The auction did not take place twice what to do. The purchase did not take place: contract with a single supplier

According to paragraph 16 of the notes of the Order of the Ministry of Economic Development and Treasury of the Russian Federation No. 761 / 18n, changes to the schedules in connection with the repeated procedures for placing orders are made only in terms of the timing and method of placing an order and executing the contract.

At the same time, according to part 2 of Art. 112 federal law dated 05.04.2013 No. 44-FZ "On contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter referred to as Law No. 44-FZ), customers post on the Official Website schedules for placing orders for 2014-2016 in accordance with the rules that were in force before the date of entry into force of Law No. 44-FZ, taking into account the peculiarities of placement in a single information system or before the commissioning of the specified system on the official website Russian Federation in the information and telecommunications network "Internet" to post information on placing orders for the supply of goods, performance of work, provision of services, schedules for placing orders for 2015 - 2016, approved by Order of the Ministry of Economic Development of Russia No. 182, the Treasury of Russia No. 7n dated March 31, 2015 ( hereinafter - Features).

For example, clause 6 of the Specifics, according to which, changes to the schedule posted on the official website for each procurement object are carried out no later than ten calendar days until the day of posting on the official website a notice of the procurement or sending an invitation to take part in determining the supplier (contractor, performer). The exceptions are the cases specified in paragraph 7 of the Specifics.

In accordance with paragraph 7 of the Specifics in the case of procurement through a request for quotations in order to provide humanitarian assistance or eliminate the consequences emergencies natural or man-made in accordance with Art. 82 of Law No. 44-FZ, amendments to the schedule posted on the official website are carried out on the day the request for quotations is sent to procurement participants, and in the case of procurement from a single supplier (contractor, performer), in accordance with clause 9 and 28 h. 1 art. 93 of Law No. 44-FZ, no later than one calendar day before the date of conclusion of the contract.

Procurement notification (for example, electronic auction, open tender) can be posted by the customer on the official website no earlier than 10 calendar days from the date of making changes to the schedule posted on the official website.

From the foregoing, we can conclude that the placement by the customer on the official website of a notice of procurement earlier than 10 calendar days from the date of changes to the schedule posted on the official website will violate the provisions of the legislation of the Russian Federation on the contract system. This applies only to those purchases that have been amended in the schedule posted on the official website.

Consider the joint Order of the Ministry economic development of the Russian Federation and the Federal Treasury dated December 27, 2011 No. 761/20n "On approval of the procedure for placing on the official website of schedules for placing orders for the supply of goods, performance of work, provision of services for the needs of customers and forms of schedules for placing an order for the supply of goods , performance of work, provision of services for the needs of customers" (hereinafter - Order No. 761/20n).

According to clause 15 of the notes of Order No. 761 / 20n, changes to the schedules are carried out in the following cases:

Changes of more than 10% in the cost of goods, works, services planned for purchase, identified as a result of preparation for placing a specific order, as a result of which it is impossible to place an order for the supply of goods, performance of work, provision of services in accordance with the initial (maximum) price of the contract provided for schedule;

Changes in the planned terms for the acquisition of goods, works, services, the method of placing an order, the deadline for the execution of the contract;

Cancellation by the customer, the authorized body of the order placed by the schedule;

The resulting savings from the use of the current fiscal year budget appropriations in accordance with the legislation of the Russian Federation;

In the event of circumstances that could not be foreseen at the date of approval of the schedule;

In the event of issuance to the customer, the authorized body of an order authorized to exercise control in the field of placing orders of the federal executive body, the executive body of the subject of the Russian Federation, the local government on the elimination of violations of the legislation of the Russian Federation on the placement of orders in accordance with the legislation of the Russian Federation, including the cancellation of the auction.

We also draw your attention to the fact that, in accordance with paragraph 16 of the notes of Order No. 761/20n, changes to the schedules in connection with the repeated procedures for placing orders are made only in terms of the timing and method of placing an order and executing the contract.

