Repeated purchase under 44 fz. The auction was declared invalid, but you seem to have submitted an application. What's next? The electronic auction did not take place because... no applications

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 hold a repeat auction? Is it possible for me to create a new notice immediately after posting a protocol about a failed auction 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 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 declaring the electronic auction invalid, 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 the 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.

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. 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 customer must hold a new auction.

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 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, 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 electronic trading Anything can happen. Accordingly, in this case the previous paragraph on the request for proposals is applicable. If, out of all applications, based on the results of consideration of the first parts (and not the second), only one participant is admitted, then, according to Part 2 of Article 71, the problem is 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.”

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 to return the deposit made by the participants within three banking days from the date of signing the protocol on the results of the auction. failed trades deposit. 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 re-execution bidding 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 sole participant 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 authority 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.

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 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. 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.

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 decide to buy something from the primary or re-auction(i.e. from trading to increase). 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”

Thus, if you are the only participant in the auction and your application with its Attachments 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

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.

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 sole 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.