Electronic auction did not take place. What to do if the debtor's property is not sold at auction? The electronic auction was declared invalid

• 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.

• 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.

• This is a procedure that involves the execution and placement of a protocol on recognizing the auction (UAEF) as invalid.

• 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.

• There is one member.

• Signing a contract with this member.

• There are no participants or applications.

• Repeat auction.

• Reordering an order.

• No applications.

• All applications (all URZ) are rejected.

• 1 participant allowed.

• There were no offers the course of the auction.

Repeat auction in electronic form.

Grounds for declaring the auction invalid. The general provisions of the Civil Code of the Russian Federation on the conclusion of a contract at an auction provide one basis for declaring an auction void: if only one participant participated in an auction or tender (paragraph

5 st. 447 of the Civil Code of the Russian Federation). The Law on Enforcement Proceedings does not name such grounds for declaring public auctions invalid at all.

The most detailed and taking into account the peculiarities of the relations that develop during the sale of property that is foreclosed, the list of grounds for declaring public auctions void is contained in the Law on Mortgage. Paragraph 1 of Art. 58 of this Law provides that the organizer of public auctions declares them failed in cases where:

1) there were less than two buyers at the public auction;

2) no markup has been made at the public auction against the initial sale price of the pledged property;

3) the person who won the public auction did not pay the purchase price within the prescribed period.

Public auctions must be declared invalid no later than the day after any of the above circumstances took place.

It cannot but be surprising that the legislation on enforcement proceedings does not indicate such circumstances as the absence of allowances and the evasion of paying the purchase price as grounds for declaring the auction void.

In the absence of surcharges, there is no actual bargaining, since there is no competition of applications and the goal of putting property up for public sale is not achieved - determining its fair price by considering incoming proposals. This mechanism allows us to assert with a certain degree of confidence that the revealed price reflects the situation on the market. The mechanism of public auction is necessary, since the debtor is removed from the disposal of property and cannot determine the sale price; it is fair in this case to establish it not at the will of the state body, but in such a way as to reveal at what price they are ready to buy it.

If the buyer evades paying the purchase price, the purpose of the public sale is not achieved all the more, since the foreclosure is aimed at obtaining cash proceeds from the property put up for sale, and not at concluding a contract of sale. To believe that the organizer of the auction must present new demands to the buyer for the payment of the price means that instead of the money necessary to enforce the decision to collect, the organizer of the public auction acquires only the right to claim, the obligation may not be fulfilled by the buyer. This provision is contrary to the nature of the institution of enforcement of the decision to recover funds.

It is also obvious that the identified gap in the legislation on enforcement proceedings must be eliminated.

The temporary instruction on the procedure for the exercise of rights (claims) in comparison with the Civil Code of the Russian Federation, at first glance, expands the list of grounds under which a public auction for the sale of receivables may be declared invalid. In accordance with paragraph 35 of the Temporary Instruction, the auction is recognized as failed only in cases where:

only one participant took part in the auction;

during the bidding process, none of the participants submitted an application for the purchase of receivables at a price equal to or greater than the amount of the assessment made by the person carrying out the collection when seizing such receivables.

a) no applications have been submitted for participation in the auction;

b) only one participant participated in the auction;

c) none of the bidders held in the form of an auction, after three times the announcement of the minimum initial sale price of the property, did not raise the ticket;

d) none of the participants in the auction for the sale of receivables after the three-fold announcement of the minimum price for the sale of receivables did not raise a ticket;

e) none of the bidders, held in the form of a competition by decision of the commission, has made proposals that meet the conditions of the competition.

The commission's decision to declare the auction void is documented in a protocol. Such a decision must be made no later than the next day after any of the above circumstances took place.

Actually specified in the Temporary Instructions, as well as in sub. "a", "b", "c", "d" grounds can be considered as special cases of the situation reflected in paragraph 1 of Art. 447 of the Civil Code of the Russian Federation, since the refusal to submit proposals for the purchase can be considered as a refusal to participate in the auction.

