The auction failed twice, what should I do? Recognition of an electronic auction as invalid and its consequences. Repeat bidding or...

Grounds for recognition electronic auction failed are possible on various stages carrying out the procedure. At the stage of identifying participants in the electronic auction, the procedure is considered failed if not a single 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;
• the operator of the electronic site, 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 address Email), 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 the electronic auction and sends a review protocol to the operator of the electronic site 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 sole 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 the open competition, competition with limited participation, two-stage competition, repeated competition, request for proposals.

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:

• operator of the electronic platform within one hour after posting on electronic platform 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 during the accreditation process of the participant (except for the email address), and also sends within the same period notifications to participants;
• 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 site, within one hour after posting the protocol for consideration of applications on the electronic site, 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

Typically, trades may be declared invalid in the following cases:

• when there is no struggle at the auction, that is, participants refuse to increase the initial price of the object. This essentially means that there is no buyer;
• when the winning bidder refuses to enter into a purchase and sale agreement for the property. Such an agreement must be concluded within 5 days from the end of the auction.

If such situations exist, the organizers schedule repeat auctions no earlier than 10 days and no later than 30 days from the date of the first auction. In the event of a failed auction, all auction participants must be returned the deposits they previously made. However, there are exceptions here. For example, if the winner refuses to sign the tender protocol and enter into a purchase and sale agreement, then the organizers are allowed to retain his deposit.

New rules for bidding during bankruptcy

On insolvency (bankruptcy)" dated October 26, 2002 No. 127-FZ, in case of evasion, provides for the obligation to conclude an agreement with the participant who offered the most high price, determined without taking into account the winner's price. Special grounds for declaring a trade invalid The following grounds can be found in the legislation:

• failure to pay the purchase price by the winning bidder (clause 7 of Article 449.1 of the Civil Code of the Russian Federation);
• absence of applications or the case when not a single application meets the conditions (part 13 of article 51, part 6 of article 53 of Law No. 44-FZ, paragraph 17 of article 110 of the Bankruptcy Law);
• refusal to conclude a contract for participant number 2 (Part 6, Article 54 of Law No. 44-FZ);
• no premium against first starting price(clause 2, part 1, art.

What to do if the debtor’s property is not sold at auction?

However, after the issuance of this resolution, district courts repeatedly rejected claims, considering that there were no failed auctions, and therefore it is impossible to recognize them as invalid and restore violated rights. Recognizing the auction as invalid does not always solve the problem of the interested party, since the consequences of recognizing the auction as invalid can be not provided for by law; This is especially true for repeated bidding (in paragraph 4.4 of Article 55 of Law No. 44-FZ - concluding a contract by requesting proposals or otherwise). So, the consequences of failed tenders depend on the regulatory regulation of the type of tender and on the basis for which such recognition occurred.

Bankruptcy property not sold at auction: what a creditor needs to know

The costs of ensuring the safety of the pledged item and its sale at auction are covered from funds received from the sale of the pledged item (Article 138 of the Bankruptcy Law). Conducting auctions As a rule, the arbitration manager acts as the organizer of the auction, however, he has the right to attract a specialized organization for these purposes. The auction organizer is responsible for performing such tasks as publishing the necessary information about the auction, accepting applications for participation in the auction, concluding deposit and purchase and sale agreements, identifying participants and winners of the auction, etc.

D. Required terms participation in the auction are the payment of a deposit (no more than 20% of the initial sale price) and provision to the auction organizer necessary documents, confirming the status of the bidder.

To what minimum does the price of a building fall at auction during bankruptcy?

In addition to the initial sale price, such an offer must contain information about the property, its composition, characteristics, the timing of its sale, the form of bidding (auction or competition), etc. (clause 7.1 of Article 110 of the Bankruptcy Law). Disagreements between the insolvency administrator and creditors regarding the procedure for selling property are resolved in court. Special attention should be paid to the sale of property that is pledged, which is subject to mandatory valuation during bankruptcy proceedings.

The starting price, as well as the procedure and conditions for conducting auctions, the procedure and conditions for ensuring the safety of the pledged item are determined exclusively by the bankruptcy creditor, whose claims are secured by the pledge of the property being sold. In addition, such information is subject to placement in the EFRSB. Disagreements between the secured creditor and the arbitration manager are also resolved in court.

