Reasons for the failed auction. Failed auction

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 carried out electronic auction or request for quotations - conclude a contract with a supplier whose bid 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 find yourself sole participant 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.

Grounds for declaring an electronic auction invalid are possible at various stages of the procedure. At the stage of identifying participants in the electronic auction, the procedure is considered invalid if no applications for participation have been submitted. In this case, the customer makes changes to the procurement schedule, if necessary, to the procurement plan, and purchases by request for proposals or other procurement methods (part 4 of article 71 of the Law on the contract system).

Also, at the stage of identifying participants in an electronic auction, the procedure is considered invalid if only one application is submitted. In this case, the customer makes changes to the procurement schedule, as well as:

• the auction commission includes only one proposal for the contract price in the protocol of the electronic auction;
• operator electronic platform no later than the working day following the deadline for submission of applications, sends to the customer both parts of this application, as well as the documents of the auction participant who submitted it, formed in the course of the participant's accreditation (with the exception of the address Email), and also within the same period sends a notification to the participant;
• the auction commission, within three working days from the date of receipt of the application and documents, considers this application and these documents for compliance with the requirements of the Law on the Contract System and the documentation on the electronic auction and sends the protocol for the consideration of a single application to the operator of the electronic platform;
• if this participant and the application submitted by him are recognized as complying with the requirements of the Law on the Contract System and the documentation on the electronic auction, a contract is concluded with this participant (subject to the customer receiving the approval of the supervisory authority).

It is important to remember

In a joint letter from the Ministry of Economic Development of Russia No. 23679-EE / D28i and FAS Russia No. ЛЦ / 39384/14 dated 30.09.2014 "On the position of the Ministry of Economic Development of Russia and FAS Russia on the application of Federal law dated April 5, 2013 No. 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" regarding the consequences of submitting one proposal for the price of a contract during an electronic auction "explains the specifics of conducting an electronic auction in accordance with with the Law on the Contract System.

h. 1 tbsp. 93 of the Law on the contract system. The joint letter of the Ministry of Economic Development of Russia No. 658-EE / D28i and the FAS of Russia No. АЦ / 1587/15 dated 20.01.2015 contains the following clarification. Federal Law No. 498-FZ of December 31, 2014 entered into force on December 31, 2014. the specified date if the electronic auction is declared invalid in accordance with Part 1-3.1 of Art. 71 of the Law on the Contract System, the customer enters into a contract with the only supplier (contractor, performer) on the basis of paragraph 25, part 1 of Art. 93 of the Law on the contract system. At the same time, the approval of the conclusion of a contract with a single supplier (contractor, performer) with the control body in the field of procurement is not required, even if the auction was declared invalid before December 31, 2014. The need for such approval in accordance with paragraph 25, part 1 of Art. 93 of the Law on the Contract System arises only in case of recognition as invalid open competition, competition with limited participation, two-stage competition, re-competition, request for proposals.

At the stage of the auction, the basis for declaring an electronic auction invalid is the case if more than one application was submitted and more than one participant was admitted to participate in the auction, but none of the admitted participants took part in the auction, in this case the following procedure is provided:

• the operator of the electronic site, within one hour after the posting on the electronic site of the protocol on recognizing the auction as invalid, sends to the customer the specified protocol and the second parts of the applications for participation in this auction submitted by its participants, as well as documents of the participants of such an auction, formed in the process of accreditation of the participant (with the exception of e-mail addresses), and also within the same period sends notifications to participants;
• the auction commission, within three working days from the date of receipt by the customer of the second parts of applications for participation in such an auction of its participants and documents, considers the second parts of these applications and documents for compliance with the requirements of the Law on the Contract System and documentation on the electronic auction and sends the protocol of the holding to the operator of the electronic platform the results of such an auction.

In this case, the customer needs to make changes to the procurement schedule, then he purchases from a single supplier (contractor, contractor) in accordance with paragraph 25, part 1 of Art. 93 of the Law on the contract system in agreement with the supervisory authority (part 1 of article 71 of the Law on the contract system).

At the stage of determining the winner of the electronic auction, the procedure is considered invalid if the winner and the “second” winner have avoided concluding a contract. The customer needs to make changes to the procurement schedule, then he purchases by request for proposals or other procurement method (part 4 of article 71 of the Law on the contract system).

