If the electronic auction is declared invalid. The only participant in the electronic auction

• Only 1 URZ applied (see above).

• Only 1 URZ was admitted to the UAEF. His application was deemed compliant, the rest were rejected.

• Several URZs were admitted, but none of the URZ made any offers at the auction. In this case, the winner is the URZ that submitted its application before everyone else. A contract is concluded with him.

• If the auction (OAEF) is declared invalid, then, depending on whether there is a participant admitted to it, the actions and documents to be drawn up are as follows.

• Recognition protocol is drawn up and posted on the site electronic auction(OAEF) failed.

• This is a procedure that implies the execution and placement of a protocol on the recognition of the auction (OAEF) invalid.

• The reason for declaring the auction invalid: only 1 participant was admitted and / or declared.

• Information that the state will be concluded with this participant. the contract.

• If there were other participants, but their applications were rejected, then the reasons for the rejection of applications are indicated.

• There is one participant.

• Conclusion of a contract with this participant.

• There are no members or applications.

• Repeated auction.

• Re-ordering.

• Lack of applications.

• All applications (all URZ) were rejected.

• 1 participant is admitted.

• There were no offers the course of the bidding.

Re-auction in electronic form.

In most cases, when the phrase “procurement did not take place” is announced, the participants have the opinion that either there are no offers for a tender, or all applications for its participation were rejected. However, there are many more cases when the purchase was declared invalid.

Consider this for different stages procedures.

All bases are collected in the table.

Competitive procedures

If, during the tender, the public procurement is declared invalid, 44-FZ provides for two cases further development events: carry out a new or repeated, or purchase from a single supplier.

The difference between a new public procurement and a repeated one is that if the object, volume, requirements for participants do not change, that is, all the conditions remain the same (with the exception of the term for the fulfillment of the terms of the contract, which is extended by the amount required for the repeated order, as well as the initial price, which can be increased by no more than 10%), then the order is repeated, otherwise - new.

When there are no submitted applications or they are found inappropriate, a second procedure is carried out. Publication of notice in software repeated procedure carried out at least 10 days before the date of opening the envelopes (not 20 days, as with the usual).

If, in the future, a repeated tender does not take place for the same reasons (part 2 of article 55), then the customer has the right to carry out the procedure in order to reduce the period for submitting applications to 5 working days or in another way at the discretion of the customer.

If the purchase does not take place, the only supplier enters into a contract if his application complies with the requirements of the law and documentation. In this case, the customer must receive (clause 25, part 1 of article 93).

This group does not include a case when, according to the results of the pre-qualification selection of a two-stage competition, only one participant is recognized as meeting the requirements (). The customer purchases again because it is not possible to negotiate the characteristics of the order object with multiple vendors.

Electronic auction

If the electronic auction is declared invalid, the customer or concludes a contract with, while agreement with the control body is not required (in the cases provided for by part 16 of article 66, part 8 of article 67, part 20 of article 68, part 13 of article 69).

Or, if the auction did not take place, changes in the procurement plan are made, if necessary, in accordance with Part 6 of Art. 17, changes in the schedule are mandatory, then the order is carried out again (part 16 of article 66, part 8 of article 67, part 13 of article 69, part 15 of article 70). 92, except for the possibility to re-order the order, the customer has the right, in agreement with the control body, to purchase from a single supplier in accordance with clause 24, part 1 of Art. 93.

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 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 starting price auction;
• 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"

Due to numerous requests from the authorities local government on the possibility of concluding lease agreements for municipal property with a single bidder held in accordance with the Rules for Holding tenders or auctions for the right to conclude lease agreements, agreements on gratuitous use, agreements trust management property, other agreements providing for the transfer of ownership and (or) use rights in relation to state or municipal property, approved by Order of the FAS Russia dated 10.02.2010 No. 67 (hereinafter referred to as the Rules for Holding Auction) Voronezh OFAS reports the following.
Article 17.1 of the Law “On Protection of Competition” establishes the requirement to conclude agreements providing for the transfer of ownership and (or) use rights in relation to state or municipal property, only based on the results of tenders or auctions for the right to conclude these agreements.
According to clauses 74 and 135 of the Rules for holding tenders, making a decision on admission to participation in the tender (auction) and recognizing only one applicant as a participant in the tender (auction) is the basis for declaring the tender (auction) invalid. In case of recognition of the auction as void, cl. 101 and 151 of the Rules for conducting trades provide for the possibility of conducting new trades.
The possibility of concluding an agreement in relation to state or municipal property with the only participant in the tender (auction) is not regulated by the Rules of the auction. At the same time, we believe that the conclusion of an agreement providing for the transfer of ownership and (or) use rights in relation to state or municipal property with a single bidder does not interfere with ensuring the openness of procedures and equality of rights for all interested parties when acquiring rights in relation to state or municipal property.
Federal Law No. 178-FZ of December 21, 2001 "On Privatization of State and Municipal Property" (hereinafter - the Law "On Privatization") does not regulate the possibility of concluding an agreement for the sale of state or municipal property during an auction with a single participant. However, according to the available jurisprudence(Resolution of the Federal Arbitration Court of the Far Eastern District of 05/06/2010 No. F03-2860 / 2010 in case No. A51-19546 / 2009) the conclusion of an agreement with the only participant in the failed auction, although not provided for by the Law on Privatization, does not contradict it.
Thus, the Voronezh OFAS Russia considers it possible to conclude agreements providing for the transfer of ownership and (or) use rights in relation to state or municipal property with a single bidder.

