Sometimes customers have to recognize the auction as invalid. What to do if the auction did not take place, because not a single application under 44-FZ has been submitted, we will show in the article.
Consequences of declaring an auction invalid
After analyzing Art. 71 of Law 44-FZ, there are two reasons why the electronic auction did not take place:
- no application has been submitted;
- one application has been submitted.
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The further actions of the contract managers will depend on the reason why the competitive procedure was declared invalid:
- if there are no applications - to conduct a new purchase;
- if one application is submitted - draw up a state contract with the participant who submitted it.
Conclusion of a contract with a single supplier when the auction did not take place
In cases where:
- the application of one participant is submitted (part 16 of article 66);
- after analyzing the first parts of the submitted applications, only one of the participants who submitted their applications was admitted to the procedure (part 8 of article 67);
- the second part of the submitted application of only one of the participants in the procedure satisfies the conditions of the procurement (part 13 of article 69), a contract is drawn up with the person who submitted it.
The only condition will be the compliance of a single application with all the stated requirements.
Another reason for such a contract is the combination of circumstances when none of the eligible participants in the electronic procurement sent their offer with a price within ten minutes from the moment it began (part 20 of article 68).
Imagine the situation: no applications were submitted for the competition, only one application was submitted, or only one application meets the requirements of the documentation. In all cases, you must declare the competition void. But what to do next, if you are not ready to cancel the purchase, depends on the number of applications.
If the competition failed due to the fact that no one submitted a single application, you need to act according to one option. And if you yourself rejected all applications, you should do something completely different. And further, when you start receiving new applications, each time new conditions will be included depending on the number and quality of applications. Let us explain how, under different conditions, to choose the right method of purchase.
From the article
Clause 25, Part 1, Art. 93 of the Law on the COP establishes the rules for what to do according to 44-FZ if the purchase did not take place when drawing up a contract with a single supplier:
- draw up a government contract on the terms specified in the procurement documentation at a price not exceeding the initial price of the auction;
- the term of registration should not exceed 20 days from the date of publication of the final protocol.
Important
In this case, the signing of a contract with a single supplier is not subject to approval by the FAS and other regulatory authorities.
The electronic auction did not take place, because no applications
In accordance with part 4 of Art. 71 procedure did not take place if:
- not a single application has been submitted under 44-FZ (part 16 of article 66);
- there is no admission of any of the participants who submitted such an application (part 8 of article 67);
- all the second parts of the applications are incorrectly drawn up (part 13 of article 69);
- the participant who offered the best conditions after the winner avoided signing the state contract and refused to execute such a contract (part 15 of article 70).
If not a single application under 44-FZ has been submitted for the auction, what should I do next? A repurchase should be declared.
We held an electronic auction for the supply of wooden coffins. No one applied, so the auction was declared invalid. Now we want to try the request for proposals, but Law No. 44-FZ does not directly indicate whether we have the right to change the terms of the purchase. Can we reduce the NMTsK, add an advance payment condition, change the delivery time?
If no bids have been submitted for the auction
44-FZ in part 4 of Art. 71 contains the answer to the question of what to do next in this case:
- carry out repeated purchase, the method of which from July 1, 2018 can only be an electronic request for proposals. Until that time, the Law on the contract system allows for another procedure (for example, repeated auctions are often held);
- the item of re-purchase cannot be changed in comparison with the original one;
- re-schedule a new competitive procedure.
If the repeated auction did not take place - not a single application was submitted - what should be done according to 44-FZ? Until July 1, 2018, it is possible to hold the 3rd auction or request for proposals or apply another competitive procedure under the Contract System Law.
If the auction did not take place 2 times, what should I do in this case? From July 1, 2018, this question will no longer exist, because. new edition of Part 4 of Art. 71 The law obliges to carry out repurchase in the form of an electronic request for proposals. If the request for proposals does not take place, then the state customer makes changes to the schedule and conducts another purchase.
Thus, the answer to the question: no bids have been submitted to the auction, what will happen next: to conduct a re-purchase, and from July 1, 2018 only in the form of an electronic request for proposals.
You will find more answers to questions about procurement in the new issue of the State Order in Questions and Answers magazine.
