According to paragraph 16 of the notes of the Order of the Ministry of Economic Development and Treasury of the Russian Federation No. 761 / 18n, changes to the schedules in connection with the repeated procedures for placing orders are made only in terms of the timing and method of placing an order and executing the contract.
At the same time, according to part 2 of Art. 112 of the Federal Law of 05.04.2013 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), customers post on the Official website schedules for placing orders for 2014-2016 according to the rules that were in force until the date of entry into force of Law No. 44-FZ, taking into account the Features of placement in a single information system or before the commissioning of this system on the official website of the Russian Federation in the information and telecommunications network "Internet" to post information about placing orders for the supply of goods, performance of work, provision of services, schedules for placing orders for 2015-2016, approved by Order of the Ministry of Economic Development of Russia No. 182, the Treasury of Russia No. 7n dated March 31, 2015 (hereinafter referred to as the Specifics).
For example, clause 6 of the Specifics, according to which, changes to the schedule posted on the official website for each object of procurement are carried out no later than ten calendar days before the date of posting on the official website of a notice of the procurement or sending an invitation to participate in determination of the supplier (contractor, performer). The exceptions are the cases specified in paragraph 7 of the Specifics.
In accordance with clause 7 of the Specifics, in the case of procurement through a request for quotations in order to provide humanitarian assistance or eliminate the consequences of natural or man-made emergencies in accordance with Art. 82 of Law No. 44-FZ, amendments to the schedule posted on the official website are carried out on the day the request for quotations is sent to procurement participants, and in the case of procurement from a single supplier (contractor, performer), in accordance with clause 9 and 28 h. 1 art. 93 of Law No. 44-FZ, no later than one calendar day before the date of conclusion of the contract.
A notice of procurement (for example, an electronic auction, an open tender) can be posted by the customer on the official website no earlier than 10 calendar days from the date of changes to the schedule posted on the official website.
From the foregoing, we can conclude that the placement by the customer on the official website of a notice of procurement earlier than 10 calendar days from the date of changes to the schedule posted on the official website will violate the provisions of the legislation of the Russian Federation on the contract system. This applies only to those purchases that have been amended in the schedule posted on the official website.
Consider the joint Order of the Ministry of Economic Development of the Russian Federation and the Federal Treasury dated December 27, 2011 No. 761 / 20n "On approval of the procedure for placing on the official website of schedules for placing orders for the supply of goods, performance of work, provision of services for the needs of customers and forms of plans - schedules for placing an order for the supply of goods, performance of work, provision of services for the needs of customers" (hereinafter - Order No. 761/20n).
According to clause 15 of the notes of Order No. 761 / 20n, changes to the schedules are carried out in the following cases:
Changes of more than 10% in the cost of goods, works, services planned for purchase, identified as a result of preparation for the placement of a specific order, as a result of which it is impossible to place an order for the supply of goods, performance of work, provision of services in accordance with the initial (maximum) price of the contract provided for schedule;
Changes in the planned terms for the acquisition of goods, works, services, the method of placing an order, the deadline for the execution of the contract;
Cancellation by the customer, the authorized body of the order placed by the schedule;
The resulting savings from the use of budgetary appropriations in the current financial year in accordance with the legislation of the Russian Federation;
In the event of circumstances that could not be foreseen at the date of approval of the schedule;
In the event that a federal executive body, an executive body of a constituent entity of the Russian Federation, or a local self-government body is issued an instruction authorized to exercise control in the field of placing orders to a customer, an authorized body to eliminate violations of the legislation of the Russian Federation on placing orders in accordance with the legislation of the Russian Federation, including about the cancellation of the auction.
We also draw your attention to the fact that, in accordance with paragraph 16 of the notes of Order No. 761/20n, changes to the schedules in connection with the repeated procedures for placing orders are made only in terms of the timing and method of placing an order and executing the contract.
If the Customer held an electronic auction for which no applications were submitted and the auction was declared invalid, then during the repeated procedure, new dates for the electronic auction and new terms for the execution of the contract are entered into the schedule. These changes are entered into the line, which already contains information about the purchase, i.e. there is no need to create a new line for the repeated procedure in the schedule. And if during the repeated procedure the method of placing an order (the method of determining the supplier) changes, then the new method of determining the supplier is entered instead of the old one. For example, instead of the method of determining the supplier "electronic auction", "request for proposals" is indicated.