If the Customer held an electronic auction for which no applications were submitted and the auction was declared invalid, then during the repeated procedure, new dates for the electronic auction and new terms for the execution of the contract are entered into the schedule. The specified changes are entered into the line, which already contains information about the purchase, i.e. there is no need to create a new line for the repeated procedure in the schedule. And if, during the repeated procedure, the method of placing an order (the method of determining the supplier) changes, then new way vendor definitions fit in instead of the old one. For example, instead of the method of determining the supplier "electronic auction", "request for proposals" is indicated.

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

Consider this for the different stages of the procedure.

All bases are collected in the table.

Competitive procedures

If during the competition the public procurement is declared invalid, 44-FZ provides for two cases further development events: conduct a new or repeated one, 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 fulfilling the terms of the contract, which is extended by the time necessary for a repeated order, as well as the initial price, which can be increased by no more than 10%), then the order is repeated, otherwise it is new.

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

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 deadline for submitting applications to 5 working days or in another way at the discretion of the customer.

If the purchase did not take place, the only supplier concludes 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, article 93).

This group will not include the case when, according to the results of the pre-qualification selection of a two-stage competition, only one participant is found to meet the requirements (). The customer conducts the purchase again, due to the fact that it is not possible to discuss the characteristics of the order object with several suppliers.

Electronic auction

When recognizing an electronic auction failed customer or enters into a contract with, while coordination with the control body is not required (in cases provided for in 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). Art. 92, in addition to the possibility to re-order, the customer has the right, in agreement with the control authority, to purchase from a single supplier in accordance with paragraph 24 of Part 1 of Art. 93.

Sometimes, for a number of reasons, an electronic auction under 44-FZ may not take place (more precisely, it will be declared invalid). In fact, the situation is not as unpleasant as it might seem at first glance, since the recognition of the auction as invalid does not mean that you have not won this contract. True, under the new laws, quite a lot of controversial issues arise, in which, naturally, each side wants to take advantage of itself, and fool the other parties. Therefore, it is necessary to take into account all this, and try to act competently so as not to fall for the stupid bait of the state customer in which case. Government customers are hired employees who hold on to their jobs. Therefore, it is purple for them, what problems the contractor will have, because the contractor is a bourgeois who only seeks to pocket public funds. So, consider the situation in which the auction did not take place. What to do next?

Depending on the reason for which this situation arose, there are several ways to successfully (and sometimes unsuccessfully) resolve it. It all depends on the situation itself, and sometimes on your actions.

1. The auction did not take place if there is one participant in it

In this case, the customer concludes a contract with this participant as with the winner, provided that the second part of the application complies with the established and auction documentation. Coordination with the regulatory authorities in this case 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 liable as if you had participated in a full tender with many participants and won it. If you filed the only application, and it did not pass, the state customer must hold a new auction.

2. The auction did not take place if there are several participants in it

a) Suppose that there are several participants in the electronic auction, but only one of them satisfies the requirements for the second part of the application. Accordingly, in this case, the rule of paragraph “1” applies, that is, the state customer concludes a contract with this participant without approval from the regulatory authority.

b) There are several participants in the auction, but the state customer rejected all applications at the stage of consideration of the second parts. The solution is to conduct new auctions.

3. No bids have been submitted (there are no bidders 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, however, it is prohibited, however, to change the object of procurement (but at the same time, it is formally possible, but not recommended, to change its cost, as well as the deadlines). A notice to the EIS 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 capable of fulfilling the terms of the contract. However, these persons in this case must be indispensable counterparties of the customer for at least 18 months before the date of the request for similar supplies.

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 reality electronic auction anything happens. Accordingly, in this case, the previous paragraph on the request for proposals applies. If out of all applications, based on the results of consideration of the first parts (and not the second), only one participant is admitted, then, according to Part 2 of Article 71, the problem is solved by agreement in the supervisory authority.

