Obligations assumed if the auction did not take place. The auction did not take place: when to conduct a request for proposals? The only request is the procedure

Bidding for each exhibited item of bidding is considered invalid if:

a) less than two participants participated in the auction;

b) none of the bidders during an auction open according to the form of submission of proposals on price or size rent, after three times announcement starting price or the initial rental amount did not raise the ticket;

c) none of the bidders during a competition or auction closed according to the form for submitting proposals on the price or amount of rent, in accordance with the decision of the auction organizer, was recognized as the winner;

d) the winner of the auction avoided signing the protocol on the results of the auction, concluding a purchase and sale or lease agreement land plot.

The auction organizer is obliged, within three banking days from the date of signing the protocol on the results of the auction, to return the deposit made by the participants in the failed auction. The deposit made by the winning bidder will not be returned to him. If the auction is declared invalid, the auction organizer has the right to announce a re-conduction of the auction. However, their terms and conditions may be changed. The auction organizer can reduce the starting price of a land plot or the initial rental amount and reduce the “auction step” by no more than 15 percent without re-valuation. If the auction organizer is a specialized organization, the terms of the competition, the starting price or the initial amount of rent, the “auction step” may be changed in the manner established for their approval.

As for state and municipal property, the requirements of the law apply here - Part 1 of Article 23 Federal Law dated December 21, 2001 No. 178-FZ “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.

Information about the auction results is published by the auction organizer within three days from the date of signing the protocol on the auction results in periodicals in which the auction was reported, and is posted on the official website of the Russian Federation on the Internet.

It is not allowed to conclude an agreement based on the results of the auction or in the event that the auction is declared invalid due to the participation of less than two people in the auction, earlier than ten days from the date of posting information about the results of the auction on the official website of the Russian Federation on the Internet.

Since, if the auction is declared invalid, the winner of such auction is not determined, the conclusion of an agreement with the only participant in the failed auction contradicts the requirement of Part 1 of Art. 447 of the Civil Code of the Russian Federation, due to the fact that such a participant is not the person who won the auction, i.e. the person who received the right to conclude the contract that was the subject of these auctions.

Based on the foregoing, the conclusion of an agreement with the only participant in the failed auction does not comply with the requirements of civil law, and also contradicts the essence of the auction itself. In addition, in accordance with the current judicial practice submitting an application to participate in the auction does not mean concluding an agreement with the auction organizer by accepting a public offer.

A contract is a two- or multilateral transaction that involves the emergence of rights and obligations for all its parties.

If we assume that the notice of the auction organizer is an offer to conclude an agreement with the subject of the auction, then the application of a potential participant should indeed be considered acceptance. But the bidder does not bear any obligations to conduct the auction, since providing the required documents and making a deposit are his rights, but not his obligations. By these actions he only exercises his right to participate in the auction. The applicant who has submitted an application and paid the deposit cannot be forced to participate in the auction itself and has the right to refuse to participate in the auction at any time.

In addition, in accordance with Article 438 of the Civil Code of the Russian Federation, acceptance must be complete and unconditional. Therefore, if the response contains additional or different conditions from the offer, then it cannot be recognized as acceptance.

Thus, in order for a participant’s application to be recognized as acceptance, it must contain conditions identical to those specified in the tender notice, i.e. The contract price proposed in the participant’s application must completely coincide with the contract price (minimum or maximum) specified in the notice. Otherwise, recognition of such an application as acceptance will be contrary to civil law.

If such a contract for the sale and purchase of state or municipal property is concluded based on the results of a failed auction, the official may be prosecuted for a crime under Art. 286 “Exceeding official powers” ​​or Art. 293 “Negligence” of the Criminal Code of the Russian Federation.

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 sole 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 applications submitted 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.

Any failed procedure procurement is another one headache contract manager. It’s no secret how much time and effort it takes to prepare technical specifications, draw up auction documentation, publish on the website, and tediously wait for submitted applications. But, even if applications have been submitted, the auction may still not take place.

What about others?

Statistics show that rejection of applications for the first parts most often occurs during procurement for the supply of goods and performance of work. Namely, the characteristics of the goods supplied (or used in the performance of work) do not correspond to the parameters specified in the technical specifications.

As a rule, applications for the second parts are rejected when purchasing services. Because The main package of documentation from the procurement participant is contained in the second part of the application, and in the first part, only consent to participate in the electronic auction on the conditions stipulated by the auction documentation is sufficient.

3. No one came to bargain. And this happens too - applications have been submitted, the first parts of applications have been reviewed and allowed to participate in the electronic auction. Everyone is waiting for the auction to begin. But at the desired hour, not a single price offer is received. Alas and ah.

The customer can endlessly wonder “How? Why? Have you forgotten about us? This situation turns out to be advantageous for the procurement participant who first submitted an application to participate in the auction. In this case, the principle “who gets up first, gets the slippers” applies.

Operator electronic platform sends to the customer both parts of the applications of all registered participants. The customer reviews them and makes a decision on whether these applications comply with the requirements of the auction documentation. The contract is concluded with the participant who submitted an application that meets the requirements of the auction documentation earlier than others. After the publication of the protocol for consideration of applications, the auction moves to the stage of concluding a contract.

4. The auction did not take place at all. If not a single application was submitted to participate in the electronic auction or all submitted applications do not meet the documentation requirements, the auction will also be declared invalid.

The law states that in this case the customer makes changes to the schedule and carries out this purchase, but by requesting proposals, or carries out new purchase. If the customer chooses the first option, then changing the procurement object is unacceptable. A new purchasing item must be created in the schedule by requesting proposals. The procurement object remains the same; the procurement period is subject to mandatory changes.

