Grounds for declaring the auction invalid. General Provisions The Civil Code of the Russian Federation on the conclusion of an agreement at the auction provides for one basis for declaring the auction invalid: if only one participant took part in the auction or tender (cl.

5 tbsp. 447 of the Civil Code of the Russian Federation). The Law on Enforcement Proceedings does not call such grounds for declaring a public auction invalid at all.

The most detailed list of grounds for declaring a public auction invalid is contained in the Law on Mortgages, which takes into account the peculiarities of relations that develop during the sale of property on which the foreclosure has been levied. Clause 1 of Art. 58 of this Law provides that the organizer of a public auction declares them invalid in cases when:

1) less than two buyers appeared at the public auction;

2) no mark-up was made at a 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 specified period.

The public auction must be declared invalid no later than the next day after any of the specified circumstances took place.

It is surprising that the legislation on enforcement proceedings does not indicate such circumstances as the absence of premiums and evasion of the purchase price as grounds for declaring the auction invalid.

In the absence of premiums, there is no actual bargaining, since there is no competition of bids and the goal of putting the property for public sale is not achieved - determining its fair price by considering the incoming proposals. This mechanism makes it possible to assert with a certain degree of confidence that the revealed price reflects the market situation. The mechanism of public bargaining is necessary, since the debtor has been removed from the disposal of the property and cannot determine the sale price; it is fair in this case to establish it not at the will of a 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 goal of the public sale is not achieved all the more, since the foreclosure is aimed at obtaining cash proceeds for the property put up for sale, and not at concluding a sale and purchase agreement. Believing that the organizer of the auction must present the buyer with new demands for the payment of the price means that instead of the money necessary to enforce the decision on collection, the organizer of the public auction acquires only the right to demand, and the buyer's obligation may not be fulfilled. This situation is contrary to the nature of the institution of compulsory execution of a decision to recover funds.

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

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

only one participant took part in the auction;

During the bidding process, none of the participants applied for the purchase of receivables at a price equal to or greater than the amount of the assessment made by the collector when such receivables were seized.

a) not a single application has been submitted to participate 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 declaring the minimum starting price the sale of the property did not raise the ticket;

d) none of the participants in the auction for the sale of receivables after three times announcement of the minimum sale price of receivables raised the ticket;

e) none of the bidders held in the form of a tender by the decision of the commission submitted proposals that meet the terms of the tender.

The decision of the commission to declare the trades invalid is drawn up 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 Interim Instruction, 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 offers upon purchase can be considered as a refusal to participate in the auction.

To solve the problems arising in connection with the absence in the procedural legislation of special instructions on the possibility of declaring public auctions invalid when the winner of the auctions evades making payment, the RFBR is forced to resort to a rather complicated mechanism for canceling the results of auctions, which was considered earlier during the study of the procedure for paying for property acquired at the auctions. ...

The absence of markups against the initial sale price made by bidders is not considered a “defect” in the public sale, although, as indicated, this is contrary to the purpose and objectives of the public sale.

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

Consequences of declaring the auction invalid. The provisions of the Civil Code of the Russian Federation on tenders do not indicate the consequences of their recognition as invalid. But from the meaning of this term it follows that the failed auction does not give rise to any rights and obligations associated with the conclusion of the contract for the organizer and participants in the auction; the target of the auction was not achieved.

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

So, joint-stock company"Norilsk Combine" in 1998 filed a claim with the arbitration court for recognition invalid trades for the sale of the building.

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

The cassation instance, 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 agreement concluded with the person who won the auction. Trades declared invalid have no legal result and cannot be declared invalid.

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

If repeated auctions are declared invalid, the pledgee has the right to retain the subject of the pledge with an estimate of it in the amount of no more than 10% lower than the initial sale price at the repeated auctions (clause 4 of Art. 350 of the Civil Code of the Russian Federation).

Based on these provisions, the recognition of the first auction as invalid gives the pledger the opportunity to either require the property to be re-auctioned, or to conclude an agreement with the pledger on the acquisition of the pledged item in the manner provided for in paragraph 4 of Art. 350 of the Civil Code of the Russian Federation.

