Protocol on the auction. How can it be announced during an auction that the FAS has declared the protocols during the auction invalid? Procurement protocols

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January 16, 2018, 23:39, question No. 1874375 Anna, Upper Landeh

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Lawyers' answers (4)

Lawyer, Moscow

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Hello.

I don’t quite understand whether this same auction will be resumed again (but how and when)

According to Art. 99 Federal Law dated 04/05/2013 N 44-FZ “On contract system in the field of procurement of goods, works, services to meet state and municipal needs":

when revealed as a result of scheduled and unscheduled inspections by a control body in the field of procurement, as well as as a result of consideration of a complaint about the actions (inaction) of the customer, authorized body, authorized institution, specialized organization, operator electronic platform or commissions for procurement of violations of legislation Russian Federation and other regulatory legal acts on the contract system in the field of procurement, the control body in the field of procurement has the right to:

issue binding orders to eliminate such violations in accordance with the legislation of the Russian Federation, including the cancellation of the determination of suppliers (contractors, performers).
An order to eliminate a violation of the legislation of the Russian Federation or other regulatory legal acts on the contract system in the field of procurement must contain an indication of specific actions that must be taken by the person who received such an order to eliminate the specified violation. The contract cannot be concluded before the date of execution of such order.

Thus, based on the order you provided, the OFAS did not cancel the designation of suppliers (contractors, performers), but only ordered that the relevant violations be eliminated by January 25, 2018, where it also added:

carry out further actions to conduct the procurement in accordance with the requirements of the Law on the Contract System.

Since the deadline for extending the deadline for filing applications for participation in an open auction is not specified in the order, such an extension is carried out within the period established by Federal Law dated 04/05/2013 N 44-FZ “On the contract system in the field of procurement of goods, works, services for the provision of public and municipal needs."

How to extend such a period is described at the following link:

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Client clarification

I still didn’t understand what would happen next. The official website says that the purchase has been completed. This means that the contract will still be signed with the supplier who was determined based on the results of the auction? but our applications were returned to us, and the notice from the site stated that all auction protocols had been cancelled. Tell me, what exactly will happen next? Will there be an auction again as part of the same purchase? or will they announce a new one? And in general, such a decision by the FAS is legitimate, because if there were no violations in the document, most likely another supplier would have won? Maybe we should appeal to a higher FAS?

• Lawyer, Moscow

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  • expert

  Anna, greetings!

  From the text of the order it follows that the results of the auction were canceled (the Federal Antimonopoly Service ordered the cancellation of all protocols); changes must be made to the auction documentation.

  Amendments to the auction documentation entail the establishment of new deadlines for filing applications (Part 6, Article 63 of Law 44-FZ):

  6. The customer has the right to decide to make changes to the notice of an electronic auction no later than two days before the deadline for filing applications for participation in such an auction. Changing the procurement object during such an auction is not allowed. Within one day from the date of acceptance this decision the customer places the specified changes in the unified information system. In this case, the period for filing applications for participation in such an auction must be extended so that from the date of posting the changes made to the notice of such auction until the expiration date for filing applications for participation in such an auction, this period is no less than fifteen days or , if the initial (maximum) contract price (lot price) does not exceed three million rubles, no less than seven days.

  That is, the purchase will essentially start anew. And you will be able to reapply for participation in it.

  At the site, the information will be updated when the customer sends there information that he has canceled all the protocols (the site itself cannot cancel the protocols, the Federal Antimonopoly Service does not cancel them either, but orders the customer to do so).
  

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  Client clarification

  Now everything is more or less clear, but since changes to the procurement are being made according to the FAS resolution, will a new procurement be announced, and through schedules, already in January? and, if there is not enough time (the contract deadline is February 12, 2018), then the purchase can become a request for proposals or a quotation, right?

  Lawyer, Moscow

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  • expert

  since changes to the procurement are made by FAS resolution, a new procurement will be announced

  Some strange conclusion. The FAS ordered changes to be made to the auction documentation, and not a new purchase.

  In principle, the customer, of course, can own initiative cancel the purchase and create a new one. According to the same rules by which he formed the original one, i.e. most likely in the form of an auction.
  

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  Client clarification

  Those. (sorry for the lack of understanding, this is the first time we filed a complaint), the customer will redo the documents as part of the same auction and... how will we or someone else (who did not apply for the last auction due to incorrect documents) find out what is needed submit new applications for the same site? Will the site tell us? Or will it be published on the official website? But, if there is essentially no time left for the auction (the service must be completed on February 12), what should the customer do then? and, if such an auction is announced, will this again be a violation, because? deadlines will be missed conclusion of a contract at the end of the auction? or in this case they will not be violated? and why then did the customer shout at the commission that he would not have time to carry out the purchase?

