If the auction did not take place, not a single application was submitted, what to do under 44-FZ? We will consider the answer and detailed explanations in our article.
The electronic auction did not take place - what to do?
The answer to the question is in Article 71 44-FZ. Its provisions can be divided into two main situations:
- one high-quality application has been submitted;
- there are no high-quality proposals (several were submitted, but all persons who sent them were denied admission to the auction / all second parts of the applications were recognized as non-compliant with the procurement documentation).
We will tell you what to do in each of these situations below.
The auction did not take place: one application was submitted
If the electronic auction is declared invalid, one application has been submitted (1 high-quality application remains, since the rest were rejected), then the customer must issue a government contract with a single supplier (SP). This supplier is the person who submitted the only application. The basis for the execution of the contract is clause 25.1 of part 1 of Article 93 44-FZ:
- it is executed on the terms specified in the procurement documentation;
- it includes a cost condition that does not exceed the initial cost of the government contract.
The timing and procedure for signing the document are determined by Article 83.2 of 44-FZ. Coordination with the control body is not required.
So, if the electronic auction did not take place due to the fact that only 1 application was submitted, then a government contract should be drawn up with the person who submitted it. The situation is more complicated if not a single application has been submitted to the electronic auction under 44-FZ. We'll talk about this in more detail below.
If the competitive procedure does not take place, the customer either enters into a contract with a single supplier or carries out a repeat or new purchase. How to proceed depends on the procurement method and the reason why the purchase did not take place. See the algorithm of actions for electronic, paper and closed purchases.
What to do if the auction did not take place due to lack of applications 44-FZ
The answer to the question is contained in Part 4 of Article 71 of Law No. 44-FZ. In accordance with it, the state customer carries out:
- electronic request for proposals without changing the object of public procurement;
- another competitive procedure (for example, holding a repeat auction).
If the electronic auction did not take place, you can place it again. The customer must make the appropriate changes to the schedule and, if necessary, to the procurement plan. In this case, amendments to the schedule can be made no later than 1 day before the date of publication in the Unified Information System of a notice about the repeated procedure (Part 14 of Article 21 44-FZ).
There are no bids submitted for the auction, what next?
If the electronic auction did not take place twice, what should I do? Conduct a request for proposal or other competitive procedure. It is worth paying attention to the terms of the auction.
If they don’t want to participate, it means that potential suppliers are not satisfied with something and this can be corrected. For example, reduce the enforcement of government contracts to the minimum possible value. In addition, conduct a request for proposal, because conducting it gives the customer the opportunity to send invitations to participate in tenders to persons with whom similar government contracts were issued in the previous 1.5 years.
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 for submitting proposals for the price or the amount of rent, after three times announcing the starting price or the initial amount of rent, raised a 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 specialized organization, competition conditions, starting price or initial rental amount, “auction step” may be changed in the manner established for their approval.
With regard to government and municipal property, then 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 periodic printed publications, which announced the auction, 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 implies the emergence of rights and obligations for all its parties.
If we assume that the notice of the auction organizer is an offer to conclude an agreement with the subject of the auction, then the application of a potential participant should indeed be considered acceptance. But the bidder does not bear any obligations to conduct the auction, since providing the required documents and making a deposit are his rights, but not his obligations. 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.
Cases where trades are declared invalid:
1. In accordance with Part 5 of Article 447 of the Civil Code, auction and competition, in which only one participant participated, are declared invalid.
2. If no application is received within the deadline established by the documentation.
3. If only one participant from those who applied for participation in the auction is recognized as a participant in the relevant auction procedure.
4. If, based on the results of consideration of applications for participation in the procedure, all submitted applications were rejected.
Grounds for declaring an open competition invalid:
1. Upon completion of the deadline for submitting applications for participation in the competition.
2. Based on the results of consideration of applications for participation in the competition The competition commission rejected all applications.
3. Based on the results of prequalification not a single procurement participant is recognized as meeting the requirements established in the documentation.
4. Upon completion of the deadline for submitting applications for participation in the competition only one application was submitted, and such an application was recognized as meeting the documentation requirements.
5. Based on the results of consideration of applications for participation in the competition only one application was found to meet the documentation requirements.
6. Based on the results of prequalification only one procurement participant is recognized as meeting the established requirements and the application of such participant is recognized as meeting the requirements of the documentation.
As a result of an open tender being declared invalid on the grounds specified in paragraphs 4, 5 and 6, the customer may have the right, and in some cases the obligation, to enter into an agreement with a single supplier. Similar situations arise in the case of auctions and other types of procurement procedures.
Grounds for declaring an open auction invalid:
1. After the deadline for submitting applications for participation in the auction no such application has been submitted ;
2. Based on the results of consideration of the first parts of applications for participation in the electronic auction the commission decided to refuse admission to all procurement participants to participate in such an auction.
