The repeated auction was declared invalid. The auction was declared invalid, but you seem to have submitted an application. What's next? Failed electronic auction. Failed auction in electronic form

In this article I will focus on declaring the auction invalid.

When can this happen?

Firstly, if no applications were submitted for the auction at all, this is quite logical; what kind of auction is there if there is no one. What's next? Repeated bidding will be scheduled with a reduction in the initial price (NP) by 10% from the NC at the primary auction. If repeated ones do not take place, then tenders will be scheduled in the form of a public offer with a decrease in the NC.

The most interesting thing is not this.

Imagine this situation: you have decided to buy something from a primary or repeat auction (i.e. from an upward auction). You have submitted your application online. And it just so happened that no one except you was allowed to participate in the auction, or no one submitted bids at all. What will happen in this case?

Now these auctions will be called invalid. But it’s too early to panic.

Even though this sounds sad, you, as the only participant in such auctions, will be recognized as the winner of the auction at the starting price. You applied for the auction at the starting price? It's not your problem that no one else applied or was admitted except you. You were ready to pay the initial price, because... for some reason you applied. Therefore, the auction organizer has no grounds, incl. Legislative laws do not designate you as the winner of such auctions.

What article of law are we relying on? Of course, to the main document - Federal Law No. 127 “On Insolvency”, or more precisely, paragraph 17 of Article 110 “Sale of the debtor’s enterprise” (download the Federal Law from the link)

“If only one participant was allowed to participate in the auction, whose application for participation in the auction complies with the conditions of the auction or contains an offer for the price of the enterprise not lower than the established initial sale price of the enterprise, the purchase and sale agreement for the enterprise is concluded by an external manager with this participant in the auction”

Thus, if you are the only participant in the auction and your application with its Attachments meet the requirements, you can count on the fact that you bought the item at the starting price.

This is how things stand with the recognition of trades as invalid.

Therefore, when I showed in my video tutorial these auctions for the purchase of a land plot in the city of Yartsevo, some attentive readers of our newsletter were justifiably perplexed: “How is he telling us here that he bought the land, but the auction did not take place”?

That’s how they “didn’t happen”!

And this is a certificate of ownership of that same plot of land. This is Anyone who has access to the Sberbank-AST platform can also view the trading procedure - SBR013-1404110020

Grounds for declaring an electronic auction invalid are possible at various stages of the procedure. At the stage of identifying participants in the electronic auction, the procedure is considered failed if no application for participation has been submitted. In this case, the customer makes changes to the procurement schedule, if necessary, to the procurement plan, and purchases through a request for proposals or another procurement method (Part 4 of Article 71 of the Law on the Contract System).

Also, at the stage of identifying participants in an electronic auction, the procedure is recognized as failed if only one application is submitted. In this case, the customer makes changes to the procurement schedule, as well as:

  • the auction commission includes in the protocol of the electronic auction only one proposal for the contract price;
  • operator electronic platform no later than the working day following the deadline for submitting applications, sends to the customer both parts of this application, as well as the documents of the auction participant who submitted it, generated during the participant accreditation process (except for the email address), and also sends a notification to the participant within the same period ;
  • The auction commission, within three working days from the date of receipt of the application and documents, reviews this application and these documents for compliance with the requirements of the Law on the Contract System and documentation on electronic auction and sends to the operator of the electronic platform a protocol of consideration of the single application;
  • if this participant and the application submitted by him are found to comply with the requirements of the Law on the Contract System and Electronic Auction Documentation, a contract is concluded with this participant (subject to the customer receiving approval from the control body).

Important to remember

In the joint letter of the Ministry of Economic Development of Russia No. 23679-EE/D28i and the FAS of Russia No. LTs/39384/14 dated September 30, 2014 “On the position of the Ministry of Economic Development of Russia and the FAS of Russia on the issue of application of the norms of the Federal Law of April 5, 2013 No. 44-FZ “On contract system in the field of procurement of goods, works, services to meet state and municipal needs” regarding the consequences of submitting one proposal for the contract price during an electronic auction” explains the features of conducting an electronic auction in accordance with the Law on the Contract System.

Part 1 Art. 93 of the Law on the contract system. The joint letter of the Ministry of Economic Development of Russia No. 658-EE/D28i and the FAS of Russia No. ATs/1587/15 dated January 20, 2015 contains the following clarification. Federal Law No. 498-FZ dated December 31, 2014 came into force on December 31, 2014. Starting from this date, if the electronic auction is declared invalid in accordance with Part 1-3.1 of Art. 71 of the Law on the Contract System, the customer enters into a contract with a single supplier (contractor, performer) on the basis of clause 25, part 1, art. 93 of the Law on the contract system. At the same time, approval of the conclusion of a contract with a single supplier (contractor, performer) with the control body in the field of procurement is not required, even if the auction was declared invalid before December 31, 2014. The need for such approval in accordance with clause 25, part 1, art. 93 of the Law on the Contract System arises only if an open competition, a competition with limited participation, a two-stage competition, a repeated competition, or a request for proposals are declared invalid.

