In most cases, when the phrase “the purchase did not take place” is announced, participants have the impression that either there are no proposals for the tender, or all applications for participation in it have been rejected. However, there are many more cases where a purchase is declared unsuccessful.
Let's look at this for different stages of the procedure.
All bases are collected in the table.
| Submitting Applications | Consideration | Conclusion of a contract | ||
|---|---|---|---|---|
|
1. There are no offers. 2. Only one application has been submitted. |
General basis | For competitive procedures | For electronic auction | The winner’s evasion from concluding a contract and the subsequent evasion of the second participant from signing the contract. |
|
1. All proposals were rejected. 2.Only one was found to meet the requirements. |
When conducting prequalification in a competition with limited participation: 1. No participant is called upon to meet additional requirements. 2. Only one participant was admitted based on the results of the prequalification selection. |
When conducting an electronic auction, if there are no price offers at the auction within 10 minutes after the start of the auction. | ||
| When conducting the second stage of a two-stage competition: 1. There are no offers. 2. Only 1 proposal was submitted or all participants were rejected. 3. Only one application was found eligible. |
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If, during a competition, a public procurement is declared invalid, 44-FZ provides for two cases of further developments: to carry out a new or repeated one, or to purchase from a single supplier.
The difference between a new government procurement and a repeated one is that if the object, volume, requirements for participants do not change, that is, all conditions remain the same (except for the period for fulfilling the terms of the contract, which is extended for the period necessary for the repeated order, as well as the initial price, which can be increased by no more than 10%), then the order is repeated, otherwise - new.
When there are no applications submitted or they are found to be inappropriate, the procedure is repeated. The publication of the notice in the Unified Information System according to the repeated procedure is carried out no less than 10 days before the date of opening of the envelopes (not 20 days, as in the usual case).
If a repeat competition does not take place in the future for the same reasons (Part 2 of Article 55), then the customer has the right to carry out the procedure by requesting proposals in order to reduce the deadline for submitting applications to 5 working days or in another way at the discretion of the customer.
If the procurement does not take place, the sole supplier enters into a contract if its application meets the requirements of the law and documentation. In this case, the customer must obtain approval from the FAS (clause 25, part 1, article 93).
This group will not include the case when, based on the results of the prequalification selection of a two-stage competition, only one participant is recognized as meeting the requirements (Part 10, Article 57). The customer makes the purchase again, due to the fact that it is not possible to discuss the characteristics of the order object with several suppliers.
If an electronic auction is declared invalid, the customer or enters into a contract with a single supplier, while approval from the control body is not required (in cases provided for in Part 16 of Article 66, Part 8 of Article 67, Part 20 of Article 68, Part 13 Art. 69).
Or, if the auction did not take place, changes to the procurement plan are made if necessary in accordance with Part 6 of Art. 17, changes in the schedule are required, then the order is carried out again (part 16 of article 66, part 8 of article 67, part 13 of article 69, part 15 of article 70).
If the request for quotation is declared invalid, the customer either enters into a contract with a single supplier, without requiring approval from the control body, or conducts the public procurement again, reflecting the changes in the planning documents.
Let's consider what to do with failed purchases at different stages of the procedure.
Failed procurement under 44-FZ during a closed auction and competition is recognized in cases similar to open methods of identifying a supplier. However, according to Art. 92, in addition to the possibility of re-ordering, the customer has the right, in agreement with the control body, to purchase from a single supplier in accordance with clause 24, part 1 of Art. 93.
Documents Legislation Comments Judicial practice Articles Procurement Tenders Auctions Request for quotations Request for proposals Sole supplier Contract State contract Municipal contract Federal bodies FAS Russia Rosoboronzakaz From 01/01/2015, if an electronic auction is declared invalid, approval of the conclusion of a contract with a single supplier with the control body is not required. Federal Law No. 498-FZ dated December 31, 2014 amended clause 25, part 1, art. 93 44-ФЗ in accordance with which, if the electronic auction was declared invalid on the grounds that are provided for. 1 - 3.1 tbsp.
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) the operator of the electronic site, within the period specified in paragraph 1 of this part, is obliged to send notifications to the participants of such an auction; 3) the auction commission, within three working days from the date the customer receives the second parts of applications for participation in such an auction of its participants and the documents specified in paragraph 1 of this part, reviews the second parts of these applications and these documents for compliance with the requirements of this Federal Law and documentation about such an auction and sends to the operator of the electronic platform a protocol for summing up the results of such an auction, signed by members of the auction commission.
