The auction status is invalid with a single participant. Failed electronic auction

13.06.2019

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. The data in the table does not take into account changes from 01/01/2015 (no approval is required now) No. Grounds for recognition of the electronic auction failed Actions Customer Approval Conclusion of the contract 1 Not a single application has been submitted (Part.
16th century 66 44-FZ) The customer makes changes to the schedule (procurement plan) and carries out the purchase by conducting a request for proposals in accordance with clause 8, part 2, art. 83 44-FZ or in another way in accordance with 44-FZ (part 4 of Art.

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

Federal Law and documentation 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 Article 67 44-FZ) Coordination of the Customer’s decision with the body authorized to exercise control in the field of procurement (FAS, Rosoboronzakaz) (clause 25, part 1, Article 93 44-FZ) Conclusion of a contract with sole supplier(Clause 4, Part 2, Article 71, Clause 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 electronic auction 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 of only one second part of the application for participation in it, the contract with the 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 of receipt by the customer of the second part of this application of the only participant 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 to the operator of the electronic platform 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-ФЗ within the framework of which the issue of conditions is considered in more detail failed auction. The grounds are determined by Art. 71, parts 1-3.1 No. 44-FZ.

Provided that the only application for participation in the auction was under consideration at the site, it is considered to be the winning one. 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.
This document should reflect the following information:

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

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

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

Based on the above, concluding an agreement with a single participant failed trades does not comply with the requirements of civil law, and also contradicts the essence of the auction itself. In addition, in accordance with the current judicial practice submitting an application to participate in the auction does not mean concluding an agreement with the auction organizer by acceptance 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.

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.

Only 1 URZ submitted an application (see above).

Only 1 URZ was admitted to the UAEF. His application was found compliant, the rest were rejected.

Several URZs were admitted, but none of the URZs made bids at the auction. In this case, the winner is the URZ who submitted his application before everyone else. A contract is concluded with him.

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

If the auction (OAEF) is declared invalid, then, depending on whether there is a participant admitted to it, the actions and documents drawn up are as follows.

A protocol for declaring the electronic auction (OAEF) invalid is drawn up and posted on the site.

Recognition of the electronic auction as invalid.

This is a procedure that involves drawing up and posting a protocol on declaring the auction (OAEF) invalid.

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

The protocol states.

Reason for declaring the auction invalid: only 1 participant was admitted and/or declared.

Information that a state agreement will be concluded with this participant. Contract.

If there were other participants, but their applications were rejected, then the reasons for the rejection of applications are indicated.

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

The protocol states.

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

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

The protocol of a failed electronic auction is posted on the ETP; it is a document that records the very fact that the electronic auction (OAEF) was recognized as failed, and the reasons are given: 1 participant or their absence.

TENDER DEPARTMENT REMOTELY

Preparation of applications

Control of finished

Maximum % tolerance

Help with participation

Search for tenders

Tender conveyor

FAS and RNP

Protocols of disagreements

Controversial situations

SOLUTION

ANY TASKS

WHEN WORKING

ON GOVERNMENT ORDER

FAST and COMPLETELY

Consequences of declaring an electronic auction invalid.

There is one participant.

Concluding a contract with this participant.

No participants or applications.

Repeated auction.

Replacement of an order.

Cases of declaring an electronic auction invalid.

No applications.

All applications (all URZ) were rejected.

1 participant allowed.

There were no offers during the bidding.

If only 1 (one) participant is admitted to the auction, a contract is concluded with him.

If several RRPs are admitted to the auction at once, but no one has made “moves,” the contract is concluded with the RRP that submitted its bid before everyone else.

If there were no applications or all applications were rejected, but the order is processed again.

Repeated auction in electronic form.

Implies a procedure for re-placing an order if the initial auction is declared invalid, and there is no one to conclude a contract with.

The rules and actions for a repeat auction are the same as for the initial one.

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

Consequences of declaring an auction invalid

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

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

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for quick authorization on the portal: The reasons why the competitive procedure was declared invalid will depend on further actions

contract managers:
if one application is submitted, draw up a government contract with the participant who submitted it.

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

In cases where:

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

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

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

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

From the article

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

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

Important

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

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

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

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

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

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

If no bids are submitted for the auction

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

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

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

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

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

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

Consequences of declaring an electronic auction invalid:

1. If an electronic auction is declared invalid due to the fact that after the deadline for submitting applications for participation in such an auction, only one application for participation in it has been submitted:

the contract is concluded with a participant in such an auction who submits a single application to participate in it, if this participant and the application submitted by him are found to comply with the requirements of the Law and documentation on such an auction, in accordance with paragraph 25 of part 1 of Article 93 of Federal Law N 44-FZ in the manner established by Article 70 of Federal Law N 44-FZ.

2. If an electronic auction is declared invalid due to the fact that the auction commission decided to recognize only one procurement participant who submitted an application to participate in such an auction as its participant:

a contract with the only participant in such an auction, if this participant and the application submitted by him for participation in such an auction are recognized as complying with the requirements of Federal Law No. 44-FZ and documentation on such an auction, is concluded in accordance with clause 25 of part 1 of Article 93 of Federal Law No. 44-FZ in the manner established by Article 70 of Federal Law No. 44-FZ.

3. If an electronic auction is declared invalid due to the fact that within ten minutes after the start of such an auction, none of its participants submitted a proposal for the contract price, the contract is concluded in accordance with clause 25 of part 1 of Article 93 of the Federal Law N 44-FZ in the manner established by Article 70 of Federal Law N 44-FZ, with a participant in such an auction, the application for participation in which was submitted:

a) Earlier than other applications for participation in such an auction, if several participants in such an auction and the applications submitted by them are recognized as complying with the requirements of Federal Law N 44-FZ 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 Federal Law N 44-FZ and the documentation on such an auction.

