What to do if the purchase did not take place. The auction did not take place. One bidder submitted one bid to the auction.

From July 1, 2018, Federal Law dated December 31, 2017 N 504-FZ amends paragraph 4 of part 3 of Article 71. See the text in a future edition. 4) the contract is concluded in accordance with paragraph 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, the application for participation in which was submitted: a) earlier than other applications for participation in such an auction, if several participants in such an auction and the applications they submitted were found to comply with the requirements of this Federal Law and the documentation for 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 the documentation on such an auction. ConsultantPlus: note.

Article 71. Consequences of declaring an electronic auction invalid

So, the tender is declared invalid if:

1. one application submitted;
2. lack of applications;
3. registered applications were submitted with violations and cannot be accepted by the commission;
4. in cases where there was no price offer at the specified time.

Failed auction - consequences As we wrote above, depending on the reasons for recognizing a failed auction, the customer can enter into a contract with a single supplier or conduct a new tender in the form of a request for proposals or otherwise established by law. Repeated auctions Repeated auctions are 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.

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

Attention

Re: EA did not take place, what next In accordance with paragraph 25 of part 1 of Article 93 of the Federal Law of April 5, 2013 N 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (hereinafter — Law on the contract system) as amended by the Federal Law of December 31, 2014 N 498-FZ, purchase from a single supplier (contractor, performer) can be carried out by the customer, including in the event of an electronic auction being declared invalid in accordance with parts 1 - 3.1 of the article 71 of the Law on the contract system.

What to do if the auction did not take place

Important

The only application is the procedure for action. The laws on electronic trading FZ-44 and FZ-223 are constantly supplemented and coordinated with other regulations. In 2014, additional amendments were adopted to No. 498-FZ and Art. 25 No. 44-FZ, within the framework of which the issue of the terms of the failed auction was 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 at the site, it is considered to be the winning one. The key feature of declaring an auction invalid for this reason is the admission of only one participant to participate in it. The customer may enter into a contract agreement with a single participant.

The conditions under which a contract can be signed should be taken into account. This is possible only with that participant (Article 70 of Federal Law-44) whose application fully meets the requirements.

What to do if the purchase did not take place

If in the future a repeat competition does not take place for the same reasons (Part 2 of Article 55), then the customer has the right to carry out the procedure by requesting proposals 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 procurement does not take place, the sole supplier enters into a contract if its application meets the requirements of the law and documentation. In this case, the customer must obtain approval from the FAS (clause 25, part 1, article 93). This group will not include the case when, based on the results of the prequalification selection of a two-stage competition, only one participant is recognized as meeting the requirements (Part 10, Article 57). The customer makes the purchase again, due to the fact that it is not possible to discuss the characteristics of the order object with several suppliers.

The auction did not take place, applications were submitted, what to do under Federal Law 44

Documents Legislation Comments Judicial practice Articles Procurement Tenders Auctions Request for quotations Request for proposals Sole supplier Contract State contract Municipal contract Federal bodies FAS Russia Rosoboronzakaz From 01/01/2015, if an electronic auction is declared invalid, approval of the conclusion of a contract with a single supplier with the control body is not required. Federal Law No. 498-FZ dated December 31, 2014 amended clause 25, part 1, art. 93 44-ФЗ in accordance with which, if the electronic auction was declared invalid on the grounds that are provided for. 1 - 3.1 tbsp.

Failed auction

General grounds For competitive procedures For electronic auctions The winner’s evasion from concluding a contract and the subsequent evasion of the second participant from signing the contract. 1. All proposals were rejected. 2.Only one was found to meet the requirements. When conducting prequalification in a competition with limited participation: 1.

No participant is called upon to meet additional requirements.2. Only one participant was admitted based on the results of prequalification. When conducting an electronic auction, if there are no price offers at the auction within 10 minutes after the start of the auction.
When conducting the second stage of a two-stage competition: 1. There are no offers.2. Only 1 proposal submitted or all bidders rejected.3. Only one application was found eligible.

Info

Approval in accordance with clause 25 of part 1 of Article 93 of the Law on the Contract System arises only if an open tender, a tender with limited participation, a two-stage tender, a repeated tender, or a request for proposals are declared invalid. Explanations on this issue are given in Letter of the Ministry of Economic Development of Russia No. 658-EE/D28i, FAS Russia No. AC/1587/15 dated January 20, 2015. The data in the table does not take into account changes from 01/01/2015 (no approval is required now) No. Grounds for recognizing the electronic auction as invalid Actions of the Customer Approval Conclusion of the contract 1 Not a single application was submitted (part.

