The auction did not take place, no bids were submitted. The auction was declared invalid The auction did not take place twice what to do

In this article, I will focus on the recognition of the auction as invalid.

When can this even happen?

Firstly, if no bids were submitted for the auction at all, it is quite logical, what kind of auction is there if there is no one. What's next? Re-bidding will be scheduled with a decrease in the initial price (NC) by 10% from the NC at the primary auction. If the repeated ones do not take place, then they will appoint an auction in the form of a public offer with a decrease in the NC.

The most interesting thing is not this.

Imagine this situation: you decide to buy something from the primary or re-auction (i.e. from the bidding up). You have submitted your application online. And it just so happened that no one except you was allowed to bid, or no one except you submitted bids. What will happen in such a case?

Now these auctions will be called failed. But it's too early to panic.

As sad as it sounds, you, as the sole bidder, will be declared the winner of the auction at the starting price. Have you applied for an auction at the starting price? And it's not your problem that no one else applied or no one was admitted except you. You were ready to pay the initial price, because. what you applied for. Therefore, the organizer of the auction has no grounds, incl. the legislators do not designate you as the winner of such bidding.

What part of the law do we rely on? Of course on the main document - Federal Law No. 127 "On Insolvency", to be more precise, on paragraph 17 of Article 110 "Sale of the debtor's enterprise" (download the Federal Law from the link)

“If only one participant was allowed to participate in the auction, whose application for participation in the auction meets the conditions of the auction or contains a proposal for the price of the enterprise not lower than the established initial sale price of the enterprise, the contract for the sale of the enterprise is concluded by the external manager with this participant in the auction”

Thus, if you are the only participant in the auction and your application with the Annexes to it comply, you can count on the fact that you bought the lot at the starting price.

This is how things stand with the recognition of the auction as invalid.

Therefore, when I showed these auctions for the purchase of a land plot in the city of Yartsevo in my video lesson, some attentive readers of our mailing list had fair bewilderment: “How is he telling us here that he bought the land, but the auction didn’t take place”?

That's how they "did not take place"!

And this is a certificate of ownership of the same land. This is Anyone who has access to the Sberbank-AST platform can also view the trading procedure - SBR013-1404110020

In the event that one application is submitted for participation in an auction under 44-FZ, then such an auction is recognized as failed (clause 16, article 66 of Law No. 44-FZ). Read what a contract manager should do and whether a customer can enter into a contract with a single supplier.

In order to properly complete an application for participation in an electronic auction, a potential participant, before submitting an application, studies the documentation and evaluates their capabilities. After the deadline for filing an application expires, the auction is declared invalid if one application under 44-FZ is submitted at the electronic auction. Even under such circumstances, the only supplier has the possibility that the customer will conclude a contract with him.

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If a single application is submitted under 44-FZ

How to fill out an application for participation in an electronic auction correctly according to 44-FZ

In order for the only participant in the auction to become the winner and conclude a contract, you need to correctly draw up an application. It is important to remember that the application consists of two parts, both of which must comply with the requirements of the law and documentation. Law No. 44-FZ contains in Art. See 66 for a complete list of requirements for both parts of the application.

The first part of the application includes:

• consent of the participant with the conditions specified in the auction documentation and not subject to change;
• the country of origin of the goods, if the customer establishes the relevant conditions in the documentation;
• specific characteristics of the goods and an indication of the trademark. An indication of a trademark is included when there is no indication of it in the documentation or when the trademark of the participant's product differs from the sign indicated by the customer;
• can include sketches, drawings, drawings, any product images.

How to consider the first parts of applications for participation in an electronic auction,

The second part of the application includes:

• name, location (for legal entities), postal address of the auction participant, full name, passport details, place of residence (for individuals), TIN, contact number, extract from the USRN;
• documents confirming that the auction participant meets the procurement requirements;
• copies of documents confirming that the goods comply with the requirements of the legislation of the Russian Federation. Provision of such documents shall be provided for by the auction documentation;
• a copy or original of the decision on a major transaction. It is provided if, according to the law, the transaction is classified as large, or if, for the participant, the contract to be concluded or the amount of the application security will be large;
• copies or originals of documents giving an advantage to the auction participant under Art. 28 and 29 of Law No. 44-FZ, if the participant claims such benefits;
• documents, copies or originals confirming the country of origin of the goods, which is reflected in Art. 14 of the Law. Such documents include, for example, a certificate or declaration of conformity of goods;
• a declaration of belonging to the NSR or SONO, provided if the customer has set restrictions in the auction documentation.