3. Within a certain time after the start of such an auction, none of its participants submitted a proposal for the contract price.
4. At the end of the deadline for submitting applications for participation in the auction, only one application has been submitted that meets the requirements of the documentation.
5. Based on the results of consideration of the first parts of applications for participation in the electronic auction, the auction the commission made a decision on recognizing only one procurement participant who submitted an application to participate in such an auction as its participant.
Grounds for invalidating purchases carried out by organizing a request for quotations (request for proposals):
1. After the deadline for submitting applications for participation in the request for quotations (request for proposals) no such application has been submitted .
2. Based on the results of consideration of applications by the customer’s commission All submitted applications were rejected to participate in the request for quotations (request for proposals).
3. At the end of the deadline for submitting applications for participation in the request for quotations (request for proposals), only one application has been submitted that meets the requirements of the documentation.
4. Based on the results of consideration of applications for participation in the request for quotations only one such application was found compliant documentation requirements for conducting a request for quotation.
Invalid tenders and failed tenders
It is necessary to distinguish:
Invalid Bidding(Article 449 of the Civil Code of the Russian Federation)
Conducted in violation of the law.
Involves the invalidity of the contract concluded as a result of the auction.
Failed auctions(Clause 5 of Article 447)
Legal. “A negative result is also a result.”
The auction did not take place if:
- There are no participants.
- There is only one participant.
- There is only one participant who meets the documentation and legal requirements.
Due to the fact that 223-FZ (unlike 44-FZ) does not regulate the sequence of actions of customers based on the results of failed procurements, the consequences and procedure for the customer’s actions in the event of recognition of procurements as failed must be specified in the Procurement Regulations.
Consequences of recognizing a procurement as failed
Recognizing the procedure as failed must include a set of legal and factual actions that fix the legal status of such a purchase.
From their full and correct design the legitimacy of carrying out further procedures in a simplified manner depends.
1. Identification and analysis of the reasons that served as the basis for declaring the purchase invalid.
2. Legal assessment and decision-making to recognize the procurement as invalid (drawing and signing a protocol, publishing it on the website).
3. Making a decision on the consequences of recognizing the procurement as invalid (carrying out a repeat procedure, carrying out a different (simplified) procedure, concluding an agreement with the EP).
In contrast to the mandatory rules of public procurement, 223-FZ makes it possible to provide for the consequences of recognizing procurement as failed in the form of dispositive norms.
In other words, the Procurement Regulations can provide for the possibility for the customer to choose the consequences of recognizing the procurement as failed: conduct a new procurement, conduct a different one (simplified procurement) or conclude an agreement with the EP on the terms of the failed tender. To do this, the Regulations must provide for the possibility of choosing consequences and use the wording “not obligated” , and “maybe”.
For example:
Based on the results of a failed purchase by the customer the following decisions can be made:
1) on procurement from a single supplier - if carrying out new procurement procedures is impractical (for example, the time limits for conducting procurement procedures have been exhausted, conducting a new procurement, regardless of the form and method of procurement, will not lead to a change in the circle of procurement participants);
2) on concluding an agreement - if the submitted application and the participant who submitted it meet the requirements of the notice and documentation;
3) to carry out a re-purchase by any of the methods, in any form, named in the Regulations, which the customer deems appropriate to use.
The consequences of invalidating trades and “non-trading” procedures may be different.
Civil legislation establishes cases of declaring a purchase invalid in relation to tenders (competitions, auctions).
The legislation on public procurement equates the consequences of declaring a procurement invalid for bidding (competition and auction) and other procurement methods (request for quotations, request for proposals). However, due to the fact that 223-FZ does not contain such conditions, legally there are no obstacles for the customer, in order to optimize the process, not to invalidate the request for quotations and request for proposals with a single participant and to enter into contracts with them not as with the EP, but as with the winners within the framework of the appropriate procedure (subject to such a possibility being indicated in the Regulations).
In accordance with the rules of the Procurement Regulations, a request for proposals and a request for quotations, if there is at least one application, can be carried out and issued precisely as a competitive procedure . The result of this procedure will be a protocol and an agreement.
Features and procedure for concluding a contract based on the results of failed procurements
1. Features of concluding an agreement with a single participant based on the results of a failed procurement:
The customer is obliged to conclude an agreement with the only admitted participant in the competitive procurement if:
a) this procurement participant was allowed by the procurement commission to participate in the procurement;
b) the contract is concluded on the terms of the documentation and the draft contract;
c) the contract is concluded at a price, in the volume and on the terms specified by such a single participant in his application (and for an auction at a price agreed upon by the parties, not exceeding the initial (maximum) price of the contract), or on the best terms for the customer (including those achieved based on the results of pre-contractual negotiations).
d) no changes are made to the Procurement Plan; this agreement is included in the monthly report.