The auction did not take place, one application was submitted, what to do 44 ap

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 the electronic platform; 2) the operator of the electronic site, within the period specified in paragraph 1 of this part, is obliged to send a notice to the participant in such an auction who submitted a single application for participation in such an auction; 3) the auction commission, within three working days from the date of receipt of the only application for participation in such an auction and the documents specified in paragraph 1 of this part, considers this application and these documents for compliance with the requirements of this Federal Law and the documentation for such an auction and sends it to the operator electronic platform, a protocol for considering a single application for participation in such an auction, signed by members of the auction commission.

If the auction did not take place, not a single application was submitted under Federal Law 44, what to do?

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Author: Cherdantseva Tatyana October 20, 2017 44-FZ provides not only for competitive bidding for price reductions, but also for cases when the order is declared invalid. We will analyze the grounds for recognizing a public procurement as failed, the consequences, as well as the actions of the customer in such a situation. Grounds for recognizing a purchase as failed In most cases, when the phrase “the purchase did not take place” is announced, participants have the impression that either there are no proposals for the tender, or all applications for participation in it have been rejected.
However, there are many more cases where a purchase is declared unsuccessful. Let's look at this for different stages of the procedure. All bases are collected in the table. Submission of applications Review Conclusion of contract 1. There are no proposals.
2. Only one application has been submitted.
Federal Law) 2 Only one application was submitted - the participant does not comply (Part 16, Article 66 44-FZ) = based on the results of consideration of the first parts of the applications, the auction commission decided to refuse admission to all procurement participants (Part 8, Article 67 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 clause 8 of part 2 of art. 83 44-ФЗ or in another way in accordance with 44-ФЗ (part 4 of article 71 44-ФЗ) 3 Only one application is submitted - the participant complies (part 16 of article 66 44-ФЗ) Coordination of the Customer’s decision with the authorized body to exercise control in the field of procurement (FAS, Rosoboronzakaz) (clause 25, part 1, article 93 44-FZ) Conclusion of a contract with a single supplier (clause 4, part 1, article 71, clause 25, part 1, art.
Contact E-mail: This site was created to help Customers working in different institutions, but who are united by one thing - No. 44-FZ and No. 223-FZ... After all, since the entry into force of Federal Law No. 44-FZ of 04/05/2013 "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" most people working in the field of procurement have a large number of questions that they would like to get answers to. Here is the website www. help-tend.ru presents them with this opportunity. All your questions can be easily asked, or you can already find the answer on our website.

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

Let's look at this for different stages of the procedure.

All bases are collected in the table.

Competitive procedures

If, during a competition, a public procurement is declared invalid, 44-FZ provides for two cases of further developments: to carry out a new or repeated one, or to purchase from a single supplier.

The difference between a new government procurement and a repeated one is that if the object, volume, requirements for participants do not change, that is, all conditions remain the same (except for the period for fulfilling the terms of the contract, which is extended for the period necessary for the repeated order, as well as the initial price, which can be increased by no more than 10%), then the order is repeated, otherwise - new.

When there are no applications submitted or they are found to be inappropriate, the procedure is repeated. The publication of the notice under the repeated procedure is carried out no less than 10 days before the date of opening of the envelopes (not 20 days, as in the usual case).

If a repeat competition does not take place in the future for the same reasons (Part 2 of Article 55), then the customer has the right to carry out the procedure by reducing the deadline for submitting applications to 5 working days or in another way at the discretion of the customer.

If the procurement does not take place, the sole supplier enters into a contract if its application meets 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, based on the results of the prequalification selection of a two-stage competition, only one participant is recognized as meeting the requirements (). The customer makes 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

If an electronic auction is declared invalid, the customer or enters into a contract with, and approval from the control body is not required (in cases provided for in Part 16 of Article 66, Part 8 of Article 67, Part 20 of Article 68, Part 13 of Art. 69).

Or, if the auction did not take place, changes to the procurement plan are made if necessary in accordance with Part 6 of Art. 17, changes in the schedule are required, 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 of re-ordering, the customer has the right, in agreement with the control body, to purchase from a single supplier in accordance with clause 24, part 1 of Art. 93.