The auction was declared invalid due to the only participant whose application meets the requirements of the documentation. Is the customer obliged to conclude a contract with this participant or can he refuse it and hold the auction again?

Answer

Oksana Balandina, editor-in-chief of the State Order System

From July 1, 2018 to January 1, 2019 for customers transition period- it is allowed to carry out both electronic and paper procedures. As of 2019, paper tenders, auctions, quotes and requests for proposals will be banned, with eight exceptions.
Read what purchases to conduct on the ETP, how to choose a site and get an electronic signature, according to what rules to conclude contracts in the transition period and after.

According to clause 4 of part 1 of article 71, 44-FZ, if the electronic auction is declared invalid on the grounds provided for in part 16 of article 66 of this Federal law due to the fact that at the end of the period for filing applications for participation in such an auction, only one application for participation in it has been submitted, the contract is concluded with the participant of such an auction who submitted single application to participate in it, if this participant and the application submitted by him are recognized as meeting the requirements of this Federal Law and the documentation on such an auction, 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.

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Thus, if such an application and such a participant are recognized as appropriate, then the customer is obliged to conclude a contract with this participant.

Letter of the Ministry of Economic Development of Russia dated 12.01.2015 No. D28i-3885

Letter of the Ministry of Economic Development of Russia dated 12.01.2015 No. D28i-3885
On clarifications related to the application of Federal Law No. 44-FZ dated April 5, 2013

The Department for the Development of the Contract System of the Ministry of Economic Development of Russia considered an appeal on the issue of clarifying the provisions of Federal Law No. 44-FZ dated April 5, 2013 "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law No. 44- FZ), sent to the FAS Russia, and informs.

In accordance with paragraph 4 of Part 1 of Article 71 of Law No. 44-FZ, if the electronic auction is declared invalid on the grounds provided for in Part 16 of Article 66 of Law No. such an auction, only one application has been submitted for participation in it, the contract is concluded with a participant in such an auction that has submitted a single application for participation in it, if this participant and the application submitted by him are recognized as meeting the requirements of Law No. 44-FZ and the documentation on such an auction, in accordance with paragraph 25 of part 1 of Article 93 of Law No. 44-FZ in the manner prescribed by Article 70 of Law No. 44-FZ.

According to clause 25 of part 1 of article 93 of Law No. 44-FZ, the contract must be concluded with a single supplier (contractor, performer) on the conditions provided for in the procurement documentation, at the price proposed by the procurement participant with whom the contract is concluded. Such price should not exceed the initial (maximum) contract price, the contract price proposed in the application of the relevant procurement participant, or the contract price proposed by the relevant procurement participant during the electronic auction.

In this case, a contract with a single supplier (contractor, performer) is concluded within the time frame established by Article 70 of Law No. 44-FZ.

So, in accordance with part 3 of Article 70 of Law No. 44-FZ, within five days from the date the customer places the draft contract in the unified information system, the winner of the electronic auction places in the unified information system a draft contract signed by a person entitled to act on behalf of the winner of such an auction. as well as a document confirming the provision of security for the execution of the contract and signed with an enhanced electronic signature of the specified person.

The winner of the electronic auction with whom the contract is concluded, in the event of disagreements on the draft contract, has the right to place a protocol of disagreements signed by a strengthened electronic signature a person entitled to act on behalf of the winner of such an auction (part 4 of article 70 of Law No. 44-FZ).

Considering the above, after the customer has placed the draft contract in the unified information system, the supplier (contractor, performer) is obliged to sign the draft contract or post a protocol of disagreements within 5 days.

Please note that the clarifications of the authority are legally binding state power, if this body is endowed in accordance with the legislation Russian Federation with special competence to issue clarifications on the application of the provisions of regulatory legal acts. Ministry of Economic Development of Russia - federal body executive power, the current legislation of the Russian Federation, including the Regulation on the Ministry of Economic Development of the Russian Federation, approved by the Government of the Russian Federation dated June 5, 2008 No. 437, is not endowed with the competence to clarify the legislation of the Russian Federation.