Each stage of the procurement - from the moment the notice is issued to the completion of the contract - must be properly documented. The procedure for conducting an electronic auction is reflected in the protocols drawn up by the customer’s auction commission. The customer is obliged to place the specified protocols in the unified information system (hereinafter referred to as the UIS), and the posted information must be complete and reliable (Part 3 of Article 7 of Law No. 44-FZ).

Let's try to figure out what types of protocols are drawn up at certain stages of the procurement life cycle. At the same time, we will also discuss some of the related difficulties faced by contract workers, contract managers and members of procurement commissions.

Protocols drawn up during an electronic auction

The procedure for conducting an electronic auction is divided into three main stages, and at each of them a protocol is formed.

1. Protocol for consideration of the first parts of applications is formed by the auction commission (hereinafter, the auction commission refers not only to the auction commission in the proper sense of the word, but also to the unified procurement commission). No later than the expiration date for consideration of applications, the customer sends such a protocol to the operator of the electronic platform and places it in the Unified Information System. The content of this protocol and the procedure for its placement in the Unified Information System are established in Part 6 and Part 7 of Art. 67 Law No. 44-FZ.

2. Protocol of the electronic auction placed on the electronic platform by its operator within 30 minutes after the end of the electronic auction (Part 18, Article 68 of Law No. 44-FZ).

3. Auction summing up protocol formed by the auction commission. No later than the next business day after the date of its signing, such a protocol must be posted on the electronic platform and in the Unified Information System. The content of the protocol and the procedure for its placement in the Unified Information System are defined in Part 8 of Art. 69 of Law No. 44-FZ.

Members of procurement commissions should carefully consider the formation of protocols for summing up the results of the electronic auction. First of all, it is necessary to ensure the accuracy of the information reflected in the protocols. In particular, special care must be taken to indicate:

Provisions auction documentation, which the application does not correspond to procurement participant;

Provisions of the application for participation in the electronic auction that do not comply with the requirements of the auction documentation.

Thus, by decision of the Khanty-Mansiysk OFAS Russia dated 09.09.2015 N 03/PA, the auction commission was found to have violated clause 2, part 4 of art. 67 of Law N 44-FZ, since the protocol for considering the first parts of applications for participation in the electronic auction indicated an incorrect reason for refusal of admission.

The subject of the electronic auction was the supply of a set of products for umbilical vein catheterization. The procurement participant's application was recognized as not meeting the requirements of the technical specifications due to changes in characteristics that should not have been changed. The procurement participant added the names of the manufacturer and country of origin of each product included in the catheterization kit in the column “name of indicator (unchangeable)”, although in accordance with the instructions for filling out an application for participation in the electronic auction, the name of the indicator was among the characteristics that the procurement participant had no right to change.

Having studied the case materials, the commission of the Khanty-Mansiysk OFAS Russia considered that adding the name of the manufacturer and the country of origin of the goods to the column “name of the indicator (unchangeable)” did not change the characteristics of the products required by the customer and did not distort the information about the unchangeable indicators established terms of reference. According to the antimonopoly authority, it was impossible to recognize the procurement participant’s application as not meeting the established requirements only for the specified reason. In fact, the customer’s auction commission rejected the procurement participant’s application on grounds not provided for by the legislation on the contract system, thereby violating Part 5 of Art. 67 Law No. 44-FZ.

At the same time, the commission of the Khanty-Mansiysk OFAS Russia found that the complainant indicated the name of the country of origin for each of the products included in the catheterization kit, but did not indicate the name of the country of origin of the set as a whole, as a single item of purchase. Since this is a violation of clause 1, part 3, art. 66 of Law N 44-FZ, the customer’s auction commission should have rejected the controversial bid of the procurement participant precisely on this basis.

Also, customers should be careful about the so-called. "technical errors" when drawing up protocols. For example, the auction commission decided to recognize the procurement participant’s application as meeting the requirements of the auction documentation, but the protocol for considering the second parts of applications for participation in the electronic auction indicated the exact opposite decision - to recognize the application as non-compliant.

Sometimes "technical errors" of a different kind occur. Thus, in the decision of the Novgorod OFAS Russia dated July 27, 2015 N 08-01-273, the appeal of SpetsProekt LLC was considered, which reported that its application was recognized as not meeting the requirements of the auction documentation, however, in the protocol for summing up the results of the electronic auction, the justification for the decision of the auction commission indicated not SpetsProekt LLC, but Accord LLC. Having made sure that the arguments of the complaint were true, the commission of the Novosibirsk OFAS Russia recognized the actions of the auction commission as violating the requirements of Part 3 of Art. 7 of Law N 44-FZ, according to which only reliable information should be placed in the UIS.