Any failed procurement procedure is another headache for the contract manager. It’s no secret how much time and effort it takes to prepare technical specifications, draw up auction documentation, publish on the website, and agonizingly wait for submitted applications. But, even if applications have been submitted, the auction may still not take place.

What about others?

Statistics show that rejection of applications for the first parts most often occurs during procurement for the supply of goods and performance of work. Namely, the characteristics of the goods supplied (or used in the performance of work) do not correspond to the parameters specified in the technical specifications.

As a rule, applications for the second parts are rejected when purchasing services. Because The main package of documentation from the procurement participant is contained in the second part of the application, and in the first part, only consent to participate in the electronic auction on the conditions stipulated by the auction documentation is sufficient.

3. No one came to bargain. And this happens too - applications have been submitted, the first parts of applications have been reviewed and allowed to participate in the electronic auction. Everyone is waiting for the auction to begin. But at the desired hour, not a single price offer is received. Alas and ah.

The customer can endlessly wonder “How? Why? Have you forgotten about us? This situation turns out to be advantageous for the procurement participant who first submitted an application to participate in the auction. In this case, the principle “who gets up first, gets the slippers” applies.

The operator of the electronic platform sends to the customer both parts of the applications of all participating participants. The customer reviews them and makes a decision on whether these applications comply with the requirements of the auction documentation. The contract is concluded with the participant who submitted an application that meets the requirements of the auction documentation earlier than others. After the publication of the protocol for consideration of applications, the auction moves to the stage of concluding a contract.

4. The auction did not take place at all. If not a single application was submitted to participate in the electronic auction or all submitted applications do not meet the documentation requirements, the auction will also be declared invalid.

The law states that in this case, the customer makes changes to the schedule and carries out this purchase, but through a request for proposals, or carries out a new purchase. If the customer chooses the first option, then changing the procurement object is unacceptable. A new purchasing item must be created in the schedule by requesting proposals. The procurement object remains the same; the procurement period is subject to mandatory changes.

The customer changed his mind.

If there is no longer a need for this purchase, then the Customer makes changes to the schedule (purchase plan) and carries out a new purchase: the customer may decide to use the unused funds for other purposes.

Ten days under PGZ were canceled, but not for everyone.

Whichever of these two paths the Customer chooses, he will still have to wait 10 days after making changes to the PPZ before publishing the notice. But before making changes to the documentation, it is necessary to analyze what is written in the auction, since no one wanted to participate in it.

The reasons can be completely different - the initial (maximum) price of the contract is underestimated, the terms of reference were not drawn up correctly, the contract execution period is critically short, or a potential bidder simply missed your auction in the entire flow of information on the electronic platform. Whatever the reasons, the funds will still have to be used and the purchase must be carried out by the customer.

There will still be a contract.

In the first three cases, a failed auction will still lead the customer to conclude a contract in accordance with clause 25.1, part 1 of Art. 93 Federal Law No. 44-FZ.

In this case, the price of the contract should not be higher than the initial (maximum) price, and the terms of its conclusion are regulated by Art. 83.2 Federal Law No. 44-FZ.

Interesting purchases and auctions to you, colleagues!

Publication date: 24.08.2018

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Bidding for each exhibited item of bidding is considered invalid if:

a) less than two participants participated in the auction;

b) none of the bidders during an auction open according to the form for submitting proposals for the price or the amount of rent, after three times announcing the starting price or the initial amount of rent, raised a ticket;

c) none of the bidders during a 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 auction organizer, was recognized as the winner;

d) the winner of the auction avoided signing the protocol on the results of the auction, concluding a purchase and sale agreement or renting a 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 deposit made by the participants in the failed auction. The deposit made by the winning bidder will not be returned to him. If the auction is declared invalid, the auction organizer has the right to announce a re-conduction of the auction. However, their terms and conditions may be changed. The auction organizer can reduce the starting price of a land plot or the initial rental amount and reduce the “auction step” by no more than 15 percent without re-valuation. If the auction organizer is a specialized organization, the terms of the competition, the starting price or the initial amount of rent, the “auction step” may be changed in the manner established 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” (with amendments and additions) 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 does not take place, the only participant in the auction, no later than twenty days after the day of the auction, has the right to conclude a purchase and sale agreement or a lease agreement for the land plot put up for auction, and the state authority or local government body, by whose decision the auction was held, is obliged to conclude an agreement with a single auction participant at the starting auction price.

