Sole participant of the electronic auction. The auction was declared invalid Conclusion of a contract for a failed auction 44 fz

• FAS Russia dated 24.04.2014 N CA/16309/14 "On sending clarifications on the application of Article 17.1 of the Federal Law dated 26.07.2006 N 135-FZ "On Protection of Competition"
• Application . EXPLANATIONS OF THE FAS OF RUSSIA ON THE APPLICATION OF ARTICLE 17.1 OF THE FEDERAL LAW OF 26.07.2006 N 135-FZ "ON PROTECTION OF COMPETITION"

3. Concluding an agreement with a single bidder

In accordance with paragraph 15 of part 1 of Article 17.1 of the Law on Protection of Competition, the rights of possession and (or) use in relation to state or municipal property may be transferred without holding an auction to a person who submitted a single application for participation in a tender or auction, if the specified application meets the requirements and conditions stipulated by the tender documentation or auction documentation, as well as to the person recognized as the sole participant in the tender or auction, on the terms and at the price provided for by the application for participation in the tender or auction and the tender documentation or auction documentation, but at a price not less than the initial (minimum) price of the contract (lot) specified in the notice of the tender or auction. At the same time, for the organizer of the auction, the conclusion of the contracts provided for by this part in these cases is mandatory.

Paragraphs 101 (151) of the Rules for holding tenders or auctions for the right to conclude lease agreements, gratuitous use agreements, property trust management agreements, other agreements providing for the transfer of rights in respect of state or municipal property, approved (hereinafter referred to as the Rules), provide that in the event if the auction is declared invalid due to the filing single application for participation in the auction or recognition as a participant in the auction of only one applicant, with the person who submitted the only application for participation in the auction, if the specified application meets the requirements and conditions stipulated by the auction documentation, as well as with the person recognized as the only participant in the auction, the organizer bidder is obliged to conclude an agreement on the terms and at the price stipulated by the application for participation in the auction and the auction documentation, but at a price not less than the initial (minimum) price of the contract (lot) specified in the notice of the auction.

Also, in accordance with paragraph 28 of the Rules, posting information about holding competitions or auctions on the official website of the auction in accordance with the Rules is a public offer provided for (hereinafter -).

In accordance with paragraphs 50 and 120 of the Rules, an application for participation in the auction is submitted on time and in the form established by the auction documentation. Submission of an application for participation in the auction is an acceptance of the offer in accordance with.

As part of the request for proposals after a 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. Auction fails if all bids are rejected at the stage of consideration of the first parts In theory, this is hardly possible, but in fact electronic auction anything happens. Accordingly, in this case, the previous paragraph on the request for proposals applies.

Article 71. Consequences of declaring an electronic auction invalid

of the Federal Law and documentation on such an auction or on the non-compliance of the participants in such an auction and the applications submitted by them with the requirements of this Federal Law and (or) documentation on such an auction; 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) before other applications 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; 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 complying with the requirements of this Federal Law and documentation on such an auction. 3.1.

Failed auction

Approvals in accordance with paragraph 25 of part 1 of Article 93 of the Law on contract system arises only in the event that an open tender, a tender with limited participation, a two-stage tender, a repeated tender, a request for proposals are declared invalid. Clarifications on this issue are given in the Letter of the Ministry of Economic Development of Russia No. 658-EE/D28i, FAS Russia No. АЦ/1587/15 dated 01/20/2015. Data in the table without changes since 01/01/2015 (currently no approval is required) No. p/n Reason for recognition electronic auction failed Actions of the customer Approval Conclusion of the contract 1 Not a single application has been submitted (p.
16 art. 66 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 paragraph 8 of part 2 of Art. 83 44-FZ or otherwise in accordance with 44-FZ (part 4 of Art.