The customer’s refusal to conclude an agreement with the only participant in the failed tender, whose application complies with the requirements of the documentation, is illegal.
2. Features of concluding an agreement with a single supplier (as a procurement method) based on the results of a failed purchase:
The customer has the right to conclude an agreement with a single supplier based on the results of a failed procurement, provided that such a possibility is provided for in the Procurement Regulations of such a customer, taking into account the following features:
a) the customer has established in the Procurement Regulations the basis for concluding an agreement with a single supplier based on the results of a failed procurement;
b) adoption of an appropriate decision by authorized officials or management bodies of the customer;
c) changes are made to the procurement plan due to changes in the procurement method;
d) a contract with a single supplier based on the results of a failed procurement procedure is concluded taking into account the requirements established by the procurement documentation - minor (insignificant) changes to the terms of the contract are allowed (postponement of deadlines associated with the procedure, change of payment terms, etc.);
e) the need to publish in the Unified Information System a notice of purchase from a single supplier, a draft agreement and a protocol for determining a single supplier.
Case Study
OFAS Commission for St. Petersburg ( decision and order dated June 4, 2013 NoТ03-118/132 ) a decision was made to recognize the Customer as violating 223-FZ and the Procurement Regulations, in connection with the refusal to conclude a contract to the only participant in the request for proposal.
Having recognized the request for proposals as invalid, the procurement commission violated clause 12.5.12, clause 12.7.2 of the Regulations by unjustifiably recognizing the request for proposals procedure as invalid, since one participant who submitted an application to participate in the request for proposals was admitted.
At the same time, the Regulations provided that “if, based on the results of consideration of Applications for participation in the Request for Proposals, by decision of the Organizer, only one Application for participation in the Request for Proposals was not rejected, then such Application for participation in the Request for Proposals is evaluated in the manner established by the documentation request for proposals."
The customer did not do this and did not complete the procedure (did not carry out the procedure for reviewing and evaluating the application) and therefore violated clauses 12.3-12.7 of the Procurement Regulations, regarding violation of the procedure for conducting a request for proposals and concluding an agreement based on the results of this procedure.
In addition, as the OFAS noted, customers in competitive procedures not related to tenders are guided only general principles 223-FZ and specific rules of the Procurement Regulations.
The procurement participant, in accordance with the protocol for consideration of competitive bids, was recognized as the only participant in the competition.
Despite the above circumstances, a letter for ref. No. 5220 dated 12/18/12 The customer (defendant) refused to enter into a disputed agreement with Alfa-Trade LLC, citing the lack of approval of this transaction by the Board of Directors of SPPK OJSC.
Considering this refusal to be unlawful, the plaintiff (tender participant) filed a lawsuit against the customer to compel him to conclude a contract.
Assessing the current legal situation and satisfying the plaintiff’s demands, the court proceeded from the following.
In accordance with clause 79 of the Customer’s Procurement Regulations “If an open tender As a result of the receipt of a competitive application from one applicant, an agreement may be concluded with such applicant, provided that he is recognized as a participant and his competitive application meets the requirements set out in the competition documentation, at a price not exceeding that specified in the financial and commercial proposal of the participant.”
As stated above and not disputed by the defendant, the competition commission decided to grant Alfa-Trade LLC the right to conclude an agreement. This decision of the competition commission in established by law order is not declared invalid.
Under such circumstances, the court came to the conclusion that the defendant has an obligation to conclude an agreement with the plaintiff in this dispute on the terms set out in the draft agreement for the tender documentation.”
Determination of the Federal Arbitration Court of the Volga-Vyatka District dated November 13, 2013 in case No. A82-15815/2012.
Failed procedures and reporting
1. When filling out a monthly report
If an agreement is concluded with a single procurement participant based on the results of a failed procurement, information about such an agreement is included in the monthly report on contracts concluded as a result of the purchase of goods, works, and services.
If an agreement is concluded with a single supplier based on the results of a failed purchase, information about such an agreement is included in the monthly report on contracts concluded by the customer based on the results of a purchase from a single supplier (performer, contractor).
2. When filling out a report on the Federal Statistical Observation Form No. 1 - procurement “information on procurement activities
In cases where, during a competition or auction, only one participant submitted an application, the competitive procedure did not take place, and the customer entered into an agreement with a single supplier, one of columns 4, 5, 6 “Tenders” or 7, 8 must be completed in the report. 9 “Auctions” (depending on the announced procedure), and not column 10 “Purchases from a single supplier”.
Electronic procurement form as a way to “fight” failed procurements
Suppliers are now becoming less and less willing to participate in non-electronic procurement.
To increase the share of completed procedures, it is necessary to conduct more procurements on the electronic platform.
When purchasing electronically electronic platform carries out many actions for procurement participants and purchasers, which makes it possible to maximize the possible range of procurement participants.