At the bidding stage, the basis for declaring an electronic auction invalid is the case if more than one application was submitted and more than one participant was allowed to participate in the auction, but none of the admitted participants took part in the auction, in this case the following procedure is provided:

  • the operator of the electronic site, within one hour after posting on the electronic site a protocol on declaring the auction invalid, sends to the customer the specified protocol and the second parts of applications for participation in this auction submitted by its participants, as well as documents of participants in such an auction generated in the process of accreditation of the participant (with the exception of email addresses), and also sends notifications to participants within the same period;
  • 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 documents, reviews the second parts of these applications and documents for compliance with the requirements of the Law on the Contract System and documentation on the electronic auction and sends a protocol to the operator of the electronic site the results of such an auction.

In this case, the customer needs to make changes to the procurement schedule, then he purchases from a single supplier (contractor, performer) in accordance with clause 25, part 1, art. 93 of the Law on the contract system in agreement with the control body (Part 1 of Article 71 of the Law on the Contract System).

At the stage of determining the winner of the electronic auction, the procedure is considered invalid if the winner and the “second” winner evaded concluding a contract. The customer needs to make changes to the procurement schedule, then he makes the purchase through a request for proposals or another procurement method (Part 4 of Article 71 of the Law on the Contract System).

  • After making a change to the procurement schedule, the customer purchases from a single supplier (contractor, performer) in accordance with clause 25, part 1, art. 93 of the Law on the contract system in agreement with the FAS of Russia (Part 1 of Article 71 of the Law on the Contract System). At the stage of consideration of the first parts of applications, two grounds may arise for declaring the electronic auction invalid. If more than one application was submitted, but not a single application was allowed to participate in the auction, the customer makes changes to the procurement schedule and purchases through a request for proposals or another procurement method (Part 4 of Article 71 of the Law on the Contract System). The second case, if more than one application was submitted, but only one application was allowed by the customer to participate, the following procedure is established: the operator of the electronic platform, within one hour after posting the protocol for consideration of applications on the electronic platform, sends to the customer the second part of the application, as well as the documents of the auction participant who submitted it, generated during the accreditation process of the participant (except for the email address), and also a notification is sent to the participant within the same period; 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 documents, reviews this application and these documents for compliance with the requirements of the Law on the Contract System and Documentation
  • electronic auction and sends to the operator of the electronic platform a protocol for considering a single application; if this participant and the application submitted by him are recognized as complying with the requirements of the Law on the contract system and documentation on the electronic auction, a contract is concluded with this participant (subject to the customer receiving approval from the FAS of Russia). It is important to remember: The Customer needs to make changes to the schedule, then he makes a purchase from a single supplier (contractor, performer) in accordance with clause 25

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 2015, every third competitive procurement was declared unsuccessful:

In what cases will procurements be declared invalid?

1. According to 44-FZ

Let's see how it works on the three most popular types competitive procurement:

For the competition

  • No applications submitted;
  • All applications were rejected by the commission;
  • The winner avoided signing, and the second participant refused to enter into a contract (he has the right to do so, there will be no sanctions);
  • As a result of the prequalification, all participants were ineligible;
  • Only 1 application submitted;
  • Only 1 application meets the documentation requirements;
  • As a result of pre-qualification, only 1 participant met the requirements.

For auction

  • No applications submitted;
  • After reviewing the first parts, all participants were denied admission;
  • After review of the second parts, all applications are ineligible;
  • Only 1 application submitted;
  • After reviewing the first parts, only 1 application meets the documentation requirements;
  • Within ten minutes after the start of the auction, not a single proposal for the contract price was submitted;
  • As a result of consideration of the second parts, only 1 application meets the documentation requirements;
  • The winner avoided signing the contract, and the second refused to sign the contract (he has the right to do so, there will be no sanctions).

To request a quote

  • No applications submitted;
  • All applications were rejected by the commission;
  • Only 1 application submitted;
  • Only 1 application meets the requirements.

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.

What will the customer do if the procedure does not take place?

