S.V.Matkovsky, the director of municipal order of the administration in Kirov, the chairman MOO "The House of specialists in the sphere of state and municipal order”.
The article examines the question of the collision of the legislation concerning the purchases, CC of RF and the law concerning the competition protection. To examine the question concerning the participation of the persons, predominating in the delivery of goods tender, execution phase, rendering of services for state or municipal needs, it is necessary to analyze the obligatoriness of such participation.
The art.5of FL №135-FL " The protection of competition” fixes the persons, predominating at the goods markets. The art.10 of the law forbids the abuse of supremacy. P.1, art. 10 also forbids the following: Item 5) economically and technologically groundless refusal or the signing of the contract evasion with the separate buyers (customers) in case if there is a possibility of the production or the delivery of goods, and if such refusal or evasion are not provided by the Federal Laws, normative legal acts of the President of RF, normative legal acts of the Government of RF, normative legal acts of the authorized executive federal bodies or judicial acts.
The art. 445 CC of RF regulated the points concerning the contract signing. There is the following order: "1. In cases, when in accordance with the Code or other laws for the party, who gets the offer (the project of the contract), the contract signing is compulsory; this party should send the notification of the acceptance of the offer on other conditions (the minutes of the discords in the contract project) to another party, within 30 days when the offer is received. The party, who sends the offer and gets from the party, for which the contract signing is compulsory, the notification of its acceptance on other conditions (the minutes of the discords in the contract project), has a right to go to the court with the claim to examine the discords in the contract signing, within 30 days when such a notification is received or termination of the acceptance.
2. In cases, when in accordance with the Code or other laws, the contract signing is compulsory for the party, who sends the offer (the contract project); within 30 days this party gets the minutes of discords in the contract project; this party must notify another party of the contract reception or of the declining of the minutes of discords, within 30 days when the minutes discords are received. If the minutes of discords are declined or if by the deadline there is the absence of the notification, concerning the results of the examination. The party, who sends the minutes of discords, has a right to go to the court to examine the discords in the contract signing.” It is seen, that the art.445 of the CC of RF provides the compulsory initiative in the contract signing from any party. The conclusion is very important for the point-in-question. Thus, the dominating companies must sign contracts with the persons, who apply to them, if they have this possibility.
The following postulate of this article is referred to the Budget Code of RF; according to its art.72, budget organizations purchase the goods, works and services in accordance with the legislation concerning purchases, i.e. FL № 94-FL "the placement of orders on the goods delivery, execution phase, rendering of services for state and municipal needs.” The art. 10, 94-FL says, that goods, works and services are purchased by means of 2 basic ways: tender and without tender. If a tender is not held, goods, works and services are purchased at the sole supplier, according to art.55 of the Law; or by means of inquiry about price quotation, if the contract price does not exceed 500.000 roubles (in quarter) on the same goods, works, services.
The art. 55, 94-FL fixes the exhaustive list of goods, works and services, purchased at the sole supplier without tender to any sum. Besides, according to art. 55 the customer can purchase goods, works, services to the sum, which does not exceed the sum, fixed by CB of RF limiting dimensions of the accounts with available funds among legal entities, concerning one deal (for 01.10.03- 100.000 roubles). The customer has a right to place the orders, concerning the delivery of the same goods, works, services to the mentioned sum, during the quarter. Thus, if goods, work or service is not included into the list, pointed in the art. 55, 94-FL, the customer has a right to purchase such goods, works and services only by means of tender or the inquiry of the price quotation (except small purchases up to 100.000 roubles). Thus, the customer signs the contract (state or municipal contract) to the considerable sum only at the tender. What is the tender? There are different points of view. In accordance with the item 1, art.527 of CC of RF, the ground to sign the state contract is the order which is received by the supplier; a state customer must sign the state contract only in case of acceptance of the placed order. Therefore, according to the general rule, the placed order turns into the legal fact, with its rights and duties, after the declaration of the party's will to receive the order. Thus, the ground to sign the state contract is double-sided deals, i.e. the contracts.
