The auction did not take place one participant. What to do if the purchase did not take place

Sometimes customers have to declare an auction invalid. What to do if the auction did not take place, because not a single application has been submitted under 44-FZ, we will show in the article.

Consequences of declaring the auction invalid

After analyzing Art. 71 of Law 44-FZ, there are two reasons why the electronic auction did not take place:

• not a single application has been submitted;
• one application submitted.

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The reason why the competitive procedure was declared invalid will depend on further actions contract managers:

• if there are no bids, carry out a new purchase;
• if one application has been submitted - to draw up a state contract with the participant who submitted it.

Concluding a contract with a single supplier when the auction did not take place

In cases where:

• the application of one participant is submitted (part 16 of article 66);
• after analyzing the first parts of the submitted applications, only one of the participants who submitted their applications was admitted to the procedure (part 8 of article 67);
• the second part of the submitted application, only one of the participants in the procedure meets the conditions of the purchase (part 13 of article 69), a contract is drawn up with the person who submitted it.

The only condition is compliance single application all the stated requirements.

Another reason for such a contract is a coincidence of circumstances when none of the admitted participants in the electronic procurement sent their offer with a price within ten minutes from the moment it began (part 20 of article 68).

Imagine a situation: no applications were submitted to the competition, only one or only one application was submitted meets the requirements of the documentation. In all cases, you must declare the competition invalid. But what to do next if you are not ready to cancel the purchase depends on the number of applications.
If the competition failed due to the fact that no one submitted a single application, you need to act according to one option. And if you yourself have rejected all the applications, you must proceed in a completely different way. And then, when you start receiving new applications, each time new conditions will be included, depending on the number and quality of applications. Let us explain how for different conditions choose the right purchasing method.

From article

Clause 25, part 1 of Art. 93 of the Law on the Constitutional Court establishes the rules of what to do according to 44-FZ, if the purchase did not take place during the execution of a contract with a single supplier:

• execute a government contract on the terms specified in the procurement documentation at a price not exceeding the initial auction price;
• the processing time should not exceed 20 days from the date of publication of the final protocol.

Important

In this case, the signing of a contract with a single supplier is not subject to agreement with the Federal Antimonopoly Service and other regulatory authorities.

The electronic auction did not take place because no applications

In accordance with part 4 of Art. 71 procedures did not take place if:

• not a single application has been submitted under 44-FZ (part 16 of article 66);
• there is no admission of any of the participants who submitted such an application (part 8 of article 67);
• all the second parts of the applications are incorrectly drawn up (part 13 of article 69);
• participant proposing Better conditions after the winner, he avoided signing a state contract and refused to execute such a contract (part 15 of article 70).

If no bids under 44-FZ have been submitted to the auction, what should be done next? Re-purchase should be announced.

We held an electronic auction for the supply of wooden coffins. Nobody submitted an application, so the auction was declared invalid. Now we want to try the request for proposals, but Law No. 44-FZ does not explicitly indicate whether we have the right to change the terms of purchase. Can we lower the NMCK, add an advance condition, change the delivery time?

If no bids have been submitted for the auction

44-FZ in part 4 of Art. 71 contains the answer to the question of what to do next in this case:

• re-purchase, the method of which from July 1, 2018 can only be an electronic request for proposals. Until that time, the Law on the Contract System allows for another procedure (for example, repeated auctions are often held);
• the subject of the repeated purchase cannot be changed in comparison with the original;
• reintroduce the new competitive procedure into the schedule.

If the repeated auction did not take place - not a single application was submitted - what should be done according to 44-FZ? Until July 1, 2018, you can hold the 3rd auction or request for proposals or apply another competitive procedure under the Law on the Contract System.

If the auction did not take place 2 times, what should I do in this case? From July 1, 2018, this issue will no longer exist, because new edition h. 4 tbsp. 71 The law obliges to carry out re-purchase in the form of an electronic request for proposals. If the request for proposals does not take place, then the state customer makes changes to the schedule and carries out another purchase.

Thus, the answer to the question: no bids have been submitted to the auction, what next will be: to carry out a second purchase, and from July 1, 2018 only in the form of an electronic request for proposals.

You will find more answers to questions about procurement in the new issue of the magazine "State order in questions and answers"

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

a) less than two participants participated in the auction;

b) none of the bidders raised the ticket after three times announcement of the initial price or the initial amount of the rent during the auction, which was opened in the form of submission of bids for the price or the amount of rent;

c) none of the bidders in the course of a tender or auction closed by the form of submission of bids for the price or the amount of rent, in accordance with the decision of the organizer of the auction, was not recognized as the winner;

d) the winner of the auction evaded signing a protocol on the results of the auction, concluding a purchase and sale agreement or lease of a land plot.

