Procurement due to the recognition of an electronic auction as invalid. What to do if only one application for an electronic auction is submitted. Application for participation in the electronic auction

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

Consequences of declaring an auction invalid

Having analyzed Art. 71 of Law 44-FZ, there are two reasons why the electronic auction did not take place:

• no application has been submitted;
• one application has been submitted.

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The further actions of the contract managers will depend on the reason why the competitive procedure was declared invalid:

• if there are no applications, carry out a new purchase;
• if one application is submitted, draw up a government contract with the participant who submitted it.

Conclusion of a contract with a single supplier when the auction did not take place

In cases where:

• the application of one participant has been submitted (part 16 of article 66);
• after analyzing the first parts of the submitted applications, only one of the participants who submitted their applications was allowed to participate in the procedure (Part 8 of Article 67);
• the second part of the submitted application of only one of the participants in the procedure satisfies the procurement conditions (Part 13 of Article 69); a contract is drawn up with the person who submitted it.

The only condition will be that a single application meets all stated requirements.

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

Imagine the situation: no applications were submitted to the competition, only one application was submitted, or only one application meets the documentation requirements. In all cases, you must declare the competition invalid. But what to do next if you are not ready to cancel the purchase depends on the number of applications.
If the competition failed due to the fact that no one submitted a single application, you need to act on one option. And if you yourself have rejected all applications, you must act completely differently. And then, when you start receiving new applications, new conditions will be included each time depending on the quantity and quality of applications. Let us explain how to choose the right procurement method under different conditions.

From the article

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

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

Important

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

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

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

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

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

An electronic auction was held for the supply of wooden coffins. No one submitted a bid, so the auction was declared invalid. Now we want to try a request for proposals, but Law No. 44-FZ does not directly indicate whether we have the right to change the terms of the purchase. Can we reduce the NMCC, add an advance payment condition, change the delivery time?

If no bids are submitted for the auction

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

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

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

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

Thus, the answer to the question: not a single application has been submitted for the auction; what next will be: to carry out a repeat purchase, and from July 1, 2018 only in the form of an electronic request for proposals.

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

As part of the request for proposals after failed auction It is, however, prohibited to change the procurement object (however, it is formally possible, but not recommended, to change its cost, as well as the deadlines for execution). The notice to the Unified Information System must be submitted by the customer no later than 5 days (calendar) before the day of the request for proposals. At the same time, according to 44-FZ, the customer has the right to independently send invitations to participate in the procurement process to those persons who, in his opinion, are capable of fulfilling the terms of the contract. However, these persons in this case must be indispensable counterparties of the customer for at least 18 months before the date of request for similar supplies. The auction did not take place if all applications were rejected at the stage of consideration of the first parts. In theory this is hardly possible, but in reality electronic trading Anything can happen. Accordingly, in this case the previous paragraph on the request for proposals is applicable.

Article 71. Consequences of declaring an electronic auction invalid

Federal Law and documentation about such an auction or about the non-compliance of participants in such an auction and the applications they submitted with the requirements of this Federal Law and (or) documentation about such an auction; 4) the contract is concluded in accordance with paragraph 25 of part 1 of Article 93 of this Federal Law in the manner established by Article 70 of this Federal Law, with a participant in such an auction, the application for participation in which was submitted: a) earlier than other applications for participation in such an auction, if several participants in such an auction and the applications they submitted were found to comply with the requirements of this Federal Law and the documentation for such an auction; b) the only participant in such an auction, if only one participant in such an auction and the application submitted by him are recognized as complying with the requirements of this Federal Law and the documentation on such an auction. 3.1.

Failed auction

Approval in accordance with clause 25 of part 1 of Article 93 of the Law on the Contract System arises only if an open tender, a tender with limited participation, a two-stage tender, a repeated tender, or a request for proposals are declared invalid. Explanations on this issue given in Letter of the Ministry of Economic Development of Russia No. 658-EE/D28i, FAS Russia No. ATs/1587/15 dated January 20, 2015. The data in the table does not take into account changes from 01/01/2015 (no approval is required now) No. Grounds for recognition of the electronic auction failed Actions Customer Approval Conclusion of the contract 1 Not a single application has been submitted (Part.
16th century 66 44-FZ) The customer makes changes to the schedule (procurement plan) and carries out the purchase by conducting a request for proposals in accordance with clause 8, part 2, art. 83 44-FZ or in another way in accordance with 44-FZ (part 4 of Art.

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

Federal Law and documentation about such an auction or about the non-compliance of this participant and this application with the requirements of this Federal Law and (or) documentation about such an auction with justification said decision, including indicating the provisions of this Federal Law and (or) documentation about such an auction, which this application does not comply with; b) the decision of each member of the auction commission on the compliance of the only participant in such an auction and the application submitted by him for participation in it with the requirements of this Federal Law and the documentation on such an auction, or on the non-compliance of this participant and the application submitted by him for participation in such an auction with the requirements of this Federal Law and ( or) documentation about such auction; ConsultantPlus: note. From July 1, 2018, Federal Law dated December 31, 2017 N 504-FZ amends paragraph 4 of part 2 of Article 71. Cm.
Federal Law) 4 Based on the results of consideration of the first parts of applications, the auction commission decided to refuse admission to participation of all procurement participants (Part 8, Article 67 44-FZ). The Customer makes changes to the schedule (procurement plan) and carries out the purchase by conducting a request proposals in accordance with clause 8, part 2, art. 83 44-FZ or in another way in accordance with 44-FZ (Part 4 of Article 71 44-FZ) 5 The Auction Commission decided to recognize only one procurement participant who submitted an application to participate in such an auction as its participant (Part 8 Article 67 44-FZ) Coordination of the Customer’s decision with the body authorized to exercise control in the field of procurement (FAS, Rosoboronzakaz) (clause 25, part 1, article 93 44-FZ) Conclusion of a contract with a single supplier (clause 4, part. 2 Article 71, paragraph 25 Part 1 Art.

