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.
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.
Attention
Re: EA did not take place, what next In accordance with paragraph 25 of part 1 of Article 93 of the Federal Law of April 5, 2013 N 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (hereinafter — Law on the contract system) as amended by the Federal Law of December 31, 2014 N 498-FZ, purchase from a single supplier (contractor, performer) can be carried out by the customer, including in the event of an electronic auction being declared invalid in accordance with parts 1 - 3.1 of the article 71 of the Law on the Contract System.
Important
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.
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.
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.
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.
General grounds For competitive procedures For electronic auctions 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 prequalification. 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 submitted or all bidders rejected.3. Only one application was found eligible.
Info
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 are given in Letter of the Ministry of Economic Development of Russia No. 658-EE/D28i, FAS Russia No. AC/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 recognizing the electronic auction as invalid Actions of the Customer Approval Conclusion of the contract 1 Not a single application was submitted (part.
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.
Author: Cherdantseva Tatyana October 20, 2017 44-FZ provides not only for competitive bidding for price reductions, but also for cases when the order is declared invalid. We will analyze the grounds for recognizing a public procurement as failed, the consequences, as well as the actions of the customer in such a situation. Grounds for recognizing a purchase as failed 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. Submission of applications Review Conclusion of contract 1. There are no proposals.
2. Only one application has been submitted.
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.
Contact E-mail: help-tend@ This site was created to help Customers working in different institutions, but who are united by one thing - No. 44-FZ and No. 223-FZ... After all, from the moment Federal Law No. 44-FZ came into force 04/05/2013 “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” most people working in the field of procurement have a large number of questions that they would like to receive an answer to. and the website www.help-tend.ru provides them with this opportunity. All your questions can be easily asked, or you can already find the answer on our website.
Any failed procurement procedure is another headache for the contract manager. It’s no secret how much time and effort it takes to prepare technical specifications, draw up auction documentation, publish on the website, and tediously wait for submitted applications. But, even if applications have been submitted, the auction may still not take place.
Statistics show that rejection of applications for the first parts most often occurs during procurement for the supply of goods and performance of work. Namely, the characteristics of the goods supplied (or used in the performance of work) do not correspond to the parameters specified in the technical specifications.
As a rule, applications for the second parts are rejected when purchasing services. Because The main package of documentation from the procurement participant is contained in the second part of the application, and in the first part, only consent to participate in the electronic auction under the conditions provided for in the auction documentation is sufficient.
3. No one came to bargain. And this also happens - applications have been submitted, the first parts of applications have been reviewed and allowed to participate in the electronic auction. Everyone is waiting for the auction to begin. But at the desired hour, not a single price offer is received. Alas and ah.
The customer can endlessly wonder “How? Why? Have you forgotten about us? This situation turns out to be advantageous for the procurement participant who first submitted an application to participate in the auction. In this case, the principle “who gets up first, gets the slippers” applies.
The operator of the electronic platform sends to the customer both parts of the applications of all participating participants. The customer reviews them and makes a decision on whether these applications comply with the requirements of the auction documentation. The contract is concluded with the participant who submitted an application that meets the requirements of the auction documentation earlier than others. After the publication of the protocol for consideration of applications, the auction moves to the stage of concluding a contract.
4. The auction did not take place at all. If not a single application was submitted to participate in the electronic auction or all submitted applications do not meet the documentation requirements, the auction will also be declared invalid.
The law states that in this case, the customer makes changes to the schedule and carries out this purchase, but through a request for proposals, or carries out a new purchase. If the customer chooses the first option, then changing the procurement object is unacceptable. A new purchasing item must be created in the schedule by requesting proposals. The procurement object remains the same; the procurement period is subject to mandatory changes.
If there is no longer a need for this purchase, then the Customer makes changes to the schedule (purchase plan) and carries out a new purchase: the customer may decide to use the unused funds for other purposes.
Whichever of these two paths the Customer chooses, he will still have to wait 10 days after making changes to the PPZ before publishing the notice. But before making changes to the documentation, it is necessary to analyze what is written in the auction, since no one wanted to participate in it.