In order to solve the problems that arise due to the absence in the procedural legislation of special instructions on the possibility of recognizing public auctions as failed if the winner of the auction evades payment, the RFBR is forced to resort to a rather complicated mechanism for canceling the results of the auction, considered earlier in the course of studying the procedure for paying for property acquired at the auction .

The absence of surcharges against the initial sale price made by the bidders is not considered a "defect" of the public sale, although, as stated, this is contrary to the purpose and objectives of the public sale.

In this situation, it seems acceptable to apply, by analogy, the norm of the Mortgage Law, which recognizes the absence of surcharges against the initial price of the property put up for auction as a basis for declaring a public auction void.

Consequences of declaring the auction invalid. The provisions of the Civil Code of the Russian Federation on auctions do not indicate the consequences of declaring them invalid. But from the meaning of this term it follows that the failed auction does not give rise to any rights and obligations related to the conclusion of the contract for the organizer and bidders; the target of the auction has not been reached.

This circumstance is not always taken into account, and in a situation where the auction did not take place, demands are made to recognize them as invalid.

Thus, in 1998, the joint-stock company Norilsk Combine applied to the arbitration court with a claim to invalidate the auction for the sale of the building.

By a court decision, left unchanged by the decision of the appellate instance, the claims were denied due to the fact that the law was not violated during the preparation and conduct of the auction, and the auction was declared invalid.

The court of cassation, leaving the judicial acts unchanged, pointed out the following. Bidding is one of the ways to conclude a contract. Therefore, according to paragraph 2 of Art. 449 of the Civil Code of the Russian Federation, the recognition of the auction as invalid entails the invalidity of the contract concluded with the person who won the auction. Bidding declared invalid does not have a legal result and cannot be declared invalid.

With regard to the sale of the pledged property, the Civil Code of the Russian Federation provides that when an auction is declared void, the pledgee is entitled, by agreement with the pledgor, to acquire the pledged property and set off his claims secured by the pledge against the purchase price.

When a repeated auction is declared invalid, the pledgee has the right to retain the subject of pledge with an assessment of it in the amount of not more than 10% lower than the initial sale price at the repeated auction (clause 4, article 350 of the Civil Code of the Russian Federation).

Based on these provisions, the recognition of the first auction as invalid enables the pledgor either to demand that the property be put up for repeated auctions, or to conclude an agreement with the pledgor on the acquisition of the subject of pledge in the manner provided for in paragraph 4 of Art. 350 of the Civil Code of the Russian Federation.

Recognition as failed repeated auctions is not a basis for holding new auctions; if the pledgee fails to use the right to keep the subject of pledge within one month from the date of recognizing the repeated auction as invalid, the pledge agreement shall be terminated.

The Civil Code does not establish the terms and features of holding repeated auctions.

The Law on Mortgage (Article 58) contains a more detailed regulation of relations that arise when a public auction for the sale of a subject of mortgage is declared invalid.

In this case, the pledgee has the right, by agreement with the pledgor, to acquire the pledged property at its initial sale price at a public auction and set off against the purchase price its claims secured by the mortgage of this property.

If the pledgee has not concluded such an agreement with the pledger within 10 days after the announcement of the public auction as invalid, a repeated public auction shall be held. They must be held no later than one month after the first auction.

If the auction was declared invalid due to the failure of a sufficient number of buyers (less than two) to attend the auction or due to the lack of a premium to the initial price, then the initial price at the repeated auction is reduced by 15%. Otherwise, repeated auctions are made according to the rules provided for the first auction.

Repeated public auctions are recognized as failed on the same grounds as the first auction. In this case, the pledgee is granted the right to purchase (retain) the pledged property at a price not more than 25% lower than its initial sale price at the first public auction and set off his claims secured by the mortgage against the purchase price.

If the mortgagee fails to exercise the right to keep the subject of mortgage within one month after the announcement of repeated public auctions as failed, the mortgage shall be terminated.

The rules on the consequences of declaring invalid a public auction for the sale of real estate, which is foreclosed on other grounds (not as a subject of mortgage), are not established by the Law on Enforcement Proceedings.