Paper purchases = few applications, many failed purchases.
Electronic procurement = many applications, many completed purchases.
Questions from listeners
Question: What should I do if several participants were admitted to the auction, and during the auction only one of these participants submitted a price offer?
Answer: In this case, the auction is considered valid, since the price during the auction was reduced compared to the original level. However, in the case when the customer works under 44-FZ, he needs in such a situation, before concluding an agreement with this participant, to obtain permission from the regulatory authorities, since 44-FZ prohibits this.
Question: When conducting e-procurement One application has been submitted that meets the requirements. The purchase was declared invalid. The final protocol is published and an agreement is concluded with a single supplier. Is it necessary to publish a notice of purchase from a single supplier?
Answer: No, if an agreement is concluded with a single participant, then a notice of purchase from a single supplier does not need to be published.
Question: No applications were submitted during the request for quotations. It was decided to purchase from a single supplier. The contract has not yet been concluded, but the volume and cost of the purchase have changed. What to do, how to enter information about changes on the site?
Answer: In this case, a new notice, agreement, protocol is formed. It is necessary to find out why the cost and volume have changed. If the reasons are objective, for example, prices have increased over the past period, then you can change the terms of the contract by making these changes to them.
Question: If no applications have been submitted to the request for proposals, how can this be formalized on the official website?
Answer: In this case, the protocol indicates that not a single application was submitted for the request for proposals, and therefore the customer’s commission decided to recognize this purchase as failed.
Question: What to do in a situation where the product is in too much demand and the supplier does not want to participate in the purchase?
Answer: You can try using another purchasing method.
Question: The institution planned to purchase budget funds a car under 223-FZ, the purchase was included in the plan. During the procurement process, it turned out that it had to be carried out in accordance with 44-FZ. It turned out that the purchase did not take place under 223-FZ. How can this be reflected on the official website?
Answer: Firstly, this purchase could be carried out under 223-FZ. This is not capital investment in state and municipal property, so it is completely legal. Secondly, if the purchase was only planned, but documentation and notice were not posted on it, then such a purchase cannot be considered failed. Thus, in this situation, all that needs to be done is to amend the plan to eliminate this purchase.
Question: If, based on the results of the auction, the customer and the contractor made a mutual decision to terminate the contract by agreement of the parties, then how should this termination be formalized?
Answer: You just need to draw up an additional agreement to terminate the contract.
Question: Is it possible to stipulate in the procurement regulations that if during the procurement by requesting quotations one application is submitted and one participant is admitted, then the procurement is considered completed.
Answer: Yes, in this case, the regulations should state that if during the procurement only one application is received that meets the requirements of the documentation, then the contract can be concluded with the only participant who submitted this application.
Question: Is it true that an agreement with a single participant and an agreement with a single supplier are different things and should be reflected differently in reports?
Answer: Yes, that's right, they have different legal natures. From the point of view of procurement legislation, such contracts have various grounds for conclusion. Accordingly, in the reports, information about such contracts will also be reflected in different categories.
Question: If the tender is declared invalid, is it possible to conclude an agreement with a single supplier for a month, and then re-tender? Is it necessary to make changes to the procurement plan in this case? Purchase of more than one hundred thousand rubles.
Answer: If the purchase is declared invalid due to the fact that not a single application was submitted during the tender, an agreement can be concluded with a single supplier. If the contract amount is more than one hundred thousand rubles, you need to post everything on the official website necessary documents for procurement - notice, draft agreement and protocol. Subsequently, the trading procedure can be repeated, but the documents must reflect the requirements, taking into account the obligations that will arise at that time in front of the only supplier with whom the contract will be concluded. It may be better not to make changes to the plan in this case, since in the end the procurement procedure will still be competitive.
Question: If no application was submitted during the procurement procedure, the procurement was declared unsuccessful, and the subject of the procurement, in accordance with the law, can only be purchased in electronic form, is it possible to carry out the purchase from a single supplier? Answer: The purchase in this case had already been carried out electronically, it did not take place, this is the basis for purchasing from a single supplier, this does not contradict government decree 616.
Question: If the auction did not take place because there was only one participant, is it necessary to post two protocols - a protocol for considering applications and a protocol for summing up the results?
Answer: In this case, the application review protocol will be sufficient. Since there are no results, there is no need to post a summary protocol.
Question: If, during a procurement, a single application is found to meet the requirements, then, in accordance with the procurement regulations, an agreement is concluded with the only participant who submitted this application. For purchases over one hundred thousand, the only one provides for posting notices and documentation on the official website. Accordingly, the contract will be concluded within the framework of this procedure, and not an auction. How then is the auction issue resolved?