Consequences of declaring the auction invalid (nuances)

A mandatory measure in relation to the bankruptcy estate is its inventory by the insolvency administrator. The results of such an inventory are subject to placement in the Unified Federal Register information about bankruptcy (hereinafter referred to as the EFRSB). A bankruptcy creditor or an authorized body, provided that the amount of his claim exceeds two percent total amount requirements, has the right to demand an assessment in respect of all property or part of the property (clause
5.1 Art. 110 of the Bankruptcy Law). Within two months from the date of receipt of such a demand, the arbitration manager is obliged to ensure that the specified property is assessed. If the debtor does not have Money to conduct an assessment, the financing of such an assessment is carried out by the bankruptcy creditor or the authorized body that filed the claim, with subsequent compensation for such expenses after the sale of the property.

Article 139. Sale of the debtor’s property

Note that repeated auctions, as well as auctions through a public offer, are characterized by a reduction in price and are the most profitable for the buyer. Selling at primary auction is more beneficial for the debtor. But still, the object will have the lowest price on a public offer.

For buyers this Goldmine, where sometimes property assets are sold at prices 10 times lower than the market price. Stages of sale of debtors' property. Download Oleg Selifanov's free course How to buy cars and other property of debtors for pennies (1% - 5% of the cost) from bankruptcy auctions If the auctions did not take place To move on to the main issue, it is necessary to mention cases of failed auctions.

Repeated bidding or…..

Only those persons who, in accordance with federal law may own property or have other property rights that relate to limited negotiable property (paragraph 2, paragraph 4, article 110 of the Bankruptcy Law). Thus, the legislator provided special regimes for the sale of certain categories of property. All other types and categories of property are subject to sale at open auction in the form of an auction.
When participating in an auction, unlike a competition, the buyer only needs to offer a suitable price without the need to comply with additional conditions. The essence of both an auction and a competition is that the participant offers the highest price.

Procedure for bidding in bankruptcy

Plaintiffs often make the mistake of challenging the tender or making a claim to compel the conclusion of an agreement based on Law No. 44-FZ, whereas the tender (competition) was held in accordance with Law No. 223-FZ. Thus, in many cases, according to the rules of procurement regulations, concluding a contract with the only participant not an obligation, but a right of the organizer. In addition, there may not be such a right in the regulation, and the general norms of the Civil Code of the Russian Federation do not provide grounds for such statements. In this regard, courts often refuse to satisfy the requirement to conclude an agreement (see, for example, the ruling of the Supreme Arbitration Court of the Russian Federation dated March 22, 2013 No. VAS-2846/13). Challenging auctions and appealing against actions (inaction) of the auction organizer

1. To appeal the action (inaction) of the auction organizer, you can appeal to both the arbitration court and the territorial body of the FAS RF (Clause 1, Part 1, Article 18 of the Competition Law).

The program takes each step with a break of half an hour.

• Repeated bidding. This stage of bidding opens if, for some reason, the primary bidding does not take place. At the same time, according to the rules of sale, the initial price of the property is approved at 10% lower than that declared at the primary auction.
• Public bidding.

  This stage is initiated if the first and repeated stages of implementation are recognized as failed. Main feature This stage is to reduce the cost of the object at intervals established by the system. Participants can purchase goods at the lowest possible price.

• Proposal to creditors.
  If the previous stages of property sale have not yielded results, the goods are offered to creditors as compensation for their claims.
The implementation procedure and the timing of the auction are fixed by the legislative provisions of the Federal Law and No. 127.

If re-bidding does not take place during bankruptcy

On mortgage (real estate pledge)" dated July 16, 1998 No. 102-FZ). The consequences of failed auctions can be provided for both by law and by-laws or rules established for them. Let's look at some of them. Obligation to conclude an agreement with a single participant In a number of cases, if there is one participant, the law obliges the auction organizer to conclude an agreement with him, despite the fact that in this case there is no winner (clause 1 of Article 447 of the Civil Code of the Russian Federation). The conclusion of an agreement is made not based on the results of past auctions, but on the basis of a special norm of the law and the legal fact that the auction was declared invalid.

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 there are no applications - carry out;
• new purchase

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

• 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 of 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 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 of Part 4 of 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, then 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”

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.

Competitive procedures

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 repeat one is that if the object, volume, and 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 to carry out the repeat 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 submitted applications or they are found to be inappropriate, the procedure is repeated. The publication of the notice under 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 reducing 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 receive (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 (). 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.

Electronic auction

If an electronic auction is declared invalid, the customer or enters into a contract with, and 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 of 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). 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.

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 this works on the three most popular types of 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 pre-qualification, 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 request for quotes.

To request quotations and electronic tenders, the deadline for submitting applications must be extended: 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 it was an auction, you are required to sign the contract within the specified time frame, even if you did not submit bids. 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 bidders submit a price proposal during the electronic bidding, the contract will be awarded 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.