In practice, if the auction is declared invalid, except for the recognition of the auction for the sale of receivables as invalid, the organizer of the auction, within one working day from the date the commission decides to declare the auction invalid, notifies in writing the state body that transferred the property for sale, and also sends it draft notice for approval. If the organizer of the auction is a representative of the Fund, then simultaneously with the notification of the state body, the organizer of the auction sends a notice of recognition of the auction as invalid to the Fund (the Fund's branch).

Within 14 calendar days from the date of the commission's decision to declare the auction void, the organizer of the auction, in agreement with the state body, organizes the preparation and publication of a notice declaring the auction void.

In accordance with paragraph 4 of Art. 54 of the Law on Enforcement Proceedings, if the property is not sold within two months, the claimant is given the right to keep this property. If the claimant refuses the property, it shall be returned to the debtor, and the writ of execution - to the claimant.

In the event that the claimant leaves the property behind him, the enforcement proceedings end in connection with the actual execution of the enforcement document (subparagraph 1, paragraph 1, article 27 of the Law on Enforcement Proceedings).

If the claimant refuses the property, the enforcement proceedings end with the return of the enforcement document on the grounds specified in Art. 26 of the Law, namely on the grounds provided for sub. 5 p. 1 art. 26, - if the recoverer refused to keep the debtor's property that was not sold during the execution of the writ of execution.

On the impossibility of recovery on the specified grounds, the bailiff draws up an act, which is approved by the senior bailiff.

The return of the executive document to the recoverer is not an obstacle to the new presentation of the specified document for execution within the general terms for the presentation of executive documents for execution, established by Art. 14 of the Law on Enforcement Proceedings.

It should also be borne in mind that the deadline for presenting a writ of execution for execution is interrupted by the presentation of this document for execution and partial execution of the document. In the case of the return of the writ of execution to the recoverer due to the impossibility of its full or partial execution within the time period for presenting the writ of execution for execution after the break, it is calculated from the day the writ of execution is returned to the recoverer (clause 3, article 15 of the Law on Enforcement Proceedings).

As we can see, the Law on Enforcement Proceedings does not provide for the possibility of re-putting up real estate for sale. At the same time, the obligation to offer the property to the claimant arises if the sale did not take place within the two-month period provided for by law. In this regard, in a number of cases, the courts recognized the legitimacy of the re-public sale of real estate, if it was carried out in compliance with the general rules for conducting public auctions and within the above period.

With this in mind, the RFBR recommendations contain an indication that the organizer of the auction has the right, in agreement with the state body that transferred the property for sale, to announce a second auction, except for cases where the auction for the sale of receivables is declared invalid. Repeated auctions are announced no earlier than 10 days after the announcement of the auction as invalid and are held in compliance with the rules established for the first auction.

The revaluation of the property transferred for sale in the process of preparation for holding repeated auctions is carried out if such a possibility is provided for by federal legislation and other regulatory legal acts.

With regard to the sale of receivables seized as part of enforcement proceedings, the Temporary Instruction provides that if the auction for the sale of receivables is recognized as failed, the person exercising the collection, or on his behalf, the seller, within five days, transfers the receivables, the necessary documents, and also gives instructions on the sale of this debt on a commission basis.

According to the procedure recommended by the Russian Foundation for Basic Research, in the event that an auction for the sale of receivables is declared invalid, the organizer of the auction, within one working day from the date the commission makes such a decision, sends a protocol on declaring the auction invalid for approval by the state body that transferred the receivables for sale. Within the specified timeframe, a draft notice on declaring the auction invalid is sent to the state body for approval.

If the organizer of the auction is a representative of the Fund, then simultaneously with the direction of the specified protocol for approval to the state body, the organizer of the auction sends a notice of declaring the auction invalid to the Fund (Fund branch).

If the auction for the sale of receivables is declared invalid, a notice of this is published within 14 calendar days from the date of approval by the state body of the protocol on declaring the auction invalid.

The notice of recognition of the auction as invalid is published in the same publication in which the notice of the auction was published.