Recognition of repeated auctions as failed is not a basis for new auctions; if the pledgee does not exercise the right to retain the subject of the pledge within a month from the day the repeated auctions were declared invalid, the pledge agreement shall be terminated.

The GC does not establish the timing and specifics of re-bidding.

The Law on Mortgages (Art. 58) contains a more detailed regulation of relations arising from the recognition of a public auction for the sale of the subject of a mortgage as invalid.

In this case, the pledgee has the right, by agreement with the pledger, to acquire the pledged property at its initial selling 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 entered into such an agreement with the pledger within 10 days after the announcement of the public auction invalid, a repeated public auction shall be held. They must be held no later than a month after the first auction.

If the auction was declared invalid due to the absence of a sufficient number of buyers (less than two) at the auction or due to the absence of a markup 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 stipulated for the first auctions.

The repeated public auctions are declared invalid on the same grounds as the first auctions. In this case, the pledgee is given the right to acquire (retain) the pledged property at a price no more than 25% lower than its initial sale price at the first public auction and to offset his claims secured by the mortgage against the purchase price.

If the mortgagee does not exercise the right to retain the subject of the mortgage within a month after the announcement of the repeated public auctions invalid, the mortgage is terminated.

The Law on Enforcement Proceedings does not establish the rules on the consequences of declaring invalid a public auction for the sale of immovable property, which has been levied on other grounds (not as a subject of a mortgage).

In practice, in case of recognition of the auction invalid, with the exception of recognition failed bidding on the sale of receivables, the organizer of the auction within one working day from the day the commission makes a decision to declare the auction invalid, notifies the state body that transferred the property for sale in writing, and also sends it a 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 notification of the recognition of the auction as invalid to the Fund (department of the Fund).

Within 14 calendar days from the day the commission makes a decision on declaring the auction invalid, the organizer of the auction, in agreement with the state body, organizes the preparation and publication of a notice of the announcement of the auction invalid.

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 retain this property. In case of refusal of the claimant from the property, it is returned to the debtor, and the writ of execution - to the claimant.

If the claimant leaves the property, the enforcement proceedings ends in connection with the actual execution of the enforcement document (subparagraph 1, clause 1 of article 27 of the Law on Enforcement Proceedings).

In case of refusal of the claimant from the property, the enforcement proceedings ends with the return of the writ of execution on the grounds specified in Art. 26 of the Law, namely on the grounds provided for in sub. 5 p. 1 of Art. 26, - if the claimant refused to retain the debtor's property not sold during the execution of the court order.

On the impossibility of collection on the indicated grounds, the bailiff-executor draws up an act, which is approved by the senior bailiff.

The return of a writ of execution to the claimant is not an obstacle for a new presentation said document for execution within the general deadlines 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 claimant due to the impossibility of its full or partial execution within the time period for the presentation of the court order for execution after the interruption, it is calculated from the date of the return of the court order to the claimant (clause 3 of 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-listing 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 by law. In this regard, in a number of cases, the courts recognized the legality of the repeated public sale of real estate, if it was carried out in compliance with general rules holding public auctions and within the period specified above.

Taking this into account, 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 declare a repeated auction, except in 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 auctions invalid and are carried out in compliance with the rules established for the first auctions.

The revaluation of the property transferred for sale in the process of preparing for the repeated bidding 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 that have been seized within the framework of enforcement proceedings, the Temporary Instruction stipulates that if the sale of the receivables is declared invalid, the collector or on his behalf, the seller transfers the receivable within five days, Required documents, and also gives instructions on the implementation of this debt on a commission basis.

According to the procedure recommended by the RFBR, in case of recognition of the auction as invalid for the sale of receivables, the organizer of the auction, within one working day from the day the commission makes such a decision, sends a protocol on the announcement of the auction invalid for approval to the state body that transferred the receivable for sale. Within the specified time frame, a draft notice of the announcement of the auction failed 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 notification about the announcement of the auction failed to the Fund (department of the Fund).

