Liabilities assumed if the auction does not take place. The purchase did not take place: contract with a single supplier

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

Article 71. Consequences of declaring an electronic auction invalid

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

What to do if the auction does not take place

Attention

of the Federal Law due to the fact that the auction commission has decided that all the second parts of the applications for participation in it do not meet the requirements established by the documentation for the electronic auction, or on the grounds provided for by Part 15 of Article 70 of this Federal Law, the customer makes changes to the plan schedule (if necessary, also in the procurement plan) and carry out procurement by means of a request for proposals in accordance with clause 8 of part 2 of Article 83 of this Federal Law (in this case, the procurement object cannot be changed) or otherwise in accordance with this Federal Law. (as amended by the Federal Laws of December 28, 2013 N 396-FZ, of June 4, 2014 N 140-FZ) (see.

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

In the event that no applications were submitted for participation in the auction, it is recognized as failed in accordance with Part 16 of Article 66 of Federal Law No. 44. Consider the consequences of this development of events and what the customer will do next.

Important

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

The answer is unequivocal - you need it! The protocol may be published up to the day of the expiration of the term for consideration of the first parts of applications, determined by the notice. However, as a rule, it appears on the site much earlier.

What to do if the purchase did not take place

Info

If in the future a repeated tender does not take place for the same reasons (part 2 of article 55), then the customer has the right to carry out the procedure by requesting proposals in order to reduce the deadline for submitting applications to 5 working days or otherwise at the discretion of the customer. If the purchase did not take place, the only supplier concludes a contract if his application complies with the requirements of the law and documentation.

In this case, the customer must obtain approval from the FAS (clause 25, part 1, article 93). This group will not include the case when, according to the results of the pre-qualification selection of a two-stage competition, only one participant is found to meet the requirements (Part 1 of Art.

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

Forum about public procurement and tenders good-tender

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

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

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

The auction did not take place, no bids were submitted

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

• If no bids have been submitted for the auction, is it possible to extend the bid deadline?
• Is it possible to repeat the auction if no bids have been submitted?

Lawyers Answers (2)

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

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

At the same time, in accordance with part 1 of article 2 of the Law, when purchasing goods, works, services, customers, in addition to the law itself, are guided by the provisions of the Civil Code Russian Federation, as well as the developed and approved procurement regulations.

In turn, the Civil Code in part 5 of article 447 gives general definition failed bidding (specifically bidding, and not all procurement procedures), which are understood as bidding, in which only one participant took part.

In addition to the case of declaring a tender void as specified in Part 5 of Article 447 of the Civil Code of the Russian Federation, in the theory and practice of procurement activities there are also other grounds for declaring a tender void, in particular:
– if not a single application has been received within the period established by the documentation;
- only one participant from those who applied for participation in the auction was recognized as a participant in the relevant auction procedure;
– based on the results of consideration of applications for participation in the auction, all submitted applications of participants were rejected.

However, depending on the specific procurement procedure, the list of grounds for declaring a procurement void can be much wider. For example, when bidding open competition, auction) the following grounds for declaring the auction void may be provided:
1. At the end of the deadline for submitting applications for participation in the competition, no such application has been submitted;
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 the pre-qualification selection, none of the procurement participants was recognized as meeting the requirements established in the documentation.
4. At the end of the deadline for submitting applications for participation in the auction, not a single such application has been submitted.
5. Based on the results of consideration of the first parts of applications for participation in an electronic auction, the commission decided to refuse admission to participation in such an auction of all procurement participants.
6. Within a certain time after the start of such an auction, none of its participants submitted an offer on the price of the contract.

As can be seen from the above examples, these grounds for recognizing the auction as invalid determine the need for the customer to perform certain actions aimed either at holding repeated auctions or at conducting a new procurement procedure.

In the theory and practice of procurement activities, there are also other grounds for declaring a tender invalid:
1. At the end of the deadline for submitting applications for participation in the competition, only one application has been submitted, and such an application has been recognized as complying with the requirements of the documentation;
2. Based on the results of consideration of applications for participation in the tender, only one application was recognized as complying with the requirements of the documentation;
3. Based on the results of the pre-qualification selection, only one procurement participant was recognized as complying with the established requirements, and the application of such a participant was recognized as complying with the requirements of the documentation.
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 an electronic auction, the auction commission decided to recognize only one procurement participant who submitted an application for participation in such an auction as its participant.

The indicated grounds, despite the fact that the auction was declared invalid, do not entail the need for the customer to perform certain actions aimed at conducting repeated auction procedures, other purchases, the contract in this case is concluded with a single participant whose application meets the requirements of the documentation.

01
Distinguishing failed trades from invalid ones

In accordance with Article 449 of the Civil Code of the Russian Federation, auctions held in violation of the rules established by law may be declared invalid by the court at the claim of the person concerned. Recognition of the auction as invalid entails the invalidity of the contract concluded with the person who won the auction. Thus, invalid auctions are auctions held in violation of the rules and procedures established by law (for example, violation of competition law). In turn, as follows from the situations described above, recognition of the auction as invalid means that the auction was held legally, however, according to their results, the customer did not achieve the goal of holding an auction and concluding an agreement with the winner of the auction based on their results.

