Re-bidding did not take place what next. What to do if the purchase did not take place

• Only 1 URZ applied (see above).

• Only 1 URZ was admitted to the UAEF. His application was recognized as appropriate, the rest were rejected.

• Several URZs were admitted, but none of the URZs made bids at the auction. In this case, the winner is the URZ who submitted his application before anyone else. A contract is signed with him.

• If the auction (UAEF) 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.

• A protocol for recognizing an electronic auction (EAEF) as invalid is drawn up and posted on the site.

• This is a procedure that involves the execution and placement of a protocol on recognizing the auction (UAEF) as invalid.

• The reason for the recognition of the auction as invalid: only 1 participant was admitted and / or announced.

• Info that a state contract will be concluded with this participant. Contract.

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

• There is one member.

• Signing a contract with this member.

• There are no participants or applications.

• Repeat auction.

• Reordering an order.

• No applications.

• All applications (all URZ) are rejected.

• 1 participant allowed.

• There were no offers the course of the auction.

Repeat auction in electronic form.

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 for further developments: to conduct a new or repeated one, or to 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. The publication of the notice in the repeated procedure is carried out at least 10 days before the date of opening the envelopes (not 20 days, as in the usual one).

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 an electronic auction is recognized as failed, the customer or concludes a contract with, while coordination with the control body is not required (in the 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.

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, opened according to the form for submitting proposals on price or amount of rent, after three times the announcement of the initial price or 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 on 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 avoided signing the protocol on the results of the auction, concluding a contract for the sale or lease of a 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 deposit paid by the participants in the failed auction. 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 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 contract of sale or a lease contract for the land plot put up for auction, and the state authority or local government, by whose decision the auction was held, is obliged to conclude an agreement with a single bidder 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 established 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. 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 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 eligible 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 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, under different conditions, to choose the right method of purchase.

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 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 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);
• the participant who offered the best conditions after the winner avoided signing the state contract and refused to execute such a contract (part 15 of 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 the repeated 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, this 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.

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. Auction fails if all bids are rejected at the stage of consideration of the first parts In theory, this is hardly possible, but in reality anything can happen in electronic auctions. 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

Agreements in accordance with paragraph 25 of part 1 of article 93 of the Law on the contract system arise only if 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. The data in the table without changes from 01.01.2015 (now the agreement is not required) No. p / p Reason for declaring the electronic auction invalid Actions of the Customer Approval Concluding the contract 1 No application has been submitted (part
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 a single supplier (clause 4, part 2 article 71, paragraph 25, part 1, article

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 submitted the said application 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) the operator of the electronic site, within the period specified in paragraph 1 of this part, is obliged to send a notification to the sole participant of 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 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.

• 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 contract for the land plot put up for auction, and the state authority or local government, by whose decision the auction was held, is obliged to conclude an agreement with a single bidder at the initial auction price.

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

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 established 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.