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

The notice on the recognition of the auction as invalid shall be published in the same edition in which the notice on 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 implementation, to the state body that transferred the receivables for sale, or on behalf of the state body to the person specified in the notice of the auction.

The sale 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, the receivable is put up for sale at a price equal to the valuation made by the collector when the receivable is seized.

If, within five days from the date of issuing a receivable for sale, it has not been sold, the seller has the right to raise the question of revaluation of such receivable before the collector. New rating must be made within 10 days from the date of the decision on its implementation. Revaluation of receivables due to the impossibility of their sale can be made up to two times (paragraphs 36-37 of the Temporary Instruction).

Civil Procedure Charter

1062. The auction is recognized invalid:

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

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

1063. When the bargaining does not take place due to the non-appearance of those wishing to bargain, the debtor's cash creditors are given a majority of votes in proportion to the amount of their recovery to ask for a new bargaining or to keep the property for themselves according to their assessment.

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

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

1066. In the case referred to in the preceding (1065) article, the costs of arrest, storage and sale of property are paid to the claimant who seized the arrest, or to the creditors who demanded the sale of the property when they refuse to accept it.

1067. The claimant is given the right to ask for the appointment of a new auction if, upon presentation of the deposit, the rest of the money was not paid on time (Article 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 term of the mortgage, assigned for sale at the request of the mortgagee's creditors, and the highest bid price will be less than the amount that should be paid to the mortgagee.

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

[With regard to real estate]

1170. Trades are recognized invalid:

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

2) if no one of those present makes allowances against the assessment;

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

1171. If the bargaining does not take place, 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 bargaining began.

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

1173. The creditor who takes over the estate is obliged to satisfy all other creditors with the amounts due to them according to the calculation.

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

1175. If the second bargaining does not take place, the creditors must retain the estate for themselves or foreclose on other property belonging to the debtor, paying, in proportion to the recovery of each, the costs of assigning the estate to sale.

GPK RSFSR 1923

Article 314. Auction is recognized invalid: 1) if no one showed up to bargain; 2) if no one of those present will make allowances against the assessment or 3) if the buyer does not pay the deposit or the rest of the amount in time (Article 308).

Article 316. In the event that the auction did not take place, the claimants may, within three days, declare that the property to be sold remains with them according to the assessment and in the order of turn corresponding to the size of their claims.

Article 317. When the auction does not take place, and none of the claimants leaves the property, the bailiff shall appoint a secondary auction no earlier than a week later, in compliance with the procedure established for the first auction, and the secondary auction begins with the estimated or the first proposed amount.

GPK RSFSR 1964

Article 403. Announcement of the auction invalid

The bailiff declares the auction invalid:

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

2) if no one of those present makes allowances against the initial assessment of the building;

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

Article 404. Consequences of the announcement of the auction invalid

In the event that the auction is declared invalid, the claimant is given the right to retain the building for himself in the amount of the initial assessment.

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

the pitchfork set for the first bidding, but starts 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 arrest from the building is lifted.

Instruction on enforcement proceedings 1985

101. The bailiff declares the auction invalid:

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

b) if none of those present made allowances against the initial assessment of the building indicated in the act on the seizure of 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 can, within three days after receiving the notification, declare that he has left the house for himself according to the estimate specified in the inventory.

If there are several claimants, state institutions and enterprises, and in case of refusal - collective farms, cooperative and other public organizations.

A claimant who has retained a house must, within five days, deposit to 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 retain the building, the bailiff shall appoint a secondary auction not earlier than ten days after the announcement of the auction invalid. Secondary auctions are carried out in compliance with the procedure established for the first auctions, but begin with the inventory, insurance, or the first price offered by buyers, depending on the rules established by the civil procedural codes of the union republics.

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

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 electronic auction failed:

• 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 will be the compliance of a single application with 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 re-auction did not take place - not a single application was filed - what to do in accordance with 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"

A failed auction is not uncommon in the world 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 defined 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, since there are no interested parties. 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 bidding for a request for proposals. In this case, the customer does not have the right to change the subject of the purchase.