How to consider the first parts of applications for participation in an electronic auction and how to draw up a final protocol,

In the event that one application is submitted for participation in the auction, then it is recognized as failed. At the same time, the opportunity to conclude a contract remains if both parts of the application of the sole participant do not contradict 44-FZ and the documentation of the electronic auction. A participant should not relax in a situation where his application turned out to be the only one. The auction commission will check for compliance with each item of the application. The participant, at the stage of preparing the application, needs to be attentive, including to the little things.

You will find more answers to questions about procurement in the new issue of the State Order in Questions and Answers magazine.

Attached files

• Minutes of consideration of a single application for participation in an electronic auction.docx

In most cases, when the phrase “the purchase did not take place” is announced, the participants have the opinion that either there are no proposals for the tender, or all applications for its participation have been rejected. However, there are many more cases where the purchase was declared invalid.

Consider this for the different stages of the procedure.

All bases are collected in the table.

Competitive procedures

If during the competition the public procurement is declared invalid, 44-FZ provides for two cases for further developments: to conduct a new or repeated one, or to purchase from a single supplier.

The difference between a new public procurement and a repeated one is that if the object, volume, requirements for participants do not change, that is, all the conditions remain the same (with the exception of the term for fulfilling the terms of the contract, which is extended by the time necessary for a repeated order, as well as the initial price, which can be increased by no more than 10%), then the order is repeated, otherwise it is new.

When there are no submitted applications or they are found to be inappropriate, a second procedure is carried out. The publication of the notice in the repeated procedure is carried out at least 10 days before the date of opening the envelopes (not 20 days, as in the usual one).

If in the future a repeated tender does not take place for the same reasons (part 2 of article 55), then the customer has the right to carry out the procedure in order to reduce the deadline for submitting applications to 5 working days or in another way at the discretion of the customer.

If the purchase did not take place, the only supplier concludes a contract if his application complies with the requirements of the law and documentation. In this case, the customer must receive (clause 25, part 1, article 93).

This group will not include the case when, according to the results of the pre-qualification selection of a two-stage competition, only one participant is found to meet the requirements (). The customer conducts the purchase again, due to the fact that it is not possible to discuss the characteristics of the order object with several suppliers.

Electronic auction

When an electronic auction is recognized as failed, the customer or concludes a contract with, while coordination with the control body is not required (in the cases provided for in Part 16 of Article 66, Part 8 of Article 67, Part 20 of Article 68, Part 13 of Article 69).

Or, if the auction did not take place, changes in the procurement plan are made, if necessary, in accordance with Part 6 of Art. 17, changes in the schedule are mandatory, then the order is carried out again (part 16 of article 66, part 8 of article 67, part 13 of article 69, part 15 of article 70). Art. 92, in addition to the possibility to re-order, the customer has the right, in agreement with the control authority, to purchase from a single supplier in accordance with paragraph 24 of Part 1 of Art. 93.

• On 09/11/2016
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• 44-FZ, EIS, Purchases in construction, Purchases from a single supplier, Request for quotations, Request for proposals, Competition, Articles, Terms of government contracts, Electronic auction

In accordance with Law No. 44-FZ, contracts to meet state and municipal needs must be concluded on the basis of competitive procedures. These are various types of competition, electronic auction, as well as requests for quotations and proposals. However, in a number of cases, established by Article 93 of the mentioned law, it is necessary to purchase from a single supplier. Including in cases where the competitive procurement procedure has been declared invalid (paragraph 25 of part 1 of Article 93 of Law No. 44-FZ).

Why the purchase may not take place

The reasons for declaring the competitive procedure as invalid, which make it possible to conclude a contract with a single supplier, can be combined into two groups:

• the application was submitted by one participant, and it is recognized as complying with the conditions of the procurement documentation and the requirements of the law;
• Applications were submitted by several participants, but the conditions of the purchase were satisfied by the application of only one of them.

The procurement procedure may be declared invalid for other reasons. For example, applications may not be received at all, or all of them may be rejected due to non-compliance with the requirements of the procurement documentation. Such cases are fundamentally different from the above situations, when a single bid satisfies the procurement requirements.

Registration in ERUZ EIS

From January 1, 2019 to participate in trading under 44-FZ, 223-FZ and 615-PP registration required in the ERUZ (Unified Register of Procurement Participants) register on the EIS (Unified Information System) portal in the field of procurement zakupki.gov.ru.

We provide a service for registration in the ERUZ in the EIS:

First, in these cases, the competitive procedure, such as a tender, should be repeated. If the repeated tender is declared invalid, then the customer will be able to apply the norm of paragraph 25 of Article 93 of Law No. 44-FZ and conclude a contract with a single supplier.

