Commercial Procurement and Tenders
Legal support and organization of commercial purchases and tenders
As a rule, procurement and tenders are carried out by public sector organizations, but commercial procurement and tenders also take place in the business sector. Such procurement and tenders, unlike state ones, are carried out in accordance with civil law, the Federal Law “On Protection of Competition” and are financed at the expense of the customer.
An important principle of civil law is the principle of freedom of contract, in connection with this, the customer of commercial purchase and tender conducts according to his own rules that do not contradict the requirements of the legislation of the Russian Federation. At the same time, when conducting a commercial procurement, competitive conditions are created, in connection with which the commercial customer receives not only the efficient use of financial resources, but also more competitive suppliers.
At the same time, often changing economic and political conditions have affected not only the public procurement market, but also the commercial procurement market, including, this is due to the fact that a commercial customer, just like a state customer, wants to receive a quality product for the smallest amount, while minimizing potential risks. Unlike the state customer, it is easier for a commercial customer to conduct a purchase or tender in some matters, this is due to the fact that the established restrictions of laws No. 44-FZ and No. 223-FZ do not apply to commercial customers and suppliers.
At the same time, individuals, legal entities and individual entrepreneurs can participate in commercial procurement. The difference in participation will be in the taxation of such participants in commercial bidding and procurement. When participating in such purchases, it is important to carefully study the tender documentation in order to avoid undesirable consequences and obligations. The main document in commercial procurement is the Procurement Regulation drawn up by the customer. It is necessary to pay attention to the fact that such Regulations on Procurement, subject to the general rules of civil law, unlike public procurement, do not have clearly established rules and obligations and in most cases can differ significantly from each other. It is also necessary to carefully study the terms of reference, the draft agreement and the schedule for the fulfillment of obligations under such an agreement. Important points when participating in commercial purchases are also:
- Price. In this part, it is important to carefully study what is included in the price (the product itself, fees, taxes, payments, delivery, etc.), the payment procedure, advance payments.
- Deadlines. In this part, it is necessary to pay attention to the terms of fulfillment of obligations under the contract, the terms of payment, the terms of acceptance, the terms of responses to claims and the elimination of deficiencies.
- Tender documentation. It is also an important section in the tender documentation, here it is worth paying attention to the documents that will need to be prepared during the competitive procedures, this is due to the fact that for incorrect execution or the absence of a particular document, the application of a commercial participant may be rejected from participation in the tender.
- Penalties. In this section, it is necessary to study the conditions for refusal to fulfill obligations under the contract and possible penalties for such refusal.
At the same time, information resources for placing commercial tenders differ from those where purchases are placed in accordance with 44-FZ and 223-FZ, which are clearly regulated and limited. As a rule, a commercial customer can place such a tender on any information resource, but often commercial purchases are placed on electronic trading platforms of federal, commercial or on their own trading platforms of large chains.
Commercial tenders are less demanding in contrast to public procurement, their conduct is regulated by the Procurement Regulations of a particular customer and there are no strict legal requirements, for violation of which or failure to perform (late execution), the supplier may be included in the Register of unscrupulous suppliers, which adversely affects the company's reputation. At the same time, the advantages of commercial procurement are:
- Relatively short terms of their implementation.
- You can get a fairly large order from a large distribution network.
- When conducting such a tender, less documentation is filled out than in public procurement.
- There is no risk of getting into the register of unscrupulous suppliers.
However, despite the advantages of participating in commercial tenders, there are also disadvantages of participating in such procurement, for example, when participating in a commercial tender, a participant may encounter a fraudulent scheme in which the tenderer disappears immediately after receiving the tender security. At the same time, it is important to participate only in those purchases that are placed on electronic trading platforms with a proven reputation.
In order to participate in a commercial tender, it is necessary to carefully study the tender documentation and not make a mistake when submitting an application for participation in such a tender, as a rule, errors may appear due to different Procurement Regulations for each customer, and when submitting an application for participation, it is possible to confuse something. The participation of a qualified lawyer in the preparation of documents for participation in a commercial tender will reduce the risk of errors in documents submitted for participation in the tender and minimize the time for preparing documents for participation in a commercial procurement.
- Advising clients on commercial purchases and tenders
- Preparation of documents for commercial purchases and tenders
- Accompanying commercial purchases and tenders
- Representing the interests of a commercial company with contractors participating in commercial purchases and tenders