The organizer of the auction is obliged, within three banking days from the date of signing the protocol on the results of the auction, to return the deposited by the participants failed bidding deposit. The deposit made by the winner of the auction shall not be returned to him. The organizer of the auction, in the event that the auction is declared invalid, has the right to announce the repeated holding of the auction. However, their terms and conditions may be changed. The organizer of the auction can reduce the initial price of the land plot or the initial 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" can 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 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 of state or municipal property is declared invalid, then the sale of the said property is carried out 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 sale and purchase agreement or a lease agreement for the land plot put up for auction, and the body state power or body local government, by decision of which the auction was held, is obliged to conclude an agreement with the only participant in the auction for starting price auction.

Information on 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 periodic print media, which announced 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 participation in the auction of less than two people, earlier than ten days from the date of publication of information about the results of the auction on the official website of the Russian Federation on the Internet.

Since in the case of recognition of the auction as 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 received the right to conclude an agreement that was the subject of this auction.

By virtue of the foregoing, the conclusion of an agreement with the only participant in the failed auction does not meet the requirements of civil legislation, and also contradicts the essence of the auction itself. In addition, in accordance with the prevailing jurisprudence 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-way or multilateral transaction involving the emergence of rights and obligations for all of its parties.

If we assume that the notification of the organizer of the auction is an offer to conclude an agreement that has the subject of the auction, then the application of a potential participant should really be considered an acceptance. But the tenderer does not bear any obligation to conduct the tender, since the provision of the required documents and the payment of the deposit are his rights, but not obligations. By these actions, he only exercises his right to participate in the auction. A bidder who has submitted an application and paid a 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. Consequently, if the response contains additional or different conditions from the offer, then it cannot be recognized as acceptance.

Thus, in order for the bid of a participant to be recognized as 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) specified in the notice. Otherwise, the recognition of such an application as acceptance would be contrary to civil law.

In the event that 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 held criminally liable on grounds of a crime under Art. 286 "Exceeding official powers" or Art. 293 "Negligence" of the Criminal Code of the Russian Federation.

Failed, invalid and canceled purchases are different things.

Status failed purchase means that there was no competition, bidding between suppliers. But based on the results of such a purchase, the customer can conclude a contract with a single supplier.

Invalid tenders are recognized when the customer has violated the laws (44-FZ, 223-FZ) or the norms of the Civil Code. If the auction is declared invalid after the winner has been determined, the contract with him will be terminated.

Cancel purchase at any stage, the customer himself can, for his own reasons or by order of the supervisory authority.

For example, in 2015, every third competitive procurement was declared invalid:

In what cases will the purchases be declared invalid?

1.Under 44-FZ

Let's see how this works for the three most popular types of competitive procurement:

For the competition

• No applications have been submitted;
• All applications were rejected by the commission;
• The winner avoided signing, and the second participant refused to conclude a contract (he has the right to do so, there will be no sanctions);
• As a result of prequalification, all participants did not meet the requirements;
• Only 1 application has been submitted;
• Only 1 application meets the requirements of the documentation;
• As a result of the prequalification selection, only 1 participant met the requirements.

For auction

• No applications have been submitted;
• After consideration of the first parts, all participants were denied admission;
• After consideration of the second parts, all applications do not meet the requirements;
• Only 1 application has been submitted;
• After consideration of the first parts, only 1 application meets the requirements of the documentation;
• Within ten minutes after the start of the auction, not a single contract price proposal was submitted;
• As a result of consideration of the second parts, only 1 application meets the requirements of the documentation;
• The winner avoided signing the contract, and the second refused to sign the contract (he has the right to do so, there will be no sanctions).

To request quotes

• No applications have been submitted;
• All applications were rejected by the commission;
• Only 1 application has been submitted;
• Only 1 entry qualifies.

2. Under 223-FZ

All cases when the purchase is declared invalid must be provided for and described in the procurement regulation. The law does not regulate the actions of customers if the purchase did not take place, and in the Civil Code the concept of “failed purchase” is given only for tenders and auctions and only if one supplier participated in them.

Many customers under 223-FZ use the provisions of 44-FZ as an example, but make the conditions more flexible. Suppliers traditionally have to rely on procurement regulations, the Civil Code and competition law.

What will the customer do if the procedure does not take place?

If there was no qualified supplier

First of all, the customer makes changes to his schedule. 10 days after that, he has the right to declare:

• Repeated tender or request for proposals, if the purchase was carried out in the form of a tender;
• Request for proposals or other procedure if the auction did not take place;
• New request for proposals after a failed request for proposals.
• A new quote after a failed quote request.

To request quotations and electronic tenders, the deadline for submitting applications must be extended: by 4 and 10 days, respectively. If there are no offers again, the customer will make changes to the schedule and make a new purchase in the above way.