In connection with the numerous appeals of local governments on the possibility of concluding lease agreements for municipal property with a single bidder held in accordance with the Rules for holding tenders or auctions for the right to conclude lease agreements, gratuitous use agreements, property trust management agreements, other agreements providing for the transfer of rights possession and (or) use in relation to state or municipal property, approved by the Order of the FAS of Russia dated February 10, 2010 No. 67 (hereinafter referred to as the Auction Rules) Voronezh OFAS informs the following.
Article 17.1 of the Law "On Protection of Competition" establishes the requirement to conclude agreements providing for the transfer of ownership and (or) use rights in relation to state or municipal property only based on the results of tenders or auctions for the right to conclude these agreements.
According to paragraphs 74 and 135 of the Rules for the conduct of bidding, the adoption of a decision on admission to participation in the competition (auction) and recognition of only one applicant as a participant in the competition (auction) is the basis for recognizing the competition (auction) as invalid. In the event that the auction is declared invalid, p.p. 101 and 151 of the Auction Rules provide for the possibility of holding new auctions.
The possibility of concluding an agreement in relation to state or municipal property with a single participant in the tender (auction) is not regulated by the Rules of the auction. At the same time, we believe that the conclusion of an agreement providing for the transfer of ownership and (or) use rights in relation to state or municipal property with a single bidder does not prevent the provision of open procedures and equality of rights of all interested parties when acquiring rights in relation to state or municipal property.
Federal Law No. 178-FZ of December 21, 2001 “On the Privatization of State and Municipal Property” (hereinafter referred to as the Law “On Privatization”) does not regulate the possibility of concluding a contract for the sale of state or municipal property during an auction with a single participant. At the same time, according to the existing judicial practice (Resolution of the Federal Arbitration Court of the Far Eastern District of May 6, 2010 No. F03-2860 / 2010 in case No. A51-19546 / 2009), the conclusion of an agreement with the only participant in the failed auction, although not provided for by the Law "On Privatization", but does not contradict it.
Thus, the Voronezh OFAS Russia considers it possible to conclude agreements providing for the transfer of ownership and (or) use rights in relation to state or municipal property with a single bidder.
Failed electronic auction. Failed auction in electronic form.
- The concept of "failed electronic auction" means the absence of bidding when placing a specific order. At the same time, it is not at all necessary to imply that the contract (for this order) will not be concluded. For example, only 1 URZ showed up for the auction, it turns out that there will be no auction, this URZ will not play with itself at the auction. It turns out. That the electronic auction (UAEF) was declared invalid, and the state. the contract will be concluded with this (the only declared) URZ.
A list of situations in which electronic auctions are recognized as failed, but government contracts are still concluded.
- Only 1 URZ applied (see above).
- Only 1 URZ was admitted to the UAEF. His application was recognized as appropriate, the rest were rejected.
- Several URZs were admitted, but none of the URZs made bids at the auction. In this case, the winner is the URZ who submitted his application before anyone else. A contract is signed with him.
The electronic auction was declared invalid. Regulations and documents.
- If the auction (UAEF) is declared invalid, then, depending on whether there is a participant admitted to it, the actions and documents to be drawn up are as follows.
- A protocol for recognizing an electronic auction (EAEF) as invalid is drawn up and posted on the site.
Recognition of the electronic auction as invalid.
- This is a procedure that involves the execution and placement of a protocol on recognizing the auction (UAEF) as invalid.
Protocol for declaring an electronic auction invalid. There is a (admitted) participant, and a state contract will be concluded with him.
It is indicated in the protocol.- The reason for the recognition of the auction as invalid: only 1 participant was admitted and / or announced.
- Info that a state contract will be concluded with this participant. Contract.
- If there were other participants, but their applications were rejected, then the reasons for the rejection of applications are indicated.
Protocol for declaring an electronic auction invalid. There were no applications at all.
It is indicated in the protocol.- Fixation of the fact: the electronic auction is recognized (the reason is indicated) as failed.
- The reason for declaring the auction invalid: no bids have been submitted.
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Consequences of the fact that the electronic auction was declared invalid.
- There is one member.
- Signing a contract with this member.
- There are no participants or applications.
- Repeat auction.
- Reordering an order.
Cases of recognition of an electronic auction as invalid.
- No applications.
- All applications (all URZ) are rejected.
- 1 participant allowed.
- There were no offers the course of the auction.
- If only 1 (one) participant is admitted to the auction, a contract is concluded with him.