In relation to our topic, acts of scheduled inspections of compliance with certain norms of Law N 44-FZ, compiled by the authorities, are also of interest executive power constituent entities of the Russian Federation authorized to exercise control in the field of procurement. Yes, the Ministry social relations Chelyabinsk region in the inspection report dated December 21, 2015 No. 10, when conducting an inspection of one of its subordinate institutions, found the following violations.

1. In violation of Part 6 of Art. 67 of Federal Law No. 44-FZ, the protocol for considering the first parts of applications for participation in an electronic procurement auction was incorrectly drawn up. The protocol states: “The protocol for considering applications for participation in the auction was signed by all members of the auction commission present at the meeting, customer and authorized body and sent to the operator of the electronic platform", although the columns “on behalf of the customer” and “on behalf of the authorized body” are not filled in (standard protocol generated by the electronic platform). Moreover, by virtue of Part 6 of Article 67 of Law No. 44-FZ, the protocol for considering applications subscribes to participate in the electronic auction by all members of the auction commission present at its meeting.

2. In violation of Part 8 of Art. 69 of Law No. 44-FZ is incorrectly drawn up in the protocol for summing up the results of the electronic procurement auction, namely, information is indicated that is not provided for by the provisions of Law No. 44-FZ:

Location address / postal address of the procurement participant;

Contact tel. (fax) / address Email procurement participant;

Offer price of the procurement participant (RUB);

Date and time of receipt of the procurement participant's proposal.

The commission of the control body indicated that the protocol for summing up the results of the electronic auction in accordance with the requirements of Art. 69 of Law No. 44-FZ must contain:

1) information about the serial numbers of applications;

2) a decision on compliance or non-compliance of applications with the requirements of the auction documentation with the rationale for this decision and indicating:

The provisions of Law No. 44-FZ, which the participant in the electronic auction does not comply with;

Provisions of the auction documentation that the procurement participant’s application does not comply with;

Provisions of the application for participation in the electronic auction that do not comply with the requirements of the auction documentation;

3) information about the decision of each member of the auction commission regarding each application for participation in such an auction.

As we can see, the commission of the Ministry of Social Relations of the Chelyabinsk Region considers it unacceptable to indicate in the protocol information not provided for by Law No. 44-FZ. This position is not uncommon, but we should not forget that Law No. 44-FZ does not contain a direct prohibition on the inclusion of other information in protocols.

Protocol on the failed procedure

Depending on the grounds for recognition of an electronic auction failed customer must draw up his own protocol.

1. If only one application is submitted, is being compiled protocol of consideration single application to participate in an electronic auction, requirements for the content of which are defined in clause 3, part 1, art. 71 of Law No. 44-FZ. Such a protocol is sent to the operator of the electronic site no later than three working days from the date of receipt of the only application for participation in the electronic auction.

2. If the application of only one procurement participant meets the requirements of legislation and customer documentation, a application review protocol the only participant electronic auction(Clause 3, Part 2, Article 71 of Law No. 44-FZ). This protocol is sent to the operator of the electronic site no later than three working days from the date of receipt of the second part of the application for participation in the electronic auction.

3. If within 10 minutes after the start of the auction no offer has been made for contract price, in accordance with clause 3, part 2, art. 71 of Law No. 44-FZ is drawn up auction summing up protocol. The deadline for sending this protocol to the operator of the electronic site is exactly the same - no later than three working days from the date the customer receives the second parts of applications for participation in the electronic auction. In addition, in this case, there is another protocol that is formed by the operator of the electronic platform - a protocol on declaring the auction invalid (Part 20, Article 68 of Law No. 44-FZ). The protocol indicates the address of the electronic platform, the date of the electronic auction, its start and end time, as well as the initial (maximum) price of the contract.

Protocol of customer refusal to conclude a contract

If the contract has not yet been concluded, and the customer has discovered that the procurement participant does not meet the requirements imposed on him or has provided false information regarding his compliance with the specified requirements, the customer is obliged to refuse to enter into a contract with such a winner in the procedure for determining the supplier (contractor, performer). The corresponding requirement is established in Part 9 of Art. 31 of Law No. 44-FZ.

In addition, in Part 10 of Art. 31 of Law No. 44-FZ establishes additional grounds for refusing to conclude a contract during procurement medicines from the list of vital and essential drugs (VED):

1) the maximum selling price of medicinal products offered by the procurement participant is not registered;

2) the price of the purchased medicinal products offered by the procurement participant exceeds their maximum selling price specified in state register maximum selling prices of manufacturers for medicines included in the list of vital and essential drugs. This rule applies only if the procurement participant is a manufacturer of such medicines or if the initial (maximum) contract price exceeds 10 million rubles. in case of procurement for federal needs.