02
Consequences of declaring a procurement void

Recognition of the procedure as invalid should include a set of legal and factual actions that fix legal status such a purchase.

The legitimacy of the further procedure in a simplified manner depends on their complete and correct execution.

After recognizing a particular procurement procedure as invalid, it is advisable for the customer to perform the following sequence of actions:
1. Identify and analyze the reasons and conditions that served as the basis for recognizing the procurement as failed (for example, excessive requirements for participants, incorrect initial maximum price of the contract, insufficient deadline for submitting bids, etc.).
2. Legal assessment and decision-making on the recognition of the procurement as failed (drawing up and signing the protocol, publishing it on the website).
3. Making a decision on the consequences of recognizing the procurement as failed (conducting a repeated procedure, conducting a different (simplified) procedure, concluding an agreement with sole supplier).

In contrast to the mandatory rules and norms of the legislation on the contract system, which fix the grounds and consequences of declaring the procurement as failed, Law No. 223-FZ makes it possible to provide for the consequences of declaring the procurement as failed in the form of dispositive norms.

In other words, the Regulations can provide for the possibility for the customer to choose the consequences of recognizing the procurement as failed - to conduct a new procurement, conduct another (simplified procurement) or conclude an agreement with a single supplier on the terms of a failed auction. To do this, the Regulations must provide for the possibility of choosing the consequences and use the wording not “must”, but “may”.

For example, based on the results of a failed purchase, the following decisions can be made by the customer:
- on procurement from a single supplier - in the event that conducting new procurement procedures is inappropriate (for example, 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);
- on the conclusion of an agreement - if the submitted application and the participant who submitted it comply with the requirements of the notification, documentation;
- on the re-purchase by any of the methods, in any form, named in the Regulations, which the customer deems appropriate to use.

03 Features of concluding contracts based on the results of failed purchases

Features of concluding an agreement with a single participant based on the results of a failed purchase:
The customer is obliged to conclude an agreement with the only authorized participant in the competitive procurement, if:
a) this procurement participant was admitted by the procurement commission to participate in the procurement procedure;
b) the contract is concluded on the terms of the documentation and the draft contract;
c) the contract is concluded at the price, in the volume and on the terms specified by such a single participant in his application (and for the auction at the price agreed by the parties, not exceeding the initial (maximum) price of the contract), or on the best terms for the customer (including those reached as a result of pre-contractual negotiations)
d) no changes are made to the Procurement Plan; in the monthly report, this contract is included in the report on concluded contracts based on the results of the procurement of goods, works, services.

It is necessary to pay special attention to the fact that, based on the results of the failed bidding, the customer’s refusal to conclude an agreement with the only bidder whose application meets the documentation requirements is illegal (decision and order of the OFAS for St. Petersburg dated June 4, 2013 No. Court of the Volga-Vyatka District dated November 13, 2013 in case No. A82-15815 / 2012).

2. Features of concluding an agreement with a single supplier (as a procurement method) based on the results of a failed procurement:
The customer has the right to conclude an agreement with a single supplier based on the results of a failed procurement, provided that such an opportunity is provided for by the Procurement Regulations of such a customer, taking into account the following features:
a) the customer in the Procurement Regulations establishes 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 a change in the method of procurement;
d) an agreement with a single supplier based on the results failed procedure the procurement is concluded taking into account the requirements established by the procurement documentation - a slight (insignificant) change in the terms of the contract is allowed (postponement of the terms associated with the procedure, change in payment terms, etc.);
e) the need to publish in the EIS a notice of purchase from a single supplier, a draft contract and a protocol for determining a single supplier.

04
Failed procedures and reporting

1. When completing the monthly report:
In the event that an agreement is concluded with a single procurement participant as a result of a failed procurement, information about such an agreement is included in the monthly report on contracts concluded as a result of the procurement of goods, works, services.

If an agreement is concluded with a single supplier as a result of a failed purchase, information about such an agreement is included in the monthly report on contracts concluded by the customer as a result of the purchase from a single supplier (executor, contractor)

2. When filling out a report in the form of federal statistical observation No. 1 - procurement "information on procurement activities
In cases where only one participant submitted an application during a tender or auction, the competitive procedure did not take place, and the customer entered into an agreement with a single supplier, one of columns 4, 5, 6 "Competitions" or 7, 8 must be filled in the report, 9 "Auctions" (depending on the announced procedure), and not column 10 "Purchasing from a single supplier".

• On 09/11/2016
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• 44-FZ, EIS, Purchases in construction, Purchases from a single supplier, Request for quotations, Request for proposals, Competition, Articles, Terms of government contracts, Electronic auction

In accordance with Law No. 44-FZ, contracts to meet state and municipal needs must be concluded on the basis of competitive procedures. These are different kinds competition, electronic auction, as well as requests for quotations and offers. However, in a number of cases, established by Article 93 of the mentioned law, it is necessary to purchase from a single supplier. Including in cases where the competitive procurement procedure has been declared invalid (paragraph 25 of part 1 of Article 93 of Law No. 44-FZ).