4. If the electronic auction is declared invalid on the grounds provided for in Part 13 of Article 69 of Federal Law No. 44-FZ due to the fact that the auction commission decided that only one second part of the application complies with the requirements established by the electronic auction documentation for participation in it, a contract with a participant in such an auction who submitted the specified application is concluded in accordance with clause 25 of part 1 of Article 93 of Federal Law N 44-FZ in the manner established by Article 70 of Federal Law N 44-FZ.

5. In the event that an electronic auction is declared invalid due to the fact that at the end of the deadline for filing applications for participation in such an auction, not a single application for participation in such an auction has been submitted or based on the results of consideration of the first parts of applications for participation in such an auction, the auction commission has decided to refuse admission to participation in it of all its participants who submitted applications for participation in such an auction, the customer makes changes to the schedule (if necessary, also to the procurement plan) and carries out the purchase by conducting a request for proposals in accordance with paragraph 8 of Part 2 of Article 83 of Federal Law No. 44-FZ (in this case, the procurement object cannot be changed) or otherwise in accordance with Federal Law No. 44-FZ.

Section 5 Conclusion of a contract based on the results of an electronic auction

The auction was declared invalid due to the only participant whose application met the documentation requirements. Is the customer obliged to conclude a contract with this participant or can he refuse it and hold the auction again?

Answer

Oksana Balandina, chief editor of the State Order System

From July 1, 2018 to January 1, 2019 for customers transition period– it is allowed to conduct both electronic and paper procedures. Starting from 2019, tenders, auctions, quotations and requests for proposals on paper will be prohibited, with eight exceptions.
Read what kind of purchases to carry out on the ETP, how to choose a site and obtain an electronic signature, what are the rules for concluding contracts during the transition period and after.

According to clause 4, part 1, article 71, 44-FZ, in the event that an electronic auction is declared invalid on the grounds provided for in part 16 of article 66 of this Federal Law due to the fact that after the deadline for filing applications for participation in such an auction only one application for participation in it is submitted, the contract is concluded with a participant in such an auction who submitted a single application for participation in it, if this participant and the application submitted by him are recognized as complying with the requirements of this Federal Law and the documentation on such an auction, in accordance with paragraph 25 of part 1 Article 93 of this Federal Law in the manner established by Article 70 of this Federal Law.

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Thus, if such an application and such a participant are found to be appropriate, then the customer is obliged to conclude a contract with this participant.

Letter of the Ministry of Economic Development of Russia dated January 12, 2015 No. D28i-3885
On clarifications related to the application of Federal Law of April 5, 2013 No. 44-FZ

MINISTRY OF ECONOMIC DEVELOPMENT OF THE RUSSIAN FEDERATION LETTER dated January 12, 2015 No. D28i-3885 On clarifications related to the application of Federal Law of April 5, 2013 No. 44-FZ

The Department for Development of the Contract System of the Ministry of Economic Development of the Russian Federation considered an appeal on the issue of clarification of the provisions of the Federal Law of April 5, 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- Federal Law), sent to the FAS Russia, and reports.

In accordance with paragraph 4 of part 1 of Article 71 of Law No. 44-FZ, if the electronic auction is declared invalid on the grounds provided for in Part 16 of Article 66 of Law No. 44-FZ due to the fact that after the deadline for submitting applications for participation in in such an auction, only one application for participation in it has been submitted; the contract is concluded with the participant in such an auction who has submitted a single application for participation in it, if this participant and the application submitted by him are recognized as complying with the requirements of Law No. 44-FZ and the documentation on such an auction, in accordance with paragraph 25 Part 1 Article 93 of Law No. 44-FZ in the manner established by Article 70 of Law No. 44-FZ.

According to paragraph 25 of part 1 of Article 93 of Law No. 44-FZ, the contract must be concluded with a single supplier (contractor, performer) on the terms provided for in the procurement documentation, at the price offered by the procurement participant with whom the contract is concluded. Such a price should not exceed the initial (maximum) contract price, the contract price proposed in the application of the relevant procurement participant, or the contract price proposed by the relevant procurement participant during an electronic auction.

In this case, the contract with the only supplier (contractor, performer) is concluded within the time limits established by Article 70 of Law No. 44-FZ.

Thus, in accordance with Part 3 of Article 70 of Law No. 44-FZ, within five days from the date of placement by the customer in a single information system of a draft contract, the winner of an electronic auction places in the unified information system a draft contract signed by a person entitled to act on behalf of the winner of such an auction, as well as a document confirming the provision of security for the execution of the contract and signed with an enhanced electronic signature of the specified person.

The winner of the electronic auction with whom the contract is concluded, in the event of disagreements regarding the draft contract, has the right to place in a unified information system a protocol of disagreements signed by a strengthened electronic signature a person who has the right to act on behalf of the winner of such an auction (Part 4 of Article 70 of Law No. 44-FZ).

Taking into account the above, after the customer places the draft contract in the unified information system, the supplier (contractor, performer) is obliged to sign the draft contract within 5 days or post a protocol of disagreements.

Please note that clarifications of a government body have legal force if this body is empowered in accordance with the law Russian Federation special competence to issue clarifications on the application of the provisions of regulatory legal acts. The Ministry of Economic Development of Russia is a federal body executive power, the current legislation of the Russian Federation, including the Regulations on the Ministry economic development of the Russian Federation, approved by Decree of the Government of the Russian Federation of June 5, 2008 No. 437, is not vested with the competence to clarify the legislation of the Russian Federation.