Answer: If, during an auction, a single application is recognized as meeting the requirements, and in accordance with the procurement regulations, an agreement is concluded with the only PARTICIPANT who submitted this application, then this situation differs from concluding an agreement with a single SUPPLIER, which can be concluded in the case when there was no not a single application has been submitted, and then you need to post the documentation on the official website, etc., again, if such a situation is provided for by the procurement regulations. IN in this case there will be simply an agreement with a single participant.
Question: Should the monthly report include in the section on purchases from a single supplier those cases where contracts were concluded with single participants as a result of competitive procurement procedures?
Answer: No.
Question: Is it necessary to make changes to the procurement plan if, as a result of a failed procurement procedure, a contract is concluded with a single supplier?
Answer: Yes, because the way we purchase is changing.
Question: If no applications were received during the request for proposals, is it possible to conclude an agreement with a single supplier or should a separate procedure be carried out and included in the procurement plan?
Answer: When concluding an agreement with a single supplier as a result of a failed procurement procedure through a request for proposals, you need to post a notice on the official website and make changes to the plan.
Question: If the price of a contract with a single participant was reduced as a result of the bargaining procedure, then only a protocol for considering the application is sufficient?
Answer: Yes, the protocol for considering the application is sufficient; it records the fact that there is one application that meets the documentation requirements.
Question: Is it necessary to reflect in monthly reports amounts under contracts whose value does not exceed one hundred thousand rubles?
Answer: Yes, it is necessary.
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Hello, Pavel!
According to Article 71 44-FZ 4. In the event that the electronic auction is declared invalid on the grounds provided for in Part 16 of Article 66, Part 8 of Article 67 and Part 13 of Article 69 of this Federal Law due to the fact that after the deadline for filing applications not a single application for participation in such an auction was submitted or, based on the results of consideration of the first parts of applications for participation in such an auction, the auction commission decided to refuse admission to participation in it of all its participants who submitted applications for participation in such an auction, as well as on the grounds provided for in Part 13 of Article 69 of this Federal Law in connection with the fact that the auction commission made a decision that all second parts of applications for participation in it do not meet the requirements established by the documentation for the electronic auction, or on the grounds provided for in Part 15 of Article 70 of this Federal Law, the customer makes changes to the schedule (if necessary, also to the procurement plan) and carries out the purchase by conducting a request for proposals in accordance with paragraph 8 of part 2 of Article 83 of this Federal Law (in this case, the procurement object cannot be changed) or otherwise in accordance with this Federal Law.
According to Article 93 44-FZ 1. Purchase from a single supplier (contractor, performer) can be carried out by the customer in the following cases: 25) recognition of an open tender, a tender with limited participation, a two-stage tender, a repeated tender, as invalid, 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 in accordance with the federal authority executive branch, 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 posting in the unified information system of the relevant protocols containing information on the recognition of the determination of the supplier (contractor, performer ) failed. 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;
3. In the case of a purchase from a single supplier (contractor, performer) for concluding a contract, the customer is obliged to justify in a documented report the impossibility or inexpediency of using other methods of determining the supplier (contractor, performer), as well as the contract price and other essential terms of the contract. The provisions of this part do not apply to cases of procurement from a single supplier (contractor, performer) provided for in paragraphs 1, 2, 4, 5, 7, 8, 15, 16, 19 - 21, 24 - 26, 28, 29, 33, 36, 42, 44, 45, 47 - 48 of part 1 of this article.
That is, you can conduct a request for proposals or purchase a service (product) from a single supplier on the basis of clause 25, part 1, article 93 of the 44-FZ; you do not need to justify the purchase from a single supplier according to part 3 of article 93 of the 44-FZ.
I wish you good luck!
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Sachenkov Alexey
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Good afternoon Depending on the purchase, but I believe that it will not be possible to conclude a contract as with the only supplier, since the conditions are defined in Article 93 of 44-FZ and if these conditions were suitable, I think you would immediately purchase as from the only supplier, and not an established one An auction, even 10 times, does not provide the opportunity to conclude a contract with a single supplier.
A failed auction gives the right to conduct a request for proposals, which in turn does not imply the availability electronic signature, the application is submitted in an envelope.
Article 83. Conducting a request for proposals
1. A request for proposals is understood as a method of identifying a supplier (contractor, performer), in which information about a product, work or service purchased to meet state or municipal needs is communicated to an unlimited number of persons by posting in a unified information system a notice of a request for proposals, documentation about conducting a request for proposals and the winner of the request for proposals is the procurement participant who sent the final proposal, which in the best possible way meets the requirements established by the customer for the product, work or service.
