-qualification documents are opened, presented in the form of an electronic document on an electronic storage medium), where participants can be present;

2) when opening envelopes with prequalification documents submitted in electronic form (on an electronic storage medium with the impossibility of modifying the information), checks the presence of all documents established for the prequalification selection of participants, and the name and location of each participant is announced;

3) draws up minutes of the meeting of the competition commission on the opening of prequalification documents (Appendix 1 to Regulation No. 88);

4) studies pre-qualification documents of participants. The period is no more than 5 working days from the date of opening the envelopes, but it can be extended in some cases with the consent of the organizer, but no more than 5 working days;

5) evaluates the qualifications of participants taking into account the criteria established by the organizer and the methodology for their assessment.

Based on the results of the preliminary qualification selection of participants, a protocol of the meeting of the competition commission on the results of the preliminary qualification selection of participants is drawn up (Appendix 2 to Regulation No. 88). If a member of the competition commission has a dissenting opinion, it is stated in this protocol. The minutes of the meeting of the competition commission on the results of the preliminary qualification selection of participants are signed by the chairman and members of the competition commission and submitted to the organizer of the negotiations for approval. The organizer of the negotiations approves this protocol within 1 working day from the date of its submission.

Notification of participants: the organizer of negotiations notifies participants about the results of the prequalification selection in written and (or) electronic form within 3 working days from the date of approval of the minutes of the meeting of the competition commission on the results of the prequalification selection of participants. A participant who has not passed the preliminary qualification selection is given a reasoned refusal to further participate in the negotiations and his proposal for negotiations is returned unopened.

Also, according to the author, it is possible to apply part eleven of clause 36 of Regulation No. 88 if the organizer of the negotiations discovers that the participant has provided false information - the participant is suspended from participation in the prequalification selection or negotiations at any time before the conclusion of the contract.

Step 4. Definition list invited participants, direction them invitations For participation V negotiations And (or) accommodation notices O carrying out negotiations

Organizer negotiations is obliged to send an invitation to participants to participate in negotiations no later than 3 working days before they are held. The organizer of negotiations, if necessary, places a notice of negotiations in the Tenders information system and (or) publishes it in any media (clause 66 of Regulation No. 88).

Based on paragraph 4 of clause 63 of Regulation No. 88, the organizer determines the list of invited participants and sends them invitations to participate in negotiations, and if necessary, he places a notice of negotiations and (or) publishes it in any media.

The invitation must contain the following information:

* on the method of conducting negotiations (with or without pre-qualification of participants, with or without a procedure for improving the proposal for negotiations);

* the name of the organizer of the negotiations, his location, bank details, contact telephone numbers, email address, surname, first name and patronymic (if any) of the responsible person, his contact telephone numbers and fax;

* subject of the order, price and timing of the order;

* the procedure for obtaining documentation for negotiations;

* form, size and timing of provision of proposal security (if necessary);

* the date and time of the beginning of the submission of proposals for negotiations, the date and time of the end of their submission, the place and procedure for the participants to submit these proposals;

* the place, date and time of the procedure for opening envelopes with proposals for negotiations (opening proposals for negotiations presented in the form of an electronic document on an electronic storage medium);

* date and place of pre-qualification selection of participants (if necessary);

* date and place of negotiations and summing up their results;

* a set of criteria specified in the documentation for negotiations, according to which the winner of the negotiations is determined;

* the timing of the conclusion of the relevant agreement;

* the form, amount and deadline for providing security for the execution of the contract (if necessary), as well as other necessary data with reference to the presentation in the documentation for negotiations of more detailed conditions for their conduct (part one of clause 67 of Regulation No. 88).

Step 5. Performance participants documentation For negotiations, which approved head organizer negotiations, And at necessity documentation For preliminary qualifying selection participants

Requirements to documentation for negotiations:

Requirements for the subject of the order and their participants;

Information about pre-project (pre-investment) documentation (design, including estimate, documentation) (if the mandatory development of it is provided for by regulatory legal acts, including technical regulatory legal acts) and the procedure for familiarization with it or the terms of reference for the purchase of goods (works, services), if, in accordance with the law, the development of pre-project (pre-investment) project documentation is not mandatory;

Requirements for order fulfillment time;

The order price used as a starting price, with the possibility of making proposals to change it, including the currency of the order price and the currency of settlements, the procedure for accounting for the price of transportation costs, insurance, payment of customs duties, taxes, fees and other obligatory payments;

Terms of payments under the agreement, including the procedure and conditions for opening a letter of credit, if a letter of credit is used;

Draft of the relevant agreement.

Requirements for participants to submit documents on their economic and financial situation as of the 1st day of the month preceding the month of submission of the proposal for negotiations;

Requirements for the quality control system of purchased goods (work performed, services provided);

Requirements for the availability, in cases established by law, of a declaration of conformity or a certificate of conformity of goods (works, services) and other requirements established by the organizer of negotiations, taking into account the specifics of the subject of the order;

Requirements for the content, form (in writing on paper in a separate envelope and (or) in the form of an electronic document on an electronic storage medium) and execution of proposals for negotiations;

The procedure and period for withdrawing proposals for negotiations, as well as the procedure for making changes to such proposals;

The procedure and deadline for submitting clarifications of the provisions of the documentation for negotiations;

The procedure, place and deadline for submitting proposals for negotiations, as well as pre-qualification documents (if necessary);

Place, date and time, procedure for opening envelopes with proposals for negotiations in written form on paper (opening proposals for negotiations presented in the form of an electronic document on an electronic medium), as well as opening prequalification documents submitted in electronic form (on an electronic medium information with the impossibility of modifying the information) (if necessary);

The right of the organizer of negotiations to request explanations from participants of their proposals;

The procedure and expected timing of negotiations, as well as pre-qualification of participants (if necessary);

Requirements for a participant, in accordance with which negotiations can be conducted by his authorized person, and requirements for a document confirming such authority (power of attorney or other document), which is presented before the start of negotiations;

Criteria for assessing the winner of negotiations, their significance and the procedure for determining such a winner;

The right of the negotiation organizer to conduct a procedure for improving the proposal for negotiations, as well as the procedure for conducting such a procedure.