X. recognition of the auction invalid

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.

Consequences of declaring the auction invalid (nuances)

This rule applies to all types of compulsory trades (see the resolution of the AC PO of 03/26/2015, case No. A65-9335 / 2014). For failed auctions, the deadline for filing a complaint is 3 months (part 5, clause 1 of article 18.1), otherwise - 10 days.

• The plaintiff in the claim for declaring the auction invalid can be either a participant in the auction or a person who could not take part in them due to a violation of the procedure for holding (if his rights were violated).
• In practice, the possibility of invalidating a failed auction is sometimes discussed. The Supreme Arbitration Court of the Russian Federation recognized it and legitimized it in the Presidium Resolution No. 2436/11 of 06.11.2011, arguing that recognition as invalid is the result of the auction.
  Consequently, such tenders may be invalidated.

Vi. invalidation of the auction

The Supreme Court considered that the very fact of establishing in the rules approved by the Government of the Russian Federation, the application form for participation in the auction does not mean the introduction of a rule that non-compliance may result in the non-admission of the participant. Re-bidding In many cases of mandatory bidding, after the first of them are declared invalid, re-bidding is envisaged:

• on PP. 1, 2 tbsp. 58 of the Law on Mortgage, 2 conditions are established for this: the auction must be declared invalid and after that the pledger did not reach an agreement with the pledgee on the purchase of the mortgage object at the initial price, offsetting the claims secured by this pledge in payment;
• for h. 2 tbsp. 55 of Law No. 44-FZ - if there were no participants (including all applications rejected, no one was prequalified) or participant number 2 refused to conclude a contract;
• according to clause 18 of Art.

Russian laws

The auction is recognized as invalid by the organizer of the auction in the following cases: a) one application has been submitted to participate in the auction or no applications have been submitted; b) only one bidder is allowed to participate in the auction or no one is allowed; c) one bidder appeared to participate in the auction held in the form of an auction, or by the time the envelopes with the bids were opened, one bidder remained; d) none of the bidders held in the form of an auction, after three times announcement of the initial price of the lot, publicly expressed a desire to purchase the subject of the auction; e) none of the bidders held in the form of a tender submitted a proposal that meets the terms of the tender; f) the commission did not determine the winner of the tender (in the case when two or more bids 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 go to the Federal Antimonopoly Service as an evader. It will be very difficult to prove your case. 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 repeated. In this case, it is possible to change the procurement method for the request for proposals - on the same conditions as in the absence of bids. The situation with the admission of one application is similar to the admission sole participant.

Announcement of the auction invalid

Federal Law "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-purchase agreement or a lease agreement for the land plot put up for auction, and a public authority 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 at the initial auction price.

Recognition of the auction invalid

Attention

If the auction is declared invalid, the organizer of the auction no earlier than ten days, but no later than one month from the date of the announcement of the auction invalid, shall appoint a secondary auction. 2. Secondary auctions are announced and held in accordance with Article 89 of this Federal Law. The initial price of property in the secondary auction by a decision of the bailiff-executor is reduced by fifteen percent if their holding is caused by the reasons specified in paragraphs 1 - 3 of Article 91 of this Federal Law.

The initial price of the property at the secondary auction does not decrease if their holding is caused by the reason specified in clause 4 of Article 91 of this Federal Law. 3. In the event that the secondary auction is declared invalid, the bailiff-executor shall send to the recoverer a proposal to keep the property in his possession in accordance with the procedure established by Article 87 of this Federal Law. 4.

Recognition of the auction invalid in bankruptcy

Specific rules may not indicate that a single entry must meet the competition criteria. Part 1 of Art. 55 of Law No. 44-FZ, this requirement is specified, and for example, the Law on Advertising says only about the registration of a single participant. Nevertheless arbitrage practice goes along the way of checking for compliance of the application for the placement of an advertising structure with the conditions put forward.

