What to do if the purchase did not take place. Failed auction Repeated auction for 44 FZ terms
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If the auction under 44-FZ did not take place, not a single application was submitted, and no conditions change, is it necessary to make changes to the schedule in order to repeat the procedure?
Answer
If the auction did not take place, the terms of the purchase remained the same and the terms for the performance of work, the provision of services, the supply of goods do not change, the customer has the right to declare the purchase immediately, as he posted the protocol on declaring the electronic auction invalid in the EIS, without amending the schedule and without waiting 10 -day period.
Whether to wait 10 days before repeating the procedure when the auction did not take place and the terms of purchase remained the same
Not if the schedule was not changed. The customer has the right not to wait for a 10-day period and announce the purchase as soon as the protocol on declaring the electronic auction invalid was posted in the EIS. The period of 10 days is set only for cases when the customer makes changes to the schedule. This is stated in part 14 of article 21 of Law No. 44-FZ.
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 procurement dates, the method of determining the supplier or, for example, the amount of funding, and re-announce the procedure. If you have changed the procurement method for the request for proposals, then do not change the procurement object. This rule is established in part 4 of Article 71 of Law No. 44-FZ.
We are holding an auction, the day of submitting applications ends and we know that no one will submit applications. Do I have to change the schedule and procurement plan in order to re-auction? Can I create a new notification immediately after posting the protocol on the failed auction and in what time frame?
Answer
Read the answer to the question in the article: If, when forming the technical assignment, we do not ask for specific indicators for nails, do we need to indicate the country of origin of nails, and if we ask for specific indicators for paint, do we need to indicate the country?
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 at the end of the period for filing applications for participation in such an auction, the customer makes changes to the schedule ( if necessary, also in the procurement plan) and carries out procurement by conducting 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 in another way 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, executor), the timing of the purchase, the NMCK, then, based on the literal interpretation of the provisions of Part 13 of Article 21 of Law No. 44-FZ, we believe that there is no need to wait 10 days. Accordingly, after the posting of the protocol on declaring the electronic auction invalid, the customer can place a repeated 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 procurement dates, the method of determining the supplier or, for example, the amount of funding, and re-announce the procedure. Leave the purchase object unchanged. This 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 ENI
The customers make changes to the schedules according to the Rules and Requirements of the RF Government Resolutions of June 5, 2015 No. 553 and 554. Observe the deadlines for making the edits, otherwise you will pay a fine. Publish the changes in the EIS, having previously sent them for control. How to correctly change the schedule and where to go if there are errors in the EIS, you will learn from the recommendations below.
When to change the schedule
Modify your schedule if:
- changed the procurement plan;
- the volume and cost of goods, works or services have changed and it is impossible to purchase them under the previous NMCC;
- changed the start date of the purchase, the terms of the contract, the amount of the advance, the stages of payment;
- changed the terms in which the customer will deliver 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 comment;
- circumstances have arisen that could not have been foreseen at the date of the approval of the schedule.
Cases when the customer changes the schedules are spelled out:
- in paragraph 8 of the Rules from the Decree of the Government of the Russian Federation of June 5, 2015 No. 553 - for purchases for federal needs;
- in clause 10 of the Requirements from the Decree of the Government of the Russian Federation of June 5, 2015 No. 554 - for purchases for regional and municipal needs.
Regional or local authorities may additionally establish cases when the customer changes the schedule 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 notification or an invitation;
- one day before the conclusion of a 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 a request for quotations to participants for procurement for humanitarian aid or emergency response (Article 82 of Law No. 44-FZ).
The terms are specified in paragraphs 9 and 10 of Regulation No. 553 and paragraphs 11 and 12 of Requirement No. 554.
If you violate the terms, the responsible employee will pay a fine of 5,000 to 30,000 rubles. The punishment is provided for by part 4 of article 7.29.3 of the Code of Administrative Offenses of the Russian Federation.
Any failed procurement procedure is another headache for the contract manager. It’s no secret how much time and effort it takes to prepare a technical assignment, drawing up auction documentation, publishing on the website, and anxious waiting for the submitted applications. But, even if bids have been submitted, the auction may still not take place.
What about the others?
Statistics show that rejection of bids for the first parts is most often encountered during purchases for the supply of goods and performance of work. Namely, the characteristics of the supplied (or used in the performance of work) goods do not correspond to the parameters specified in the terms of reference.
For the second parts, bids are rejected, as a rule, when purchasing services. Because the main package of documentation from the procurement participant is contained in the second part of the application, and in the first part, only consent to participate in the electronic auction on the conditions stipulated by the auction documentation is sufficient.
3. Nobody came to bargain. And this happens too - applications have been submitted, the first parts of applications have been reviewed and allowed to participate in the electronic auction. Everyone is waiting for the beginning of the auction. But at the cherished hour, not a single price offer is received. Alas and ah.
The customer can endlessly wonder “How? Why? Have they forgotten about us? " This situation turns out to be advantageous for the procurement participant who was the first to apply for participation in the auction. In this case, the principle "who got up first - that and the slippers" applies.
The operator of the electronic site sends to the customer both parts of the applications of all registered participants. The customer considers them and makes a decision on the compliance of these applications with the requirements of the auction documentation. The contract is concluded with the participant who submitted an application earlier than others that meets the requirements of the auction documentation. After the publication of the protocol of consideration of applications, the auction proceeds to the stage of concluding a contract.
4. The auction did not take place at all. If no bids were submitted for participation in the electronic auction, or all submitted bids do not meet the requirements of the documentation, the auction will also be declared invalid.
The law states that in this case the customer makes changes to the schedule and conducts this purchase, but already by requesting proposals, or conducts a new purchase. If the customer chooses the first option, then the purchase object cannot be changed. A new purchasing item must be created in the schedule by means of a request for quotations. The object of the procurement remains the same, the terms of the procurement are subject to mandatory changes.