Why the purchase may not take place

The reasons for declaring the competitive procedure as invalid, which make it possible to conclude a contract with a single supplier, can be combined into two groups:

• the application was submitted by one participant, and it is recognized as complying with the conditions of the procurement documentation and the requirements of the law;
• Applications were submitted by several participants, but the conditions of the purchase were satisfied by the application of only one of them.

The procurement procedure may be declared invalid for other reasons. For example, applications may not be received at all, or all of them may be rejected due to non-compliance with the requirements of the procurement documentation. Such cases are fundamentally different from the above situations, when a single bid satisfies the procurement requirements.

Registration in ERUZ EIS

From January 1, 2019 to participate in trading under 44-FZ, 223-FZ and 615-PP registration required in the ERUZ register (Unified Register of Procurement Participants) on the EIS (Unified Information System) portal in the field of procurement zakupki.gov.ru.

We provide a service for registration in the ERUZ in the EIS:

First, in these cases, the competitive procedure, such as a tender, should be repeated. If the repeated tender is declared invalid, then the customer will be able to apply the norm of paragraph 25 of Article 93 of Law No. 44-FZ and conclude a contract with a single supplier.

Secondly, if the conclusion of a contract with a single source becomes a consequence of the recognition of a failed repeated competitive procedure, then the customer must choose this source himself. Whereas if there is a single participant that satisfies the conditions of the purchase, the customer is obliged to conclude a contract with him.

When is approval needed?

The customer, who receives the right to conclude a contract with a single supplier due to a failed procurement procedure, is exempted from the need to place a notice in the EIS, as well as from drawing up a report on the impossibility of determining the supplier in other ways.

However, in some cases, the future contract will have to be agreed with the regulatory authorities. This applies to purchases to meet federal needs, the needs of the region or municipality. Not all of these contracts will have to be agreed - it depends on the method of determining the contractor. So, if the purchase was carried out through an electronic auction or a request for quotations, then it will not be necessary to coordinate the conclusion of a contract with a single supplier. But during the competition, in most cases, the contract will have to be agreed. However, there are exceptions here too – these include tenders for capital investments in state and municipal property, as well as projects for the construction and reconstruction of capital facilities, which are carried out at the expense of the budget by organizations that are not state or municipal enterprises.

In other cases, within 10 days after the publication of data on the failed competitive procedure in the EIS, the contract should be sent for approval to the regulatory authority. The latter has 10 working days for approval from the date when the customer's request was received.

Contract price

The contract with a single supplier, executor or contractor must be concluded at a price that satisfies the requirements of the procurement documentation. It is forbidden to conclude a contract at a price exceeding the initial (maximum) price of the contract, as well as higher than the value specified in the participant's application or offered during the electronic auction.

Term of imprisonment

Depending on how the sole contractor was determined, as well as on the need to agree on a contract, a different amount of time is allotted for its conclusion.

In the case of a tender, the customer has 20 days to conclude a contract. If the approval of the supervisory authority is required, then this period begins its calculation from the date of receipt of such approval. In other cases, it is considered from the date of posting in the EIS information on the recognition of the procurement procedure as invalid.

If the supplier was determined during the electronic auction, then the contract should have been concluded within the standard period. Namely, not earlier than 10 and not later than 27 days after the protocol with the results of the auction was posted in the system.

If the executor of the contract was determined through a request for quotations, then it should be concluded from the 7th to the 20th day from the date when the documentation with the results of this request was posted.

Hello!

You can, in accordance with Art. 93.44 fz

25) recognition as invalid of an open tender, a tender with limited participation, a two-stage tender, a repeated tender, an 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. Coordination of the conclusion of a contract in these cases, with the exception of cases of conclusion of 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 during procurement to meet federal needs, the needs of the subject Russian Federation, municipal needs, respectively, with the federal executive body authorized to exercise control in the field of procurement, or the control body in the field of state defense orders, the executive body of the constituent entity of the Russian Federation, the local government municipal district or the local self-government body of the 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 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 the conclusion of a contract with a single supplier (contractor, performer) is sent to the control body in the field of procurement no later than within ten days from the date of placement in the unified information system of the relevant protocols containing information on the recognition of the definition of the supplier (contractor, performer). ) failed. At the same time, the approval period should not be more than ten working days from the date of receipt of the said request. A contract with a single supplier (contractor, performer) is concluded within a period of not more than twenty days from the date of receipt by the customer of such approval, or in the cases provided for by Parts 4 and 5 of Article 15 of this Federal Law, within a period of not more than twenty days from the date of placement in the unified information system of the relevant protocols containing information on the recognition of the determination of the supplier (contractor, performer) as invalid, or in the cases provided for by Parts 1 - 3.1 of Article 71, Parts 1 and 3 of Article 79 of this Federal Law, within the time limits established by Article 70 and Part 13 Article 78 of this Federal Law. The procedure for agreeing on the conclusion of a contract with a single supplier (contractor, performer) is established by the federal executive body for regulation contract system in the field of procurement;