Refusal of the customer to conclude a contract on the grounds provided for in parts 9 and 10 of Art. 31 of Law No. 44-FZ, formalized as protocol of refusal to conclude a contract(Part 11, Article 31 of Law No. 44-FZ). The specified protocol is drawn up and posted in the Unified Information System no later than one business day following the day when it was established that the participant did not meet the requirements for him. In addition to this, such a protocol must be sent to the procurement participant within two working days from the date of its signing.

Protocol for recognizing the winner as having evaded concluding a contract

1. If during an auction the initial (maximum) contract price is less than 15 million rubles, and the winner of the electronic auction has reduced the price by 25 percent or more, the contract is concluded with him only if he performs one of the following actions:

Will provide security for the execution of the contract in an amount that is one and a half times greater than the amount established by the auction documentation;

Together with the standard security for the execution of the contract, it will provide reliable information confirming its good faith on the date of filing the application (registry numbers of contracts previously executed by such a procurement participant; detailed requirements for the content of information confirming the good faith of a procurement participant are defined in Part 3 of Article 37 of Law No. 44 -FZ).

If the procurement participant has not completed any of the specified actions, a protocol for recognizing the winner of an electronic auction as having evaded concluding a contract, which is placed in the Unified Information System and brought to the attention of all procurement participants no later than the working day following the day of its signing. The composition and content of information reflected in such a protocol is not regulated by Law No. 44-FZ (a similar opinion was expressed in the decision of the commission of the Vladimir OFAS Russia dated May 20, 2014 N G-288-04/2014).

2. If a participant is recognized as having evaded signing a contract on other grounds (for example, if the winner of an electronic auction signed the contract within the regulated period), Law No. 44-FZ does not determine specific ways to formalize such a decision of the customer. Despite this, we recommend that customers adhere to the practice of logging each decision of the auction commission throughout the entire procurement procedure. In such a protocol you can specify the following:

The date of recognition of the winner of the electronic auction as having evaded concluding a contract;

Information about the customer;

Information about the purchase;

Information about the procurement participant who was found to have evaded concluding the contract;

Grounds for recognizing the winner of an electronic auction as having evaded concluding a contract.

Protocol for the removal of a procurement participant due to the provision of false information

If it is established that a procurement participant has submitted documents containing false information as part of his application for participation in an electronic auction, the auction commission is obliged to remove such participant from participation in the electronic auction at any stage of its conduct (Part 6.1 of Article 66 of Law No. 44- Federal Law). A similar rule is contained in Part 9 of Art. 31 of Law N 44-FZ, according to which the customer is obliged to refuse to conclude a contract with such a winner of the procedure for determining a supplier (contractor, performer) if at any time before the conclusion of the contract he discovers that the procurement participant does not meet the requirements for him or has submitted an unreliable information about your compliance with such requirements.

Law No. 44-FZ does not define the procedure for formalizing a decision to exclude a procurement participant from participation in determining a supplier (contractor, performer). In particular, there is not even an obligation to send such a decision to the procurement participant and place it in the Unified Information System. We believe that when forming this decision, one should proceed from an analogy with the norms of Law No. 44-FZ, which regulate the procedure for processing the results of consideration of applications during an electronic auction and summing up its results.

The wording “to remove such a participant from participation in the electronic auction at any stage of its conduct” (Part 6.1, Article 66 of Law No. 44-FZ) and “the removal of a procurement participant is carried out at any time before the conclusion of the contract” (Part 9, Article 31 of the Law N 44-FZ) indicate that removal of an auction participant is possible not only during the consideration of applications submitted by participants, but also until the conclusion of a contract. In this regard, it is logical to formulate on the basis of Part 6.1 of Art. 66 of Law No. 44-FZ, a separate decision (protocol) on the removal of a procurement participant from participation in an electronic auction in connection with the establishment of unreliable information contained in the documents submitted by such participant.

In such a situation, the customer can draw an analogy with Part 11 of Art. 31 of Law N 44-FZ, which regulates the procedure for registering a refusal to conclude a contract on the grounds provided for in parts 9 and 10 of this article, and send such a protocol to the procurement participant no later than one business day following the day the fact was established that served as the basis for the decision to remove participant from participating in the electronic auction. We recommend that customers include the following information in this protocol:

An indication of the place and time of its compilation;

Information about the person in respect of whom this decision was made;

A statement of the facts that served as the basis for the decision, and details of documents confirming this fact.

Protocol on the removal of a participant from participation in an electronic auction on the basis of Part 6.1 of Art. 66 of Law N 44-FZ can be placed in the Unified Information System in a manner similar to that established by Part 11 of Art. 31 of Law No. 44-FZ.