Thus, in one of the cases, AS SZO denied a claim to a bidder who offered to install an advertising structure that differed in size from the parameters specified in the conditions of the competition (resolution of 12.11.2014, case No. A21-10450 / 2013). In this case, compliance with the application form proposed by the organizer of the auction or established by the by-law is optional (if it meets the requirements for content). The corresponding conclusion is in the decision of the RF Armed Forces No. AKPI13-430.

Recognition of the auction as failed GC

In the course of the auction, the auctioneer assigns each subsequent price by increasing the current price (including the initial sale price of the property) by the amount of the specified auction step. After the next price is announced, the auctioneer names the ticket number of the auction participant who, according to the auctioneer, raised the ticket first, and points to the participant who raised it. The auctioneer then announces the next price in accordance with the auction step.

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

Recognition of the auction invalid 44 fz

General provisions on failed tenders Special grounds for declaring an auction invalid Obligation to conclude an agreement with a single participant Carrying out repeated auctions Consequences of invalidating an auction held according to Law No. 223-FZ Contesting an auction and appealing against actions (inaction) of an auction organizer General provisions on a failed auction The following concepts should be distinguished:

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

The general grounds for a decision about 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).

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

1. The auction did not take place if there is only one participant
In this case, the customer concludes a contract with this participant as with the winner, provided that the second part of the application meets the established requirements under 44-FZ and auction documentation... In this case, coordination with the regulatory authorities is not required, since according to the conditions, one application is enough for a quorum, if it is executed correctly. Naturally, if you refuse, you will be held accountable as if you 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 conduct a new bid.

2. The auction did not take place if there are several participants
a) Suppose 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 clause "1" is applicable, that is, the state customer enters into a contract with this participant without approval from the supervisory authority.
b) There are several participants in the auction, but the state customer rejected all bids at the stage of consideration of the second parts. The solution is to hold new trades.

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 the request for proposals after the failed auction, it is prohibited, however, to change the procurement object (but at the same time, it is formally possible, but not recommended, to change its cost, as well as the deadline for execution). A notice in the UIS must be submitted by the customer no later than 5 days (calendar) before the date 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 able to fulfill the terms of the contract. However, these persons in this case must be indispensable contractors of the customer for at least 18 months before the day of the request for similar deliveries.

4. The auction did not take place if all bids were rejected at the stage of consideration of the first parts
In theory, this is hardly possible, but in fact, in electronic bidding anything can happen. Accordingly, in this case, the previous paragraph on the request for proposals applies. If, of all applications, based on the results of consideration of the first parts (and not the second), only one participant was admitted, then, according to Part 2 of Article 71, the problem is solved by agreement in the supervisory authority.

5. The auction did not take place, since none of the participants entered it
According to part 3 of article 71, the problem is solved by agreement with the supervisory authority (the first application that meets the conditions of the auction). If no application matches, or the application matches, but the participant is ready to terminate, then the clause suitable under the conditions of 44-FZ applies:

"3. If an electronic auction is declared invalid on the grounds provided for by 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 Clause 25 of Part 1 of Article 93 of this Federal Law in the manner prescribed by Article 70 of this Federal Law, with a participant in such an auction, an application for participation in which has been 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 meeting the requirements of this Federal Law and the documentation on such an auction. "

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Therefore, competitions in the sense of Articles 447-448 of the Civil Code of the Russian Federation and a competition in the sense of Article 1057 of the Civil Code of the Russian Federation ("public competition") are special cases of competition in common understanding, but with cases that almost do not overlap.

Thus, a public competition is understood as a competition that is necessarily aimed at achieving socially useful goals and, in addition, its result is "the payment of a monetary remuneration or the issuance of another award ... for the best performance of work or the achievement of other results."

When we talk about a competition in Articles 447-449 of the Civil Code of the Russian Federation, then this is not just a choice of the best, but with the aim of concluding a specific agreement.

