What to do if only one application for an electronic auction is submitted. Consequences of declaring an auction invalid No bids were submitted to the auction


  • On 09/11/2016
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  • 44-FZ, EIS, Purchases in construction, Purchases from a single supplier, Request for quotations, Request for proposals, Competition, Articles, Conditions of government contracts, Electronic auction

In accordance with Law No. 44-FZ, contracts to meet state and municipal needs must be concluded on the basis of competitive procedures. These are different kinds competition, electronic auction, as well as requests for quotations and proposals. However, in a number of cases established by Article 93 of the mentioned law, it is necessary to purchase from a single supplier. Including in cases where the competitive procurement procedure is declared unsuccessful (clause 25 of part 1 of Article 93 of Law No. 44-FZ).

Why the purchase may not take place

Reasons for recognizing the competitive procedure as invalid, which allow concluding a contract with sole supplier, can be combined into two groups:

  • the application was submitted by one participant, and it was found to comply with the terms of the procurement documentation and legal requirements;
  • Several participants submitted applications, but the procurement conditions were satisfied by the application of only one of them.

The procurement procedure may be declared unsuccessful for other reasons. For example, applications may not be received at all, or all of them may be rejected due to non-compliance with the requirements of the procurement documentation. Such cases have fundamental differences from the above situations, when a single application satisfies the procurement requirements.

Registration in ERUZ EIS

From January 1, 2019 to participate in tenders under 44-FZ, 223-FZ and 615-PP registration is required in the ERUZ register ( Single register procurement participants) on the portal UIS (Unified Information System) in the field of procurement zakupki.gov.ru.

We provide a service for registration in the ERUZ in the EIS:

Firstly, in these cases the competitive procedure, for example a tender, should be repeated. If the re-tender is declared invalid, then the customer will be able to apply the norm of paragraph 25 of Article 93 of Law No. 44-FZ and conclude a contract with a single supplier.

Secondly, if the conclusion of a contract with a single source becomes a consequence of the recognition of the failed re-competitive procedure, then the customer must choose this source himself. Whereas if there is the only participant, satisfying the terms of purchase, the customer is obliged to conclude a contract with him.

When approval is needed

A customer who receives the right to enter into a contract with a single supplier due to failed procedure procurement, is exempt from the need to place a notice in the Unified Information System, as well as from drawing up a report on the impossibility of identifying a supplier by other means.

However, in some cases, the future contract will have to be agreed upon with regulatory authorities. This applies to procurement to meet federal, regional or municipal needs. Not all of these contracts will have to be agreed upon - this depends on the method of determining the contractor. Thus, if the purchase was carried out through an electronic auction or a request for quotation, then there will be no need to coordinate the conclusion of a contract with a single supplier. But when holding a competition, in most cases the contract will have to be agreed upon. However, there are exceptions here too - these include competitions for capital investments in state and municipal property, as well as projects for the construction and reconstruction of capital facilities, which are carried out at the expense of the budget by organizations that are not state or municipal enterprises.

In other cases, within 10 days after the data on the failed competitive procedure is posted in the Unified Information System, the contract must be sent to the regulatory authority for approval. The latter has 10 working days for approval from the date the customer’s request was received.

Contract price

A contract with a single supplier, performer or contractor must be concluded at a price that satisfies the requirements of the procurement documentation. It is prohibited to conclude a contract at a price exceeding the initial (maximum) contract price, as well as higher than the value specified in the participant’s application or proposed during the electronic auction.

Term of imprisonment

Depending on how the sole contractor was determined, as well as the need to agree on a contract, a different amount of time is allocated for its conclusion.

In the case of a competition, the customer has 20 days to conclude a contract. If the approval of the regulatory authority is required, then this period begins its reporting from the date of receipt of such approval. In other cases, it is considered from the date of publication in the Unified Information System of information about the recognition of the procurement procedure as failed.

If the supplier was identified through an electronic auction, the contract should have been concluded within the standard deadline. Namely, no earlier than 10 and no later than 27 days after the protocol with the auction results was posted in the system.