If there is only one participant who meets the requirements

The customer must:

1. If an electronic auction or request for quotations was carried out, conclude a contract with a supplier whose application meets the requirements;
2. If there was a tender or request for proposals - coordinate the purchase from a single supplier with the controlling body;
3. If the purchase is agreed, conclude a contract.
4. Involve external experts in the acceptance of goods or work under a contract concluded in accordance with paragraphs 25.1-25.3 h. 1 of Art. 93 44-FZ. If you become the winner of such a purchase, be careful and comply with all the terms of the contract. The external commission can find fault with the little things that the customer may not pay attention to in order to quickly accept the desired product.

What should the supplier do?

If you are the only participant in the purchase or only your purchase meets the requirements, then after its completion:

• If it was an auction, you are required to sign the contract on time, even if you did not submit a quotation. For example, how.
• If you participated in a tender or request for proposals, first wait until the customer coordinates the purchase from a single supplier with the supervisory authority. The customer himself sends an application for approval to the Federal Antimonopoly Service and in 10 days will notify you of the decision.
• No approval is required in quotes. The customer will conclude a contract at the price specified in your application.
• The results of the auction also do not need to be coordinated. If none of the admitted participants has submitted price offer during electronic trading, the contract will be awarded at the maximum price. If you turned out to be the only supplier whose 2nd part of the application met the requirements, the contract will be concluded at the price to which you have decreased.

The only supplier-winner is obliged to sign the contract on time, otherwise it will be included in the register of unscrupulous suppliers. For example, how it happened in this purchase.

In procurement under 223-FZ, the customer's actions are determined by his procurement regulations.

conclusions

Customize your search so you don't miss purchases

Constantly look for purchases in your area. Then you will not miss anything interesting, you will have time to prepare and apply.

Sometimes the customer deliberately hides the purchase so that only one supplier knows about it, which becomes the winner. We wrote about how to bypass the tricks of the customers. In some cases, searching through the documentation will help you find the hidden purchase.

Keep track of all purchases in which you participate

If you have applied for participation, keep an eye on what happens in the procedure. For example, in Contour.Purchases, you can add a purchase to your favorites. This will help you not to miss changes in it and the results.

Don't miss the deadline for signing the contract

If you become the only supplier, you will be able to conclude a contract at the maximum price.

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

When a purchase is declared invalid

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

Invalid purchase - the one during which the customer violated the provisions of the relevant legislation (44-ФЗ or 223-ФЗ) or the Civil Code of the Russian Federation. Follow-up contract invalid trades, must be terminated.

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

Purchase is recognized failed when in fact there was no competitive definition of the supplier. Depending on the type of bidding, the specific reasons may vary.

When trades in 44-FZ are declared invalid

Cases worth considering 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 (since he has a legal right to do so);
• according to the results of the pre-qualification selection, 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 of the second parts of the applications do not meet the requirements;
• during the consideration of the first or second parts of the applications, only one was admitted;
• within ten minutes from the beginning of the auction, not a single price bid was made;
• the winner avoided signing the contract, and the second participant refused to sign it;

3. In request for quotes

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

Failed trades 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 invalid: they are not determined by the law itself, but 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 the 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 declare:

• repeated competition if the competition did not take place;
• on another procurement procedure if the auction did not take place;
• on a new purchase, if the request for proposals did not take place;
• to extend the deadline for submission of bids or to conduct procurement in another way, if the request for quotations did not take place.

2. When only one supplier met the requirements

• the customer enters into a contract with him if a request for quotations or an auction was carried out;
• the customer will agree on the possibility of concluding a contract with the supervisory authority, if it was a request for proposals or a tender;

Failed electronic auction. Failed auction in electronic form.

• The term "failed electronic auction" means the absence of bidding when placing a specific order. In this case, it is not at all necessary to imply that the contract (for this order) will not be concluded. For example, only 1 URZ entered the auction, it turns out that there will be no bidding, this URZ will not play with itself at the auction. It turns out. That the electronic auction (OAEF) was declared invalid, and the state. the contract will be concluded with this (the only one announced) URZ.

The list of situations in which electronic auctions are declared invalid, but government contracts are still concluded.

The electronic auction was declared invalid. Regulations and documents to be drawn up.

Recognition of the electronic auction invalid.

Protocol of declaring an electronic auction invalid. There is a participant (admitted), and a state contract will be concluded with him.

Protocol of declaring an electronic auction invalid. No bids were submitted at all.

• Fixation of the fact: the electronic auction is recognized (the reason is indicated) invalid.

• The reason for declaring the auction invalid: no bids were submitted.

Consequences of the fact that the electronic auction was declared invalid.

Cases of invalidation of an electronic auction.