Protocols of disagreements when signing a contract

The contract based on the results of the electronic auction must be concluded on the terms established by the customer in the notice of the electronic auction and in the auction documentation (including the draft contract): the corresponding requirement is established in Part 10 of Art. 70 Law No. 44-FZ. However, in practice, contradictions often arise between the customer and the procurement participant when signing a contract.

If there are disagreements regarding the draft contract, the winner of the electronic auction sends to the customer protocol of disagreements. Such a protocol can be sent by the winner of the electronic auction no later than thirteen days from the date of posting the protocol for summing up the results of the auction in the Unified Information System (Part 5, Article 70 of Law No. 44-FZ).

The protocol of disagreements is drawn up in any form and may only contain an indication of discrepancies between the terms of the draft contract and the provisions of the documentation. Such a protocol is signed with the electronic signature of a person authorized to conclude a contract on behalf of the procurement participant. The maximum number of protocols of disagreements that can be sent by the winner of an electronic auction when signing a contract is not limited by law. The only “limit” is the time frame defined by the thirteen-day period mentioned above.

The problems of calculating this period were examined in the decision of the Arbitration Court Krasnoyarsk Territory dated 07/07/2014 in case No. A33-7712/2014, which has the following plot.

The customer refused to conclude a contract with the auction winner due to the fact that the winner of the electronic auction sent a protocol of disagreements after 13 days from the date of posting the protocol of summing up the auction results. The procurement participant appealed the customer’s actions to the Krasnoyarsk OFAS Russia, but the antimonopoly authority, by its decision dated March 31, 2014 No. 193, recognized his complaint as unfounded. In this regard, the procurement participant appealed to the Arbitration Court of the Krasnoyarsk Territory.

The court cited in its decision Part 8 of Art. 69 of Law N 44-FZ, according to which the results of consideration of applications for participation in an electronic auction are recorded in the protocol for summing up the results of such an auction, and no later than the working day following the date of signing of the specified protocol, are posted by the customer on the electronic platform and in the Unified Information System. In the case under consideration, the protocol for summing up the results of the electronic auction was signed by all members of the auction commission on 03/05/2014, and posted in the Unified Information System on 03/06/2014.

As follows from Art. 190 Civil Code of the Russian Federation, statutory the term is determined by a calendar date or the expiration of a period of time, which is calculated in years, months, weeks, days or hours. In this case, the course of a period defined by a period of time begins the next day after the calendar date or the occurrence of an event that determines its beginning (Article 191 of the Civil Code of the Russian Federation).

Since Law No. 44-FZ does not establish otherwise, the thirteen-day period in question is subject to calculation starting from the day following the posting of the protocol for summing up the auction results in the Unified Information System (i.e., from 03/07/2014). Consequently, the winner of the electronic auction had the right to send a protocol of disagreements on the draft contract until March 19, 2014 inclusive. And from the case materials it follows that the first protocol of disagreements on the draft contract was posted in the Unified Information System on March 14, 2014; second protocol of disagreements - 03/19/2014. Thus, the winner of the electronic auction duly complied with the requirements of Art. 70 of Law N 44-FZ: the protocol of disagreements on the draft contract was sent within the legally established period.

Also, customers should not lose sight of the fact that the thirteen-day period in accordance with Art. 70 of Law N 44-FZ must be calculated from the day following the posting of the protocol for summing up the results in the Unified Information System, and not from the date of signing such a protocol by members of the auction commission. As we remember, specified dates may be different.

Let us remind you what can be changed in the text of the contract:

Provisions of the draft contract that do not correspond to the notice of the auction, documentation about it and the application of the procurement participant;

Supplier details if they have changed since the deadline for submitting applications;

Typos, grammatical and punctuation errors, technical errors and inaccuracies.

In the decision of the Arbitration Court of the Novosibirsk Region dated December 10, 2014 in case No. A45-17177/2014, another interesting point, related to the direction of protocols of disagreement.

From the totality of Parts 5 and 6 of Art. 70 of Law N 44-FZ, the court came to the conclusion that the thirteenth day is the last day for sending a protocol of disagreements if there are objections to the draft contract posted by the customer in the Unified Information System.

The right of the winner of an electronic auction to place a protocol of disagreements on a draft contract in the Unified Information System is enshrined in Part 4 of Art. 70 Law No. 44-FZ. However, this provision does not set a deadline for posting a protocol of disagreements for the first time. Therefore, Part 4 of Art. 70 of Law 44-FZ must be considered in conjunction with Part 13 of Art. 70 of Law N 44-FZ with regard to failure to send a signed draft contract to the customer within five days from the date of its placement in the Unified Information System.