The customer changed his mind.
If there is no longer a need for this purchase, then the Customer makes changes to the schedule (procurement plan) and conducts a new purchase: the customer may decide to use the unused funds for other purposes.
Ten days of the PPP were canceled, but not for everyone.
Whichever of these two paths the Customer chooses, it will still have to wait 10 days after making changes to the PPP before the notification is published. But before making changes to the documentation, it is necessary to conduct an analysis - what is it written in the auction, since no one wanted to participate in it.
The reasons may be completely different - the initial (maximum) price of the contract is understated, the terms of reference are not correctly drawn up, the term of the contract is critically short, or the potential participant in the order placement simply missed your auction in the entire flow of information on the electronic platform. Whatever the reasons, you will still have to master the funds and the customer needs to carry out the purchase.
There will still be a contract.
In the first three cases, a failed auction will still lead the customer to conclude a contract in accordance with clause 25.1 of Part 1 of Art. 93 ФЗ №44-ФЗ.
In this case, the price of the contract should not be higher than the initial (maximum) price, and the terms of its conclusion are regulated by Art. 83.2 ФЗ №44-ФЗ.
Colleagues, interesting purchases and successful auctions!
Date of publication: 24.08.2018
Please note that the site administration does not always share the opinions of the authors, and is not responsible for the accuracy of their information.
In the course of electronic auctions - the auction, according to the legislation, may not take place. The conditions for recognizing it as such are regulated by Articles 66-69 of Law 44-FZ "On the contract system in the procurement of goods, works, services ...". This norm of the law describes the applicable procedure for conducting procedures on the electronic site.
In particular, the recognition of the auction as invalid allows you to sign a contract with one participant or conduct the auction in a different form.
The point is that when tenders are closed without bids, the state-owned enterprise gets the opportunity to select a supplier by the request for proposals method. Let's consider the most typical scenarios of failed trades.
The only application is the order of actions
The laws on electronic trading FZ-44 and FZ-223 are constantly being supplemented and coordinated with other regulations. In 2014, additional amendments were made to No. 498-FZ and to Art. 25 №44-ФЗ within the framework of which the issue of conditions of the canceled bargaining is considered in more detail.
The grounds are determined by Art. 71, parts 1-3.1 No. 44-FZ.
Provided that the only application for participation in the auction was pending at the site, it is she who is considered the winner.
The key feature of declaring the auction invalid for this reason is the admission to participation in it of only one participant. The customer can enter into a contractual agreement with a single participant.
Consideration should be given to the conditions under which a contract can be signed. This is possible only with the participant (Art. 70 FZ-44), whose application fully meets the requirements. Please note that consideration of a single application is possible if, within 10 minutes after the start of the auction, the supplier submitted a proposal for cost (Article 68 FZ-44, Part 20). At least it should be 0.5% lower than the NMCK.
If the auction did not take place and none of the bids meets the requirements, then the customer can carry out the purchase using the request for proposals method.
The auction was declared invalid - no bids were submitted
If, taking into account the requirements of 44 FZ, not a single application was registered, then the auction was also declared invalid. In most cases, this entails a repeated tender, regulated by articles of the federal law. Also, this is true if the participants did not begin to conclude a contract for the execution of an order for this purchase.
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 offer for a price at the specified time.
Failed auction - consequences
As we wrote above, depending on the reasons for recognizing a failed bargaining, the customer can conclude a contract with a single supplier or conduct a new tender in the form of a request for proposals or other established by law.
Repeated bidding
The re-bargaining is also carried out on the basis of FZ-44. At the moment, the state customer has the right to select a counterparty only by the request for proposals, but new amendments are expected soon, which will require additional. approvals.
In order to apply for participation in the auction without violations and meeting the requirements of the customer, it is best to contact the specialists. RusTender already has significant experience in this area, therefore, it will be able to prepare all the necessary documents with high quality and in a short time and transfer them to the site for participation in the auction.
OOO IWC"RusTender"
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Budgetary institutions in the course of their work procure goods or services through electronic open auctions. The winners of such auctions are the companies or individuals who offered the lowest price for the execution of the order.
Dear Readers! Each case is individual, so check with our lawyers for information.Calls are free.
The choice of the executor of the order in the case when the auction did not take place depends on the reason for the cancellation of the auction and is governed by the provisions of Art. 71 of Law No. 44.
Basic Provisions
A failed purchase auction is called if the auction for a fall has not been held. The reasons for the lack of bidding may be as follows:
- only one potential person has expressed a desire to participate in the auction;
- among all submitted, only one meets the necessary requirements;
- none of the registered ones started bidding in the second stage competition;
- no one declared a desire to participate in the competition;
- none of the participants meets the requirements.
Consequences of declaring the auction invalid
If the procurement commission declared the auction invalid, then the following options are possible:
- conclusion of a contract for the execution of an order with;
- organization of a new purchase with a reduced maximum contract price;
- selection of a performer by.
An agreement with a single applicant is concluded if both parts of the application submitted by him are approved by the competition committee.
It is important to know that a new purchase with a lower maximum price after the auction was declared invalid can only be organized with the same parameters of the required product, service package or work.
For example, if the subject of the failed purchase was the supply of office equipment for office equipment, then in the conditions of the new purchase for office equipment the same characteristics, country of origin and quantity should be indicated as in the conditions of the previous purchase.
If the auction is declared invalid, the customer also has the right not to conduct a new purchase, but to choose the contractor by requesting proposals in the manner prescribed by paragraph 4 of Ch. 3 of Law No. 44.
Request for proposals involves the identification of the contractor who offered the most optimal characteristics of the required product or service.