Further sale of receivables is carried out through direct sales (without bidding). For this purpose, the organizer of the auction transfers the receivables not sold at the auction and the documents attached to the application for its sale to the state body that transferred the receivables for sale, or on behalf of the state body to the person indicated in the notice of the auction.

Realization of receivables on a commission basis can be carried out by the same specialized organization that organized the auction.

Accounts receivable transferred for sale on a commission basis must be put up for sale within five days from the date of transfer of the relevant documents.

In a commission sale, receivables are put up for sale at a price equal to the amount of the valuation made by the person exercising the collection upon seizure of such receivables.

If, within five days from the date of putting the receivables for sale, they have not been realized, the seller has the right to raise the issue of revaluation of such receivables before the person carrying out the collection. A new assessment must be made within 10 days from the date of the decision to conduct it. Revaluation of accounts receivable due to the impossibility of its implementation can be carried out up to two times (clauses 36-37 of the Temporary Instruction).

Charter of Civil Procedure

1062. Bargaining is recognized as failed:

1) if no one wants to bargain, or only one appears;

3) if at the end of the auction the buyer, having made a deposit, does not pay the rest of the debt on time.

1063. When an auction does not take place due to the non-appearance of those wishing to bargain, then the debtor's cash creditors are granted, by a majority of votes, in proportion to the amount of their penalties, to ask for a new auction or to leave the property for themselves according to an assessment.

1064. The right to retain property belongs primarily to the creditor at whose request the seizure was imposed, and then to the one whose recovery is more significant.

1065. Property not sold at the second auction and not left behind by creditors shall be released from attachment, and creditors shall be allowed to foreclose on other property belonging to the debtor.

1066. In the case referred to in the previous (1065) article, the costs of the seizure, storage and sale of property shall be borne by the claimant who imposed the seizure or creditors who demanded the sale of property when they refuse to accept it.

1067. The claimant shall be granted the right to request the appointment of a new auction if, upon presentation of the deposit, the remaining money has not been paid on time (Section 1057). In this case, the deposit is added to the total amount received for the property.

1068. A new auction may be appointed on a general basis:

1) When all the pledged property is, before the mortgage term, put up for sale at the request of the pledger's creditors, and the highest price offered at the auction is less than the amount to be paid to the mortgagee.

2) When the mortgagee does not wish to leave the property behind.

[Regarding real estate]

1170. Auctions are recognized as failed:

1) if there is no one willing to bargain or only one appears;

2) if none of those who have appeared make allowances against the assessment;

3) if at the end of the auction the buyer, having made a deposit, does not pay the rest of the debt.

1171. If the auction does not take place, then the creditors have the right to ask for the production of a new one, or to retain the estate for themselves in the amount with which the auction began.

1172. A new auction may, at the request of the creditors, be carried out at the district court of one of the capitals.

1173. The creditor accepting the estate is obliged to satisfy all other creditors with the sums due to them according to the calculation.

1174. Disagreements between creditors on the issue of conducting a new auction are resolved by a majority vote of cash creditors, in proportion to the amount of their claims.

1175. If the second auction does not take place, then the creditors must retain the estate for themselves or levy execution on other property belonging to the debtor, having paid, in proportion to the collection of each, the costs of putting the estate on sale.

Code of Civil Procedure of the RSFSR 1923

Article 314. Auctions are recognized as failed: 1) if no one has come to bargain; 2) if none of those present make an allowance against the valuation, or 3) if the buyer fails to pay the deposit or the rest of the sum on time (Section 308).

Article 316. In the event that the auction did not take place, the claimants may, within three days, declare that the property being sold is left for them according to the assessment and in the order of priority corresponding to the size of their claims.

Article 317

Code of Civil Procedure of the RSFSR 1964

Article 403

The bailiff declares the auction invalid:

1) if less than two buyers came to the auction;

2) if none of those who have appeared make allowances against the initial assessment of the structure;

3) if the buyer does not fully pay the amount for which the building was purchased within five days.

Article 404

If the auction is declared invalid, the claimant is entitled to retain the building in the amount of the initial valuation.

