What is important to know about failed procurements? The auction did not take place. What to do next? Declared invalid with only one participant

Failed, invalid and canceled purchase are different things.

Status failed purchase means that there was no competitive competition or bidding between suppliers. But based on the results of such a purchase, the customer can enter into a contract with a single supplier.

Invalid tenders are recognized where the customer violated 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 do it for his own reasons or by order of the regulatory authority.

For example, in 2015, every third competitive procurement was declared unsuccessful:

In what cases will procurements be declared invalid?

1. According to 44-FZ

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

For the competition

• No applications submitted;
• All applications were rejected by the commission;
• The winner avoided signing, and the second participant refused to enter into a contract (he has the right to do so, there will be no sanctions);
• As a result of the prequalification, all participants were ineligible;
• Only 1 application submitted;
• Only 1 application meets the documentation requirements;
• As a result of pre-qualification, only 1 participant met the requirements.

For auction

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

To request a quote

• No applications submitted;
• All applications were rejected by the commission;
• Only 1 application submitted;
• Only 1 application meets the requirements.

2. According to 223-FZ

All cases where a procurement is declared invalid must be provided for and described in the procurement regulations. The law does not regulate the actions of customers if the purchase does 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 need 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 were no qualified suppliers

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

• Repeated tender or request for proposals, if the procurement 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 failed request proposals.
• A new quote after a failed request for quotes.

To request quotes and electronic competitions it is necessary to extend the deadline for submitting applications: by 4 and 10 days, respectively. If there are no proposals 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 carried out electronic auction or request for quotations - enter into a contract with a supplier whose application meets the requirements;
2. If there was a competition or request for proposals, agree on the purchase from a single supplier with the regulatory authority;
3. If the purchase is agreed upon, 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, part 1, art. 93 44-FZ. If you are 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 accept it faster required product, the external commission may find fault.

What should the supplier do?

If you find yourself the only participant procurement or only your procurement meets the requirements, then after its completion:

• If this was an auction, you are required to sign a contract in deadlines, even if no price proposals were submitted. For example, like .
• If you participated in a tender or 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 after 10 days he will notify you of the decision.
• No approval is required for quotes. The customer will enter into 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 bidders has submitted a price proposal during electronic trading, the contract will be concluded at the maximum price. If you find yourself sole supplier, whose 2nd part of the bid met the requirements, the contract will be awarded at the price to which you have reduced.

The only winning supplier must sign the contract on time, otherwise he will be included in the register of unscrupulous suppliers. For example, how it happened in this purchase.

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

conclusions

Customize your search so you don't miss purchases

Constantly look for procurement in your area. Then you won’t miss anything interesting, you’ll have time to prepare and submit your application.

Sometimes the customer deliberately hides the purchase so that only one supplier knows about it, who becomes the winner. We wrote about how to get around customer tricks. In some cases, searching through the documentation will help you find hidden purchases.

Keep track of all purchases in which you participate

If you have applied to participate, keep track of what is happening in the procedure. For example, in Kontur.Purchases you can add a purchase to your favorites. This will help you not to miss changes in it and the results.

Don't miss the contract signing deadline

If you become the only supplier, you can conclude a contract at the maximum price.

As part of the request for proposals after failed auction It is, however, prohibited to change the procurement object (however, it is formally possible, but not recommended, to change its cost, as well as the deadlines for execution). The notice to the Unified Information System must be submitted by the customer no later than 5 days (calendar) before the day 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 request for similar supplies. The auction did not take place if all applications were rejected at the stage of consideration of the first parts. In theory, this is hardly possible, but in reality, anything can happen in electronic trading. Accordingly, in this case the previous paragraph on the request for proposals is applicable.

Article 71. Consequences of declaring an electronic auction invalid

Federal Law and documentation about such an auction or about the non-compliance of participants in such an auction and the applications they submitted with the requirements of this Federal Law and (or) documentation about such an auction; 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. 3.1.

Failed auction

Approvals in accordance with paragraph 25 of part 1 of article 93 of the Law on contract system arises only if an open competition, a competition with limited participation, a two-stage competition, a repeated competition, or a request for proposals are declared invalid. Explanations on this issue given in Letter of the Ministry of Economic Development of Russia No. 658-EE/D28i, FAS Russia No. ATs/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 recognition of the electronic auction failed Actions Customer Approval Conclusion of the contract 1 Not a single application has been submitted (Part.
16th century 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 clause 8, part 2, art. 83 44-FZ or in another way in accordance with 44-FZ (part 4 of Art.