Let's illustrate the difference with an example. Suppose that the organizer of the competition needs stools (and let this fall under the "achievement of socially beneficial goals"). In this case, if all the participants in the competition made a stool in advance and brought it to the competition committee, and the latter chose the best one and paid only to the master of this stool, and the amount of remuneration was determined by the organizer himself - then this is a "public competition". If all participants drew detailed plans how they will make these stools, indicated the remuneration required for this, and the organizer chose the best solution from his point of view and concluded an agreement with the person who proposed him for the manufacture of the stool - this is a competition in the sense of Articles 447-448 of the Civil Code of the Russian Federation.

Thus, Article 1057 of the Civil Code of the Russian Federation is almost never applied to tenders for the purchase of goods, works, services. I say "almost" because sometimes, although very rarely, the sets of "public competition" and competition in the sense of Articles 447-448 of the Civil Code of the Russian Federation can overlap, which is reflected in clause 5 of Article 1057 of the Civil Code of the Russian Federation,

2.9. In what cases is the competition declared invalid?

Answer: In accordance with clause 5 of article 447 of the Civil Code of the Russian Federation, the auction and competition in which only one participant participated are recognized as invalid.

It would seem that everything is clear: the competition is considered invalid if, for example, only one application was submitted initially, or at the stage of passing the qualifying selection, all other applicants did not meet the conditions of the competition.

However, there may be more difficult situation, when, for example, 3 applicants submitted applications for participation in the competition, but 2 of them did not submit all the necessary documents. Did such a competition take place or not? To answer this question, it should be remembered that the competition is the choice of the best applicant from those who have correctly drawn up and submitted their proposal. And in this case, after the retirement of the applicants who have incorrectly drawn up their offer, there will be only one left, and there will be no one to compare him with. In this regard, such a competition is also declared invalid.

By the way, there was also an interesting precedent when the first auction for the sale of bankruptcy property was declared invalid (only one participant took part). After that, at the meeting of creditors, the bankruptcy administrator reported that he had the right, if the first auction did not take place, to put the property up for a second auction, or sell it by concluding a sale and purchase agreement. And by decision of the meeting of creditors on the basis of paragraph 4 of Art. 112 of the Federal Law of 08.01.1998 No. 6-FZ "On Insolvency (Bankruptcy)" then in force, the property was sold without an auction.

However, the court, having understood the situation, recognized the actions of the liquidator as unlawful, since the law provides for the right to sell without bidding "property not sold at the first auction" rather than "if the auction did not take place"

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bankruptcy commissioner on the basis of a sale and purchase agreement concluded without bidding "(clause 4 of article 112 of the Federal Law of the Russian Federation of 08.01.1998 No. 6-FZ" On insolvency (bankruptcy) ").].

And the opinion of the court is absolutely correct, because if the auction did not take place, then this is an analogue of the fact that they did not exist at all. Those. for the possibility of direct sale of property, it is necessary that the first auction took place, and at this failed auction the property could not be sold for any reason.

2.10. When is it necessary to sign the protocol on the results of the competition?

Answer: According to clause 5 of article 448 of the Civil Code of the Russian Federation, the person who won the auction and the organizer of the auction sign on the day of their holding a protocol on the results of the auction, which has the force of an agreement. The person who won the auction, if he avoids signing the protocol, loses the deposit made by him. The organizer of the auction, who avoided signing the protocol, is obliged to return the deposit in double amount, as well as to compensate the person who won the auction for losses caused by participation in the auction, in the part exceeding the amount of the deposit.

If the subject of the auction was only the right to conclude an agreement, such an agreement must be signed by the parties no later than 20 days or another period specified in the notice after the completion of the auction and registration of the protocol. If one of them evades the conclusion of the contract, the other party has the right to apply to the court with a demand to compel the conclusion of the contract, as well as to compensate for losses caused by the evasion of its conclusion.

In addition, it should be borne in mind that certain acts may contain additional requirements.

So, for example, clause 4 of article 21 of the Federal Law of 06.05.99 No. 97-FZ "On tenders for placing orders for the supply of goods, performance of work, provision of services for state needs" requires the winner to be notified in writing within three days. In this situation, in order to eliminate the risks of a possible appeal against the results of the tender on formal grounds, it is advisable to fulfill both requirements: and send a written notification, and sign the protocol within the time frame indicated above.