If such an application has not been received, the bailiff no sooner than ten days after the auction is declared invalid shall appoint a secondary auction. Secondary auctions are announced and held in compliance with the law

forks set for the first bid, but starting with the estimated or first bid amount.

In the event that the secondary auction is declared invalid and the claimant refuses to retain the building being sold, the seizure of the building is removed.

Instruction on Enforcement Proceedings 1985

101. The bailiff declares the auction void:

a) if less than two buyers came to the auction;

b) if none of those who appeared made an allowance against the initial assessment of the building indicated in the act of seizing the building;

c) if the buyer, within the period established by law, has not paid in full the amount for which he bought the building.

102. If the auction did not take place, the bailiff informs the claimant about it. The latter may, within three days after receiving the notice, declare the abandonment of the house according to the assessment indicated in the inventory.

If there are several exactors, state institutions and enterprises have the priority right to retain the house being sold, and in case of refusal - collective farms, cooperative and other public organizations.

The claimant who left the house behind him must, within five days, deposit into the deposit account of the people's court the difference between the amount of the assessment and the amount attributable to his share, based on the amounts due to each claimant, drawn up in accordance with the established order of satisfaction of claims.

103. If the claimant does not wish to keep the building, the bailiff appoints a secondary auction not earlier than ten days after the auction is declared invalid. Secondary auctions are carried out in accordance with the procedure established for the first auction, but begin with the inventory, insurance or first price offered by buyers, depending on the rules established by the civil procedure codes of the union republics.

In the event that the secondary auction is declared invalid and the claimant refuses to retain the building being sold, the arrest of the building is removed, the building is returned to the debtor, however, if the legislation of the union republic provides for the rules for the sale of a residential building that was not sold at auction, the building is sold according to these rules.

Documents Legislation Comments Judicial practice Articles Procurement Tenders Auctions Request for quotations Request for proposals Sole supplier Contract State contract Municipal contract Federal authorities of the Federal Antimonopoly Service of Russia Rosoboronzakaz Since 01/01/2015, if an electronic auction is recognized as invalid, agreement on the conclusion of a contract with a single supplier with a supervisory authority is not required. Federal Law No. 498-FZ dated December 31, 2014 amended paragraph 25 of Part 1 of Art. 93 44-FZ, according to which, if the electronic auction was declared invalid on the grounds that are provided for in Part. 1 - 3.1 Art.

Article 71. Consequences of declaring an electronic auction invalid

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 paragraph 1 of this part, is obliged to send notifications to the participants of such an auction; 3) the auction commission, within three working days from the date of receipt by the customer of the second parts of applications for participation in such an auction of its participants and documents specified in paragraph 1 of this part, considers the second parts of these applications and these documents for compliance with the requirements of this Federal Law and documentation about such an auction and sends to the operator of the electronic site the protocol of summing up the results of such an auction, signed by the members of the auction commission.

Publication of the protocol if no application has been submitted

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 time period specified in paragraph 1 of this part, is obliged to send a notification to the participant in such an auction that has submitted a single application for participation in such an auction; 3) the auction commission, within three working days from the date of receipt of a single application for participation in such an auction and the documents specified in paragraph 1 of this part, considers this application and these documents for compliance with the requirements of this Federal Law and documentation on such an auction and sends to the operator electronic platform protocol for consideration of a single application for participation in such an auction, signed by members of the auction commission.

Ipc-star.ru

From July 1, 2018, Federal Law No. 504-FZ of December 31, 2017 amends paragraph 4 of part 3 of article 71. See text in a future edition. 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.

ConsultantPlus: note.

The auction did not take place, no bids were submitted

Then the notice of a repeated auction or request for proposals may be published on the website no earlier than November 12, 2016. With regard to the re-placement of the order, this may be again an electronic auction or, on the basis of clause 8 of paragraph 2 of Article 83, a request for proposals.
Part 3 of this article defines the rules for conducting procurement in this way, including the timing. In any case, the contractor who wanted to take part in the electronic auction, which was subsequently declared invalid due to the lack of bids, but for some reason did not have time, has enough time to solve all the problems and become a participant in the re-placed purchase.