If the contract executor was determined through a request for quotes, then it should be concluded from 7 to 20 days from the date on which the documentation with the results of this request was posted.

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.

Consider this for different stages procedures.

All bases are collected in the table.

Submitting applications Consideration Conclusion of a contract

1. There are no offers.

2. Only one application has been submitted.

General basis For competitive procedures For electronic auction 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 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 the prequalification selection.
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 was submitted or all participants were rejected.
3. Only one application was found eligible.


Competitive procedures

If during a competition a public procurement is declared invalid, 44-FZ provides for two cases further development events: carry out a new or repeated one, or 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. Publication of a notice in repeat procedure carried out at least 10 days before the date of opening the envelopes (not 20 days, as usual).

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

When recognizing an electronic auction failed customer or enters into a contract with, while 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 Article 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.

  • On the procedure for holding bankruptcy auctions
  • Stages of sale of debtors' property.
  • If the auction does not take place
  • If the property could not be sold
  • Conclusion

IN Russian Federation appear daily bankrupt organizations. Often such enterprises or firms have property that must be sold in accordance with current legislation.

Property assets of debtors or bankrupts are sold at bankruptcy auctions. Moreover, if the property is sold, then all parties usually benefit from this. The buyer receives a profitable purchase at an attractive price, the bankrupt organization has at least some opportunity to stabilize its position, and the auction organizers deserve legitimate commissions.

But what happens if the debtor’s property could not be sold? Who controls future fate object? It is this question that we will consider in today’s material.

Before solving such problems, it is necessary to understand what precedes the situation when the debtor’s property values ​​cannot be realized. Therefore it is necessary to contact procedure and timing of auctions.

On the procedure for holding bankruptcy auctions

Debtor's property ( land, real estate, cars securities) is implemented within two months from the moment the object is transferred to auction organizers. At the same time, the organizers undertake to conduct some kind of advertising campaign for the lot, that is, place advertisements in media mass media and the Internet. Thus, it is attracted large quantity potential buyers, and therefore indirectly increases the activity of future competition at the event and the likelihood of a more profitable sale increases.

It is noteworthy that not every organization can sell the debtor’s property.

Modern legislation establishes some criteria that a firm organizing a tender must have:

  • having positive experience in this activity;
  • good reputation;
  • the ability to independently evaluate property objects of various categories;
  • highly qualified workers;
  • availability of financial resources to secure obligations to sell the debtor’s property.

There is a certain procedure for trading. This sequence is regulated by the Code of the Russian Federation, decrees of the Government of the Russian Federation, as well as Federal laws.

In general, the debtor’s property is sold in three stages:

  1. primary trading;
  2. re-tenders;
  3. bidding in a public offering.

Each subsequent stage occurs if the previous one did not take place. Please note that repeated bidding, as well as bidding through public offer characterized by a reduction in price and are the most profitable for the buyer. Sales at primary auctions in to a greater extent beneficial for the debtor.

But still, the object will have the lowest price on a public offer. For buyers, this is a gold mine, where property assets are sometimes sold at prices 10 times lower than the market price.

Stages of sale of debtors' property.

If the auction does not take place

To get to the main issue, it is necessary to mention the cases failed trades.

Typically, trades may be declared invalid in the following cases:

  • when there is no struggle at the auction, that is, participants refuse to increase the initial price of the object. This essentially means that there is no buyer;
  • when the winning bidder refuses to enter into a purchase and sale agreement for the property. Such an agreement must be concluded within 5 days from the end of the auction.

If such situations exist, the organizers schedule repeat auctions no earlier than 10 days and no later than 30 days from the date of the first auction. In the event of a failed auction, all auction participants must deposits returned, introduced by them earlier. However, there are exceptions here.

For example, if the winner refuses to sign the tender protocol and enter into a purchase and sale agreement, then the organizers are allowed to retain his deposit. This is a completely fair decision, because it is not allowed to approach and participate in auctions with such frivolity.