Article 71 44-FZ - the consequences of declaring an electronic auction invalid

of the Federal Law and the documentation on such an auction, or on the non-compliance of this participant and this application with the requirements of this Federal Law and (or) the documentation of such an auction with the rationale for the said decision, including the indication of the provisions of this Federal Law and (or) the documentation of such an auction, to which this application does not comply; b) the decision of each member of the auction commission on the compliance of the sole participant in such an auction and the application submitted by him for participation in it with the requirements of this Federal Law and documentation on such an auction, or on the non-compliance of this participant and the application submitted by him for participation in such an auction with the requirements of this Federal Law and ( or) documentation of such auction; ConsultantPlus: note. From July 1, 2018, Federal Law No. 504-FZ of December 31, 2017 amends paragraph 4 of part 2 of article 71. Cm.
Federal Law) 4 Based on the results of consideration of the first parts of the applications by the auction commission, a decision was made to refuse admission to the participation of all participants in the procurement (part 8 of article 67 44-FZ) proposals in accordance with paragraph 8 of part 2 of Art. 83 44-FZ or otherwise in accordance with 44-FZ (part 4 of article 71 44-FZ) 5 The auction commission decided to recognize only one procurement participant who submitted an application for participation in such an auction as its participant (part 8 67 44-FZ) Coordination of the Customer's decision with the body authorized to exercise control in the field of procurement (FAS, Rosoboronzakaz) (clause 25, part 1, article 93 44-FZ) Concluding a contract with sole supplier(Clause 4, Part 2, Article 71, Clause 25, Part 1, Art.

Auction declared invalid

of the Federal Law due to the fact that the auction commission has decided that all the second parts of the applications for participation in it do not meet the requirements established by the documentation for the electronic auction, 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 carry out procurement by means of a request for proposals in accordance with clause 8 of part 2 of Article 83 of this Federal Law (in this case, the object of procurement cannot be changed) or otherwise in accordance with this Federal Law.

The electronic auction was declared invalid

From July 1, 2018, Federal Law No. 504-FZ of December 31, 2017 amends Part 3.1 of Article 71. See text in a future edition. 3.1. If the electronic auction is declared invalid on the grounds provided for by Part 13 of Article 69 of this Federal Law due to the fact that the auction commission has made a decision on compliance with the requirements established by the electronic auction documentation, only one second part of the application for participation in it, a contract with a participant in such an auction that has filed the said bid shall be 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. (Part 3.1 was introduced by Federal Law No. 140-FZ of 04.06.2014) ConsultantPlus: note. From July 1, 2018, Federal Law No. 504-FZ of December 31, 2017 amends Part 4 of Article 71.
Cm.

If the auction is declared invalid due to

Federal Law and contained on the date and time of the deadline for filing applications for participation in such an auction in the register of participants in such an auction who have received accreditation on an electronic site; 2) operator electronic platform within the period specified in paragraph 1 of this part, is obliged to send a notification to the sole participant in such an auction; 3) 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 in such an auction and the documents specified in clause 1 of this part, considers this application and the specified documents for compliance with the requirements of this Federal Law and documentation on such an auction and sends to the operator of the electronic site the protocol of consideration of the application of the sole participant of such an auction, signed by the members of the auction commission.

If the electronic auction is declared invalid

Attention

The only application - the order of actions Laws on electronic trading FZ-44 and FZ-223 are constantly supplemented and coordinated with other regulations. In 2014, additional amendments were made to No. 498-FZ and Art. 25 No. 44-FZ, within which the issue of conditions is considered in more detail failed auction. The grounds are determined by Art. 71, parts 1-3.1 No. 44-FZ.

Provided that the only application for participation in the auction was under consideration in the work of the site, it is she who is considered the winner. The key feature of the recognition of the auction as invalid for this reason is the admission to participation in it of only one participant. The customer can conclude a contractual agreement with a single participant.
Consider the conditions under which you can sign a contract. This is possible only with the participant (Art. 70 FZ-44), whose application fully meets the requirements.
This document should include the following information:

• Title of the document;
• place, time and date of its compilation;
• list of members of the auction commission;
• the name of the failed auction;
• information about the customer;
• auction object;
• the reason for declaring the auction invalid;
• information about the site where the protocol will be placed.

So Art. 71 of Law No. 44 defines 5 possible situations in which an auction is declared invalid. The same article defines the order of actions that the customer must take after the event receives the specified status.
Federal Law "On the privatization of state and municipal property" (as amended and supplemented), if the auction for the sale of 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 contract of sale or a lease agreement for the object put up for auction. land plot, and the organ state power or body local government, by whose decision the auction was held, is obliged to conclude an agreement with the sole participant of the auction at the initial price of the auction.