- If several URZs are admitted to the auction at once, but no one made "moves", the contract is concluded with the URZ that submitted its application before anyone else.
- If there were no applications or all applications were rejected, but the order is processed again.
Repeat auction in electronic form.
- It implies a procedure for re-placement of an order if the initial auction is declared invalid, while there is no one to conclude a contract with.
- The rules and actions for the second auction are the same as for the original one.
The auction was declared invalid due to the only participant whose application meets the requirements of the documentation. Is the customer obliged to conclude a contract with this participant or can he refuse it and hold the auction again?
Answer
Oksana Balandina, chief editor of the State Order System
From July 1, 2018 to January 1, 2019, customers have a transition period - it is allowed to carry out both electronic and paper procedures. From 2019, competitions, auctions, quotes and requests for proposals on paper will be prohibited, with eight exceptions.
Read what purchases to make on the ETP, how to choose a site and get an electronic signature, what are the rules for concluding contracts during the transition period and after.
According to clause 4, part 1, article 71, 44-FZ, if the electronic auction is recognized as not having taken place on the grounds provided for by part 16 of article 66 of this Federal Law due to the fact that at the end of the deadline for filing applications for participation in such an auction only one application for participation in it is submitted, the contract is concluded with the participant of such an auction who submitted the only application for participation in it, if this participant and the application submitted by him are recognized as complying with the requirements of this Federal Law and the documentation of such an auction, in accordance with paragraph 25 of part 1 Article 93 of this Federal Law in the manner established by Article 70 of this Federal Law.
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Thus, if such an application and such a participant are recognized as relevant, then the customer is obliged to conclude a contract with this participant.
Letter of the Ministry of Economic Development of Russia dated 12.01.2015 No. D28i-3885
Letter of the Ministry of Economic Development of Russia dated 12.01.2015 No. D28i-3885
On clarifications related to the application of the Federal Law of April 5, 2013 No. 44-FZ
The Department for the Development of the Contract System of the Ministry of Economic Development of Russia considered an appeal on clarification of the provisions of the Federal Law of April 5, 2013 No. 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law No. 44- FZ), sent to the FAS Russia, and informs.
In accordance with clause 4 of part 1 of article 71 of Law No. 44-FZ, if the electronic auction is declared invalid on the grounds provided for in part 16 of article 66 of Law No. 44-FZ due to the fact that at the end of the deadline for filing applications for participation in only one application for participation in such an auction is submitted, the contract is concluded with the participant of such an auction who submitted the only application for participation in it, if this participant and the application submitted by him are recognized as complying with the requirements of Law No. 44-FZ and documentation on such an auction, in accordance with clause 25 of Part 1 of Article 93 of Law No. 44-FZ in the manner prescribed by Article 70 of Law No. 44-FZ.
According to clause 25 of part 1 of article 93 of Law No. 44-FZ, a contract must be concluded with a single supplier (contractor, performer) on the terms provided for in the procurement documentation, at the price offered by the procurement participant with whom the contract is concluded. Such price shall not exceed the initial (maximum) contract price, the contract price proposed in the application of the relevant procurement participant, or the contract price proposed by the relevant procurement participant during an electronic auction.
At the same time, a contract with a single supplier (contractor, performer) is concluded within the time limits established by Article 70 of Law No. 44-FZ.
Thus, in accordance with Part 3 of Article 70 of Law No. 44-FZ, within five days from the date of placement by the customer in the unified information system of the draft contract, the winner of the electronic auction places in the unified information system a draft contract signed by a person entitled to act on behalf of the winner of such an auction, as well as a document confirming the provision of security for the performance of the contract and signed with an enhanced electronic signature of the specified person.
The winner of the electronic auction with which the contract is concluded, in the event of disagreements on the draft contract, has the right to place in the unified information system a protocol of disagreements signed with an enhanced electronic signature of a person entitled to act on behalf of the winner of such an auction (Part 4 of Article 70 of Law No. 44-FZ ).
Given the above, after the customer places the draft contract in the unified information system, the supplier (contractor, performer) is obliged to sign the draft contract or place a protocol of disagreements within 5 days.