2. The customer has the right to purchase through a request for proposals in the following cases:
1) became invalid on January 1, 2014. - Federal Law of December 28, 2013 N 396-FZ;
2) concluding a contract for the supply of sports equipment and equipment, sports equipment necessary for the preparation of sports teams of the Russian Federation in Olympic and Paralympic sports, as well as for the participation of sports teams of the Russian Federation in Olympic Games and Paralympic Games;
3) no longer in force on January 1, 2017. - Federal Law of July 3, 2016 N 320-FZ;
4) became invalid on January 1, 2014. - Federal Law of December 28, 2013 N 396-FZ;
5) has become invalid. - Federal Law of June 4, 2014 N 140-FZ;
6) procurement of goods, work or services that are the subject of a contract, the termination of which was carried out by the customer on the basis of Part 9 or 15 of Article 95 of this Federal Law. Moreover, if before termination of the contract the supplier (contractor, performer) partially fulfilled the obligations stipulated by the contract, when concluding a new contract on the basis of this clause, the quantity of goods supplied, the volume of work performed or services provided must be reduced taking into account the quantity of goods supplied, volume work performed or service provided under the contract being terminated, and the contract price must be reduced in proportion to the quantity of goods supplied, the volume of work performed or service provided;
7) procurement of medicines that are necessary to prescribe to the patient if available medical indications(individual intolerance, for health reasons) by decision of the medical commission, which is recorded in the patient’s medical documents and the journal of the medical commission. At the same time, the volume of purchased drugs should not exceed the volume of drugs needed by the patient during the treatment period. In addition, when making purchases in accordance with this paragraph, the subject of one contract cannot be medicines required to prescribe to two or more patients. The specified decision of the medical commission must be included simultaneously with the contract concluded in accordance with this paragraph in the register of contracts provided for in Article 103 of this Federal Law, provided that the depersonalization of personal data provided for by the Federal Law of July 27, 2006 N 152-FZ “On Personal Data” is ensured. data;
8) recognition of a repeated tender or electronic auction as not having taken place in accordance with Part 4 of Article 55 and Part 4 of Article 71 of this Federal Law;
9) procurement of folk arts and crafts products of recognized artistic merit, samples of which are registered in the manner established by the federal executive body authorized by the Government of the Russian Federation;
10) procurement of services to protect the interests of the Russian Federation in the event of submission individuals and/or legal entities to the judicial authorities of foreign states, international courts and arbitration courts of claims against the Russian Federation, if necessary, to attract Russian and (or) foreign specialists, experts and lawyers to provide such services.
3. A notice of a request for proposals is posted by the customer in the unified information system no later than five days before the date of such a request. Along with posting a notice of a request for proposals, the customer has the right to send invitations to participate in the request for proposals to persons capable of supplying goods, performing work, and providing services that are the objects of procurement. In this case, the customer is obliged to send invitations to participate in the request for proposals to persons with whom, during the eighteen months preceding the request for proposals, the customer entered into contracts in relation to the same procurement items, provided that these contracts were not terminated due to violation by the suppliers (contractors, performers) of the terms of these contracts in accordance with the provisions of this Federal Law. In the case of a request for proposals in accordance with paragraph 6 of part 2 of this article, the customer is obliged to send invitations to participate in the request for proposals only to persons who were participants in the procurement for the right to conclude a contract, the termination of which was carried out in accordance with the provisions of part 9 of article 95 of this Federal Law, and in relation to applications for which, during the implementation of these procurements, a decision was not made to reject due to the non-compliance of such applications with the requirements of this Federal Law, no later than five working days before the date of the request for proposals.
4. The notice of a request for proposals must contain the following information:
1) information provided for in paragraphs 1 - 5, 7 (if a contract is concluded in accordance with paragraph 8 of part 2 of this article) and 8 (if the establishment of a requirement to secure the execution of a contract is provided for in Article 96 of this Federal Law) of Article 42 of this Federal Law;
2) requirements for participants in the request for proposals, and an exhaustive list of documents that must be submitted by participants in the request for proposals in accordance with Article 31 of this Federal Law;
3) the language or languages in which the documentation on the request for proposals is provided;
4) place, date and time of opening envelopes with applications for participation in the request for proposals and opening access to those submitted in the form electronic documents applications for participation in the request for proposals, consideration and evaluation of such applications;
5) methods of obtaining documentation on conducting a request for proposals, timing, place and procedure for providing this documentation;
6) the fee (if established) charged by the customer for providing documentation on the request for proposals, the method of implementation and the currency of payment;
7) deadline, place and procedure for submitting applications for participation in the request for proposals;
8) benefits provided by the customer in accordance with Articles 28 - 30 of this Federal Law.
5. From the moment the notice of the request for proposals is posted in the unified information system, the customer does not have the right to cancel the request for proposals or make changes to the notice of the request for proposals or the documentation for the request for proposals.