• After making changes to the procurement schedule, the customer purchases from a single supplier (contractor, contractor) in accordance with paragraph 25 of part 1 of Art. 93 of the Law on the contract system as agreed with the FAS Russia (part 1 of article 71 of the Law on the contract system). At the stage of consideration of the first parts of applications, there may be two grounds for declaring the electronic auction invalid. If more than one application was submitted, but not a single application was allowed to participate in the auction, the customer makes changes to the procurement schedule and purchases by request for proposals or other procurement method (part 4 of article 71 of the Law on the contract system). In the second case, if more than one application was submitted, but only one application was admitted by the customer to participate, the following procedure was established: the operator of the electronic site, within one hour after the posting of the protocol of consideration of applications on the electronic site, sends to the customer the second part of the application, as well as the documents of the bidder who submitted it. formed in the process of accreditation of the participant (with the exception of the e-mail address), and also within the same period, a notification is sent to the participant; the auction commission, within three working days from the date of receipt by the customer of the second part of this application of the sole participant of such an auction and documents, shall consider this application and these documents for compliance with the requirements of the Law on the Contract System and Documentation
• electronic auction and sends to the operator of the electronic platform a protocol for considering a single application; if this participant and the application submitted by him are recognized as complying with the requirements of the Law on the Contract System and the documentation on the electronic auction, a contract is concluded with this participant (subject to the customer receiving the approval of the FAS Russia). It is important to remember that the Customer needs to make changes to the schedule, then he purchases from a single supplier (contractor, contractor) in accordance with paragraph 25

Documents Legislation Comments Judicial practice Articles Procurement Tenders Auctions Request for quotations Request for proposals Sole supplier Contract Government contract Municipal contract Federal bodies FAS Russia Rosoboronzakaz From 01.01.2015, if the electronic auction is declared invalid, the approval of the conclusion of a contract with a single supplier with a supervisory authority is not required. Federal Law No. 498-FZ of December 31, 2014 amended clause 25, part 1 of Art. 93 44-FZ, according to which, if the electronic auction was declared invalid on the grounds provided for in p. 1 - 3.1 Art.

Article 71. Consequences of declaring an electronic auction invalid

Of the Federal Law and contained on the date and time of the expiry of the period for filing applications for participation in such an auction in the register of participants in such an auction who have received accreditation on the electronic platform; 2) the operator of the electronic site within the period specified in paragraph 1 of this part is obliged to send notifications to the participants of such an auction; 3) the auction commission, within three working days from the date of receipt by the customer of the second parts of the applications for participation in such an auction of its participants and the documents specified in paragraph 1 of this part, considers the second parts of these applications and specified documents for compliance with the requirements of this Federal Law and the documentation on such an auction and sends to the operator of the electronic platform a protocol of summing up the results of such an auction, signed by members of the auction commission.

Publication of the minutes if no applications have been submitted

Of the Federal Law and contained on the date and time of the expiry of the period for filing applications for participation in such an auction in the register of participants in such an auction who have received accreditation on the electronic platform; 2) the operator of the electronic site, within the period specified in paragraph 1 of this part, is obliged to send a notification to the participant of such an auction who has submitted single application to participate in such an auction; 3) the auction commission, within three working days from the date of receipt of the only application for participation in such an auction and the documents specified in clause 1 of this part, considers this application and these documents for compliance with the requirements of this Federal Law and documentation on such an auction and sends it to the operator of the electronic platform, the protocol of consideration of the only application for participation in such an auction, signed by the members of the auction commission.

Ipc-zvezda.ru

From July 1, 2018, Federal Law of December 31, 2017 N 504-FZ, paragraph 4 of Part 3 of Article 71 is amended. See text in future edition. 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 their applications have been recognized as meeting the requirements of this Federal Law and the documentation on such an auction; b) the only participant in such an auction, if only one participant in such an auction and the application submitted by him are recognized as meeting the requirements of this Federal Law and the documentation on such an auction.

ConsultantPlus: note.

