Recognition of trades as invalid. The auction did not take place

Failed, invalid and canceled purchases are different things.

Status failed purchase means that there was no competitive competition, bidding between suppliers. But as a result of such a purchase, the customer can conclude a contract with a single supplier.

Invalid auctions are recognized, during which the customer violated the laws (44-FZ, 223-FZ) or the norms of the Civil Code. If the auction is declared invalid after the winner is determined, the contract with him is terminated.

Cancel Purchase at any stage, the customer himself can, for his own reasons or by order of the regulatory authority.

For example, in 2015, every third competitive purchase was declared invalid:

In what cases will the purchase be declared invalid?

1. According to 44-FZ

Let's see how it works on the three most popular types competitive purchases:

For the competition

• No applications have been submitted;
• All applications are rejected by the commission;
• The winner avoided signing, and the second participant refused to conclude a contract (he has the right to do so, there will be no sanctions);
• As a result of the pre-qualification, all participants did not meet the requirements;
• Only 1 application has been submitted;
• Only 1 application meets documentation requirements;
• As a result of pre-qualification, only 1 participant met the requirements.

For auction

• No applications have been submitted;
• After consideration of the first parts, all participants are denied admission;
• After consideration of the second parts, all applications do not meet the requirements;
• Only 1 application has been submitted;
• After consideration of the first parts, only 1 application meets the requirements of the documentation;
• Within ten minutes after the start of the auction, no proposals for the price of the contract were submitted;
• As a result of consideration of the second parts, only 1 application meets the requirements of the documentation;
• The winner avoided signing the contract, and the second one refused to sign the contract (he has the right to do so, there will be no sanctions).

To request a quote

• No applications have been submitted;
• All applications are rejected by the commission;
• Only 1 application has been submitted;
• Only 1 application meets the requirements.

2. According to 223-FZ

All cases when the procurement is recognized as failed must be provided for and described in the procurement regulation. The law does not regulate the actions of customers if the purchase did not take place, and in the Civil Code the concept of “failed purchase” is given only for tenders and auctions and only if one supplier participated in them.

Many customers under 223-FZ use the provisions of 44-FZ as an example, but make the conditions more flexible. Suppliers traditionally have to rely on customer procurement regulations, the Civil Code and competition law.

What will the customer do if the procedure does not take place?

If there was not a single supplier that met the requirements

First of all, the customer makes changes to his schedule. 10 days after that, he has the right to declare:

• Repeated tender or request for proposals, if the purchase was carried out in the form of a tender;
• Request for proposals or other procedure if the auction did not take place;
• New request for proposals after the failed request for proposals.
• A new quote after a failed request for quotes.

To request a quote and electronic contests it is necessary to extend the deadline for submitting applications: by 4 and 10 days, respectively. If there are no offers again, the customer will make changes to the schedule and conduct a new purchase in the manner indicated above.

If there is only one participant who meets the requirements

The customer must:

1. If held electronic auction or request for quotations - to conclude a contract with a supplier whose application meets the requirements;
2. If there was a tender or a request for proposals, coordinate the purchase with sole supplier with the supervisory authority;
3. If the purchase is agreed, conclude a contract.
4. Involve external experts in the acceptance of goods or work under a contract concluded in accordance with clauses 25.1-25.3 of part 1 of Art. 93 44-FZ. If you become the winner of such a purchase, be careful and comply with all the terms of the contract. To the little things that the customer may not pay attention to in order to quickly accept the desired product, the external commission may find fault.

What should a supplier do?

If you happen to be sole member purchase or only your purchase meets the requirements, then after its completion:

• If it was an auction, you must sign the contract in deadlines even if no bids were submitted. For example, how.
• If you participated in a tender or a request for proposals, first wait until the customer agrees on the purchase from a single supplier with the regulatory authority. The customer himself sends an application for approval to the FAS and in 10 days will notify you of the decision.
• Quotations do not require approval. The customer will conclude a contract at the price specified in your application.
• The results of the auction also do not need to be agreed upon. If none of the eligible participants submitted price offer during electronic trading, the contract will be concluded at the maximum price. If you are the only supplier whose 2nd part of the application met the requirements, the contract will be awarded at the price to which you have fallen.

The only supplier-winner is obliged to sign the contract on time, otherwise he will fall into the register of unscrupulous suppliers. For example, how it happened in this purchase.

In procurement under 223-FZ, the actions of the customer are determined by its procurement regulations.

conclusions

Customize your search so you don't miss out on purchases

Constantly look for purchases in your field. Then you will not miss anything interesting, you will have time to prepare and apply.

Sometimes the customer specifically hides the purchase so that only one supplier knows about it, which becomes the winner. We wrote about how to get around the tricks of customers. In some cases, a search through the documentation will help you find a hidden purchase.

Keep track of all purchases in which you participate

If you applied for participation, follow what happens in the procedure. For example, in Contour.Purchases, you can add a purchase to favorites. This will help you not to miss the changes in it and the results.

Don't miss the deadline for signing the contract

If you become the only supplier, you will be able to conclude a contract at the maximum price.

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 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);
• member who proposed Better conditions after the winner, he evaded signing a government 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 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, this question will no longer exist, because. new edition of Part 4 of Art. 71 The law obliges to repurchase in the form electronic request offers. 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.

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

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

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

Important to remember

In a joint letter of the Ministry of Economic Development of Russia No. 23679-EE/D28i and the Federal Antimonopoly Service of Russia No. LTs/39384/14 dated September 30, 2014 “On the position of the Ministry of Economic Development of Russia and the Federal Antimonopoly Service of Russia on the application of the norms federal law dated April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” in relation to the consequences of submitting one contract price proposal during an electronic auction” explains the features of an electronic auction in accordance with the Contract Law.

Part 1 Art. 93 of the Law on the contract system. The joint letter of the Ministry of Economic Development of Russia No. 658-EE/D28i and the Federal Antimonopoly Service of Russia No. АЦ/1587/15 dated January 20, 2015 contains the following clarification. Federal Law No. 498-FZ dated December 31, 2014 entered into force on December 31, 2014. Starting from this date, if the electronic auction is declared invalid in accordance with Parts 1-3.1 of Art. 71 of the Law on the contract system, the customer concludes a contract with a single supplier (contractor, performer) on the basis of clause 25, part 1, art. 93 of the Law on the contract system. At the same time, the approval of the conclusion of a contract with a single supplier (contractor, performer) with the control body in the field of procurement is not required, even if the auction was declared invalid before December 31, 2014. The need for such approval in accordance with paragraph 25 of Part 1 of Art. 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.

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

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

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

At the stage of determining the winner of the electronic auction, the procedure is declared invalid if the winner and the "second" winner evaded the conclusion of the contract. The customer needs to make changes to the procurement schedule, then he carries out the procurement by request for proposals or other procurement method (part 4 of article 71 of the Law on the contract system).

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

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 of sale or lease land plot.

The auction organizer 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 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 agreement for the land plot put up for auction, and the authority 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.

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 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, 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 meets the established requirements under 44-FZ 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 customer must conduct 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.

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 filed:

a) before 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.