The auction did not take place applications were submitted what to do according to federal law 44

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 documentation for the electronic auction, 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. (as amended by the Federal Laws of December 28, 2013 N 396-FZ, of June 4, 2014 N 140-FZ) (see.

Failed auction

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 №44-

Federal Law, 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.

Important

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.

Attention

The customer can conclude a contractual agreement with a single participant. Consider the conditions under which you can sign a contract.

Protocols according to 44-FZ: sample documents

So, the tender is declared invalid if:

1. one application has been submitted;
2. lack of applications;
3. registered applications are submitted with violations and cannot be accepted by the commission;
4. in cases where there was no bid for the price at the set time.

Failed auction - consequences As we wrote above, depending on the reasons for the recognition of a failed auction, the customer can conclude a contract with a single supplier or conduct a new tender in the form of a request for proposals or otherwise established by law. Repeated auction Conducting a repeated auction is also carried out on the basis of Federal Law-44.

At the moment, the state customer has the right to select a counterparty only by requesting proposals, but new amendments are expected soon, which will require additional. approvals.

If no bids have been submitted for the auction, you need to publish a protocol declaring the purchase as void. The functionality of the site does not imply automatic publication of a protocol on recognizing the procurement as failed.

Log in to your Personal Account with an electronic signature. Find the auction in the "Purchases" section; 2. Open the form of the protocol on declaring the auction invalid: Click on the notification "Publish the protocol on declaring the auction invalid" in the auction line in the "Purchases" section; Or open the auction card in the "Events" section, then "Minutes" and click the "Open protocol form" button.

3. Select the auction commission in the "Commission" field (if necessary).
Federal Law) 2 Only one application has been submitted - the participant does not comply (part 16 of article 66 44-FZ) = based on the results of consideration of the first parts of applications by the auction commission, a decision was made to refuse admission to participation of all procurement participants (part 8 of article 67 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 article 71 44-FZ) 3 Only one application has been submitted - the participant complies (part 16 of article 66 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) Conclusion of a contract with a single supplier (clause 4, part 1, article 71, clause 25, part 1, art.

Protocol on the failed auction 44 fz if no application has been submitted

• at the end of the deadline for filing applications for participation in such an auction, only one application for participation in it has been submitted,
• the auction commission decided to recognize only one procurement participant who submitted an application for participation in such an auction as its participant,
• within ten minutes after the start of such an auction, none of its participants submitted an offer on the price of the contract,
• the auction commission 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,

then the customer has the right to conclude a contract with a single supplier without the consent of the body authorized to exercise control in the field of procurement.

A failed auction is not uncommon in the world of public procurement. However, this does not always mean that the winner will not be determined. In addition, in some cases, the contract will be concluded on conditions that are quite favorable, in terms of price, for the participant. At the same time, there are other consequences for both parties, as determined by Article 71 of Federal Law No. 44. They depend primarily on the reasons why the auction was declared invalid. 1. The auction did not take place due to the fact that not a single application was submitted. In this case, the customer has no one to conclude a contract with, as there are no applicants. However, in order not to waste precious time on holding a new auction, part 4 of article 74 provides for the possibility to change the type of auction to a request for proposals. In this case, the customer is not entitled to change the subject of the purchase.

X. recognition of the auction as invalid

By these actions, he only exercises his right to participate in the auction. The applicant who submitted the application and paid the deposit cannot be forced to participate in the auction itself and has the right to refuse to participate in the auction at any time. In addition, in accordance with Article 438 of the Civil Code of the Russian Federation, the acceptance must be complete and unconditional.

Consequences of declaring the auction invalid (nuances)

This rule applies to all types of compulsory auctions (see the decision of the AS PO dated March 26, 2015, case No. A65-9335 / 2014). For failed auctions, the deadline for filing a complaint is 3 months (part 5, clause 1, article 18.1), otherwise - 10 days.