The auction did not take place, no bids were submitted

Then the notice of re-auction or a request for proposals may be published on the website no earlier than November 12, 2016. As for the re-placing of the order, it can be again an electronic auction or, on the basis of paragraph 8 of part 2 of Article 83 - a request for proposals.
Part 3 of this article defines the regulations for the procurement in this way, including the timing. In any case, the contractor who wanted to take part in the electronic auction, which was subsequently declared invalid due to the lack of bids, but for some reason did not have time, had enough time to solve all the problems and become a participant in the re-placed procurement.

The auction did not take place bids were submitted what to do according to fz 44

Of the Federal Law in connection with the fact that the auction commission made a decision on non-compliance with the requirements established by the documentation on the electronic auction, of all second parts of applications for participation in it, or on the grounds provided for by part 15 of Article 70 of this Federal Law, the customer makes changes to the plan- schedule (if necessary, also in the procurement plan) and carries out 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. (as amended by Federal Laws dated 28.12.2013 N 396-FZ, dated 04.06.2014 N 140-FZ) (see.

Failed auction

The only application is the procedure Laws on electronic bidding FZ-44 and FZ-223 are constantly supplemented and coordinated with others regulations... In 2014, additional amendments were made to No. 498-FZ and to Art.
25 №44-

Federal Law, within the framework of which the issue of conditions is considered in more detail failed bargaining... The grounds are determined by Art. 71, parts 1-3.1 No. 44-FZ.

Important

Provided that the only application for participation in the auction was 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.

Attention

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.

Protocols on 44-fz: samples of documents

So, the tender is declared invalid if:

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

Failed auction - the consequences As we wrote above, depending on the reasons for the recognition of the failed auction, 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 Carrying out re-bidding is also carried out on the basis of FZ-44.

V currently the state customer has the right to select a counterparty only by the request for proposals, but soon new amendments are expected that will require additional. approvals.

If no bids have been submitted to the auction, you need to publish a protocol on declaring the purchase invalid. The site's functionality does not imply the automatic publication of the protocol on declaring the purchase invalid.

Sign in Personal Area on electronic signature... Find the auction in the Purchase section; 2. Open the form of the protocol on declaring the auction invalid: Click on the notification "Publish the protocol on declaring the auction invalid" in the auction line in the "Purchases" section; Or open the auction card in the "Events" section, then "Protocols" click the "Open the protocol form" button.

3. Select the auction commission in the "Commission" field (if necessary).
ФЗ) 2 Only one application has been submitted - the participant does not comply (part 16 of article 66 44-FZ) = based on the results of consideration of the first parts of the applications, the auction commission decided to refuse admission to participation of all participants in the procurement (part 8 of article 67 44 -FZ) The customer makes changes to the schedule (procurement plan) and carries out the purchase by conducting a request for proposals in accordance with clause 8, h. 2, Art. 83 44-FZ or in another way in accordance with 44-FZ (part 4 of article 71 44-FZ) 3 Only one application has been submitted - the participant complies (part 16 of article 66 44-FZ) Coordination of the Customer's decision with the authorized body for control over procurement (FAS, Rosoboronzakaz) (clause 25, part 1 of article 93 44-FZ) Concluding a contract with a single supplier (clause 4 of part 1 of article 71, clause 25 of part 1 of art.

Protocol on failed auction 44 fz if no bids have been submitted

• at the end of the deadline for submission of applications for participation in such an auction, only one application for participation in it has been submitted,
• the auction commission made a decision to recognize only one procurement participant who submitted an application for participation in such an auction as its participant,
• within ten minutes after the start of such an auction, none of its participants submitted a proposal for the price of the contract,
• the auction commission made a decision on compliance with the requirements established by the documentation on the electronic auction, only one second part of the application for participation in it,

then the customer has the right to conclude a contract with a single supplier without the consent of the body authorized to exercise control in the field of procurement.

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 an 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 declared 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 to return the advance made by the participants of the failed auction within three banking days from the date of signing the protocol on the results of the auction. 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 of the Federal Law of December 21, 2001 No. 178-FZ "On the privatization of state and municipal property" (with amendments and additions) if the auction for the sale state or municipal property is declared invalid, then the sale of the specified 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.

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, anything can happen in electronic trading. 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. "