6. Simultaneously with posting a notice of a request for proposals, the customer places in the unified information system documentation on the request for proposals, which must contain the following information:
1) information specified in part 4 of this article;
2) name and description of the procurement object, contract terms in accordance with Article 33 of this Federal Law, including justification of the initial (maximum) contract price;
3) requirements for the content, including the composition, form of applications for participation in the request for proposals and instructions for filling them out. At the same time, it is not allowed to establish requirements that entail limiting the number of participants in the request for proposals or access to participation in the request for proposals;
4) information about the customer’s ability to change the quantity of goods, volume of work or service provided for in the contract when concluding a contract or during its execution in accordance with Article 95 of this Federal Law;
5) procedure for conducting a request for proposals;
6) the procedure and deadline for withdrawing applications for participation in the request for proposals, the procedure for returning such applications (including those received after the deadline for their acceptance);
7) criteria for evaluating applications for participation in the request for proposals, the significance of these criteria in accordance with this Federal Law, the procedure for considering and evaluating such applications;
8) information about the contract service, the contract manager, those responsible for concluding the contract, the period during which the winner of the request for proposals must sign the contract, the conditions for recognizing the winner of the request for proposals as having evaded concluding a contract;
9) information about the possibility of unilateral refusal to fulfill the contract in accordance with the provisions of parts 8 - 26 of Article 95 of this Federal Law.
7. The documentation on the request for proposals is accompanied by a draft contract, which is an integral part of the documentation on the request for proposals.
7.1. Acceptance of applications for participation in the request for proposals ceases with the deadline for opening envelopes with applications for participation in the request for proposals and opening access to applications submitted in the form of electronic documents for participation in the request for proposals.
8. To participate in the request for proposals, participants in the request for proposals, within the time frame and in the manner established in the notice of the request for proposals and the documentation for the request for proposals, submit applications for participation in the request for proposals to the customer in writing or in the form of an electronic document. If, before the envelopes with applications for participation in the request for proposals are opened and access to applications submitted in the form of electronic documents for participation in the request for proposals is opened, only one application for participation in the request for proposals has been submitted or no such application has been submitted, the request for proposals is considered invalid.
9. On the day, time and place specified in the notice of the request for proposals, immediately before opening the envelopes with applications for participation in the request for proposals and opening access to applications submitted in the form of electronic documents for participation in the request for proposals, the customer is obliged to publicly announce participants of the request for proposals present when opening these envelopes and opening the specified access to the possibility of submitting applications, changing or withdrawing submitted applications. The customer is obliged to provide all participants in the request for proposals who submitted applications with the opportunity to be present at the opening of envelopes with their applications and opening access to applications submitted in the form of electronic documents and the announcement of the application containing best conditions execution of the contract.
10. The commission for the consideration of applications for participation in the request for proposals and final proposals opens the received envelopes with applications for participation in the request for proposals and opens access to applications submitted in the form of electronic documents for participation in the request for proposals. Participants in the request for proposals who submitted applications that do not meet the requirements established by the documentation for the request for proposals are disqualified and their applications are not evaluated. The reasons for which a participant in the request for proposals was removed are recorded in the protocol of the request for proposals. If it is established that one participant in the request for proposals has submitted two or more applications for participation in the request for proposals, the applications of such participant are not considered and are returned to him.
11. All applications of participants in the request for proposals are evaluated on the basis of the criteria specified in the documentation on the request for proposals, recorded in the form of a table and attached to the protocol of the request for proposals, after which the conditions for the execution of the contract contained in the application recognized as the best, or the conditions contained in in a single application for participation in a request for proposals, without announcing the participant in the request for proposals who sent such a single application.
12. After the announcement of the conditions for the execution of the contract contained in the application recognized as the best, or the conditions contained in the only application for participation in the request for proposals, the request for proposals is completed to all participants in the request for proposals or to the participant in the request for proposals who submitted the only application for participation in the request for proposals, It is proposed to send the final proposal no later than the business day following the date of the request for proposals.
13. In the unified information system, on the day of opening envelopes with applications for participation in the request for proposals and opening access to applications submitted in the form of electronic documents for participation in the request for proposals, an extract from the protocol of its conduct is posted, containing a list of participants suspended from participation in the request for proposals, indicating grounds for exclusion, contract performance conditions contained in the application recognized as the best, or conditions contained in the only application for participation in the request for proposals, without announcing the participant in the request for proposals who sent such application.
14. If all participants present during the request for proposals refuse to submit a final proposal, the request for proposals ends. The refusal of the participants in the request for proposals to send final proposals is recorded in the protocol of the request for proposals. In this case, applications submitted for participation in the request for proposals are considered final proposals.
15. The opening of envelopes with final proposals and the opening of access to final proposals submitted in the form of electronic documents are carried out on the next business day after the date of completion of the request for proposals and are recorded in the final protocol. Participants in the request for proposals who sent final proposals have the right to be present when the envelopes with final proposals are opened and access to the final proposals submitted in the form of electronic documents is opened.