The auction did not take place because none of the participants went to it

According to part 3 of article 71, the problem is solved by coordination with the regulatory authority (the first application that meets the conditions of the auction). If no application complies, or the application complies, but the participant is ready for termination, then a clause is applied that is suitable under the terms of 44-FZ:

"3. In the event that 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 established by Article 70 of this Federal Law, with a participant in such an auction, an application for participation in which is submitted:

a) earlier than other bids for participation in such an auction, if several participants in such an auction and the bids submitted by them are recognized as complying with the requirements of this Federal Law and documentation on such an auction.

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

a) less than two participants participated in the auction;

b) none of the bidders during the auction, open according to the form for submitting offers on price or amount of rent, after three times the announcement of the initial price or the initial amount of rent, did not raise the ticket;

c) none of the bidders during the competition or auction, closed according to the form for submitting proposals for the price or amount of rent, in accordance with the decision of the bidding organizer, was declared the winner;

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

The organizer of the auction is obliged within three banking days from the date of signing the protocol on the results of the auction to return the deposited by the participants failed auctions deposit. The deposit made by the winner of the auction will not be returned to him. The organizer of the auction, in case of recognition of the auction as invalid, has the right to announce the re-conduct of the auction. In this case, their conditions may be changed. The organizer of the auction may reduce the initial price of the land plot or the initial amount of the 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” may be changed in the manner prescribed 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" (as amended and supplemented) if the auction for the sale state or municipal property is declared invalid, then the said property is sold 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 purchase and sale agreement or a lease agreement for the land plot put up for auction, and the authority state power or the local self-government body, by whose decision the auction was held, is obliged to conclude an agreement with sole member auction at the initial auction price.

Information about 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 periodicals that reported on 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 the participation of less than two people in the auction, earlier than ten days from the date of posting information about the results of the auction on the official website of the Russian Federation on the Internet.

Since in the event that the auction is declared 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 acquired the right to conclude an agreement that was the subject of these auctions.

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 law, and also contradicts the essence of the auction itself. In addition, in accordance with the current judicial practice 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 or multilateral transaction, which implies the emergence of rights and obligations for all its parties.

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

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

If such a contract for the sale of state or municipal property is concluded based on the results of a failed auction, the official may be held criminally liable on the 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 one participant in it
In this case, the customer concludes a contract with this participant as with the winner, provided that the second part of the application complies with the established requirements under 44-FZ and the auction documentation. Coordination with the regulatory authorities in this case 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 liable as if you had participated in a full tender with many participants and won it. If you submit a single bid and it fails, the customer must re-bid.

2. The auction did not take place if there are several participants in it
a) Suppose that there are several participants in the electronic auction, but only one of them satisfies the requirements for the second part of the application. Accordingly, in this case, the rule of paragraph “1” applies, that is, the state customer concludes a contract with this participant without approval from the regulatory authority.
b) There are several participants in the auction, but the state customer rejected all applications at the stage of consideration of the second parts. The solution is to conduct new auctions.

3. No bids have been submitted (there are no bidders 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, however, it is prohibited, however, to change the object of procurement (but at the same time, it is formally possible, but not recommended, to change its cost, as well as the deadlines). A notice to the EIS 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 capable of fulfilling the terms of the contract. However, these persons in this case must be indispensable counterparties of the customer for at least 18 months before the date of the request for similar supplies.

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 out of all applications, based on the results of consideration of the first parts (and not the second), only one participant is 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 went to it
According to part 3 of article 71, the problem is solved by coordination with the regulatory authority (the first application that meets the conditions of the auction). If no application complies, or the application complies, but the participant is ready for termination, then a clause is applied that is suitable under the terms of 44-FZ:

"3. In the event that 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 established by Article 70 of this Federal Law, with a participant in such an auction, an application for participation in which is submitted:

a) earlier than other bids for participation in such an auction, if several participants in such an auction and the bids submitted by them are recognized as complying with the requirements of this Federal Law and documentation on such an auction.