• The plaintiff in a claim for recognition of the auction as invalid can be both a participant in the auction and a person who could not take part in them due to a violation of the procedure for holding (if his rights are violated).
• In practice, the possibility of invalidating failed auctions is sometimes discussed. The Supreme Arbitration Court of the Russian Federation recognized it and legitimized it in the Resolution of the Presidium of November 6, 2011 No. 2436/11, arguing that the recognition as invalid is the result of the auction.
  Therefore, such bidding may be invalidated.

vi. recognition of the auction as invalid

The Supreme Court considered that the mere fact that the rules approved by the Government of the Russian Federation establish an application form for participation in the auction does not mean the introduction of a rule stating that its non-compliance may result in the participant's exclusion. Re-bidding In many cases of mandatory bidding, after the first of them is declared invalid, repeated bidding is provided for:

• according to paragraphs. 1, 2 art. 58 of the Law on Mortgage, 2 conditions are established for this: the auction must be declared invalid and after that the pledgor has not reached an agreement with the mortgagee on the purchase of the mortgage object at the initial price, taking into account the claims secured by this pledge in payment;
• according to part 2 of Art. 55 of Law No. 44-FZ - if there were no participants (including all applications were rejected, no one passed pre-qualification) or participant number 2 refused to conclude a contract;
• according to paragraph 18 of Art.

Laws of the Russian Federation

The auction is recognized by the auction organizer as failed in the following cases: a) one application is submitted for participation in the auction or no application is submitted; b) only one bidder is allowed to participate in the auction or no one is admitted; c) one participant of the auction came to participate in the auction held in the form of an auction or one participant of the auction remained by the time of opening the envelopes with competitive bids; d) none of the bidders held in the form of an auction, after the initial price of the lot was announced three times, did not publicly express a desire to purchase the subject of the auction; e) none of the bidders, held in the form of a competition, has made a proposal that meets the conditions of the competition; f) the commission did not determine the winner of the competition (in the case when two or more competitive proposals received the same evaluation of the commission). 69.

Failed auction

If the winner, despite the fact that he did not participate in the auction procedure itself, refuses to sign the contract, then information about him will fall into the Federal Antimonopoly Service as an evader. It will be very difficult to prove that you are right. Read more... 3. The auction was declared invalid based on the results of consideration of the first parts of applications In this case, events can develop according to two scenarios: all applications are rejected or only one participant is admitted.
If the first scenario is valid, then the outcome is clear - the auction will have to be held again. At the same time, it is possible to change the procurement method to a request for proposals - on the same conditions as in the absence of applications. The situation with the admission of one application is similar to the admission of a single participant.

Declaring the auction void

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.

Recognition of trades as invalid

Attention

If the auction is declared invalid, the organizer of the auction no earlier than ten days, but not later than one month from the date of the announcement of the auction as failed, appoints a secondary auction. 2. Secondary auctions are announced and held in accordance with Article 89 of this Federal Law. The initial price of property at secondary auctions is reduced by fifteen percent by the decision of the bailiff, if they are held due to the reasons specified in paragraphs 1 - 3 of Article 91 of this Federal Law.

Recognition of trades as invalid in case of bankruptcy

An indication that a single application must meet the competition criteria may not be specified in special rules. In part 1 of Art. 55 of Law No. 44-FZ, this requirement is specified, and for example, the Law on Advertising refers only to the registration of a single participant. Nevertheless, judicial practice follows the path of checking whether the application for the placement of an advertising structure complies with the conditions put forward.

So, in one of the cases, the AS SZO denied a claim to a bidder who proposed the installation of an advertising structure that differs in size from the parameters specified in the conditions of the competition (decree dated 11/12/2014, case No. A21-10450 / 2013). At the same time, compliance with the application form proposed by the auction organizer or established by a by-law is optional (if it meets the content requirements). The corresponding conclusion is in the decision of the Supreme Court of the Russian Federation No. AKPI13-430.

Recognition of trades as failed

In the process of bidding, the auctioneer assigns each subsequent price by increasing the current price (including the initial sale price of the property) by the amount of the established auction step. After the announcement of the next price, the auctioneer names the ticket number of the auction participant who, in the opinion of the auctioneer, raised the ticket first, and points to the participant who raised it. The auctioneer then announces the next price according to the auction step.