Please note that the clarifications of the state authority have legal force, if this body is endowed in accordance with the legislation of the Russian Federation with special competence to issue clarifications on the application of the provisions of regulatory legal acts. The Ministry of Economic Development of Russia is a federal executive body, the current legislation of the Russian Federation, including the Regulations on the Ministry of Economic Development of the Russian Federation, approved by Decree of the Government of the Russian Federation of June 5, 2008 No. 437, is not empowered to clarify the legislation of the Russian Federation.
As part of the request for proposals after the failed auction, however, it is prohibited, however, to change the object of procurement (but at the same time it is formally possible, but not recommended, to change its cost, as well as the deadlines). A notice to the EIS must be submitted by the customer no later than 5 days (calendar) before the date of the request for proposals. At the same time, according to 44-FZ, the customer has the right to independently send invitations to participate in the procurement process to those persons who, in his opinion, are capable of fulfilling the terms of the contract. However, these persons in this case must be indispensable counterparties of the customer for at least 18 months before the date of the request for similar supplies. Auction fails if all bids are rejected at the stage of consideration of the first parts In theory, this is hardly possible, but in reality anything can happen in electronic auctions. Accordingly, in this case, the previous paragraph on the request for proposals applies.
Article 71. Consequences of declaring an electronic auction invalid
of the Federal Law and documentation on such an auction or on the non-compliance of the participants in such an auction and the applications submitted by them with the requirements of this Federal Law and (or) documentation on such an auction; 4) the contract is concluded in accordance with Clause 25 of Part 1 of Article 93 of this Federal Law in the manner established by Article 70 of this Federal Law with a participant in such an auction, an application for participation in which is filed: a) before other applications for participation in such an auction, if several participants in such an auction and the bids submitted by them are recognized as complying with the requirements of this Federal Law and documentation on such an auction; b) the only participant in such an auction, if only one participant in such an auction and the application submitted by him are recognized as complying with the requirements of this Federal Law and documentation on such an auction. 3.1.
Failed auction
Coordination in accordance with clause 25 of part 1 of article 93 of the Law on the contract system arises only if an open tender, a tender with limited participation, a two-stage tender, a repeated tender, a request for proposals are declared invalid. Clarifications on this issue are given in the Letter of the Ministry of Economic Development of Russia No. 658-EE/D28i, FAS Russia No. АЦ/1587/15 dated 01/20/2015. The data in the table without changes from 01.01.2015 (now the agreement is not required) No. p / p Reason for declaring the electronic auction invalid Actions of the Customer Approval Concluding the contract 1 No application has been submitted (part
16 art. 66 44-FZ) The customer makes changes to the schedule (procurement plan) and carries out the purchase by conducting a request for proposals in accordance with paragraph 8 of part 2 of Art. 83 44-FZ or otherwise in accordance with 44-FZ (part 4 of Art.
Article 71 44-FZ - the consequences of declaring an electronic auction invalid
of the Federal Law and documentation on such an auction, or on the non-compliance of this participant and this application with the requirements of this Federal Law and (or) documentation on such an auction with the rationale for the said decision, including an indication of the provisions of this Federal Law and (or) documentation on such an auction, to which this application does not comply; b) the decision of each member of the auction commission on the compliance of the sole participant in such an auction and the application submitted by him for participation in it with the requirements of this Federal Law and documentation on such an auction, or on the non-compliance of this participant and the application submitted by him for participation in such an auction with the requirements of this Federal Law and ( or) documentation of such auction; ConsultantPlus: note. From July 1, 2018, Federal Law No. 504-FZ of December 31, 2017 amends paragraph 4 of part 2 of Article 71. Cm.
Federal Law) 4 Based on the results of consideration of the first parts of applications by the auction commission, a decision was made to refuse admission to the participation of all procurement participants (part 8 of article 67 44-FZ) The customer makes changes to the schedule (purchase plan) and carries out the procurement by making a request proposals in accordance with paragraph 8 of part 2 of Art. 83 44-FZ or otherwise in accordance with 44-FZ (part 4 of article 71 44-FZ) 5 The auction commission decided to recognize only one procurement participant who submitted an application for participation in such an auction as its participant (part 8 67 44-FZ) Coordination of the Customer's decision with the body authorized to exercise control in the field of procurement (FAS, Rosoboronzakaz) (clause 25, part 1, article 93 44-FZ) Concluding a contract with a single supplier (clause 4, part 2 article 71, paragraph 25, part 1, article
Auction declared invalid
of the Federal Law due to the fact that the auction commission has decided that all the second parts of the applications for participation in it do not meet the requirements established by the electronic auction documentation, or on the grounds provided for by Part 15 of Article 70 of this Federal Law, the customer makes changes to the plan schedule (if necessary, also in the procurement plan) and carry out procurement by means of a request for proposals in accordance with clause 8 of part 2 of Article 83 of this Federal Law (in this case, the procurement object cannot be changed) or otherwise in accordance with this Federal Law.