If a participant does not agree with the draft contract sent to him, he must post a protocol of disagreements in the Unified Information System for the first time before the expiration of the period established for signing the contract, namely, within five days from the date of posting the draft contract. Having failed to complete these actions within five days, the winner of the electronic auction, by virtue of Part 13 of Art. 70 of Law N 44-FZ is recognized as having evaded concluding a contract.

After the protocol of disagreements is posted in the Unified Information System for the first time, both the customer and the winner can perform the actions enshrined in Parts 5 and 6 of Art. 70 of Law 44-FZ, before the expiration of the thirteen-day period. As soon as the specified period has expired, the winner should not post subsequent protocols of disagreements regarding the draft contract in the Unified Information System, and the customer should post the draft contract in the Unified Information System indicating in a separate document the reasons why he fully or partially refuses to take into account the comments of the winner of the electronic auction contained in the protocol of disagreements .

In addition, the court noted the fact that Art. 70 of Law No. 44-FZ does not regulate who makes the decision to recognize a procurement participant as having evaded concluding a contract (the auction commission or the customer) and in what form such a decision is formalized. Consequently, the decision to recognize the procurement participant as having evaded concluding a contract on the basis of Part 13 of Art. 70 of Law N 44-FZ is adopted by the customer and drawn up in any form.

Protocol for canceling the determination of a supplier (contractor, performer)

The customer has the right to cancel the electronic auction no later than five days before the deadline for filing applications for participation in the auction (Part 1, Article 36 of Law No. 44-FZ). The decision to cancel the determination of the supplier (contractor, performer) can be drawn up as a protocol for canceling the determination of the supplier (contractor, performer), which is drawn up by the customer and posted in the Unified Information System on the day this decision is made and is immediately brought to the attention of all procurement participants who submitted applications.

If the period for canceling the determination of the supplier (contractor, performer) has expired, the customer has the right to cancel the purchase before the conclusion of the contract only if force majeure circumstances arise in accordance with civil law (Part 2 of Article 36 of Law No. 44-FZ).

Protocol for making changes to documentation

The customer, on his own initiative or in accordance with a request for clarification of the provisions of the documentation on an electronic auction, has the right to decide to make changes to the documentation on such an auction no later than two days before the deadline for filing applications for participation in such an auction. Within one day from the date of adoption of this decision, changes made to the documentation about such an auction are posted by the customer in the Unified Information System (Part 6, Article 65 of Law No. 44-FZ).

Law No. 44-FZ does not determine how it should be formalized said decision customer. Still, we recommend that the customer adhere to the practice of logging every decision made throughout the entire procurement procedure. In this regard, the customer’s decision in question can be formalized as a protocol for making changes to the documentation.

I would like to remind you of the responsibility of customer officials for violations of the procedure for drawing up and posting protocols during electronic auctions. Possible violations by customers and administrative liability for their commission, established by the Code of Administrative Offenses of the Russian Federation, are systematized in the following table:

The problem of routine maintenance on electronic platforms seems ambiguous in connection with the penalties established for customers for violating the deadlines for publishing protocols when conducting electronic auctions. This problem was considered in the decision of the Nenets OFAS Russia dated October 13, 2014 N 01-48/13-2014. IN in this case The expiration date for consideration of the first parts of applications was 06/13/2014, and the corresponding protocol was dated exactly 06/13/2014, but it was sent to the operator of the electronic platform only on 06/15/2014.

The customer submitted to the case materials a screenshot from the official website of the electronic platform of OJSC "Unified Electronic Trading Platform", from which it follows that in the period from 06/12/2014 to 06/15/2014, due to routine maintenance, the closed part of the electronic platform will be inaccessible. In addition, on June 15, 2014, the customer contacted the operator of the electronic platform with a request to provide the technical ability to review the first parts of the applications and publish the corresponding protocol. Ultimately, on the same day, such an opportunity was provided.

The Nenets OFAS Russia Commission certified the fact that the protocol for considering the first parts of applications was published on the electronic platform in violation of the deadline established by Part 7 of Art. 67 Law No. 44-FZ. At the same time, the antimonopoly authority noted that this violation was committed for reasons beyond the control of the customer, but in connection with the conduct of routine maintenance on the electronic platform. Based on the totality of the evidence presented, it was concluded that the customer was not at fault for violating the deadline for publishing on the electronic platform the protocol for considering the first parts of applications dated June 13, 2014.

In this article, we tried to introduce you to the practice of considering problems associated with drawing up protocols when conducting electronic auctions. We hope this will help you avoid mistakes when working as part of a procurement commission.

