The auction was declared invalid, but you seem to have submitted an application. What's next? Failed auction Electronic auction did not take place application submitted

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? Will re-tender with a reduction starting price(NC) at 10% of 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 decide to buy something from the primary or re-auction(i.e. from trading to increase). 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 comply, 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 plot of land in the city of Yartsevo from some attentive readers our newsletter, there was a fair bewilderment: “How is he telling us here that he bought the land, but the auction didn’t take place?”

That’s how they “didn’t happen”!

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

Hello!

You can in accordance with Article 93.44 of the Federal Law

25) recognition as invalid open competition, competition with limited participation, two-stage competition, repeated competition, electronic auction, request for quotations, request for proposals in accordance with parts 1 and 7 of Article 55, parts 1 - 3.1 of Article 71, parts 1 and 3 of Article 79, part 18 of Article 83 of this Federal Law. Approval of the conclusion of a contract in the specified cases, with the exception of cases of concluding contracts in accordance with parts 4 and 5 of Article 15, parts 1 - 3.1 of Article 71, parts 1 and 3 of Article 79 of this Federal Law, is carried out when making purchases to meet federal needs, the needs of the subject Russian Federation, municipal needs, respectively, with the federal executive body authorized to exercise control in the field of procurement, or a control body in the field of state defense procurement, an executive body of a constituent entity of the Russian Federation, a local government body of a municipal district or a local government body of a city district authorized to exercise control in the field of procurement. In accordance with this paragraph, the contract must be concluded with a single supplier (contractor, performer) on the terms provided for in the procurement documentation, at the price proposed 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. The customer’s request for approval of a contract with a single supplier (contractor, performer) is sent to the control body in the field of procurement no later than ten days from the date of placement in a single information system relevant protocols containing information on recognizing the determination of the supplier (contractor, performer) as invalid. In this case, the approval period should not be more than ten working days from the date of receipt of the specified request. A contract with a single supplier (contractor, performer) is concluded within a period of no more than twenty days from the date of receipt by the customer of such approval, or in the cases provided for in parts 4 and 5 of Article 15 of this Federal Law, within a period of no more than twenty days from the date of placement in unified information system of relevant protocols containing information on recognition of the determination of the supplier (contractor, performer) as invalid, or in cases provided for in parts 1 - 3.1 of Article 71, parts 1 and 3 of Article 79 of this Federal Law, within the time limits established respectively by Article 70 and part 13 Article 78 of this Federal Law. The procedure for agreeing to conclude a contract with a single supplier (contractor, performer) is established by the federal executive body regulating the contract system 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), in which 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 submitting for tender single application or their absence.
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 method.

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 contract system government 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 control the procurement sphere.

Article 70 Part 2 of Federal Law No. 44 establishes that the customer must publish the draft government contract without his signature within 5 days after posting the protocol on the results of the auction in the Unified Information System (EIS). 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 to the only participant in the failed auction for confirmation that he will conclude a contract on the terms specified in the government procurement documentation at a price not higher than the one originally announced at the auction;
• prepare a written justification 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.

During electronic trading, the auction, according to the law, may not take place. The conditions for recognizing it as such are regulated by articles 66-69 of Law 44-FZ “On the contract system in the field of procurement of goods, works, services...”. This rule of law describes the applicable procedure for conducting procedures on the electronic platform.

In particular, declaring the auction invalid allows you to sign a contract with one participant or conduct the auction in a different form.

The point is that when tenders are closed without applications, the state-owned enterprise has the opportunity to select a supplier using the request for proposals method. Let's look at the most typical scenarios for failed trades.

The only request is the procedure

Laws on electronic trading FZ-44 and FZ-223 are constantly supplemented and coordinated with others regulations. In 2014, additional amendments were adopted to No. 498-FZ and Art. 25 No. 44-FZ, within the framework of which the issue of the terms of the failed auction was considered in more detail.

The grounds are determined by Art. 71, parts 1-3.1 No. 44-FZ.

Provided that the only application for participation in the auction was under consideration at the site, it is considered to be the winning one.

The key feature of declaring an auction invalid for this reason is the admission of only one participant to participate in it. The customer may enter into a contract agreement with the only 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. Please keep in mind that consideration of a single application is possible if the supplier submitted a price proposal within 10 minutes after the start of bidding (Article 68 of Federal Law-44, Part 20). At a minimum, it should be 0.5% lower than the NMCC.

