The customer held an electronic auction, for which not a single application was submitted and the auction was declared invalid. How to reflect the repeated procedure in the schedule if the repeated auction will be carried out without making significant changes to the document

Documents Legislation Comments Judicial practice Articles Procurement Tenders Auctions Request for quotations Request for proposals Sole supplier Contract State contract Municipal contract Federal bodies FAS Russia Rosoboronzakaz From 01/01/2015, if an electronic auction is declared invalid, approval of the conclusion of a contract with a single supplier with the control body is not required. Federal Law No. 498-FZ dated December 31, 2014 amended clause 25, part 1, art. 93 44-ФЗ in accordance with which, if the electronic auction was declared invalid on the grounds that are provided for. 1 - 3.1 tbsp.

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 the electronic platform; 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 the customer receives the second parts of applications for participation in such an auction of its participants and the documents specified in paragraph 1 of this part, reviews 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 platform a protocol for summing up the results of such an auction, signed by 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 the electronic platform; 2) the operator of the electronic site, within the period specified in paragraph 1 of this part, is obliged to send a notice to the participant in such an auction who submitted a single application for participation in such an auction; 3) the auction commission, within three working days from the date of receipt of the only 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 the documentation for such an auction and sends it to the operator electronic platform, a protocol for considering a single application for participation in such an auction, signed by members of the auction commission.

Ipc-zvezda.ru

From July 1, 2018, Federal Law dated December 31, 2017 N 504-FZ amends paragraph 4 of part 3 of Article 71. See the text in a future edition. 4) the contract is concluded in accordance with paragraph 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, the application for participation in which was submitted: a) earlier than other applications for participation in such an auction, if several participants in such an auction and the applications they submitted were found to comply with the requirements of this Federal Law and the documentation for 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 the documentation on such an auction.

ConsultantPlus: note.

The auction did not take place, no applications were submitted

Then a notice of a repeat auction or request for proposals may be published on the website no earlier than November 12, 2016. As for re-placement of the order, this may again be an electronic auction or, based on clause 8 of part 2 of Article 83, a request for proposals.
Part 3 of this article defines the regulations for conducting procurement in this way, including the deadlines. In any case, the contractor who wanted to take part in the electronic auction, which was subsequently declared invalid due to a lack of applications, 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 under Federal Law 44

Federal Law due to the fact that the auction commission has made a decision that all second parts of applications for participation in it do not meet the requirements established by the electronic auction documentation, or on the grounds provided for in 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 carries out the procurement by conducting a request for proposals in accordance with paragraph 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 Federal Laws dated December 28, 2013 N 396-FZ, dated June 4, 2014 N 140-FZ) (see.

Failed auction

The only application is the procedure for action. The laws on electronic trading FZ-44 and FZ-223 are constantly supplemented and coordinated with other regulations. In 2014, additional amendments were adopted to No. 498-FZ and Art.
25 №44-

Federal Laws 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 at the site, it is considered to be the winning one. The key feature of declaring an auction invalid for this reason is the admission of only one participant to participate in it.

Attention

The customer may enter into a contract agreement with a single participant. The conditions under which a contract can be signed should be taken into account.

This is possible only with that participant (Article 70 of Federal Law-44) whose application fully meets the requirements.

Protocols under 44-FZ: sample documents

So, the tender is declared invalid if:

one application submitted;
lack of applications;
registered applications were submitted with violations and cannot be accepted by the commission;
in cases where there was no price offer at the specified time.

Failed auction - consequences As we wrote above, depending on the reasons for recognizing a failed auction, the customer can enter into 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 auctions Repeated auctions are 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 applications are submitted to the auction, you are required to publish a protocol declaring the purchase invalid. The functionality of the site does not imply the automatic publication of a protocol declaring a purchase invalid.

Log in to your Personal Account using your 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 “Protocols” and click the “Open protocol form” button.

3. Select the auction commission in the Commission field (if necessary).
Federal Law) 2 Only one application was submitted - the participant does not comply (Part 16, Article 66 44-FZ) = based on the results of consideration of the first parts of the applications, the auction commission decided to refuse admission to all procurement participants (Part 8, 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 clause 8 of part 2 of art. 83 44-ФЗ or in another way in accordance with 44-ФЗ (part 4 of article 71 44-ФЗ) 3 Only one application is submitted - the participant complies (part 16 of article 66 44-ФЗ) Coordination of the Customer’s decision with the authorized body 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 of 44 Federal Laws if no applications were submitted

after the deadline for submitting 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 to participate in such an auction as its participant,
within ten minutes after the start of such an auction, none of its participants submitted a proposal for the contract price,
the auction commission made a decision on compliance with the requirements established by the electronic auction documentation for 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.