2.11. Isn't it time to amend the RF Civil Code regarding the regulation of tenders?

Answer: Unfortunately, when they wrote Articles 447-449 Civil Code RF, then they thought exclusively about concluding contracts for the sale of any property (tenders held in the order of enforcement proceedings, investment tenders, etc.). O possible options competitive purchases (not only tenders, but at least the same auctions) were not even thought of at that time. Just as, for example, they did not think about the procedures of complex multi-month competitions, when the day of opening the envelopes does not coincide with the day of determining the winner. As a result, we obtained norms that are often simply not implemented in practice, some of which are discussed, among other things, in this book.

V Recently, it has been increasingly said that it is time to amend these articles of the Civil Code of the Russian Federation. However, the author has not yet come across a single concrete proposal for the wording of the changes.

V connection with this author prepared and offered in the appendix 10.1.2 project federal law on making changes to the discussed articles. The proposed option to the maximum preserves all applicable standards, adjusting them solely for the purpose of

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forming a unified approach to different situations conclusion of an agreement on a competitive basis.

Let's comment on the main provisions of the bill. For convenience, Articles 447-449 as amended by the draft law will denote Articles 447-449 of the RF Civil Code, in contrast to Articles 447-449 of the Civil Code of the Russian Federation, i.e. current edition.

V Clause 1 of Article 447 of the ZP the author defines the concept of trading as the conclusion of an agreement on any competitive basis. As a result, the resulting discrepancy in the concept of bidding is removed, which at the everyday level is perceived as any method of concluding an agreement in which the parties somehow "bargain", but the current version of the Civil Code of the Russian Federation is allowed to conduct bidding exclusively in the form of a tender or auction.

V clause 2 of article 447 of the RFP, the owner is introduced into the number of the auction organizer financial resources, thereby securing the possibility of bidding not only for sale, but also for purchase.

Defines the concept of a specialized organization, which causes legal disputes, as established by law or regulatory legal acts of bodies executive power, and also speaks about the possibility of transferring on a contractual basis all or part of the functions of the organizer to a third party.

V the second paragraph sets out the right of the organizer of the auction to sell the thing that the organizer does not have at the time of the announcement of the auction. This increases the intensity of trade for products sold by auction.

V Clause 4 of Article 447 of the RF Civil Code provides an approximate list of the most generally accepted forms of bidding all over the world, however, the decoding is given only for the most "stringent" of them, prescribed in the current Civil Code of the Russian Federation - competition and auction.

In practice, many are faced with the fact that after the rejection of incorrectly executed applications, only one remains. But since The current version of clause 5 of article 447 of the Civil Code of the Russian Federation does not specify at what point at least two participants are required, this made it possible to recognize such togas as valid with the determination of this single participant as the winner. In this regard, the proposed draft law specifies that at least two participants should be exactly at the last, comparative stage of determining the winner, i.e. after the rejection of all rejected bids.

Leaving the division of trades into open and closed, the bill in clause 1 of article 448 specifies that such a classification depends on the possible circle of participants. However, the classifications may be different (depending on the stages, the presence or absence of a preliminary selection stage, etc.), which is reflected in the draft law. Nevertheless, although it is possible to classify tenders on completely different grounds, the draft law proposes to fix only universal ones, suitable for any tenders. For example, according to the order of consideration of proposals, it could be divided into sequential (separately technical and financial) and parallel (technical and financial proposals are considered simultaneously), but this classification is not suitable for auctions in which there is no technical proposal.

The bill leaves the current period for publishing a notice for the tender, but significantly reduces it for auctions, in most of which a month leads to leveling economic benefits from its holding (if there is a state interest for certain types tenders and auctions in the respective regulatory documents other, extended periods may be established). The bill leaves the timing of notifications about other auctions at the discretion of its organizers. Indeed, if, for example, a commercial organization wants not only to conclude an agreement with someone, but to do so based on the results of competitive negotiations, then for it this period may be one hour - enough time to arrange meetings.