It is also worth mentioning working together auction organizers and executive bodies. There must be complete mutual understanding between these structures, and all legal formalities must be observed. If this is not the case, then there is a high probability that the auction will be conducted in violation, and this implies costs for all parties.

If the property could not be sold

There are situations when it was not possible to sell the debtor’s property at all three auctions. In this case, the bailiff turns to the collector with a proposal to keep the debtor’s property for himself. Such an offer is often not profitable for the claimant, because storing such property is associated with certain costs.

It is also worth noting that the transfer of the debtor’s property to the claimant is carried out with a price reduction of 25% below the market price. Very often, creditors refuse this option to resolve the issue. In this case, the property may be returned to the debtor.

Of course, such situations are rare, but they do happen. In this case, the bailiff is obliged to send copies of the decisions to the parties. The claimant has the right to demand other objects from the bankrupt organization for subsequent sale at auction, but this wastes a sufficient amount of time.

Conclusion

This material shows that the problem of unsold property at auction is, first of all, a problem for the organizers of the auction, which smoothly flows to the claimant. But for a bankrupt this is a very twofold situation.

For example, when an object is of significant value, the debtor is glad to have it returned. On the other hand, financial litigation over debt obligations drags on and there is a possibility of losing other valuables at auction, and this, in turn, can only aggravate the situation.

Thus, it can be argued that failed auctions are not beneficial to anyone, and each party is interested in their successful implementation. At this point the question can be considered closed. And remember, no matter what side you find yourself on, to successfully conduct business and avoid additional problems, you need to approach financial issues carefully and confidently!

Using an electronic auction, the customer determines the supplier (performer, contractor). Auctions are held on a special electronic trading platform (ETP), where the winner is the one who offers the lowest price.

Government institutions are required to conduct electronic auctions when necessary to purchase goods, works or services that, according to the order of the Government of the Russian Federation No. 2019-r dated October 31, 2015, are included in the List.

Cases of an auction being declared invalid
Current legislation identifies 4 cases in which an electronic auction is considered invalid:

  1. When submitting for tender single application or their absence.
  2. After reviewing the applications, the competition commission decided to admit one participant to the auction or rejected all applications.
  3. After the start of the auction, not a single proposal was submitted regarding the contract price within 10 minutes.
  4. Neither the auction winner nor the second participant confirmed their desire to enter into an agreement with the customer after the end of the auction.

In the first two cases, the customer has the right to conclude a contract with the person who submitted an application for the auction (if it meets the requirements). In this case, the contract price cannot exceed that originally announced by the customer.

If situation No. 3 arises, the contract can be concluded after its approval by the control body. In this case, the counterparty may be an auction participant who submitted an application earlier than the others or the only participant if his application meets the established requirements.

In the fourth situation, or if the only participant is unwilling to enter into a contract, the customer must make changes to its procurement schedule and conduct the procurement using another procurement method - in the form of a request for proposals or another method.

If the customer after failed auction decided to conclude a contract with a single supplier, then he has no right to make changes to the contract (according to the law on contract system government procurement).

The procedure for concluding a contract with a single supplier
In the event of a failed electronic auction, the customer can enter into an agreement with a single supplier only after the consent of the body authorized to monitor the procurement sphere.

Article 70 Part 2 of the Federal Law No. 44 establishes that the customer, within 5 days after placement in a single information system(EIS) of the protocol on the results of the auction must publish the draft government contract without his signature. The counterparty signs this project within 5 days, starting from the date of placement of the project.

Uncertainty in the interpretation of norms
It remains unclear in what order the government customer should sign a contract with a single supplier. If we refer to the letter from the Ministry economic development RF No. D28i-1616 dated August 19, 2014, then we will see the following in paragraph 8 of the letter: the government customer must initially agree on the signing of the contract with the regulatory authority and only then begin the procedure for concluding it with the counterparty. Otherwise, the performer (contractor) may be misled when a government contract is sent to him that has not yet been approved by the control body. This may lead to premature financial expenses contractor who will be allocated to ensure the execution of the contract. Also, the customer may be fined for such actions.