The auction was declared invalid, one application was submitted under 44 fz

In view of the foregoing, the conclusion of an agreement with a single participant failed auctions 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 a contract 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.

Consequences of declaring an electronic auction invalid:

1. If an electronic auction is declared invalid due to the fact that at the end of the deadline for filing applications for participation in such an auction, only one application for participation in it has been submitted:

a contract is concluded with a participant in such an auction who has submitted a single application for participation in it, if this participant and the application submitted by him are recognized as complying with the requirements of the Law and the documentation for such an auction, in accordance with paragraph 25 of part 1 of Article 93 of Federal Law N 44-FZ in the manner, established by Article 70 of the Federal Law N 44-FZ.

2. If the electronic auction is declared invalid due to the fact that the auction commission decided to recognize only one procurement participant who submitted an application for participation in such an auction as its participant:

a contract with the sole participant in such an auction, if this participant and the application submitted by him for participation in such an auction are recognized as complying with the requirements of Federal Law No. 44-FZ and documentation on such an auction, is concluded in accordance with paragraph 25 of part 1 of Article 93 of Federal Law No. 44-FZ in the manner prescribed by Article 70 of Federal Law N 44-FZ.

3. If the electronic auction is declared invalid due to the fact that within ten minutes after the start of such an auction, none of its participants submitted an offer on the price of the contract, the contract is concluded in accordance with paragraph 25 of part 1 of Article 93 of the Federal Law N 44-FZ in the manner prescribed by Article 70 of Federal Law N 44-FZ, 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 Federal Law N 44-FZ and documentation on such an auction;

b) sole member of such an auction, if only one participant in such an auction and the application submitted by him are recognized as complying with the requirements of Federal Law N 44-FZ and the documentation for such an auction.

4. If the electronic auction is declared invalid on the grounds provided for by Part 13 of Article 69 of Federal Law N 44-FZ due to the fact that the auction commission has made a decision on compliance with the requirements established by the electronic auction documentation, only one second part of the application to participate in it, a contract with a participant in such an auction who submitted the said application is concluded in accordance with clause 25 of part 1 of Article 93 of Federal Law No. 44-FZ in the manner established by Article 70 of Federal Law No. 44-FZ.

5. If the electronic auction is declared invalid due to the fact that at the end of the deadline for filing applications for participation in such an auction, no applications for participation in it have been submitted or based on the results of consideration of the first parts of applications for participation in such an auction, the auction commission has made a decision to refuse admission to participation in it of all its participants who have submitted applications for participation in such an auction, the customer makes changes to the schedule (if necessary, also to the procurement plan) and carries out the procurement by conducting a request for proposals in accordance with clause 8 of part 2 of Article 83 of Federal Law N 44-FZ (in this case, the object of procurement cannot be changed) or otherwise in accordance with Federal Law N 44-FZ.

Section 5 Conclusion of a contract based on the results of an electronic auction

During electronic trading- the auction, according to the law, may not take place. The conditions for recognizing it as such are regulated by articles 66-69 of Law 44-FZ "On the contract system in the field of procurement of goods, works, services ...". This provision of the law describes the applicable procedure for conducting procedures on the electronic site.

In particular, the recognition of the auction as invalid allows you to sign a contract with one participant or hold an auction in another form.

We are talking about the fact that when closing tenders without applications, the state-owned enterprise gets the opportunity to select a supplier by requesting proposals. Let's consider the most typical scenarios of failed trades.

Single Application - Procedure

Laws on electronic trading FZ-44 and FZ-223 are constantly supplemented and coordinated with other regulations. In 2014, additional amendments were made to No. 498-FZ and Art. 25 No. 44-FZ, within the framework of which the issue of the conditions of the failed auction is considered in more detail.

The grounds are determined by Art. 71, parts 1-3.1 No. 44-FZ.

Provided that the only application for participation in the auction was under consideration in the work of the site, it is she who is considered the winner.

The key feature of the recognition of the auction as invalid for this reason is the admission to participation in it of only one participant. The customer can conclude a contractual agreement with a single participant.