Protocols in an electronic auction are documents that first record applications that have passed the bidding stage, and then the winner of the electronic auction - the participant with whom the government contract will be signed. Thus, the Law on the Contract System provides for three main protocols, which are drawn up not only by the customer, but also by the operator trading platform. Let's consider the order of their publication and content.

How to make a protocol for considering applications for participation in an auction

Since information about participants’ contact details is confidential, the auction commission considers only the first part of the participant’s proposal, which contains the supply or performance of works, services, as well as specific information about the procurement object. That is, the customer, without having information about the names of the participants, determines whether their proposals meet the requirements established by the terms of reference and part 3 of Art. 66 44-FZ.

The document determines the admission of participants and, according to Part 6 of Art. 67, must contain:

• serial numbers of applications;
• decision on admission or refusal of admission to participation with justification and indication of the decision of each member.

It is compiled on the trading platform by filling out the appropriate information fields. The functionality of the platforms allows you to use templates and save data into a text document. The paper version is signed by all members of the commission who are present at the meeting no later than the expiration date for consideration of the first parts. It is recommended that you attach a scanned copy of the document to electronic form on the site, and then send it to the operator, who will publish it in the Unified Information System (UIS).

The period for consideration of the first parts is no more than seven days from the closing date for filing applications and is determined in the auction documentation and notice upon publication in the Unified Information System.

From 07/01/2018, the period for consideration of the first parts in purchases with an initial (maximum) contract price of up to 3 million rubles. will be 1 business day.

If there are no proposals or all are rejected, a protocol declaring the auction invalid is published. In this case, when only one application is submitted, the operator sends the customer two parts at once, which the auction commission must consider within three working days. The document for considering a single proposal must reflect information about its compliance or non-compliance with the requirements of the documentation and the law, indicating the decision of each member of the commission ().

How the protocol for conducting an electronic auction is formed

Suppliers who are admitted to the competition can take part in the tender. The procedure is also carried out while maintaining the confidentiality of information about its participants. Within thirty minutes after the end of the auction, the operator places a document on the site that contains the following information (Article 68):

• trading platform address;
• date, start and end time of trading;
• initial (maximum) contract price;
• all minimum proposals for the contract price indicating the serial numbers of participants.

If no one submits a price proposal within ten minutes after the start of the procedure, the auction is considered invalid. This information is required to be included in the bidding document. At the same time, you should not confuse the deadlines for publishing the protocol of the auction in electronic form and the deadlines for the protocol for summing up the results of the electronic auction 44-FZ. We will talk about them further.

How to draw up a protocol for summing up the results of an electronic auction

After the bidding, the operator sends the second part of the proposals and accreditation data of the participants to the customer. Registration of the document takes 3 working days (Part 5 of Article 69, Parts 2, 3 of Article 71).

The protocol for summing up the auction results 44-FZ must contain the following information (Part 8, Article 69):

• serial numbers of five suppliers that comply with documentation and legal requirements;
• decision on the compliance or non-compliance of applications with justification and indication of the decision of each member of the commission.

The results of the electronic auction under 44-FZ are summed up on the day the protocol is posted. It is published in a manner similar to the procedure for reviewing the first parts. Thus, the deadline for publication of the protocol for summing up the results of the electronic auction is the next working day after signing by the commission members.

If no application meets the requirements or only one is found compliant, the electronic procedure will be deemed unsuccessful.

D. Trade registration number No. 2

PROTOCOL

ABOUT THE RESULTS OF THE OPEN AUCTION

1. Form of bidding: the auction is open in terms of the composition of participants and the form for submitting proposals.

2. Name of the auction organizer, Contact Information: The auction organizer is the municipal property management department of the administration of the Bogucharsky municipal district of the Voronezh region.

Postal address (location): Voronezh region, .

Email address: *****@***ru.

Contact phone number: tel/,

Responsible person:

3. Date, time and place of the start of the auction: Voronezh region, Bogucharsky district, (2nd floor, meeting room of the Bogucharsky administration municipal district), October 22, 2010 at 10:00 am Moscow time.

Contact tel/,

The commission consists of 6 people. The meeting is held in the presence of 6 commission members. There is a quorum. The commission is competent. The commission meeting began at 10:00 Moscow time.

4. The subject of the auction is the sale of the right to conclude a lease agreement for non-residential premises with a total area of ​​9.1 square meters. m. for a period of 5 years:

The decision to hold an auction for the sale of the right to lease non-residential premises was made by a resolution of the administration of the Bogucharsky municipal district Voronezh region dated 01.01.2001 No. 000 “On the provision of non-residential premises for rent”

An information message about the auction for the sale of the right to lease non-residential premises was posted in the newspaper “Selskaya Nov” on September 04, 2010 No. and on the official website of the administration of the Bogucharsky municipal district of the Voronezh region www. *****.