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) the operator of the electronic site, within the period specified in paragraph 1 of this part, is obliged to send a notice to the participant in such an auction who submitted a single application for participation in such an auction; 3) the auction commission, within three working days from the date of receipt of the only application for participation in such an auction and the documents specified in paragraph 1 of this part, considers this application and these documents for compliance with the requirements of this Federal Law and the documentation for such an auction and sends it to the operator electronic platform, a protocol for considering a single application for participation in such an auction, signed by members of the auction commission.
From July 1, 2018, Federal Law dated December 31, 2017 N 504-FZ amends paragraph 4 of part 3 of Article 71. See the text in a future edition. 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 on 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.
ConsultantPlus: note.
Then a notice of a repeat auction or request for proposals may be published on the website no earlier than November 12, 2016. As for re-placement of the order, this may again be an electronic auction or, based on clause 8 of part 2 of Article 83, a request for proposals.
Part 3 of this article defines the regulations for conducting procurement in this way, including the deadlines. In any case, the contractor who wanted to take part in the electronic auction, which was subsequently declared invalid due to a lack of applications, but for some reason did not have time, has enough time to solve all the problems and become a participant in the re-placed purchase.
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. (as amended by Federal Laws dated December 28, 2013 N 396-FZ, dated June 4, 2014 N 140-FZ) (see.
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 №44-
Federal Laws within the framework of which the issue of the conditions of the failed auction is considered in more detail. The grounds are determined by Art. 71, parts 1-3.1 No. 44-FZ.
Important
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.
Attention
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.
So, the tender is declared invalid if:
Failed auction - consequences As we wrote above, depending on the reasons for recognizing a failed auction, 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 auctions Repeated auctions are also carried out on the basis of Federal Law-44.
At the moment, 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.
If no applications are submitted to the auction, you are required to publish a protocol declaring the purchase invalid. The functionality of the site does not imply the automatic publication of a protocol declaring a purchase invalid.
Log in to your Personal Account using your electronic signature. Find the auction in the “Purchases” section; 2. Open the form of the protocol on declaring the auction invalid: Click on the notification “Publish the protocol on declaring the auction invalid” in the auction line in the “Purchases” section; Or open the auction card in the “Events” section, then “Protocols” and click the “Open protocol form” button.
3. Select the auction commission in the Commission field (if necessary).
Federal Law) 2 Only one application was submitted - the participant does not comply (Part 16, Article 66 44-FZ) = based on the results of consideration of the first parts of the applications, the auction commission decided to refuse admission to 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 for proposals in accordance with clause 8 of part 2 of art. 83 44-ФЗ or in another way in accordance with 44-ФЗ (part 4 of article 71 44-ФЗ) 3 Only one application is submitted - the participant complies (part 16 of article 66 44-ФЗ) Coordination of the Customer’s decision with the authorized body 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 1, article 71, clause 25, part 1, art.
then the customer has the right to conclude a contract with a single supplier without the consent of the body authorized to exercise control in the field of procurement.
Bidding for each exhibited item of bidding is considered invalid if:
a) less than two participants participated in the auction;
b) none of the bidders during an auction open according to the form for submitting proposals for the price or the amount of rent, after three times announcing the starting price or the initial amount of rent, raised a ticket;
c) none of the bidders during a competition or auction closed according to the form for submitting proposals on the price or amount of rent, in accordance with the decision of the auction organizer, was recognized as the winner;
d) the winner of the auction avoided signing the protocol on the results of the auction, concluding a purchase and sale agreement or renting a land plot.
The auction organizer is obliged, within three banking days from the date of signing the protocol on the results of the auction, to return the deposit made by the participants in the failed auction. The deposit made by the winning bidder will not be returned to him. If the auction is declared invalid, the auction organizer has the right to announce a re-conduction of the auction. However, their terms and conditions may be changed. The auction organizer can reduce the starting price of a land plot or the initial rental amount and reduce the “auction step” by no more than 15 percent without re-valuation. If the auction organizer is a specialized organization, the terms of the competition, the starting price or the initial amount of rent, the “auction step” may be changed in the manner established for their approval.