The period during which the winner must sign the draft of the relevant agreement or perform other actions provided for in the documentation for negotiations in order to sign it (clause 68 of Regulation No. 88);

2) language: Russian or Belarusian. Documentation for negotiations can be additionally drawn up at English. In this case, the version presented in Russian or Belarusian will have priority.

3) form: presented in printed form or in the form of an electronic document;

4) submission deadline: no later than 2 working days from the date of the participant’s written request (clause 71 of Regulation No. 88).

Step 6. Organization And carrying out negotiations

Negotiation are carried out by the organizer of negotiations with the involvement, if necessary, of experts and authorized representatives of the customer (clause 74 of Regulation No. 88).

Types of negotiations:

1) individual - conducted by the organizer with each participant individually.

Peculiarities:

* the need to ensure the confidential nature of negotiations between the organizer and the participant;

* non-disclosure by any of the negotiating parties to third parties of technical, price or other information related to the negotiations, without the consent of the other party;

* selection during the negotiation process of the main or alternative proposal of the participant in the event that negotiations are conducted with the right of participants to submit alternative proposals;

2) in general order - proposals for negotiations are considered by the organizer.

Step 7. Grade presented participants proposals For negotiations And acceptance solutions O results carrying out negotiations

Participant presents its proposals for negotiations in accordance with the requirements specified in the invitation to participate in negotiations and documentation for negotiations (clause 75 of Regulation No. 88).

Step 8. Registration By results carrying out negotiations protocol And notice participants V written form O results their carrying out

Protocol approved by the head of the organizer of the negotiations within 3 days after they are held.

If the winner of the negotiations selects a participant whose price of goods (works, services) differs from the minimum price offered during the negotiations, such a choice must be accompanied by appropriate justification (clause 76 of Regulation No. 88).

Step 9. Conclusion appropriate agreement By results carrying out negotiations

Agreement is concluded based on the results of negotiations no later than 10 calendar days after the completion of the order and approval of the protocol on the negotiations (paragraph 3 of part one of clause 79 of Regulation No. 88).

Fulfillment of obligations under the contract can be ensured by providing bank guarantee, guarantees, transfers of funds to the organizer of contract tenders (bidding, negotiations), as well as in other ways in accordance with the law. If the tender documentation provides for security for the fulfillment of obligations under the contract, the contract is concluded after the participant recognized as the winner of the contract bidding (bidding, negotiations) provides security for the fulfillment of obligations under the contract in accordance with Regulation No. 88.

The concluded contract includes essential conditions formed based on the results of contract bidding (bidding, negotiations).

When concluding a contract, certain conditions may be introduced into it by mutual agreement of the parties, which were not the subject of consideration at the contract auction (bidding, negotiations), but do not change them essential conditions(Clause 80 of Regulation No. 88).

The documentation for negotiations, the proposal of the winner of the negotiations, the protocol on the results of the negotiations are attached as annexes to the agreement and are its integral part.

Changes in requirements for the subject of the order and (or) terms of the contract

Organizer has the right, during negotiations, to change previously established requirements for the subject of the order and (or) the terms of the contract.

To do this, it is necessary to coordinate and approve such changes in the manner specified for the coordination and approval of documentation for negotiations, and inform the negotiation participants no later than 2 working days from the moment of their approval by the organizer of the negotiations.

Along with this, there is a rule that allows, during the procurement procedure for goods (works, services) during construction, to change the volume (quantity) of the purchase of goods (works, services), but not more than 10%, if this is provided for by the conditions of the procurement procedure (clause. 91 Regulations No. 88).

Centralization in negotiations

Allowed centralization in negotiations: the organizer of negotiations can place orders for the purchase of similar goods (performing similar work, providing similar services) during the construction of objects in a centralized manner for several objects under construction.

In this case, the documentation for negotiations indicates homogeneous goods (works, services) necessary for the construction of each facility.

The organizer of negotiations has the right to conduct negotiations simultaneously on several lots.

Appeal and protection of rights

Controversy related to the organization and conduct of negotiations are permitted in accordance with Chapter 13 of Regulation No. 88, in particular:

1) in case of disputes, before summing up the results of the negotiations, the participant has the right to submit a complaint in writing to the competition commission of the organizer (if it has been created for the negotiations) (part one, clause 84);

2) if controversial issues arose before the conclusion of the contract based on the results of the negotiations, a complaint against the decision of the competition commission to select the winner is submitted to the organizer of the negotiations within 5 calendar days from the date the participant receives a written message about the results of the negotiations (part one, clause 85);

3) in cases established by law, participants have the right to file a complaint with the Interdepartmental Commission for Conducting Procurement Procedures during Construction (Part Five, Clause 85).

4) after the conclusion of the contract based on the results of negotiations, further consideration controversial issues carried out in accordance with the law, in particular by applying for judicial protection rights (clause 86).

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Name
applicant

Indicators on the main points of the applicants’ proposals

Offer price,

Order fulfillment time

Payment terms

Delivery terms