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

Federal Law and documentation about such an auction or about the non-compliance of this participant and this application with the requirements of this Federal Law and (or) documentation about such an auction with justification said decision, including indicating the provisions of this Federal Law and (or) documentation about such an auction, which this application does not comply with; b) the decision of each member of the auction commission on the compliance of the only participant in such an auction and the application submitted by him for participation in it with the requirements of this Federal Law and the 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 about such auction; ConsultantPlus: note. From July 1, 2018, Federal Law dated December 31, 2017 N 504-FZ 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, the auction commission decided to refuse admission to participation of 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 proposals in accordance with clause 8, part 2, art. 83 44-FZ or in another way 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 to participate in such an auction as its participant (Part 8 Article 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) Conclusion of a contract with a single supplier (clause 4, part. 2 Article 71, paragraph 25 Part 1 Art.

The auction was declared invalid

Federal Law due to the fact that the auction commission has made a decision that all second parts of applications for participation in it do not meet the requirements established by the electronic auction documentation, or on the grounds provided for in 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 carries out the procurement by conducting a request for proposals in accordance with paragraph 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.

Electronic auction declared invalid

From July 1, 2018, Federal Law dated December 31, 2017 N 504-FZ amends Part 3.1 of Article 71. See the text in a future edition. 3.1. If the electronic auction is declared invalid on the grounds provided for in Part 13 of Article 69 of this Federal Law due to the fact that the auction commission made a decision on compliance with the requirements established by the documentation for the electronic auction, only one second part of the application for participation in it, a contract with a participant in such an auction who submitted the said application 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. (Part 3.1 introduced by Federal Law dated June 4, 2014 N 140-FZ) ConsultantPlus: note. From July 1, 2018, Federal Law dated December 31, 2017 N 504-FZ 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 the electronic platform; 2) operator electronic platform within the period specified in paragraph 1 of this part, is obliged to send a notice to the only participant in such an auction; 3) the auction commission, within three working days from the date the customer receives the second part of this application from the only participant in such an auction and the documents specified in paragraph 1 of this part, considers this application and the specified documents for compliance with the requirements of this Federal Law and the documentation on such an auction and sends to the operator of the electronic site a protocol for considering the application of the only participant in such an auction, signed by members of the auction commission.

If the electronic auction is declared invalid

Attention

The only application - the procedure The laws on electronic trading FZ-44 and FZ-223 are constantly supplemented and coordinated with others regulations. In 2014, additional amendments were adopted to No. 498-FZ and Art. 25 No. 44-ФЗ within the framework of which the issue of conditions is considered in more detail failed auction. 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.
This document should reflect the following information:

• Title of the document;
• place, time and date of its preparation;
• list of members of the auction commission;
• 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 the 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 sale of the specified property is carried out 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 body state power or the local government body, by whose decision the auction was held, is obliged to conclude an agreement with the only auction participant at the starting price of the auction.

The auction was declared invalid; one application was submitted under Federal Law 44

Based on the above, concluding an agreement with a single participant failed trades does not comply with the requirements of civil law, and also contradicts the essence of the auction itself. In addition, in accordance with the current 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.

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 grounds	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.

Sometimes, for a number of reasons, an electronic auction under 44-FZ may not take place (more precisely, it will be declared failed).

1. The auction did not take place if there was only one participant
In this case, the customer enters into a contract with this participant as the winner, provided that the second part of the application meets the established requirements under 44-FZ and auction documentation. In this case, approval from the regulatory authorities is not required, since according to the conditions, one application is sufficient for quorum if it is completed correctly. Naturally, if you refuse, you will be held liable as if you had participated in a full-fledged tender with many participants and won it. If you submitted a single bid and it did not go through, the customer must hold a new tender.

2. The auction did not take place if there were several participants
a) Let’s assume that there are several participants in an electronic auction, but only one of them meets the requirements for the second part of the application. Accordingly, in this case the rule of paragraph “1” is applicable, that is, the government customer enters into a contract with this participant without approval from the regulatory authority.
b) There are several participants in the auction, but the government customer rejected all applications at the stage of consideration of the second parts. The solution is to hold new auctions.

