The only participant in the electronic auction. Failed auction Order declaring the electronic auction void

During electronic trading— the auction, according to the law, may not take place. The conditions for recognizing it as such are regulated by articles 66-69 of Law 44-FZ “On the contract system in the field of procurement of goods, works, services...”. This rule of law describes the applicable procedure for conducting procedures on the electronic platform.

In particular, declaring the auction invalid allows you to sign a contract with one participant or conduct the auction in a different form.

The point is that when tenders are closed without applications, the state-owned enterprise has the opportunity to select a supplier using the request for proposals method. Let's look at the most typical scenarios failed trades.

The only request is the procedure

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-FZ, within the framework of which the issue of the terms of the failed auction was considered in more detail.

The grounds are determined by Art. 71, parts 1-3.1 No. 44-FZ.

Provided that the work of the site was under consideration single application to participate in the auction, she is considered the winner.

Key Feature declaring the 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. Please keep in mind that consideration of a single application is possible if the supplier submitted a price proposal within 10 minutes after the start of bidding (Article 68 of Federal Law-44, Part 20). At a minimum, it should be 0.5% lower than the NMCC.

If the auction does not take place and not a single application meets the requirements, then the customer can purchase using the request for proposals method.

The auction was declared invalid - not a single application was submitted

If, taking into account the requirements of 44 Federal Laws, not a single application was registered, then the auction is also declared invalid. This entails in most cases a repeated tender, regulated by articles of federal law. This is also true if the participants did not enter into a contract to fulfill the order for this purchase.

So, the tender is declared invalid if:

one application submitted;

lack of applications;

registered applications were submitted with violations and cannot be accepted by the commission;

in cases where in set time there was no price offer.

Failed auction - consequences

As we wrote above, depending on the reasons for recognizing a failed tender, the customer can enter into a contract with a single supplier or conduct a new tender in the form of a request for proposals or otherwise established by law.

Repeated bidding

The re-tender is also carried out on the basis of Federal Law-44. IN currently the state customer has the right to select a counterparty only by requesting proposals, but new amendments are expected soon, which will require additional. approvals.

To submit an application for participation in the auction without violations and meeting the customer’s requirements, it is best to contact specialists. The RusTender company already has significant experience in in this direction, therefore, qualitatively and in short time can prepare everything Required documents and transfer them to the site for participation in the auction.

OOO ICC"RusTender"

The material is the property of the site. Any use of the article without indicating the source - the site is prohibited in accordance with Article 1259 of the Civil Code of the Russian Federation

In connection with numerous requests from local governments about the possibility of concluding lease agreements for municipal property with a single bidder held in accordance with the Rules for conducting competitions or auctions for the right to conclude lease agreements, agreements for gratuitous use, agreements for trust management of property, and other agreements providing for the transfer of rights possession and (or) use in relation to state or municipal property approved by Order of the Federal Antimonopoly Service of Russia dated February 10, 2010 No. 67 (hereinafter referred to as the Bidding Rules), the Voronezh OFAS reports the following.
Article 17.1 of the Law “On Protection of Competition” establishes the requirement to conclude agreements providing for the transfer of rights of ownership and (or) use in relation to state or municipal property only based on the results of competitions or auctions for the right to conclude these agreements.
According to paragraphs 74 and 135 of the Bidding Rules, the adoption of a decision on admission to participation in the competition (auction) and recognition of only one applicant as a participant in the competition (auction) is the basis for declaring the competition (auction) invalid. In case of recognition of the auction as invalid, clauses. 101 and 151 of the Auction Rules provide for the possibility of holding new auctions.
The possibility of concluding an agreement in relation to state or municipal property with a single participant in the competition (auction) is not regulated in any way by the Rules for Conducting Bidding. At the same time, we believe that the conclusion of an agreement providing for the transfer of rights of ownership and (or) use in relation to state or municipal property with a single bidder does not interfere with ensuring openness of procedures and equality of rights of all interested parties when acquiring rights in relation to state or municipal property.
Federal Law No. 178-FZ of December 21, 2001 “On the privatization of state and municipal property” (hereinafter referred to as the Law “On Privatization”) also does not regulate the possibility of concluding an agreement for the sale of state or municipal property during an auction with a single participant. However, according to existing judicial practice(Resolution of the Federal Arbitration Court of the Far Eastern District dated May 6, 2010 No. F03-2860/2010 in case No. A51-19546/2009) the conclusion of an agreement with the only participant in a failed auction, although not provided for by the Law “On Privatization,” does not contradict it.
Thus, the Voronezh OFAS Russia considers it possible to conclude agreements providing for the transfer of rights of ownership and (or) use in relation to state or municipal property with a single bidder.