Consider the conditions under which you can sign a contract. This is possible only with the participant (Art. 70 FZ-44), whose application fully meets the requirements. Keep in mind that consideration of a single application is possible if within 10 minutes after the start of trading the supplier submitted a price offer (Article 68 FZ-44, part 20). At least it should be 0.5% lower than the NMCC.

If the auction did not take place and none of the bids meet the requirements, then the customer can purchase by the method of request for proposals.

The auction was declared invalid - no bids were submitted

If, taking into account the requirements of 44 FZ, not a single application was registered, then the auction was also declared invalid. This entails in most cases a re-tender, regulated by articles federal law. Also, this is true if the participants did not enter into a contract for the execution of an order for this purchase.

So, the tender is declared invalid if:

one application has been submitted;

lack of applications;

registered applications are submitted with violations and cannot be accepted by the commission;

in cases where there was no bid for the price at the set time.

Failed auction - consequences

As we wrote above, depending on the reasons for the recognition of a 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 otherwise established by law.

Repeat auction

Holding re-bidding also carried out on the basis of FZ-44. AT this moment the state customer has the right to select a counterparty only by requesting proposals, but new amendments are expected soon, which will require additional. approvals.

To apply for participation in the auction without violations and meeting the requirements of the customer, it is best to contact the experts. RusTender already has significant experience in this direction, therefore, it will be able to prepare everything qualitatively and in a short time Required documents and transfer them to the site for participation in the auction.

OOO IWC"RusTender"

The material is the property of the site. Any use of the article without indicating the source - the site is prohibited in accordance with article 1259 of the Civil Code of the Russian Federation

Sometimes customers have to recognize the auction as invalid. What to do if the auction did not take place, because not a single application under 44-FZ has been submitted, we will show in the article.

Consequences of declaring an auction invalid

After analyzing Art. 71 of Law 44-FZ, there are two reasons why the electronic auction did not take place:

• no application has been submitted;
• one application has been submitted.

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The further actions of the contract managers will depend on the reason why the competitive procedure was declared invalid:

• if there are no applications - to conduct a new purchase;
• if one application is submitted - draw up a state contract with the participant who submitted it.

Conclusion of 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 of only one of the participants in the procedure satisfies the conditions of the procurement (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 the combination of circumstances when none of the admitted participants e-procurement did not send his offer with the price within ten minutes from the moment it began (part 20 of article 68).

Imagine the situation: no applications were submitted for the competition, only one application was submitted, or only one application meets the requirements of the documentation. In all cases, you must declare the competition void. 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 rejected all applications, you should do something completely different. And further, 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 different conditions choose the right way to buy.

From the article

Clause 25, Part 1, Art. 93 of the Law on the COP establishes the rules for what to do according to 44-FZ if the purchase did not take place when drawing up a contract with a single supplier:

• draw up a government contract on the terms specified in the procurement documentation at a price not exceeding the initial price of the auction;
• the term of registration 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 approval by the FAS and other regulatory authorities.

The electronic auction did not take place, because no applications

In accordance with part 4 of Art. 71 procedure 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);
• member who proposed Better conditions after the winner, he evaded signing a state contract and refused to execute such a contract (Part 15, Article 70).

If not a single application under 44-FZ has been submitted for the auction, what should I do next? A repurchase should be declared.

We held an electronic auction for the supply of wooden coffins. No one applied, so the auction was declared invalid. Now we want to try the request for proposals, but Law No. 44-FZ does not directly indicate whether we have the right to change the terms of the purchase. Can we reduce the NMTsK, add an advance payment 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:

• carry out repeated 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 item of re-purchase cannot be changed in comparison with the original one;
• re-schedule a new competitive procedure.

If a repeat auction did not take place - not a single application was submitted - what to do according to 44-FZ? Until July 1, 2018, it is possible to hold the 3rd auction or request for proposals or apply another competitive procedure under the Contract System Law.

If the auction did not take place 2 times, what should I do in this case? From July 1, 2018, such a question will no longer exist, because. new edition of Part 4 of Art. 71 The law obliges to conduct repurchase 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 conducts another purchase.

Thus, the answer to the question: no bids have been submitted for the auction, what will happen next: to conduct a re-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 State Order in Questions and Answers magazine.