A state customer can only suggest to sign the contract, i.e. the offer. This statement can not be taken into consideration, because at the offer the suggestion to sign the contract is in force for everybody, who gets it; but the customer can sign only 1 contract. Item 2, art.435 of CC of RF points out, that the offer connects the person, who sends it, from the moment of reception with the addressee. In cases of placement of order, the publication concerning tender notification (quotation inquiry) does not connect the addressee with the customer. The tender notification can not be considered as a public offer, because the public offer is the suggestion, containing all the contract conditions, which reflects the will of the person, making the suggestion, to sign the contract on the conditions, mentioned in the suggestion with anybody, who agrees (e.g. with the person, who bids first); in case of placement of orders, such points do not take place. There is a point of view, that the order is one-sided civil deals. Firstly, the settlement of the deal is the act of the usage of civil rights by the state customer and the potential suppliers.
Secondly, such actions can be followed by the typical for the placement of order process legal consequences in the form of the accrual at the party (the addressee of the deal), duties of the party, who makes the deal. There is another point of view, that the duties by means of tendering are the juridical structure, including 2 contracts: the tender contract and the minutes, due to which the contract relationship between the organizer and the winner is formed. The minutes may be the contract, the signing of which demands tender; it comes into effect according to the art.425 of CC of RF at the moment of the contract signing. If in accordance with the item 5, art.448 of CC of RF the tender is kept not for the contract signing, but for the right to sign it, so, in this case the legal value of the minutes changes: the basic contract turns to the subsidiary, possessing the features of the interim contract. Though item ,art. 429 CC of RF contains the reference to have all the considerable conditions of the main contract in the interim contract. Besides, according to 94-FL, at the placement of order it should include all the necessary conditions for the state contract. Pointing out the features of state and municipal order, the author supposes, that the placement of orders is the customer's deeds (art.437 of CC of RF).
Particularly-other offers, addressed to public at large, are considered as the invitation to make offers. Then the customer gets the suppliers' suggestion (the offer, according to art. 435 of CC of RF, in form of the competitive or auction bids, the inquiry of price quotation) to sign the contract. Examining these suggestions the customer chooses the optimal one by means of the commission's decision (the acceptance art.438 CC of RF), without any changes. Thus, at the tendering the customer suggests to make offers. I.e. he is not available to make offers himself.
There is the main question: if the dominating persons must make offers, in case of placement of order or not? Let's take the following situation as an example: The municipal customer is the station of medical service. It places the order, opens auction to sign the contract, concerning the delivery of petrol for the municipal needs. The municipal formation has two main petrol suppliers, who have accordingly 40 and 45 % of the goods market share. But they do not participate in tender and do not make an offer (the competitive bid). At the same time they have all the possibilities: physical (petrol) and economical (the tender price is not lower than the retail price at the fillings. Let's suppose, that at this market these suppliers have the features of the domineering persons. There is a conclusion, concerning the deeds of the companies. Let's summarize our intermediate conclusions: Dominating companies must sign the contacts with all persons, who apply to them, if there is such a possibility. The customer makes the contract (state or municipal contract) to the considerable sum on tender.
The customer at the tender suggests to make offers, i.e. he is not available to make offers himself. P.2, art.445 of RF provides the initiative to sign the contract without fail from the party, for which the contract signing is compulsory. The author makes a conclusion, concerning the duties of persons, who predominate at the goods markets, to take part in the tender, concerning the delivery of goods, execution phase, rendering of services for state or municipal needs if: 1. There is a notification. 2. There is such a possibility. 3. The initial contract price at the tender is not lowered. In case of non-participation at the above-mentioned circumstances, such person can be drawn to the responsibility in accordance with the antimonopoly legislation. Also by means of the compulsion to bid in tender.