As for state and municipal property, the requirements of the law apply here - Part 1 of Article 23 of the Federal Law of December 21, 2001 No. 178-FZ “On the privatization of state and municipal property” (with amendments and additions) if the auction for the sale state or municipal property is declared invalid, then the said property is sold through a public offer.
If the auction does not take place, 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 land plot put up for auction, and the state authority or local government body, by whose decision the auction was held, is obliged to conclude an agreement with a single auction participant at the starting auction price.
Information about the auction results is published by the auction organizer within three days from the date of signing the protocol on the auction results in periodicals in which the auction was reported, and is posted on the official website of the Russian Federation on the Internet.
It is not allowed to conclude an agreement based on the results of the auction or in the event that the auction is declared invalid due to the participation of less than two people in the auction, earlier than ten days from the date of posting information about the results of the auction on the official website of the Russian Federation on the Internet.
Since, if the auction is declared invalid, the winner of such auction is not determined, the conclusion of an agreement with the only participant in the failed auction is contrary to the requirement of Part 1 of Art. 447 of the Civil Code of the Russian Federation, due to the fact that such a participant is not the person who won the auction, i.e. the person who received the right to conclude the contract that was the subject of these auctions.
Based on the foregoing, the conclusion of an agreement with the only participant in the failed auction does not comply with the requirements of civil law, and also contradicts the essence of the auction itself. In addition, in accordance with 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. By these actions he only exercises his right to participate in the auction. The applicant who has submitted an application and paid the deposit cannot be forced to participate in the auction itself and has the right to refuse to participate in the auction at any time.
In addition, in accordance with Article 438 of the Civil Code of the Russian Federation, acceptance must be complete and unconditional. Consequently, if the response contains additional or different conditions from the offer, then it cannot be recognized as acceptance.
Thus, in order for a participant’s application to be recognized as acceptance, it must contain conditions identical to those specified in the tender notice, i.e. The contract price proposed in the participant’s application must completely coincide with the contract price (minimum or maximum) specified in the notice. Otherwise, recognition of such an application as acceptance will be contrary to civil law.
If such a contract for the sale and purchase of state or municipal property is concluded based on the results of a failed auction, the official may be brought to criminal liability on the grounds of a crime under Art. 286 “Exceeding official powers” or Art. 293 “Negligence” of the Criminal Code of the Russian Federation.
According to paragraph 16 of the notes of the Order of the Ministry of Economic Development and the Treasury of the Russian Federation No. 761/18n, changes to schedules in connection with repeated procedures for placing orders are made only in terms of the timing and method of placing an order and executing the contract.
At the same time, according to Part 2 of Art. 112 of the Federal Law of 04/05/2013 No. 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter referred to as Law No. 44-FZ), customers place plans and schedules for placing orders for 2014-2016 according to the rules in force before the entry into force of Law No. 44-FZ, taking into account the Features of placement in a unified information system or before the commissioning of the said system on the official website of the Russian Federation on the Internet information and telecommunications network for posting information about placing orders for the supply of goods, performance of work, provision of services, schedules for placing orders for 2015 - 2016, approved by Order of the Ministry of Economic Development of Russia No. 182, Treasury of Russia No. 7n dated 03/31/2015 (hereinafter referred to as the Features).
For example, clause 6 Features, according to which, changes to the schedule posted on the official website for each procurement object are carried out no later than ten calendar days before the date of posting on the official website of the notice of procurement or sending an invitation to participate in determining the supplier (contractor, performer). The exceptions are the cases specified in clause 7 Features.
In accordance with clause 7 Features in the case of procurement through a request for quotations for the purpose of providing humanitarian assistance or eliminating the consequences of emergencies of a natural or man-made nature in accordance with Art. 82 of Law No. 44-FZ, changes are made to the schedule posted on the official website on the day a request for quotation is sent to procurement participants, and in the case of a purchase from a single supplier (contractor, performer), in accordance with clause 9 and 28 hours 1 tbsp. 93 of Law No. 44-FZ, no later than one calendar day before the date of conclusion of the contract.
A notice of procurement (for example, an electronic auction, an open tender) can be posted by the customer on the official website no earlier than 10 calendar days from the date of changes to the schedule posted on the official website.
From all of the above, we can conclude that the placement by the customer on the official website of a notice of procurement earlier than 10 calendar days from the date of changes to the schedule posted on the official website will violate the provisions of the legislation of the Russian Federation on the contract system. This applies only to those purchases for which changes have been made to the schedule posted on the official website.