If the auction does not take place and not a single application meets the requirements, then the customer can purchase using the request for proposals method.

The auction was declared invalid - not a single application was submitted

If, taking into account the requirements of 44 Federal Laws, not a single application was registered, then the auction is also declared invalid. This entails in most cases a repeated tender, regulated by articles of federal law. This is also true if the participants did not enter into a contract to fulfill the order for this purchase.

So, the tender is declared invalid if:

one application submitted;

lack of applications;

registered applications were submitted with violations and cannot be accepted by the commission;

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 bidding

Carrying out re-trading is also carried out on the basis of Federal Law-44. IN currently 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.

To submit an application for participation in the auction without violations and meeting the customer’s requirements, it is best to contact specialists. The RusTender company already has significant experience in in this direction, therefore, qualitatively and in short time can prepare everything Required documents and transfer them to the site for participation in the auction.

OOO ICC"RusTender"

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• Tuesday, 27 January 2015 19:16
• Author Marat Rakhmatullin

• Published in Questions and Answers
• Read 20982 times
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We are a participant in the procurement. 2 applications were submitted (including one of ours), both applications correspond to the 1st and 2nd parts. The auction was declared invalid. No price proposals were submitted by us or the second participant. Since our application was submitted first, we assume that the customer should send information about us to the KO for approval. Is it so?

Answer: In accordance with the provisions of Part 20 of Article 68 of 44-FZ, the electronic auction is considered invalid due to the fact that within ten minutes after the start of such an auction, none of its participants submitted an offer for the contract price. In accordance with Part 3 of Art. 71 44-FZ

3. If an electronic auction is declared invalid on the grounds provided for in Part 20 of Article 68 of this Federal Law 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:
1) operator electronic platform within one hour after posting the protocol specified in Part 20 of Article 68 of this Federal Law on the electronic platform, he is obliged to send to the customer the specified protocol and the second parts of applications for participation in such an auction submitted by its participants, as well as documents of participants in such an auction, provided for in paragraphs 2 - 6 and 8 of Part 2 of Article 61 of this Federal Law and contained on the date and time of the deadline for filing applications for participation in such an auction in the register of participants in such an auction who have received accreditation on the electronic platform;
2) the operator of the electronic site, within the period specified in paragraph 1 of this part, is obliged to send notifications to the participants of such an auction;
3) the auction commission, within three working days from the date the customer receives the second parts of applications for participation in such an auction of its participants and the documents specified in paragraph 1 of this part, reviews the second parts of these applications and these documents for compliance with the requirements of this Federal Law and documentation about such an auction and sends to the operator of the electronic platform a protocol for summing up the results of such an auction, signed by members of the auction commission. The specified protocol must contain the following information:
a) a decision on the compliance of the participants in such an auction and the applications submitted by them for participation in it with the requirements of this Federal Law and the documentation on such an auction or on the non-compliance of the participants in such an auction and these applications with the requirements of this Federal Law and (or) documentation on such an auction with the rationale for this decision , including indicating the provisions of the documentation about such an auction, which do not correspond to the application data, the content of these applications, which does not comply with the requirements of the documentation about such an auction;
b) the decision of each member of the auction commission on the compliance of the participants in such an auction and the applications they submitted for participation in such an auction with the requirements of this Federal Law and the documentation on such an auction or on the non-compliance of the participants in such an auction and the applications they submitted with the requirements of this Federal Law and (or) documentation on 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 submitted by them are recognized as complying with the requirements of this Federal Law and the documentation on such an auction;
b) the only participant in such an auction, if only one participant in such an auction and the application submitted by him are recognized as complying with the requirements of this Federal Law and the documentation on such an auction. Part 3 art. 71 of the Federal Law of 04/05/2013 No. 44-FZ

Thus, you are a customer in accordance with paragraphs. and clause 4, part 3, art. 71 44-FZ is obliged to send information to the KO about agreeing to conclude a contract with you.
At the same time, according to the new edition of Part 25 of Art. 93 44-FZ and the joint clarification of the Ministry of Economic Development and the Federal Antimonopoly Service (FAS), such approval from the KO is not required. The legislator did not clarify whether it is possible to conclude a contract without the consent of the KO only in the case provided for in paragraphs. b clause 4 part 3 art. 71, (i.e. sole supplier) or incl. and according to paragraphs. a (with the first person to apply for participation).