In case the electronic auction is declared invalid. What to do if the auction did not take place. Repeated auction in electronic form

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 announcing the initial price or initial rental amount three times, 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 agreement or renting a 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 may reduce starting price land plot or the initial rent 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 participant auction at the starting auction price.

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 is contrary to 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. Consequently, 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 brought to criminal liability on the grounds of a crime under Art. 286 “Exceeding official powers” or Art. 293 “Negligence” of the Criminal Code of the Russian Federation.

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 a 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

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 for 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 sole 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 contract system allows you to carry out another procedure (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, 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”

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.

The operator of the electronic platform sends to the customer both parts of the applications of all participating 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 through a request for proposals, or carries out a 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 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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On the procedure for holding bankruptcy auctions
Stages of sale of debtors' property.
If the auction does not take place
If the property could not be sold
Conclusion

IN Russian Federation appear daily bankrupt organizations. Often such enterprises or firms have property that must be sold in accordance with current legislation.

Property assets of debtors or bankrupts are sold at bankruptcy auctions. Moreover, if the property is sold, then all parties usually benefit from this. The buyer receives a bargain at an attractive price, the bankrupt organization has at least some opportunity to stabilize its position, and the auction organizers deserve legitimate commissions.

But what happens if the debtor’s property could not be sold? Who controls future fate object? It is this question that we will consider in today’s material.

Before solving such problems, it is necessary to understand what precedes the situation when the debtor’s property values cannot be realized. Therefore it is necessary to contact procedure and timing of auctions.

On the procedure for holding bankruptcy auctions

Debtor's property ( land, real estate, cars, securities) is sold within two months from the moment the object was transferred to auction organizers. At the same time, the organizers undertake to conduct some kind of advertising campaign for the lot, that is, place advertisements in the media and on the Internet. Thus, it is attracted large quantity potential buyers, and therefore indirectly increases the activity of future competition at the event and the likelihood of a more profitable sale increases.

It is noteworthy that not every organization can sell the debtor’s property.

Modern legislation establishes some criteria that a firm organizing a tender must have:

having positive experience in this activity;
good reputation;
the ability to independently evaluate property objects of various categories;
highly qualified workers;
Availability financial resources to secure obligations to sell the debtor's property.

There is a certain procedure for trading. This sequence is regulated by the Code of the Russian Federation, decrees of the Government of the Russian Federation, as well as Federal laws.

In general, the debtor’s property is sold in three stages:

primary trading;
re-bidding;
bidding in a public offering.

Each subsequent stage occurs if the previous one did not take place. Please note that repeated bidding, as well as bidding through public offer 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.

If the auction does not take place

To get to the main issue, it is necessary to mention cases of failed auctions.

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 deposits returned, introduced by them earlier. 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. This is a completely fair decision, because it is not allowed to approach and participate in auctions with such frivolity.

It is also worth mentioning the joint work of auction organizers and executive bodies. There must be complete mutual understanding between these structures, and all legal formalities must be observed. If this is not the case, then there is a high probability that the auction will be conducted in violation, and this implies costs for all parties.

If the property could not be sold

There are situations when it was not possible to sell the debtor’s property at all three auctions. In this case, the bailiff turns to the collector with a proposal to keep the debtor’s property for himself. Such an offer is often not profitable for the claimant, because storing such property is associated with certain costs.

It is also worth noting that the transfer of the debtor’s property to the claimant is carried out with a price reduction of 25% below the market price. Very often, creditors refuse this option to resolve the issue. In this case, the property may be returned to the debtor.

Of course, such situations are rare, but they do happen. In this case, the bailiff is obliged to send copies of the decisions to the parties. The claimant has the right to demand other objects from the bankrupt organization for subsequent sale at auction, but this wastes a sufficient amount of time.

Conclusion

This material shows that the problem of unsold property at auction is, first of all, a problem for the organizers of the auction, which smoothly flows to the claimant. But for a bankrupt this is a very twofold situation.

For example, when an object is of significant value, the debtor is glad to have it returned. On the other hand, financial litigation over debt obligations drags on and there is a possibility of losing other valuables at auction, and this, in turn, can only aggravate the situation.

Thus, it can be argued that failed auctions are not beneficial to anyone, and each party is interested in their successful implementation. At this point the question can be considered closed. And remember, no matter what side you find yourself on, to successfully conduct business and avoid additional problems It is necessary to approach financial issues carefully and confidently!

Sometimes, for a number of reasons, an electronic auction under 44-FZ may not take place (more precisely, it will be declared failed).

1. The auction did not take place if there was only one participant
In this case, the customer enters into a contract with this participant as the winner, provided that the second part of the application meets the established requirements under 44-FZ and auction documentation. Coordination with regulatory authorities in in this case is not required, since according to the conditions, one application is sufficient for quorum if it is completed correctly. Naturally, if you refuse, you will be held liable as if you had participated in a full-fledged tender with many participants and won it. If you submitted a single application, and it did not pass, the customer must hold a new auction.

2. The auction did not take place if there were several participants
a) Let’s assume that there are several participants in an electronic auction, but only one of them meets the requirements for the second part of the application. Accordingly, in this case the rule of paragraph “1” is applicable, that is, the government customer enters into a contract with this participant without approval from the regulatory authority.
b) There are several participants in the auction, but the government customer rejected all applications at the stage of consideration of the second parts. The solution is to hold new auctions.

3. No bids have been submitted (there are no participants in the auction)

According to Part 4 of Art. 71 44-FZ, the customer can make a request for proposals for the auction. 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 execution time). 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.

4. 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 electronic trading Anything can happen. Accordingly, in this case the previous paragraph on the request for proposals is applicable. If, of all applications, based on the results of consideration of the first parts (and not the second), only one participant is admitted, then, according to Part 2 of Article 71, the problem is resolved by approval from the regulatory body.

5. The auction did not take place because none of the participants came to it
According to Part 3 of Article 71, the problem is resolved by approval from the regulatory authority (the first application that meets the conditions of the auction). If no application matches, or the application matches, but the participant is ready for termination, then the clause applicable under the terms of 44-FZ is applied:

"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 an offer for the contract price:

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.”