Let's consider the joint Order of the Ministry of Economic Development of the Russian Federation and the Federal Treasury dated December 27, 2011 No. 761/20n "On approval of the procedure for posting on the official website schedules for placing orders for the supply of goods, performance of work, provision of services for the needs of customers and the form of plans - schedules for placing orders for the supply of goods, performance of work, provision of services for the needs of customers" (hereinafter referred to as Order No. 761/20n).
According to paragraph 15 of the notes of Order No. 761/20n, changes to schedules are made in the following cases:
Changes of more than 10% in the cost of goods, works, services planned for acquisition, identified as a result of preparation for placing a specific order, as a result of which it is impossible to place an order for the supply of goods, performance of work, provision of services in accordance with the initial (maximum) contract price stipulated schedule;
Changes in the planned terms of acquisition of goods, works, services, method of placing an order, contract execution period;
Cancellation by the customer or authorized body of the order provided for in the schedule;
The resulting savings from the use of budgetary allocations in the current financial year in accordance with the legislation of the Russian Federation;
If circumstances arise that were impossible to foresee at the date of approval of the schedule;
In the event that a customer, an authorized body is issued an order by a federal executive body, an executive body of a constituent entity of the Russian Federation, a local government body authorized to exercise control in the field of placing orders to eliminate violations of the legislation of the Russian Federation on placing orders in accordance with the legislation of the Russian Federation, including about cancellation of the auction.
We also draw your attention to the fact that in accordance with clause 16 of the notes of Order No. 761/20n, changes to schedules in connection with repeated procedures for placing orders are made only in terms of the timing and method of placing an order and executing the contract.
If the Customer held an electronic auction for which not a single application was submitted and the auction was declared invalid, then when the procedure is repeated, new terms for the electronic auction and new terms for the execution of the contract are entered into the schedule. These changes are entered into a line that already contains information about the purchase, i.e. There is no need to create a new line for repeating the procedure in the schedule. And if, during a repeated procedure, the method of placing an order (the method of determining the supplier) changes, then the new method of determining the supplier is entered instead of the old one. For example, instead of the method of determining the supplier “electronic auction”, “request for proposals” is indicated.
If the auction did not take place, not a single application was submitted, what to do under 44-FZ? We will consider the answer and detailed explanations in our article.
The answer to the question is in Article 71 44-FZ. Its provisions can be divided into two main situations:
We will tell you what to do in each of these situations below.
If the electronic auction is declared invalid, one application has been submitted (1 high-quality application remains, since the rest were rejected), then the customer must issue a government contract with a single supplier (SP). This supplier is the person who submitted the only application. The basis for the execution of the contract is clause 25.1 of part 1 of Article 93 44-FZ:
The timing and procedure for signing the document are determined by Article 83.2 of 44-FZ. Coordination with the control body is not required.
So, if the electronic auction did not take place due to the fact that only 1 application was submitted, then a government contract should be drawn up with the person who submitted it. The situation is more complicated if not a single application has been submitted to the electronic auction under 44-FZ. We'll talk about this in more detail below.
If the competitive procedure does not take place, the customer either enters into a contract with a single supplier or carries out a repeat or new purchase. How to proceed depends on the procurement method and the reason why the purchase did not take place. See the algorithm of actions for electronic, paper and closed purchases.
The answer to the question is contained in Part 4 of Article 71 of Law No. 44-FZ. In accordance with it, the state customer carries out:
If the electronic auction did not take place, you can place it again. The customer must make the appropriate changes to the schedule and, if necessary, to the procurement plan. In this case, amendments to the schedule can be made no later than 1 day before the date of publication in the Unified Information System of a notice about the repeated procedure (Part 14 of Article 21 44-FZ).
If the electronic auction did not take place twice, what should I do? Conduct a request for proposal or other competitive procedure. It is worth paying attention to the terms of the auction.
If they don’t want to participate, it means that potential suppliers are not satisfied with something and this can be corrected. For example, reduce the enforcement of government contracts to the minimum possible value. In addition, it is necessary to conduct a request for proposal, because its conduct gives the customer the opportunity to send invitations to participate in tenders to persons with whom similar government contracts were issued in the previous 1.5 years.