The customer changed his mind.

If there is no longer a need for this purchase, then the Customer makes changes to the schedule (purchase plan) and carries out a new purchase: perhaps not spent cash the customer will decide to use it for other purposes.

Ten days under PGZ were canceled, but not for everyone.

Whichever of these two paths the Customer chooses, he will still have to wait 10 days after making changes to the PPZ before publishing the notice. But before making changes to the documentation, it is necessary to analyze what is written in the auction, since no one wanted to participate in it.

The reasons can be completely different - the initial (maximum) price of the contract is underestimated, the terms of reference were not drawn up correctly, the contract execution period is critically short, or a potential bidder simply missed your auction in the entire flow of information on the electronic platform. Whatever the reasons, the funds will still have to be used and the purchase must be carried out by the customer.

There will still be a contract.

IN first three cases, a failed auction will still lead the customer to conclude a contract in accordance with clause 25.1, part 1 of Art. 93 Federal Law No. 44-FZ.

In this case, the price of the contract should not be higher than the initial (maximum) price, and the terms of its conclusion are regulated by Art. 83.2 Federal Law No. 44-FZ.

Interesting purchases and auctions to you, colleagues!

Publication date: 24.08.2018

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Federal Law and contained on the date and time of the deadline for filing applications for participation in such an auction in the register of participants in such an auction who have received accreditation on the electronic platform; 2) the operator of the electronic site, within the period specified in paragraph 1 of this part, is obliged to send a notice to the participant in such an auction who submitted a single application for participation in such an auction; 3) the auction commission, within three working days from the date of receipt of the only application for participation in such an auction and the documents specified in paragraph 1 of this part, considers this application and these documents for compliance with the requirements of this Federal Law and the documentation for such an auction and sends it to the operator electronic platform, a protocol for considering a single application for participation in such an auction, signed by members of the auction commission.

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 a notification to the only participant in such an auction; 3) auction commission within three working days from the date the customer receives the second part of this application the only participant of such an auction and the documents specified in paragraph 1 of this part, reviews 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 site a protocol for considering the application of the only participant in such an auction, signed by members of the auction commission.

What to do if the auction did not take place

Attention

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. (as amended by Federal Laws dated December 28, 2013 N 396-FZ, dated June 4, 2014 N 140-FZ) (see.

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

If no applications were submitted to participate in the auction, it is considered invalid in accordance with Part 16 of Article 66 of Federal Law No. 44. Let's consider the consequences of this development of events and what the customer will do next.

Important

Deadlines for consideration of applications and publication of protocols After the customer receives a notification from the operator of the electronic platform about the absence of participants, an appropriate protocol must be drawn up and signed (an example of registration is an auction report with registration number 0328300032814000496). Many argue about whether it is needed in this situation at all.

What to do if the purchase did not take place

Info

If in the future a repeat competition does not take place for the same reasons (Part 2 of Article 55), then the customer has the right to carry out the procedure by requesting proposals in order to reduce the deadline for submitting applications to 5 working days or in another way at the discretion of the customer. If the procurement does not take place, the sole supplier enters into a contract if its application meets the requirements of the law and documentation.

In this case, the customer must obtain approval from the FAS (clause 25, part 1, article 93). This group will not include the case when, based on the results of the prequalification selection of a two-stage competition, only one participant is recognized as meeting the requirements (Part.

10 tbsp. 57). The customer makes the purchase again, due to the fact that it is not possible to discuss the characteristics of the order object with several suppliers.

Forum about government procurement and tenders good-tender

After all, the customer’s work to determine the supplier/contractor/performer continues, and very often it happens that everything needs to be done as quickly as possible. Before holding the auction again or organizing a request for proposals instead, you need to make changes to the schedule and procurement plan.
At least 10 days must pass from the publication of such changes on the Government Procurement Portal www.zakupki.gov.ru to the date of posting of a new notice. If this requirement is violated by the customer, a potential participant in a repeated electronic auction/request for proposals has the right to file a complaint with the Federal Antimonopoly Service.

For example, on November 1, 2016, the auction was declared invalid due to a lack of applications. This fact is confirmed by the protocol dated November 1, 2016.

On the same day, the customer makes changes to the procurement plan and schedule and publishes them on the Portal.

The auction did not take place, no applications were submitted

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Good afternoon The auction did not take place and no bids were submitted. The amount of NMCC is up to one hundred thousand. It is possible to carry out this purchase from a single supplier for hours.
4 tbsp. 93 Federal Law 44? Collapse Victoria Dymova Support employee Pravoved.ru Similar questions have already been considered, try looking here:

• If no bids are submitted to the auction, is it possible to extend the deadline for submitting bids?
• Is it possible to repeat the auction if no bids are submitted?

Lawyers' answers (2)

• All legal services in Moscow Assistance in obtaining a bank guarantee to secure applications under 44-FZ and 223-FZ Moscow from 15,000 rubles. Comprehensive support for tenders Moscow from 10,000 rubles.

Federal Law) follows: The customer makes changes to the schedule (procurement plan) and carries out the purchase by conducting a request for proposals in accordance with clause 8 of part 2 of art. 83 44-ФЗ or in another way in accordance with 44-ФЗ (part 4 of article 71 44-ФЗ) 11 A participant in an electronic auction recognized as a winner as a result of evading the contract of the original auction winner (part 14 of article 70 44-ФЗ ), avoided concluding a contract (part 15 of article 70 44-FZ) The customer makes changes to the schedule (procurement plan) and carries out the purchase by conducting a request for proposals in accordance with clause 8 of part 2 of art. 83 44-FZ or in another way in accordance with 44-FZ (part 4 of Art.