16. The winning final proposal is the final proposal that, in accordance with the criteria specified in the notice of request for proposals, best meets the requirements established by the customer for goods, works, and services. If several final proposals contain the same terms and conditions for the execution of the contract, the winning final proposal shall be the final proposal received first. The final protocol records all the conditions specified in the final proposals of the participants in the request for proposals, the decision made on the basis of the results of the evaluation of the final proposals to assign serial numbers to such final proposals, and the conditions of the winner of the request for proposals. The final protocol and the protocol of the request for proposals are posted in the unified information system on the day of signing the final protocol.
17. The contract is concluded on the terms provided for by the notice of the request for proposals and the final proposal of the winner of the request for proposals, no earlier than seven days from the date of posting in the unified information system of the final protocol provided for in part 16 of this article, and no later than twenty days from date of signing of the said protocol. In this case, the contract is concluded only after the participant submits a request for proposals to ensure the execution of the contract in the cases provided for by this Federal Law. If the winner of the request for proposals does not comply with the requirements of this part, such winner is recognized as having evaded concluding the contract. If the winner of a request for proposals evades concluding a contract, the customer has the right to file a claim in court for compensation for losses caused by evasion of concluding a contract, and conclude a contract with the participant in the request for proposals, whose final proposal is assigned the second number. If the participant in the request for proposals, whose final proposal is assigned the second number, agrees to conclude a contract, the draft contract is drawn up by the customer by including in the draft contract the conditions for the execution of the contract proposed by this participant.
18. If the request for proposals is recognized as failed due to the fact that until the opening of the envelopes with applications for participation in the request for proposals and opening access to applications submitted in the form of electronic documents for participation in the request for proposals, only one such application has been submitted, which recognized as complying with the requirements of this Federal Law and meets the requirements established by the customer for goods, works, services in accordance with the notice of a request for proposals, the customer has the right to purchase from a single supplier (contractor, performer) in accordance with clause 25 of part 1 of Article 93 of this Federal Law .
19. If the request for proposals is recognized as invalid due to the fact that until the opening of the envelopes with applications for participation in the request for proposals and opening access to applications submitted in the form of electronic documents for participation in the request for proposals, not a single such application has been submitted, the customer makes changes to the schedule (if necessary, also to the procurement plan) and makes the purchase again.
20. The customer is obliged to ensure audio recording of the opening of envelopes with applications for participation in the request for proposals, envelopes with final proposals and opening access to applications submitted in the form of electronic documents for participation in the request for proposals, final proposals. Any participant in the request for proposals present at the opening of envelopes with applications for participation in the request for proposals, envelopes with final proposals and the opening of access to applications submitted in the form of electronic documents for participation in the request for proposals, final proposals, has the right to make audio and video recordings of the opening of these envelopes and opening the specified access.
21. In the event of judicial acts adopted by a court or arbitration court or circumstances arising force majeure preventing one of the parties from signing a contract within the time limits established by this article, this party is obliged to notify the other party of the existence of these judicial acts or circumstances within one day. In this case, the period established by this article is suspended for the period of execution of these judicial acts or the duration of these circumstances, but not more than thirty days. In case of cancellation, amendment or execution of these judicial acts or termination of these circumstances, the relevant party is obliged to notify the other party about this no later than the day following the day of cancellation, amendment or execution of these judicial acts or termination of these circumstances.
Sometimes, for a number of reasons, an electronic auction under 44-FZ may not take place (more precisely, it will be declared failed). In fact, the situation is not as unpleasant as it might seem at first glance, since recognizing the auction as invalid does not mean that you did not win the contract. True, according to the new laws, quite a lot of controversial issues arise in which, naturally, each side wants to benefit itself and fool the other parties. Therefore, it is necessary to take all this into account and try to act competently so as not to fall for the government customer’s stupid bait if something happens. Government customers are hired employees who hold on to their place. Therefore, they don’t care what problems the contractor will have, because the contractor is a bourgeois who only seeks to pocket government funds. So, let's consider a situation in which the auction did not take place. What to do next?
Depending on the reason for which it arose this situation, there are several paths to its successful (and sometimes unsuccessful) resolution. It all depends on the situation itself, and sometimes also on your actions.
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 complies with the established requirements and auction documentation. In this case, approval from the regulatory authorities 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 go through, the government customer must hold a new tender.
2. The auction did not take place if there were several participants
a) Let’s assume that there are several participants in the 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. Moreover, according to 44-FZ, the customer has the right to independently send invitations to participate in the procurement process to those persons who, in his opinion, are capable of fulfilling the terms of the contract. However, in this case, these persons must be indispensable counterparties of the customer for at least 18 months before the date of request for similar supplies.
The auction did not take place if all applications were rejected at the stage of consideration of the first parts
In theory this is hardly possible, but in reality electronic trading Anything can happen. Accordingly, in this case the previous paragraph on the request for proposals is applicable. If, out 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.
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.”