In this article I will focus on declaring the auction invalid.

When can this happen?

Firstly, if no applications were submitted for the auction at all, this is quite logical; what kind of auction is there if there is no one. What's next? Repeated bidding will be scheduled with a reduction in the initial price (NP) by 10% from the NC at the primary auction. If repeated ones do not take place, then tenders will be scheduled in the form of a public offer with a decrease in the NC.

The most interesting thing is not this.

Imagine this situation: you have decided to buy something from a primary or repeat auction (i.e. from an upward auction). You have submitted your application online. And it just so happened that no one except you was allowed to participate in the auction, or no one submitted bids at all. What will happen in this case?

Now these auctions will be called invalid. But it’s too early to panic.

Even though this sounds sad, you, as the only participant in such auctions, will be recognized as the winner of the auction at the starting price. You applied for the auction at the starting price? It's not your problem that no one else applied or was admitted except you. You were ready to pay the initial price, because... for some reason you applied. Therefore, the auction organizer has no grounds, incl. Legislative laws do not designate you as the winner of such auctions.

What article of law are we relying on? Of course, to the main document - Federal Law No. 127 “On Insolvency”, or more precisely, 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 complies with the conditions of the auction or contains an offer for the price of the enterprise not lower than the established initial sale price of the enterprise, the purchase and sale agreement for the enterprise is concluded by an external manager with this participant in the auction”

Thus, if you are the only participant in the auction and your application with its Attachments comply, you can count on the fact that you bought the item at the starting price.

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

Therefore, when I showed in my video tutorial these auctions for the purchase of a land plot in the city of Yartsevo, some attentive readers of our newsletter were justifiably perplexed: “How is he telling us here that he bought the land, but the auction did not take place”?

That’s how they “didn’t happen”!

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

Sometimes, for a number of reasons, an electronic auction under 44-FZ may not take place (more precisely, it will be declared failed).

1. The auction did not take place if there was only one participant
In this case, the customer enters into a contract with this participant as the winner, provided that the second part of the application meets the established requirements under 44-FZ and auction documentation. In this case, approval from the regulatory authorities is not required, since according to the conditions, one application is sufficient for quorum if it is completed correctly. Naturally, if you refuse, you will be held liable as if you had participated in a full-fledged tender with many participants and won it. If you submitted a single bid and it did not go through, the customer must hold a new tender.

2. The auction did not take place if there were several participants
a) Let’s assume that there are several participants in an electronic auction, but only one of them meets the requirements for the second part of the application. Accordingly, in this case the rule of paragraph “1” is applicable, that is, the government customer enters into a contract with this participant without approval from the regulatory authority.
b) There are several participants in the auction, but the government customer rejected all applications at the stage of consideration of the second parts. The solution is to hold new auctions.

3. No bids have been submitted (there are no participants in the auction)

According to Part 4 of Art. 71 44-FZ, the customer can make a request for proposals for the auction. As part of a request for proposals after a failed auction, it is prohibited, however, to change the procurement object (however, it is formally possible, but not recommended, to change its cost, as well as the deadlines). The notice to the Unified Information System must be submitted by the customer no later than 5 days (calendar) before the day of the request for proposals. At the same time, according to 44-FZ, the customer has the right to independently send invitations to participate in the procurement process to those persons who, in his opinion, are capable of fulfilling the terms of the contract. However, in this case, these persons must be indispensable counterparties of the customer for at least 18 months before the date of request for similar supplies.

4. The auction did not take place if all applications were rejected at the stage of consideration of the first parts
In theory, this is hardly possible, but in reality, anything can happen in electronic trading. Accordingly, in this case the previous paragraph on the request for proposals is applicable. If, of all applications, based on the results of consideration of the first parts (and not the second), only one participant is admitted, then, according to Part 2 of Article 71, the problem is resolved by approval from the regulatory body.

5. The auction did not take place because none of the participants came to it
According to Part 3 of Article 71, the problem is resolved by approval from the regulatory authority (the first application that meets the conditions of the auction). If no application matches, or the application matches, but the participant is ready for termination, then the clause applicable under the terms of 44-FZ is applied:

"3. If an electronic auction is declared invalid on the grounds provided for in Part 20 of Article 68 of this Federal Law due to the fact that within ten minutes after the start of such an auction, none of its participants submitted a proposal for the contract price:

4) the contract is concluded in accordance with paragraph 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, the application for participation in which was submitted:

a) earlier than other applications for participation in such an auction, if several participants in such an auction and the applications submitted by them are recognized as complying with the requirements of this Federal Law and the documentation on such an auction.”

Hello!