Approval of the conclusion of a government contract
In order for the regulatory authority to consider the possibility of concluding a government contract with a single contractor, the customer must send him a corresponding appeal.

When considering an appeal, the authorized control body must be guided by the Procedure, which was approved in Order of the Ministry of Economic Development of the Russian Federation No. 537 dated September 13, 2013.

To minimize the risk of refusal to sign a contract with a single supplier, it is advisable to perform the following preliminary steps:

  • submit a request to the only participant in the failed auction for confirmation that he will conclude a contract on the terms specified in the government procurement documentation at a price not higher than the one originally announced at the auction;
  • prepare a written justification that the selected supplier fully complies with the requirements of 44-FZ legislation and auction documentation.

If the deadlines or procedure for sending documents or information to the procurement control body to agree on the desire to conclude a contract with a single supplier are violated, the official may be fined 50 thousand rubles.

If one application is submitted to participate in an auction under 44-FZ, then such an auction is considered invalid (Clause 16, Article 66 of Law No. 44-FZ). Read what a contract manager should do and whether the customer can enter into a contract with a single supplier.

In order to correctly submit an application for participation in an electronic auction, a potential participant, before submitting an application, studies the documentation and evaluates his capabilities. After the deadline for filing an application has expired, the auction is declared invalid if one application under 44-FZ is submitted at the electronic auction. Even under such circumstances, the sole supplier still has the possibility that the customer will enter into a contract with him.

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If a single application is submitted under 44-FZ

How to submit an application for participation in an electronic auction correctly according to 44-FZ

In order for the only participant in the auction to become the winner and conclude a contract, you need to correctly draw up an application. It is important to remember that the application consists of two parts, both of which must comply with legal and documentation requirements. Law No. 44-FZ contains in Art. 66 a complete list of requirements for both parts of the application.

The first part of the application includes:

  • the participant’s agreement with the conditions specified in the auction documentation and not subject to change;
  • country of origin of the goods, if the customer establishes the relevant conditions in the documentation;
  • specific characteristics of the product and an indication of trademark. An indication of a trademark is included when there is no indication of it in the documentation or when the trademark of the participant’s goods differs from the sign specified by the customer;
  • You can include sketches, drawings, drawings, any images of the product.

How to consider the first parts of applications for participation in an electronic auction,

The second part of the application includes:

  • name, location (for legal entities), postal address of the auction participant, full name, passport details, place of residence (for individuals), TIN, contact number, extract from the Unified State Register of Real Estate;
  • documents confirming that the auction participant meets the procurement requirements;
  • copies of documents confirming that the goods comply with the requirements of the legislation of the Russian Federation. The provision of such documents must be provided for in the auction documentation;
  • a copy or original of the decision on a major transaction. Provided if, by law, the transaction is considered to be large, or if the contract to be concluded or the amount of security for the application will be large for the participant;
  • copies or originals of documents giving an advantage to the auction participant under Art. 28 and 29 of Law No. 44-FZ, if the participant claims such benefits;
  • documents, copies or originals confirming the country of origin of the goods, as reflected in Art. 14 of the Law. Such documents include, for example, a certificate or declaration of conformity of a product;
  • a declaration of affiliation with the SMP or SONO is provided if the customer has established restrictions in the auction documentation.

How to consider the first parts of applications for participation in an electronic auction and how to draw up a final protocol,

If only one application is submitted to participate in the auction, it will be declared invalid. At the same time, the opportunity to conclude a contract remains if both parts of the sole participant’s application do not contradict 44-FZ and the electronic auction documentation. A participant should not relax in a situation where his application turned out to be the only one. The auction commission will check each item of the application for compliance. The participant, at the stage of preparing the application, needs to be attentive, including to the little things.

You will find more answers to questions about procurement in the new issue of the magazine “Government Order in Questions and Answers”

Attached files

  • Protocol for consideration of a single application for participation in an electronic auction.docx
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