If there were no qualified suppliers

First of all, the customer makes changes to his schedule. 10 days after this, he has the right to announce:

  • Repeated tender or request for proposals, if the procurement was carried out in the form of a tender;
  • Request for proposals or other procedure if the auction did not take place;
  • New request for proposals after a failed request for proposals.
  • A new quote after a failed quote request.

To request quotes and electronic competitions it is necessary to extend the deadline for submitting applications: by 4 and 10 days, respectively. If there are no proposals again, the customer will make changes to the schedule and conduct a new purchase in the manner indicated above.

If there is only one participant who meets the requirements

The customer must:

  1. If an electronic auction or request for quotation was held, enter into a contract with the supplier whose application meets the requirements;
  2. If there was a competition or request for proposals, agree on the purchase from a single supplier with the regulatory authority;
  3. If the purchase is agreed upon, conclude a contract.
  4. Involve external experts in accepting goods or work under a contract concluded in accordance with clauses 25.1-25.3, part 1, art. 93 44-FZ. If you are the winner of such a purchase, be careful and comply with all the terms of the contract. The external commission may find fault with little things that the customer may not pay attention to in order to quickly accept the desired product.

What should the supplier do?

If you are the only participant in the procurement or only your procurement meets the requirements, then after its completion:

  • If this was an auction, you are required to sign a contract in established deadlines, even if no price proposals were submitted. For example, like .
  • If you participated in a tender or request for proposals, first wait until the customer agrees on the purchase from a single supplier with the regulatory authority. The customer himself sends an application for approval to the FAS and after 10 days he will notify you of the decision.
  • No approval is required for quotes. The customer will enter into a contract at the price specified in your application.
  • The results of the auction also do not need to be agreed upon. If none of the eligible participants submitted price offer during electronic trading, the contract will be concluded at the maximum price. If you were the only supplier whose 2nd part of the bid met the requirements, the contract will be awarded at the price you reduced to.
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.

Conclusions

Customize your search so you don't miss purchases

Constantly look for procurement in your area. Then you won’t miss anything interesting, you’ll have time to prepare and submit your application.

Sometimes the customer deliberately hides the purchase so that only one supplier knows about it, who becomes the winner. We wrote about how to get around customer tricks. In some cases, searching through the documentation will help you find hidden purchases.

Keep track of all purchases in which you participate

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. This will help you not to miss changes in it and the results.

Don't miss the contract signing deadline

If you become the only supplier, you can conclude a contract at the maximum price.

Documents Legislation Comments Judicial practice Articles Purchases Competitions Auctions Request for quotations Request for proposals Sole supplier Contract Government contract Municipal contract Federal bodies FAS Russia Rosoboronzakaz From 01/01/2015, if an electronic auction is declared invalid, approval of a contract with a single supplier from 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.

Article 71. Consequences of declaring an electronic auction invalid

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, considers 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.

Publication of the protocol if no application has been submitted

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 notification 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.

Ipc-zvezda.ru

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 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.


ConsultantPlus: note.

The auction did not take place, no applications were submitted

Then notice of re-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.

The auction did not take place, applications were submitted, what to do under Federal Law 44

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 comply with 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. (edited) Federal laws dated December 28, 2013 N 396-FZ, dated June 4, 2014 N 140-FZ) (see.

Failed auction

The only application is the procedure 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 terms 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.


This is possible only with that participant (Article 70 of Federal Law-44) whose application fully meets the requirements.

Protocols under 44-FZ: sample documents

So, the tender is declared invalid if:

  1. one application submitted;
  2. lack of applications;
  3. registered applications were submitted with violations and cannot be accepted by the commission;
  4. in cases where there was no price offer at the specified time.

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 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 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 for proposals in accordance with clause 8, part 2, 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.

Protocol on the failed auction of 44 Federal Laws if no applications were submitted

  • after the deadline for submitting applications for participation in such an auction, only one application for participation in it has been submitted,
  • the auction commission decided to recognize only one procurement participant who submitted an application to participate in such an auction as its participant,
  • within ten minutes after the start of such an auction, none of its participants submitted a proposal for the contract price,
  • the auction commission made a decision on compliance with the requirements established by the electronic auction documentation for only one second part of the application for participation in it,

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.

Using an electronic auction, the customer determines the supplier (performer, contractor). Auctions are held on a special electronic trading platform (ETP), where 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 way.

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 monitor the procurement sphere.

Article 70 Part 2 of Federal Law No. 44 establishes that the customer, within 5 days after posting the protocol on the results of the auction in the unified information system (EIS), 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 for the contractor, which 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 the only participant a failed auction to confirm that a contract has been concluded on the terms specified in the government procurement documentation at a price not higher than the one originally announced at the auction;
  • prepare justification for in writing 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.