The electronic auction was declared invalid
From July 1, 2018, Federal Law No. 504-FZ of December 31, 2017 amends Part 3.1 of Article 71. See text in a future edition. 3.1. If the electronic auction is declared invalid on the grounds provided for by Part 13 of Article 69 of this Federal Law due to the fact that the auction commission has made a decision on compliance with the requirements established by the electronic auction documentation, only one second part of the application for participation in it, a contract with a participant in such an auction that has submitted the said application shall be concluded in accordance with Clause 25 of Part 1 of Article 93 of this Federal Law in the manner established by Article 70 of this Federal Law. (Part 3.1 was introduced by Federal Law No. 140-FZ of 04.06.2014) ConsultantPlus: note. From July 1, 2018, Federal Law No. 504-FZ of December 31, 2017 amends Part 4 of Article 71.
Cm.
If the auction is declared invalid due to
Federal Law and contained on the date and time of the deadline for filing applications for participation in such an auction in the register of participants in such an auction who have received accreditation on an electronic site; 2) the operator of the electronic site, within the period specified in clause 1 of this part, is obliged to send a notification to the sole participant of such an auction; 3) the auction commission, within three working days from the date of receipt by the customer of the second part of this application of the sole participant in such an auction and the documents specified in clause 1 of this part, considers this application and the specified documents for compliance with the requirements of this Federal Law and documentation on such an auction and sends to the operator of the electronic site the protocol of consideration of the application of the sole participant of such an auction, signed by the members of the auction commission.
If the electronic auction is declared invalid
Attention
The only application - the order of actions Laws on electronic trading FZ-44 and FZ-223 are constantly supplemented and coordinated with other regulations. In 2014, additional amendments were made to No. 498-FZ and Art. 25 No. 44-FZ, within the framework of which the issue of the conditions of the failed auction is considered in more detail. The grounds are determined by Art. 71, parts 1-3.1 No. 44-FZ.
Provided that the only application for participation in the auction was under consideration in the work of the site, it is she who is considered the winner. The key feature of the recognition of the auction as invalid for this reason is the admission to participation in it of only one participant. The customer can conclude a contractual agreement with a single participant.
Consider the conditions under which you can sign a contract. This is possible only with the participant (Art. 70 FZ-44), whose application fully meets the requirements.
This document should include the following information:
- Title of the document;
- place, time and date of its compilation;
- list of members of the auction commission;
- the name of the failed auction;
- information about the customer;
- auction object;
- the reason for declaring the auction invalid;
- information about the site where the protocol will be placed.
So Art. 71 of Law No. 44 defines 5 possible situations in which an auction is declared invalid. The same article defines the order of actions that the customer must take after the event receives the specified status.
Federal Law "On the privatization of state and municipal property" (as amended and supplemented), if the auction for the sale of state or municipal property is declared invalid, then the said property is sold through a public offer. If the auction did not take place, the only participant in the auction no later than twenty days after the day of the auction has the right to conclude a contract of sale or a lease contract for the land plot put up for auction, and the state authority or local government, by whose decision the auction was held, is obliged to conclude an agreement with a single bidder at the initial auction price.
The auction was declared invalid, one application was submitted under 44 fz
In view of the foregoing, the conclusion of an agreement with the only participant in the failed auction does not meet the requirements of civil law, and also contradicts the essence of the auction itself. In addition, in accordance with established judicial practice, filing an application for participation in the auction does not mean the conclusion of an agreement with the organizer of the auction by accepting a public offer. An agreement is a two or multilateral transaction, which implies the emergence of rights and obligations for all its parties.
If we assume that the notification of the organizer of the auction is an offer to conclude a contract that is the subject of the auction, then the application of a potential participant should indeed be considered an acceptance. But the bidder does not bear any obligation to conduct the bidding, since the provision of the required documents and the payment of a deposit are his rights, but not his obligations.