The auction ends if, after the next price has been announced three times, none of the auction participants raised the ticket. The winner of the auction is the participant whose ticket number was named last by the auctioneer. If none of the bidders raised the ticket after the announcement of the initial price of the property, the subject of the auction after the three times announcement of the specified price is withdrawn from sale, and the auction is declared invalid.

Recognition of trades as failed 44 fz

General Provisions on Failed Auctions Special Grounds for Declaring Auctions Failed Obligation to Conclude an Agreement with a Single Participant Conducting Repeated Auctions Consequences of Declaring Failed Auctions Conducted in accordance with Law No. :

• cancellation of auctions by decision of the organizer - before they are held;
• recognition of the conducted auction as invalid by the decision of the organizer or the court;
• recognition of completed or invalid auctions invalid by the court.

The general grounds for a decision on a failed auction are as follows:

1. Registration at the auction of only one participant (clause 5 of article 447 of the Civil Code of the Russian Federation).

Bidding for each exposed subject of bidding shall be deemed invalid if:

a) less than two participants participated in the auction;

b) none of the bidders during the auction, open according to the form for submitting offers on price or amount of rent, after three times the announcement of the initial price or the initial amount of rent, did not raise the ticket;

c) none of the bidders during the competition or auction, closed according to the form for submitting proposals for the price or amount of rent, in accordance with the decision of the bidding organizer, was declared the winner;

d) the winner of the auction avoided signing the protocol on the results of the auction, concluding a contract for the sale or lease of a land plot.

The auction organizer is obliged, within three banking days from the date of signing the protocol on the results of the auction, to return the deposit paid by the participants in the failed auction. The deposit made by the winner of the auction will not be returned to him. The organizer of the auction, in case of recognition of the auction as invalid, has the right to announce the re-conduct of the auction. In this case, their conditions may be changed. The organizer of the auction may reduce the initial price of the land plot or the initial amount of the rent and reduce the “auction step” by no more than 15 percent without re-evaluation. If the organizer of the auction is a specialized organization, the conditions of the competition, the initial price or the initial amount of the rent, the “auction step” may be changed in the manner prescribed for their approval.

As for state and municipal property, the requirements of the law apply here - part 1 of article 23 of the Federal Law of December 21, 2001 No. 178-FZ "On the privatization of state and municipal property" (as amended and supplemented) if the auction for the sale 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.

Information about the results of the auction is published by the organizer of the auction within three days from the date of signing the protocol on the results of the auction in periodicals that reported on the auction, and posted on the official website of the Russian Federation on the Internet.

It is not allowed to conclude an agreement based on the results of the auction or if the auction is declared invalid due to the participation in the auction of less than two people, earlier than ten days from the date of posting information about the results of the auction on the official website of the Russian Federation on the Internet.

Since in the event that the auction is declared invalid, the winner of such an auction is not determined, the conclusion of an agreement with the only participant in the failed auction contradicts the requirement of Part 1 of Art. 447 of the Civil Code of the Russian Federation, due to the fact that such a participant is not the person who won the auction, i.e. a person who has acquired the right to conclude an agreement that was the subject of these auctions.

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. By these actions, he only exercises his right to participate in the auction. The applicant who submitted the application and paid the deposit cannot be forced to participate in the auction itself and has the right to refuse to participate in the auction at any time.

In addition, in accordance with Article 438 of the Civil Code of the Russian Federation, the acceptance must be complete and unconditional. Therefore, if the response contains additional or different conditions from the offer, then it cannot be recognized as an acceptance.

Thus, in order for a participant's bid to be recognized as an acceptance, it must contain conditions identical to those specified in the notice of bidding, i.e. the contract price proposed in the participant's application must fully coincide with the contract price (minimum or maximum) indicated in the notice. Otherwise, the recognition of such an application as an acceptance would be contrary to civil law.

If such a contract for the sale of state or municipal property is concluded based on the results of a failed auction, the official may be held criminally liable on the grounds of a crime under Art. 286 "Exceeding official powers" or art. 293 "Negligence" of the Criminal Code of the Russian Federation.