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

Article 71. Consequences of declaring an electronic auction invalid

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

Failed auction

Agreements in accordance with paragraph 25 of part 1 of Article 93 of the Law on the Contract System arise only if they are declared invalid open competition, competition with limited participation, two-stage competition, repeated competition, request for proposals. 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. Data in the table without taking into account changes since 01/01/2015 (no approval is required now) No. Basis of recognition electronic auction failed Actions of the Customer Approval Conclusion of the contract 1 Not a single application was 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 on such an auction or on the non-compliance of this participant and this application with the requirements of this Federal Law and (or) documentation on such an auction with the rationale for the said decision, including indicating the provisions of this Federal Law and (or) documentation on 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 Art. 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 Art. 71, paragraph 25 Part 1 Art.

The auction was declared invalid

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

Electronic auction declared invalid

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

If the auction is declared invalid due to

Federal Law and contained on the date and time of the deadline for filing applications for participation in such an auction in the register of participants in such an auction who have received accreditation on the electronic platform; 2) operator electronic platform within the period specified in paragraph 1 of this part, is obliged to send a notice to the only participant in such an auction; 3) the auction commission, within three working days from the date the customer receives the second part of this application from the only participant in such an auction and the documents specified in paragraph 1 of this part, considers this application and specified documents for compliance with the requirements of this Federal Law and documentation about 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 is the procedure for action. The laws on electronic trading FZ-44 and FZ-223 are constantly supplemented and coordinated with other regulations. In 2014, additional amendments were adopted to No. 498-FZ and Art. 25 No. 44-FZ, within the framework of which the issue of the terms of the failed auction was considered in more detail. The grounds are determined by Art. 71, parts 1-3.1 No. 44-FZ.

• 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 sole auction participant, 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 participant in the auction for starting price auction

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

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 established 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.

Budgetary institutions, in the course of their work, purchase goods or services through electronic open auctions. The winners of such auctions are companies or individuals who offer the most low price for completing the order.

The choice of the order executor in the case where the auction did not take place depends on the reason for the cancellation of the auction and is regulated by the provisions of Art. 71 of Law No. 44.

Basic provisions

A procurement auction is called failed if the downward bidding was not held. The reasons for the lack of trading may be the following:

• only one potential person expressed interest in participating in trading;
• Among all applicants, only one meets the necessary requirements;
• none of those registered started trading in the second stage competition;
• no one declared their desire to participate in the competition;
• none of the participants meet the requirements.

Consequences of declaring an auction invalid

If the procurement commission declares the auction invalid, then the following options are possible:

• concluding an order fulfillment agreement with;
• organization of a new purchase with a reduced maximum contract price;
• selection of performer by.

An agreement with a single applicant is concluded if both parts of the application submitted by him are approved by the competition commission.

It is important to know that a new purchase with a lower maximum price after the auction is declared invalid can only be organized with the same parameters of the required product, package of services or work.

For example, if the subject of the failed purchase was the supply of office equipment for, then the terms of the new purchase for office equipment should indicate the same characteristics, country of origin and quantity as in the terms of the previous purchase.

If the auction is declared invalid, the customer also has the right not to carry out a new purchase, but to choose a contractor by requesting proposals in the manner provided for in paragraph 4 of Chapter. 3 of Law No. 44.

A request for proposals involves identifying the contractor who has offered the most optimal characteristics of the required product or service.

A new purchase or request for proposals is organized in the event that no applications were submitted to the auction or none of them meet the customer’s requirements.

Failed electronic auction. Failed auction in electronic form.

• The concept of “failed electronic auction” means the absence of bidding when placing a specific order. At the same time, it is not at all necessary to imply that the contract (for this order) will not be concluded. For example, only 1 URZ showed up for the auction, it turns out that there will be no bidding, this URZ will not play with itself at the auction. It turns out. That the electronic auction (UAEF) was declared invalid, and the state. the contract will be concluded with this (the only one that applied) RZ.

A list of situations in which electronic auctions are declared invalid, but government contracts are still concluded.

The electronic auction was declared invalid. Regulations and executed documents.

Recognition of the electronic auction as invalid.

Protocol for declaring an electronic auction invalid. There is a participant (admitted), and a state contract will be concluded with him.

Protocol for declaring an electronic auction invalid. There were no applications submitted at all.

• Fixing the fact: the electronic auction is recognized (the reason is indicated) as invalid.

• Reason for declaring the auction invalid: no bids were submitted.

Consequences of declaring an electronic auction invalid.

Cases of declaring an electronic auction invalid.