3. No bids have been submitted (there are no participants 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 a request for proposals after a failed auction, it is prohibited, however, to change the procurement object (however, it is formally possible, but not recommended, to change its cost, as well as the deadlines). The notice to the Unified Information System must be submitted by the customer no later than 5 days (calendar) before the day 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, in this case, these persons must be indispensable counterparties of the customer for at least 18 months before the date of request for similar supplies.

4. The auction did not take place if all applications were rejected at the stage of consideration of the first parts
In theory, this is hardly possible, but in reality, anything can happen in electronic trading. Accordingly, in this case the previous paragraph on the request for proposals is applicable. If, 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 resolved by approval from the regulatory body.

5. The auction did not take place because none of the participants came to it
According to Part 3 of Article 71, the problem is resolved by approval from the regulatory authority (the first application that meets the conditions of the auction). If no application matches, or the application matches, but the participant is ready for termination, then the clause applicable under the terms of 44-FZ is applied:

"3. If an electronic auction is declared invalid on the grounds provided for in 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 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 submitted by them are recognized as complying with the requirements of this Federal Law and the documentation on such an auction.”

Sometimes customers have to recognize the auction as invalid. What to do if the auction did not take place, because not a single application was submitted under 44-FZ, we will show in the article.

Consequences of declaring an auction invalid

Having analyzed 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, carry out a new purchase;
• if one application is submitted, draw up a government 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 has been 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 allowed to participate in 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 procurement conditions (Part 13 of Article 69); a contract is drawn up with the person who submitted it.

The only condition is compliance single application all stated requirements.

Another reason for such a contract is a combination of circumstances when none of the admitted participants e-procurement did not send his offer with a price within ten minutes from the moment it began (part 20 of article 68).

Imagine the situation: no applications were submitted to the competition, only one application was submitted, or only one application meets the documentation requirements. In all cases, you must declare the competition invalid. 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 on one option. And if you yourself have rejected all applications, you must act completely differently. And then, when you start receiving new applications, new conditions will be included each time depending on the quantity and quality of applications. Let us explain how to choose the right procurement method under different conditions.

From the article

Clause 25, Part 1, Art. 93 of the Law on the Constitutional Court establishes the rules of what to do under 44-FZ if the purchase did not take place when a contract was concluded with a single supplier:

• execute a government contract on the terms specified in the procurement documentation at a price not exceeding the starting price of the auction;
• the registration period should not exceed 20 days from the date of publication of the final protocol.

Important

In this case, signing a contract with a single supplier is not subject to approval by the FAS and other control authorities.

The electronic auction did not take place because... no applications

In accordance with part 4 of Art. 71 procedures did not take place if:

• not a single application has been submitted under 44-FZ (Part 16, Article 66);
• there is no admission of any of the participants who submitted such an application (Part 8 of Article 67);
• all second parts of applications were compiled incorrectly (part 13 of article 69);
• participant who proposed Better conditions after the winner, avoided signing a government contract and refused to formalize such a contract (Part 15, Article 70).

If not a single application has been submitted for the auction under 44-FZ, what to do next? Should be announced repurchase.

An electronic auction was held for the supply of wooden coffins. No one submitted a bid, so the auction was declared invalid. Now we want to try a 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 NMCC, add an advance payment condition, change the delivery time?

If no bids are submitted for the auction

44-FZ in part 4 art. 71 contains the answer to the question of what to do next in this case:

• carry out repeated procurement, the method of which from July 1, 2018 can only be an electronic request for proposals. Until this time, the Law on the Contract System allows for another procedure to be carried out (for example, repeat auctions are often held);
• the item of re-purchase cannot be changed from the original;
• reintroduce a new competitive procedure into the schedule.

If re-auction did not take place - not a single application was submitted - what to do under 44-FZ? Until July 1, 2018, you can hold the 3rd auction or request for proposals or apply another competitive procedure within the framework of the Law on the Contract System.

If the auction did not take place 2 times, what should I do in this case? From July 1, 2018, this issue will no longer exist, because... new edition Part 4 Art. 71 The law obliges re-purchase in the form electronic request proposals. If the request for proposals does not take place, the government customer makes changes to the schedule and conducts another purchase.

Thus, the answer to the question: not a single application has been submitted for the auction; what next will be: to carry out a repeat 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 magazine “Government Order in Questions and Answers”