Secondly, if the conclusion of a contract with a single source becomes a consequence of the recognition of a failed repeated competitive procedure, then the customer must choose this source himself. Whereas if there is a single participant that satisfies the conditions of the purchase, the customer is obliged to conclude a contract with him.

When is approval needed?

The customer, who receives the right to conclude a contract with a single supplier due to a failed procurement procedure, is exempted from the need to place a notice in the EIS, as well as from drawing up a report on the impossibility of determining the supplier in other ways.

However, in some cases, the future contract will have to be agreed with the regulatory authorities. This applies to purchases to meet federal needs, the needs of the region or municipality. Not all of these contracts will have to be agreed - it depends on the method of determining the contractor. So, if the purchase was carried out through an electronic auction or a request for quotations, then it will not be necessary to coordinate the conclusion of a contract with a single supplier. But during the competition, in most cases, the contract will have to be agreed. However, there are exceptions here too - these include competitions for capital investments in state and municipal property, as well as projects for the construction and reconstruction of capital facilities, which are carried out at the expense of the budget by organizations that are not state or municipal enterprises.

In other cases, within 10 days after the publication of data on the failed competitive procedure in the EIS, the contract should be sent for approval to the regulatory authority. The latter has 10 working days for approval from the date when the customer's request was received.

Contract price

The contract with a single supplier, executor or contractor must be concluded at a price that satisfies the requirements of the procurement documentation. It is forbidden to conclude a contract at a price exceeding the initial (maximum) price of the contract, as well as higher than the value specified in the participant's application or offered during the electronic auction.

Term of imprisonment

Depending on how the sole contractor was determined, as well as on the need to agree on a contract, a different amount of time is allotted for its conclusion.

In the case of a tender, the customer has 20 days to conclude a contract. If the approval of the supervisory authority is required, then this period begins its calculation from the date of receipt of such approval. In other cases, it is considered from the date of posting in the EIS information on the recognition of the procurement procedure as invalid.

If the supplier was determined during the electronic auction, then the contract should have been concluded within the standard period. Namely, not earlier than 10 and not later than 27 days after the protocol with the results of the auction was posted in the system.

If the executor of the contract was determined through a request for quotations, then it should be concluded from the 7th to the 20th day from the date when the documentation with the results of this request was posted.

Has many nuances. The first thing the customer needs to know is that participation in a failed purchase cannot be called a loss. A supplier who has taken part in such tenders has certain risks, while it may also receive some benefits.

When the purchase is declared invalid

A distinction should be made between failed, invalid and canceled procurement.

Invalid purchase - one in which the customer violated the provisions of the relevant legislation (44-FZ or 223-FZ) or the Civil Code of the Russian Federation. A contract concluded as a result of an invalid auction must be terminated.

For certain reasons, the customer or the supervisory authority may cancel the purchase at any of its stages.

Purchase Recognized failed when in fact there was no competitive definition of the supplier. Depending on the type of trade, the specific reasons may be different.

When bidding under 44-FZ is declared invalid

It is worth considering cases of failed purchases in the three most popular types of procurement procedures:

• no applications have been submitted;
• only one application has been submitted;
• only one application met the documentation requirements;
• the winner avoided signing the contract, and the second participant refused to conclude it (because he has the legal right to do so);
• according to the results of the pre-qualification, none of the participants met the requirements.

2. In the auction

• no applications have been submitted;
• only one application submitted
• all the first or all second parts of the applications do not meet the requirements;
• during the consideration of the first or second parts of applications, only one was admitted;
• within ten minutes from the start of the auction, no price bids were made;
• the winner avoided signing the contract, and the second participant refused to sign it;

3. In the request for quotations

• no applications have been submitted;
• only one application has been submitted;
• all submitted applications were rejected by the commission;
• only one application was admitted by the commission.

Failed auctions under 223-FZ

It has been repeatedly noted that Law 223-FZ is more loyal to the procurement procedure and the actions of customers. This also applies to their actions in cases of recognition of purchases as failed: they are not defined by the law itself, and the Civil Code regulates only failed tenders and auctions.

Most customers take 44-FZ as a basis, replacing some conditions with more flexible ones. Other documents on which the actions of customers are based are the procurement regulation and the Law on Protection of Competition.

Customer actions

1. When no supplier met the requirements

First, changes are made to the schedule. After 10 days, the customer can announce:

• re-tender if the tender did not take place;
• about another procurement procedure if the auction did not take place;
• on a new purchase, if the request for proposals did not take place;
• on extending the deadline for submitting bids or conducting procurement in another way, if the request for quotations did not take place.

2. When only one supplier qualified

• the customer concludes a contract with him if a request for quotations or an auction was held;
• the customer agrees on the possibility of concluding a contract with the regulatory authority, if it was a request for proposals or a tender;