The auction did not take place. What to do if the purchase did not take place Electronic auction did not take place under Federal Law 44

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 consider the most typical scenarios 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 a single 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

The re-tender is also carried out on the basis of Federal Law-44. At the moment, 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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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. 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 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 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 deadlines). 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, anything can happen in electronic trading. 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 the 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:

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.”

We are holding an auction, the day for submitting applications ends and we know that no one will submit applications. Is it necessary to change the schedule and procurement plan in order to hold a repeat auction? Can I immediately after posting the protocol on failed auction create a new notice and within what time frame?

Answer

Failed, invalid and canceled purchase are different things.

Status failed purchase means that there was no competitive competition or bidding between suppliers. But based on the results of such a purchase, the customer can enter into a contract with a single supplier.

Invalid tenders are recognized where the customer violated laws (44-FZ, 223-FZ) or the norms of the Civil Code. If the auction is declared invalid after the winner is determined, the contract with him is terminated.

Cancel purchase at any stage, the customer himself can do it for his own reasons or by order of the regulatory authority.

For example, in 2018, every third competitive procurement under 44-FZ was declared invalid:

Ministry of Finance monitoring data for 2018

In what cases will procurements be declared invalid?

1. According to 44-FZ

Let's see how it works on the three most popular types competitive procurement:

For the competition

• No applications submitted;
• All applications were rejected by the commission;
• The winner avoided signing, and the second participant refused to enter into a contract (he has the right to do so, there will be no sanctions);
• As a result of the pre-qualification, all participants were ineligible;
• Only 1 application submitted;
• Only 1 application meets the documentation requirements;
• As a result of pre-qualification, only 1 participant met the requirements.

For auction

• No applications submitted;
• After reviewing the first parts, all participants were denied admission;
• After review of the second parts, all applications are ineligible;
• Only 1 application submitted;
• After reviewing the first parts, only 1 application meets the documentation requirements;
• Within ten minutes after the start of the auction, not a single proposal for the contract price was submitted;
• As a result of consideration of the second parts, only 1 application meets the documentation requirements;
• The winner avoided signing the contract, and the second refused to sign the contract (he has the right to do so, there will be no sanctions).

To request a quote

• No applications submitted;
• All applications were rejected by the commission;
• Only 1 application submitted;
• Only 1 application meets the requirements.

2. According to 223-FZ

All cases where a procurement is declared invalid must be provided for and described in the procurement regulations. The law does not regulate the actions of customers if the purchase does not take place, and in the Civil Code the concept of “failed purchase” is given only for tenders and auctions and only if one supplier participated in them.

Many customers under 223-FZ use the provisions of 44-FZ as an example, but make the conditions more flexible. Suppliers traditionally need to focus on customer procurement regulations, the Civil Code and competition law.

What will the customer do if the procedure does not take place?

If there is no one to sign a contract with

• If the first request for quotations or tender does not take place, the customer extends the deadline for submitting applications by 4 or 10 days, respectively. If there are no proposals again, the customer will make changes to the schedule and a day later can carry out a re-purchase in the manner indicated above.
• If the re-tender does not take place, the customer conducts a request for proposals for the first electronic auction.

If the only participant who meets the requirements is identified

In this case, the customer can enter into a contract with the supplier whose application meets the requirements.

What should the supplier do?

If you are the only participant or only your application meets all the requirements, then after summing up the procurement results you need sign contract.

• At the maximum price, if none of the eligible participants submitted a price proposal during the electronic auction. For example, like in this auction.
• At your price, if you were the only supplier whose 2nd part of the application met the requirements.

The only winning supplier must sign the contract on time, otherwise he will be included in the register of unscrupulous suppliers. For example, how it happened in this purchase.

In procurement under 223-FZ, the customer’s actions are determined by its procurement regulations.

conclusions

Customize your search so you don't miss purchases

Constantly look for procurement in your area. Then you won’t miss anything interesting, you’ll have time to prepare and submit your application.

Keep track of all purchases in which you participate

If you have applied to participate, keep track of what is happening in the procedure. For example, in Kontur.Purchases you can add a purchase to your favorites and receive information about its results. This will help you not miss the deadline for signing the contract.

In the comments to articles you can get answers from other suppliers, and experts will answer

Reading time: 10 min

Budget institutions, in the course of their work, purchase goods or services through electronic open auctions. The winners of such auctions are companies or individuals who offer the most low price for completing the order.

Dear readers! Each case is individual, so check with our lawyers for more information.Calls are free.

The choice of the order executor in the case where the auction did not take place depends on the reason for the cancellation of the auction and is regulated by the provisions of Art. 71 of Law No. 44.

Basic provisions

A procurement auction is called failed if the downward bidding was not held. The reasons for the lack of trading may be the following:

• only one potential person expressed interest in participating in trading;
• Among all applicants, only one meets the necessary requirements;
• none of those registered started trading in the second stage competition;
• no one declared their desire to participate in the competition;
• none of the participants meet the requirements.

Consequences of declaring an auction invalid

If the procurement commission declares the auction invalid, then the following options are possible:

• concluding an order fulfillment agreement with;
• organization of a new purchase with a reduced maximum contract price;
• selection of performer by.

An agreement with a single applicant is concluded if both parts of the application submitted by him are approved by the competition commission.

It is important to know that a new purchase with a lower maximum price after the auction is declared invalid can only be organized with the same parameters of the required product, package of services or work.

For example, if the subject of the failed purchase was the supply of office equipment for, then the terms of the new purchase for office equipment should indicate the same characteristics, country of origin and quantity as in the terms of the previous purchase.

If the auction is declared invalid, the customer also has the right not to conduct a new purchase, but to choose a contractor by requesting proposals in the manner prescribed by paragraph 4 of Chapter. 3 of Law No. 44.

A request for proposals involves identifying the contractor who has offered the most optimal characteristics of the required product or service.