You can in accordance with Article 93.44 of the Federal Law

25) recognition as invalid of an open competition, a competition with limited participation, a two-stage competition, a repeated competition, an electronic auction, request for quotations, request for proposals in accordance with parts 1 and 7 of Article 55, parts 1 - 3.1 of Article 71, parts 1 and 3 of Article 79, part 18 of Article 83 of this Federal Law. Approval of the conclusion of a contract in the specified cases, with the exception of cases of concluding contracts in accordance with parts 4 and 5 of Article 15, parts 1 - 3.1 of Article 71, parts 1 and 3 of Article 79 of this Federal Law, is carried out when making purchases to meet federal needs, the needs of the subject of the Russian Federation, municipal needs, respectively, with the federal executive body authorized to exercise control in the field of procurement, or the control body in the field of state defense procurement, the executive body of the constituent entity of the Russian Federation, the local government body of a municipal district or the local government body of a city district authorized to exercising control in the field of procurement. In accordance with this paragraph, the contract must be concluded with a single supplier (contractor, performer) on the terms provided for in the procurement documentation, at the price proposed by the procurement participant with whom the contract is concluded. Such a price should not exceed the initial (maximum) contract price, the contract price proposed in the application of the relevant procurement participant, or the contract price proposed by the relevant procurement participant during an electronic auction. The customer's request for approval of a contract with a single supplier (contractor, performer) is sent to the control body in the field of procurement no later than ten days from the date of posting in the unified information system of the relevant protocols containing information on the recognition of the determination of the supplier (contractor, performer ) failed. In this case, the approval period should not be more than ten working days from the date of receipt of the specified request. A contract with a single supplier (contractor, performer) is concluded within a period of no more than twenty days from the date of receipt by the customer of such approval, or in the cases provided for in parts 4 and 5 of Article 15 of this Federal Law, within a period of no more than twenty days from the date of placement in unified information system of relevant protocols containing information on recognition of the determination of the supplier (contractor, performer) as invalid, or in cases provided for in parts 1 - 3.1 of Article 71, parts 1 and 3 of Article 79 of this Federal Law, within the time limits established respectively by Article 70 and part 13 Article 78 of this Federal Law. The procedure for agreeing to conclude a contract with a single supplier (contractor, performer) is established by the federal executive body regulating the contract system in the field of procurement;

Bidding for each exhibited item of bidding is considered invalid if:

a) less than two participants participated in the auction;

b) none of the bidders during an auction open according to the form for submitting proposals for the price or the amount of rent, after three times announcing the starting price or the initial amount of rent, raised a ticket;

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

d) the winner of the auction avoided signing the protocol on the results of the auction, concluding a purchase and sale agreement or renting 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 made by the participants in the failed auction. The deposit made by the winning bidder will not be returned to him. If the auction is declared invalid, the auction organizer has the right to announce a re-conduction of the auction. However, their terms and conditions may be changed. The auction organizer can reduce the starting price of a land plot or the initial rental amount and reduce the “auction step” by no more than 15 percent without re-valuation. If the auction organizer is a specialized organization, the terms of the competition, the starting price or the initial amount of rent, the “auction step” may be changed in the manner established 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” (with amendments and additions) 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 does 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 purchase and sale agreement or a lease agreement for the land plot put up for auction, and the state authority or local government body, by whose decision the auction was held, is obliged to conclude an agreement with a single auction participant at the starting auction price.

Information about the auction results is published by the auction organizer within three days from the date of signing the protocol on the auction results in periodicals in which the auction was reported, and is 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 in the event that the auction is declared invalid due to the participation of less than two people in the auction, 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, if the auction is declared invalid, the winner of such auction is not determined, the conclusion of an agreement with the only participant in the failed auction is contrary to 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. the person who received the right to conclude the contract that was the subject of these auctions.

Based on the foregoing, the conclusion of an agreement with the only participant in the failed auction does not comply with the requirements of civil law, and also contradicts the essence of the auction itself. In addition, in accordance with established judicial practice, submitting an application to participate in the auction does not mean concluding an agreement with the auction organizer by accepting a public offer.

A contract is a two- or multilateral transaction that implies the emergence of rights and obligations for all its parties.

If we assume that the notice of the auction organizer is an offer to conclude an agreement with the subject of the auction, then the application of a potential participant should indeed be considered acceptance. But the bidder does not bear any obligations to conduct the auction, since providing the required documents and making 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 has submitted an 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, acceptance must be complete and unconditional. Consequently, if the response contains additional or different conditions from the offer, then it cannot be recognized as acceptance.

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

If such a contract for the sale and purchase of state or municipal property is concluded based on the results of a failed auction, the official may be brought to criminal liability on the grounds of a crime under Art. 286 “Exceeding official powers” or Art. 293 “Negligence” of the Criminal Code of the Russian Federation.