Actions of the customer if the electronic auction is declared invalid. Actions in case of a failed electronic auction. The auction was declared invalid - not a single application was submitted

Sometimes, for a number of reasons, an electronic auction under 44-FZ may not take place (more precisely, it will be declared failed). In fact, the situation is not as unpleasant as it might seem at first glance, since recognizing the auction as invalid does not mean that you did not win the contract. True, according to the new laws, quite a lot of controversial issues arise in which, naturally, each side wants to benefit itself and fool the other parties. Therefore, it is necessary to take all this into account and try to act competently so as not to fall for the government customer’s stupid bait if something happens. Government customers are hired employees who hold on to their jobs. Therefore, they don’t care what problems the contractor will have, because the contractor is a bourgeois who only seeks to pocket public funds. So, let's consider a situation in which the auction did not take place. What to do next?

Depending on the reason why a given situation arose, there are several ways to successfully (and sometimes unsuccessfully) resolve it. It all depends on the situation itself, and sometimes also on your actions.

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 and auction documentation. Coordination with regulatory authorities in in this case 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 application, and it did not pass, the state 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.

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 electronic trading Anything can happen. 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.

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 the 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.”

• 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!

In this article I will focus on declaring the auction invalid.

When can this happen?

Firstly, if no applications were submitted for the auction at all, this is quite logical; what kind of auction is there if there is no one. What's next? Repeated bidding will be scheduled with a reduction in the initial price (NP) by 10% from the NC at the primary auction. If repeated ones do not take place, then tenders will be scheduled in the form of a public offer with a decrease in the NC.

The most interesting thing is not this.

Imagine this situation: you have decided to buy something from a primary or repeat auction (i.e. from an upward auction). You have submitted your application for electronic platform. And it just so happened that no one except you was allowed to participate in the auction, or no one submitted bids at all. What will happen in this case?

Now these auctions will be called invalid. But it’s too early to panic.

Even though this sounds sad, you, as the only participant in such auctions, will be recognized as the winner of the auction at the starting price. You applied for the auction at the starting price? It's not your problem that no one else applied or was admitted except you. You were ready to pay the initial price, because... for some reason you applied. Therefore, the auction organizer has no grounds, incl. Legislative laws do not designate you as the winner of such auctions.

What article of law are we relying on? Of course, to the main document - Federal Law No. 127 “On Insolvency”, or more precisely, paragraph 17 of Article 110 “Sale of the debtor’s enterprise” (download the Federal Law from the link)

“If only one participant was allowed to participate in the auction, whose application for participation in the auction complies with the conditions of the auction or contains an offer for the price of the enterprise not lower than the established initial sale price of the enterprise, the purchase and sale agreement for the enterprise is concluded by an external manager with this participant in the auction”

So if you sole participant auction and your application with its Appendices comply, you can count on the fact that you bought the item at the starting price.

This is how things stand with the recognition of trades as invalid.

Therefore, when I showed in my video tutorial these auctions for the purchase of a plot of land in the city of Yartsevo from some attentive readers our newsletter, there was a fair bewilderment: “How is he telling us here that he bought the land, but the auction didn’t take place?”

That’s how they “didn’t happen”!

And this is a certificate of ownership of the same land plot. This is Anyone who has access to the Sberbank-AST platform can also view the trading procedure - SBR013-1404110020

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.”

We are holding an auction, the day for submitting applications ends and we know that no one will submit applications. Is it necessary to change the schedule and procurement plan in order to carry out re-auction? Can I immediately after posting the protocol on failed auction create a new notice and within what time frame?

Answer

Oksana Balandina, chief editor of the State Order System

From July 1, 2018 to January 1, 2019, customers have a transition period - they are allowed to carry out both electronic and paper procedures. Starting from 2019, tenders, auctions, quotations and requests for proposals on paper will be prohibited, with eight exceptions.
Read what kind of purchases to carry out on the ETP, how to choose a site and obtain an electronic signature, what are the rules for concluding contracts during the transition period and after.

According to Part 4 of Article 79 of Law No. 44-FZ, if an electronic auction is declared invalid due to the fact that after the deadline for submitting applications for participation in such an auction not a single application has been submitted, the customer makes changes to the 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.

However, if there is no need to make changes to this position schedule in terms of the method of determining the supplier (contractor, performer), the timing of the purchase, the NMCC, then, based on the literal interpretation of the provisions of Part 13 of Article 21 of Law No. 44-FZ, we believe that there is no need to wait 10 days. Accordingly, after posting the protocol on recognition electronic auction failed, the customer can place a repeat purchase.

What changes should be made to the procurement plan and schedule when the auction did not take place and the customer carries out the procedure again?

If necessary, change the timing of the purchase, the method of determining the supplier or, for example, the amount of financing in the procurement plan and schedule and announce the procedure again. Leave the purchase object unchanged. This rule is established in Part 4 of Article 71 of Law No. 44-FZ.

In what cases and how to change the schedule in the UIS

Customers make changes to schedules in accordance with the Rules and Requirements from the Decrees of the Government of the Russian Federation of June 5, 2015 No. 553 and 554. Observe the deadlines within which you make changes, otherwise you will pay a fine. Publish changes in the Unified Information System, having first submitted them for control. How to change the plan schedule correctly and where to go if errors occur in the UIS, you will learn from the recommendations below.

In what cases should the schedule be changed?

Make changes to the schedule if:

• changed the procurement plan;
• the volume and cost of goods, works or services have changed and it is impossible to purchase them using the previous NMCC;
• changed the purchase start date, contract execution terms, advance payment amount, payment stages;
• changed the deadlines within which the customer will supply goods, works or services;
• changed the way you identify a supplier;
• the purchase was cancelled;
• use savings from procurement or saved funds within the budget allocations;
• received an order from the control body under Article 99 of Law No. 44-FZ;
• decided to change the schedule based on the results of public discussion;
• Circumstances arose that could not be foreseen at the date of approval of the schedule.

Cases when the customer changes schedules are prescribed:

• in paragraph 8 of the Rules from the Decree of the Government of the Russian Federation of June 5, 2015 No. 553 - for procurement for federal needs;
• in paragraph 10 of the Requirements from the Decree of the Government of the Russian Federation of June 5, 2015 No. 554 - for purchases for regional and municipal needs.

Regional or local authorities may additionally establish cases where the customer changes procurement schedules for regional and local needs. This rule is spelled out in subparagraph “h” of paragraph 10 of Requirements No. 554.

When should the schedule be changed?

Make changes to the schedule within the following deadlines:

• 10 days or earlier before posting a notice in the Unified Information System or sending an invitation to participate in the procurement;
• 10 days or earlier before the date on which you conclude the contract, if the purchase does not provide for either notice or invitation;
• one day before concluding a contract when purchasing from a supplier under clauses 9 and 28 of part 1 of article 93 of Law No. 44-FZ;
• on the day when you send participants a request for quotes for procurement for humanitarian aid or emergency response (Article 82 of Law No. 44-FZ).

The deadlines are specified in paragraphs 9 and 10 of Rules No. 553 and paragraphs 11 and 12 of Requirements No. 554.

If you violate the deadlines, the responsible employee will pay a fine from 5,000 to 30,000 rubles. The punishment is provided for in Part 4 of Article 7.29.3 of the Code of the Russian Federation on Administrative Offenses.

Magazine "Goszakupki.ru" is a magazine on the pages of which practical explanations are given by leading industry experts, and materials are prepared with the participation of specialists from the Federal Antimonopoly Service and the Ministry of Finance. All articles in the magazine are of the highest degree of reliability.