The auction was declared invalid

Federal Law due to the fact that the auction commission made a decision on non-compliance with the requirements established by the documentation for electronic auction, all second parts of applications for participation in it, or on the grounds provided for in Part 15 of Article 70 of this Federal Law, the customer makes changes to the schedule (if necessary, also to the procurement plan) and carries out the purchase by conducting a request for proposals in accordance with paragraph 8 Part 2 of Article 83 of this Federal Law (in this case, the procurement object cannot be changed) or otherwise in accordance with this Federal Law.

Electronic auction declared invalid

From July 1, 2018, Federal Law dated December 31, 2017 N 504-FZ amends Part 3.1 of Article 71. See the text in a future edition. 3.1. If the electronic auction is declared invalid on the grounds provided for in Part 13 of Article 69 of this Federal Law due to the fact that the auction commission made a decision on compliance with the requirements established by the documentation for the electronic auction, only one second part of the application for participation in it, a contract with a participant in such an auction who submitted the said application is concluded in accordance with clause 25 of part 1 of Article 93 of this Federal Law in the manner established by Article 70 of this Federal Law. (Part 3.1 introduced by Federal Law dated June 4, 2014 N 140-FZ) ConsultantPlus: note. From July 1, 2018, Federal Law dated December 31, 2017 N 504-FZ amends Part 4 of Article 71.
Cm.

If the auction is declared invalid due to

Federal Law and contained on the date and time of the deadline for filing applications for participation in such an auction in the register of participants in such an auction who have received accreditation on the electronic platform; 2) operator electronic platform within the period specified in paragraph 1 of this part, is obliged to send a notification the only participant such an auction; 3) the auction commission, within three working days from the date the customer receives the second part of this application from the only participant in such an auction and the documents specified in paragraph 1 of this part, considers this application and the specified documents for compliance with the requirements of this Federal Law and the documentation on such an auction and sends to the operator of the electronic site a protocol for considering the application of the only participant in such an auction, signed by members of the auction commission.

If the electronic auction is declared invalid

Attention

The only application - the procedure The laws on electronic trading FZ-44 and FZ-223 are constantly supplemented and coordinated with others regulations. In 2014, additional amendments were adopted to No. 498-FZ and Art. 25 No. 44-ФЗ within the framework of which the issue of conditions is considered in more detail failed auction. The grounds are determined by Art. 71, parts 1-3.1 No. 44-FZ.

Provided that the only application for participation in the auction was under consideration at the site, it is considered to be the winning one. The key feature of declaring an auction invalid for this reason is the admission of only one participant to participate in it. The customer may enter into a contract agreement with a single participant.
The conditions under which a contract can be signed should be taken into account. This is possible only with that participant (Article 70 of Federal Law-44) whose application fully meets the requirements.
This document should reflect the following information:

• Title of the document;
• place, time and date of its preparation;
• list of members of the auction commission;
• name of the failed auction;
• information about the customer;
• auction object;
• the reason for declaring the auction invalid;
• information about the site where the protocol will be placed.

So, Art. 71 of Law No. 44 defines 5 possible situations in which the auction is declared invalid. The same article defines the order of actions that the customer must take after the event receives the specified status.
Federal Law “On the privatization of state and municipal property” (as amended and supplemented) if the auction for the sale of state or municipal property is declared invalid, then the sale of the specified property is carried out through a public offer. If the auction does not take place, the only participant in the auction, no later than twenty days after the day of the auction, has the right to conclude a purchase and sale agreement or a lease agreement for the auctioned item. land plot, and the organ state power or the local government body, by whose decision the auction was held, is obliged to conclude an agreement with the only auction participant at the starting price of the auction.

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

Based on the above, concluding an agreement with a single participant failed trades does not comply with the requirements of civil law, and also contradicts the essence of the auction itself. In addition, in accordance with the current judicial practice submitting an application to participate in the auction does not mean concluding an agreement with the auction organizer by accepting a public offer. A contract is a two- or multilateral transaction that implies the emergence of rights and obligations for all its parties.

If we assume that the notice of the auction organizer is an offer to conclude an agreement with the subject of the auction, then the application of a potential participant should indeed be considered acceptance. But the bidder does not bear any obligations to conduct the auction, since providing the required documents and making a deposit are his rights, but not his obligations.

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

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

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If a single application is submitted under 44-FZ

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

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

The first part of the application includes:

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

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

The second part of the application includes:

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

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

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

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

Attached files

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

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

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

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

1. When a single application is submitted to the tender or there are no applications.
2. After reviewing the applications, the competition commission decided to admit one participant to the auction or rejected all applications.
3. After the start of the auction, not a single proposal was submitted regarding the contract price within 10 minutes.
4. Neither the auction winner nor the second participant confirmed their desire to enter into an agreement with the customer after the end of the auction.

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

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

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

If the customer, after a failed auction, decided to conclude a contract with a single supplier, then he does not have the right to make changes to the contract (according to the law on the contract system of public procurement).

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

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

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

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

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

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

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

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

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 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 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.”