We're running an auction, the bid day is ending and we know no one will bid. Is it necessary to change the schedule and procurement plan in order to hold a second auction? Can I create a new notice immediately after posting the protocol on the failed auction and within what time frame?
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 Part 4 of Article 79 of Law No. 44-FZ, if an electronic auction is declared invalid due to the fact that no applications have been submitted by the end of the application period for participation in such an auction, the customer makes changes to the 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 object of procurement cannot be changed) or otherwise in accordance with this Federal Law.
At the same time, if there is no need to make changes to this position of the schedule in terms of the method for determining the supplier (contractor, performer), the timing of the purchase, the NMCC, then, based on the literal interpretation of the provisions of part 13 of article 21 of Law No. 44-FZ, we believe that no need to wait 10 days. Accordingly, after posting a protocol on recognizing the electronic auction as invalid, the customer can place a re-purchase.
What changes to make to the procurement plan and schedule when the auction did not take place and the customer repeats the procedure
If necessary, change in the procurement plan and schedule the terms of the procurement, the method of determining the supplier or, for example, the amount of funding, and announce the procedure again. Leave the object of purchase unchanged. Such a rule is established in part 4 of article 71 of Law No. 44-FZ.
In what cases and how to change the schedule in the EIS
Customers make changes to schedules in accordance with the Rules and Requirements from the Decrees of the Government of the Russian Federation of June 5, 2015 No. 553 and 554. Observe the deadlines for making changes, otherwise you will pay a fine. Publish the changes in the EIS, after sending it for control. How to change the schedule plan correctly and where to contact if there are errors in the EIS, you will learn from the recommendation below.
When to change the schedule
Make changes to the schedule if:
- changed the procurement plan;
- the volume and cost of goods, works or services have changed and it is impossible to purchase them at the former NMTsK;
- changed the start date of the purchase, the terms of the contract, the amount of the advance payment, the stages of payment;
- changed the terms in which the customer will supply goods, works or services;
- changed the way you define a supplier;
- canceled the purchase
- use savings from procurement or saved funds within budget allocations;
- received an order from the control body under Article 99 of Law No. 44-FZ;
- decided to change the schedule based on the results of public discussion;
- circumstances arose that could not be foreseen at the date of approval of the schedule.
Cases when the customer changes the schedules are prescribed:
- in paragraph 8 of the Rules from the Decree of the Government of the Russian Federation of June 5, 2015 No. 553 - when purchasing for federal needs;
- in paragraph 10 of the Requirements from the Decree of the Government of the Russian Federation of June 5, 2015 No. 554 - when purchasing for regional and municipal needs.
Regional or local authorities may additionally establish cases when the customer changes the schedules for procurement for regional and local needs. Such a rule is spelled out in subparagraph “h” of paragraph 10 of Requirements No. 554.
When to change the schedule
Make changes to the schedule in time:
- 10 days or earlier before you place a notice in the EIS or send an invitation to participate in the procurement;
- 10 days or earlier before the date when you conclude the contract, if the purchase does not provide for either a notice or an invitation;
- one day before the conclusion of the contract when purchasing from a supplier under clauses 9 and 28 of part 1 of article 93 of Law No. 44-FZ;
- on the day when you send participants a request for quotations for procurement for humanitarian aid or emergency response (Article 82 of Law No. 44-FZ).
The deadlines are specified in paragraphs 9 and 10 of Regulation No. 553 and paragraphs 11 and 12 of Requirements No. 554.
If you violate the deadlines, the responsible employee will pay a fine of 5,000 to 30,000 rubles. Punishment is provided for by part 4 of article 7.29.3 of the Code of Administrative Offenses of the Russian Federation.
Journal "Goszakupki.ru" is a magazine, on the pages of which leading industry experts give practical explanations, and the materials are prepared with the participation of specialists from the Federal Antimonopoly Service and the Ministry of Finance. All journal articles are the highest degree of reliability.
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.
|
SOLUTION ANY TASKS WHEN WORKING ON STATE ORDER QUICKLY AND COMPETENTLY |
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.
- On 09/11/2016
- 0 comments
- 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 register (Unified Register of Procurement Participants) 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;