The reasons can be completely different - the initial (maximum) price of the contract is underestimated, the terms of reference were not drawn up correctly, the contract execution period is critically short, or a potential bidder simply missed your auction in the entire flow of information on the electronic platform. Whatever the reasons, the funds will still have to be used and the purchase must be carried out by the customer.
In the first three cases, a failed auction will still lead the customer to conclude a contract in accordance with clause 25.1, part 1 of Art. 93 Federal Law No. 44-FZ.
In this case, the price of the contract should not be higher than the initial (maximum) price, and the terms of its conclusion are regulated by Art. 83.2 Federal Law No. 44-FZ.
Interesting purchases and auctions to you, colleagues!
Publication date: 24.08.2018
Please note that the site administration does not always share the opinions of the authors and is not responsible for the accuracy of their information.
It has many nuances. The first thing the customer needs to know is that participation in a failed purchase cannot be called a loss. A supplier who takes part in such tenders has certain risks, but may also receive some benefits.
When a purchase is declared unsuccessful
A distinction must be made between failed, invalid and canceled procurements.
Invalid purchase – one during which the customer violated the provisions of the relevant legislation (44-FZ or 223-FZ) or the Civil Code of the Russian Federation. A contract concluded as a result of an invalid tender must be terminated.
For certain reasons, the customer or regulatory authority may cancel the purchase at any of its stages.
The purchase is recognized failed when there was in fact no competitive definition of supplier. Depending on the type of trade, the specific reasons may vary.
When auctions under 44-FZ are declared invalid
It is worth considering cases of failed procurement in the three most popular types of procurement procedures:
2. In the auction
3. In request for quotation
Failed auctions under 223-FZ
It has been repeatedly noted that Law 223-FZ is more loyal to the procurement procedure and the actions of customers. This also applies to their actions in cases where procurements are declared invalid: they are not defined by the law itself, and the Civil Code regulates only failed tenders and auctions.
Most customers take 44-FZ as a basis, replacing some conditions with more flexible ones. Other documents on which the actions of customers are based are the procurement regulations and the Law on Protection of Competition.
Customer actions
1. When no supplier met the requirements
First, changes are made to the schedule. After 10 days, the customer can announce:
2. When only one supplier met the requirements
Failed, invalid and canceled purchase are different things.
Status failed purchase means that there was no competitive competition or bidding between suppliers. But based on the results of such a purchase, the customer can enter into a contract with a single supplier.
Invalid tenders are recognized where the customer violated laws (44-FZ, 223-FZ) or the norms of the Civil Code. If the auction is declared invalid after the winner is determined, the contract with him is terminated.
Cancel purchase at any stage, the customer himself can do it for his own reasons or by order of the regulatory authority.
For example, in 2018, every third competitive procurement under 44-FZ was declared invalid:
Monitoring data from the Ministry of Finance for 2018
1. According to 44-FZ
Let's see how this works for the three most popular types of competitive procurement:
For the competition
For auction
To request a quote
2. According to 223-FZ
All cases where a procurement is declared invalid must be provided for and described in the procurement regulations. The law does not regulate the actions of customers if the purchase does not take place, and in the Civil Code the concept of “failed purchase” is given only for tenders and auctions and only if one supplier participated in them.
Many customers under 223-FZ use the provisions of 44-FZ as an example, but make the conditions more flexible. Suppliers traditionally need to rely on customer procurement regulations, the Civil Code and competition law.
In this case, the customer can enter into a contract with the supplier whose application meets the requirements.
If you are the only participant or only your application meets all the requirements, then after summing up the procurement results you need sign contract.
The only winning supplier must sign the contract on time, otherwise he will be included in the register of unscrupulous suppliers. For example, how it happened in this purchase.
In procurement under 223-FZ, the customer’s actions are determined by its procurement regulations.
Constantly look for procurement in your area. Then you won’t miss anything interesting, you’ll have time to prepare and submit your application.
If you have applied to participate, keep track of what is happening in the procedure. For example, in Kontur.Purchases you can add a purchase to your favorites and receive information about its results. This will help you not miss the deadline for signing the contract.
In the comments to articles you can get answers from other suppliers, and experts will answer
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.