Information about the auction results is published by the auction organizer within three days from the date of signing the protocol on the auction results in periodicals in which the auction was reported, and is 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 in the event that 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, if the auction is declared invalid, the winner of such auction is not determined, the conclusion of an agreement with the only participant in the failed auction is contrary to 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. the person who received the right to conclude the contract that was the subject of these auctions.

Based on the foregoing, the conclusion of an agreement with the only participant in the failed auction does not comply with the requirements of civil law, and also contradicts the essence of the auction itself. In addition, in accordance with established judicial practice, submitting an application to participate in the auction does not mean concluding an agreement with the auction organizer by accepting a public offer.

A contract is a two- or multilateral transaction that implies the emergence of rights and obligations for all its parties.

If we assume that the notice of the auction organizer is an offer to conclude an agreement with the subject of the auction, then the application of a potential participant should indeed be considered acceptance. But the bidder does not bear any obligations to conduct the auction, since providing the required documents and making 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 has submitted an 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, acceptance must be complete and unconditional. Consequently, if the response contains additional or different conditions from the offer, then it cannot be recognized as acceptance.

Thus, in order for a participant’s application to be recognized as acceptance, it must contain conditions identical to those specified in the tender notice, i.e. The contract price proposed in the participant’s application must completely coincide with the contract price (minimum or maximum) specified in the notice. Otherwise, recognition of such an application as acceptance will be contrary to civil law.

If such a contract for the sale and purchase of state or municipal property is concluded based on the results of a failed auction, the official may be brought to criminal liability on the grounds of a crime under Art. 286 “Exceeding official powers” ​​or Art. 293 “Negligence” of the Criminal Code of the Russian Federation.

If the auction did not take place, not a single application was submitted, what to do under 44-FZ? We will consider the answer and detailed explanations in our article.

The electronic auction did not take place - what to do?

The answer to the question is in Article 71 44-FZ. Its provisions can be divided into two main situations:

1. one high-quality application has been submitted;
2. there are no high-quality proposals (several were submitted, but all persons who sent them were denied admission to the auction / all second parts of the applications were recognized as non-compliant with the procurement documentation).

We will tell you what to do in each of these situations below.

The auction did not take place: one application was submitted

If the electronic auction is declared invalid, one application has been submitted (1 high-quality application remains, since the rest were rejected), then the customer must issue a government contract with a single supplier (SP). This supplier is the person who submitted the only application. The basis for the execution of the contract is clause 25.1 of part 1 of Article 93 44-FZ:

• it is executed on the terms specified in the procurement documentation;
• it includes a cost condition that does not exceed the initial cost of the government contract.

The timing and procedure for signing the document are determined by Article 83.2 of 44-FZ. Coordination with the control body is not required.

So, if the electronic auction did not take place due to the fact that only 1 application was submitted, then a government contract should be drawn up with the person who submitted it. The situation is more complicated if not a single application has been submitted to the electronic auction under 44-FZ. We'll talk about this in more detail below.

If the competitive procedure does not take place, the customer either enters into a contract with a single supplier or carries out a repeat or new purchase. How to proceed depends on the procurement method and the reason why the purchase did not take place. See the algorithm of actions for electronic, paper and closed purchases.

What to do if the auction did not take place due to lack of applications 44-FZ

The answer to the question is contained in Part 4 of Article 71 of Law No. 44-FZ. In accordance with it, the state customer carries out:

• electronic request for proposals without changing the object of public procurement;
• another competitive procedure (for example, holding a repeat auction).

If the electronic auction did not take place, you can place it again. The customer must make the appropriate changes to the schedule and, if necessary, to the procurement plan. In this case, amendments to the schedule can be made no later than 1 day before the date of publication in the Unified Information System of a notice about the repeated procedure (Part 14 of Article 21 44-FZ).

There are no bids submitted for the auction, what next?

If the electronic auction did not take place twice, what should I do? Conduct a request for proposal or other competitive procedure. It is worth paying attention to the terms of the auction.

If they don’t want to participate, it means that potential suppliers are not satisfied with something and this can be corrected. For example, reduce the enforcement of government contracts to the minimum possible value. In addition, it is necessary to conduct a request for proposal, because its conduct gives the customer the opportunity to send invitations to participate in tenders to persons with whom similar government contracts were issued in the previous 1.5 years.