Recognition of the auction as failed fz 44. Failed electronic auction

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 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 filed: 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

Coordination in accordance with clause 25 of part 1 of article 93 of the Law on the 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. 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 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) documentation on such an auction with the rationale for the said decision, including an indication of the provisions of this Federal Law and (or) documentation on 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 applications by the auction commission, a decision was made 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 (purchase plan) and carries out the procurement by making a request 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 procurement object 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 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 clause 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.

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 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

In view 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.

In connection with the numerous appeals of local governments on the possibility of concluding lease agreements for municipal property with a single bidder held in accordance with the Rules for holding tenders or auctions for the right to conclude lease agreements, gratuitous use agreements, property trust management agreements, other agreements providing for the transfer of rights possession and (or) use in relation to state or municipal property, approved by the Order of the FAS of Russia dated February 10, 2010 No. 67 (hereinafter referred to as the Auction Rules) Voronezh OFAS informs the following.
Article 17.1 of the Law "On Protection of Competition" establishes the requirement to conclude agreements providing for the transfer of ownership and (or) use rights in relation to state or municipal property only based on the results of tenders or auctions for the right to conclude these agreements.
According to paragraphs 74 and 135 of the Rules for the conduct of bidding, the adoption of a decision on admission to participation in the competition (auction) and recognition of only one applicant as a participant in the competition (auction) is the basis for recognizing the competition (auction) as invalid. In the event that the auction is declared invalid, p.p. 101 and 151 of the Auction Rules provide for the possibility of holding new auctions.
The possibility of concluding an agreement in relation to state or municipal property with a single participant in the tender (auction) is not regulated by the Rules of the auction. At the same time, we believe that the conclusion of an agreement providing for the transfer of ownership and (or) use rights in relation to state or municipal property with a single bidder does not prevent the provision of open procedures and equality of rights of all interested parties when acquiring rights in relation to state or municipal property.
Federal Law No. 178-FZ of December 21, 2001 “On the Privatization of State and Municipal Property” (hereinafter referred to as the Law “On Privatization”) does not regulate the possibility of concluding a contract for the sale of state or municipal property during an auction with a single participant. At the same time, according to the existing judicial practice (Resolution of the Federal Arbitration Court of the Far Eastern District of May 6, 2010 No. F03-2860 / 2010 in case No. A51-19546 / 2009), the conclusion of an agreement with the only participant in the failed auction, although not provided for by the Law "On Privatization", but does not contradict it.
Thus, the Voronezh OFAS Russia considers it possible to conclude agreements providing for the transfer of ownership and (or) use rights in relation to state or municipal property with a single bidder.

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.

Applying	Consideration			Conclusion of a contract
1. There are no offers. 2. Only one application has been submitted.	General base	For competitive procedures	For an electronic auction	Evasion of the winner from the conclusion of the contract and the subsequent evasion of the second participant from signing the contract.
	1. All offers rejected. 2. Only one is recognized as compliant.	When held in a competition with limited participation: 1. No competitor is called upon to meet additional requirements. 2. Only one participant is admitted based on the results of pre-qualification.	When conducting an electronic auction, if there are no price offers at the auction within 10 minutes after the start of the auction.
		During the second stage 1. There are no offers. 2. Only 1 proposal is submitted or all participants are rejected. 3. Only one application was found eligible.

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 re-ordering, 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.

In the course of 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 repeated tender, regulated by the articles of 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

Re-bidding is also carried out on the basis of Federal Law-44. At the 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.

In order to apply for participation in the auction without violations and corresponding to the requirements of the customer, it is best to contact the specialists. RusTender already has significant experience in this area, so it will be able to prepare all the necessary documents with high quality and in a short time 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

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 a 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 the documentation for 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. In the event that an 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) The sole 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 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 paragraph 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