5. The total number of applications submitted to participate in the auction.

Two (2) applications were submitted to participate in the auction. No changes to applications for participation in the auction have been submitted. There are no withdrawn applications for participation in the auction.

5.1. Information about participants to participate in the auction:

6. Results open auction for the sale of the right to lease non-residential premises.

There were 2 auction participants present at the auction, who were registered in the registration log of representatives of open auction participants.

7. Results of the open auction:

Based on the results of the open auction, the winner was declared the participant No. 2-, born on July 16, 1959, passport series No. issued by the branch of the Federal Migration Service of Russia for the Voronezh region in the Bogucharsky district on November 21, 2009, who offered the highest price.

7.1. The protocol is drawn up in two copies, one of which is given to the winner, and the second remains with the auction organizers. The protocol on the results of the auction is the basis for concluding a purchase and sale agreement for lease rights and a lease agreement for non-residential premises with the auction winner. The lease agreement must be concluded no later than 10 days from the date of signing the protocol on the results of the auction.

The commission meeting ended at 10:25 am.

8. The protocol was signed by the commission members present at the auction:

Chairman of the Commission

Member of the commission

Member of the commission

Member of the commission

Member of the commission

Bid winner

Procurement protocols are a mandatory document for all types of tenders. For each stage of the electronic auction, its own separate protocol is drawn up. You will find more information about the types of protocols, as well as samples of protocols under 44-FZ, in the article.

Procurement protocols

To ensure maximum transparency of all competitive procedures carried out within the framework of 44-FZ, the law obliges to carefully document all actions performed by the parties. Detailed protocols are drawn up for these purposes. This rule also applies to such a method of selecting a supplier as an electronic auction.

The auction protocols 44-FZ are compiled by the customer and are posted in the public domain in the Unified Information System(EIS). Let's consider all types.

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Electronic auction protocols

Electronic auction refers to procedures that take place in several stages. Therefore, each stage must be confirmed by appropriate paper. There are several types.

Auction minutes under 44-FZ:

• ✔ Protocol for consideration of applications;
• ✔ Protocol of the auction;
• ✔ Protocol of auction results.

In the protocol of consideration of applications the procedure for considering the first parts should be reflected. Contact information is hidden to maintain confidentiality. the serial numbers of the participants and information about admission or non-admission to the next stage are indicated.

Auction protocol compiled and published within half an hour after the end of the auction. The document is generated by the electronic platform (usually automatically). It contains the address of the trading platform, the start and end date of trading, the NMCC, as well as information about the submitted offers (auction steps).

Protocols on failed auctions

An electronic auction does not always go according to plan. In cases where the auction is declared invalid for various reasons, the customer is obliged to draw up special types protocols. The same applies to cases where disagreements arise.

Auction minutes 44-FZ, if the auction did not take place or took place with violations:

• ✔ Protocol for consideration of a single application. To be completed if only 1 application is submitted.
• ✔ Protocol for consideration of the application of a single participant. In this case, several applications may be submitted, but only one of them is considered compliant.
• ✔ Protocol on declaring the auction invalid. This protocol is drawn up automatically by the operator of the electronic platform in cases where, after the start of trading, no applications were submitted within 10 minutes (time for one auction step). Download template or sample »

In case of disagreements between the customer and the supplier, it is necessary to draw up other types of documents. This includes protocol of refusal to conclude a contract. The customer, according to 44-FZ, has the right to refuse the winner special cases. Such a refusal is drawn up in the form of a protocol and must be sent to the contractor within 2 business days from the date of signing. Sample and template of a protocol on refusal to conclude a government contract

If the performer does not want to sign the document, then his refusal must be recorded in the protocol of recognizing the participant in the electronic auction as evading (in accordance with the requirements of Article 37 of Law 44-FZ).

Protocol of disagreements regarding electronic auction 44-F is issued if, after the deadline for submitting applications, discrepancies are discovered between the terms of reference and the draft contract. It allows you to continue working with the tender without closing it and is sent from the winner of the competition to the customer. The customer can agree with the comments or reject them. Download an example of a protocol of disagreements under 44-FZ »

The document must be sent within 13 days from the date of signing the final protocol for the auction. While the dispute protocol is being reviewed, contract security is not posted, so many suppliers use this procedure to add time to finding funds to post security.

Drawing up a protocol is a mandatory procedure for each stage of the auction. They are designed to reflect all actions taken by the parties and protect the principles of openness and fair competition in public procurement.

Attached files

• Protocol for consideration of applications for participation in the auction in electronic form - sample.doc
• Protocol for consideration of applications for participation in the auction in electronic form - template.doc