The electronic auction on 44 fz. The auction did not take place

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

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

2. The auction did not take place if there are several participants in it
a) Suppose that there are several participants in the electronic auction, but only one of them satisfies the requirements for the second part of the application. Accordingly, in this case, the rule of paragraph “1” applies, that is, the state customer concludes a contract with this participant without approval from the regulatory authority.
b) There are several participants in the auction, but the state customer rejected all applications at the stage of consideration of the second parts. The solution is to conduct new auctions.

3. No bids have been submitted (there are no bidders 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 the request for proposals after failed auction it is forbidden, however, to change the object of procurement (but at the same time it is formally possible, but not recommended, to change its cost, as well as the deadlines). A notice to the EIS must be submitted by the customer no later than 5 days (calendar) before the date of the request for proposals. At the same time, according to 44-FZ, the customer has the right to independently send invitations to participate in the procurement process to those persons who, in his opinion, are capable of fulfilling the terms of the contract. However, these persons in this case must be indispensable counterparties of the customer for at least 18 months before the date of the request for similar supplies.

4. The auction did not take place if all bids were rejected at the stage of consideration of the first parts
In theory, this is hardly possible, but in fact, anything can happen in electronic trading. Accordingly, in this case, the previous paragraph on the request for proposals applies. 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 solved by agreement in the supervisory authority.

5. The auction did not take place, since none of the participants went to it
According to part 3 of article 71, the problem is solved by coordination with the regulatory authority (the first application that meets the conditions of the auction). If no application complies, or the application complies, but the participant is ready for termination, then a clause is applied that is suitable under the terms of 44-FZ:

"3. In the event that an electronic auction is declared invalid on the grounds provided for by paragraph 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 on the price of the contract:

4) the contract is concluded in accordance with Clause 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, an application for participation in which is submitted:

a) earlier than other bids for participation in such an auction, if several participants in such an auction and the bids submitted by them are recognized as complying with the requirements of this Federal Law and documentation on such an auction.

1. The customer enters into a contract with sole supplier(contractor, executor) in accordance with Clause 25 of Part 1 of Article 93 of this Federal Law in cases where the request for quotations is declared invalid on the grounds provided for:

1) Part 6 of Article 77 of this Federal Law due to the fact that at the end of the deadline for filing applications for participation in the request for quotations, only one application has been submitted. At the same time, such an application is recognized as complying with the requirements of this Federal Law and the requirements specified in the notice of the request for quotations;

2) Part 9 of Article 78 of this Federal Law due to the fact that, based on the results of consideration of applications for participation in the request for quotations, only one such application was recognized as complying with the requirements of this Federal Law and the requirements specified in the notice of the request for quotations.

2. If the request for quotations is declared invalid on the grounds provided for by Part 9 of Article 78 of this Federal Law due to the fact that the quotation commission rejected all submitted applications for participation in the request for quotations, the customer extends the deadline for submitting applications for participation in the request for quotations for four business days. days and within one working day after the deadline for filing such applications, shall place in the unified information system a notice on the extension of the deadline for filing such applications. In this case, the customer is obliged to send a request for filing applications for participation in the request for quotations to at least three of its participants who can supply the necessary goods, perform work or provide services.

3. If after the deadline for filing bids for participation in the request for quotations, specified in the notice on the extension of the deadline for filing such bids, only one such bid is filed and it is recognized as complying with the requirements of this Federal Law and the requirements specified in the notice on the request quotations, the customer concludes a contract with a single supplier (contractor, performer) in accordance with paragraph 25 of part 1 of Article 93 of this Federal Law.

4. In the event that after the deadline for filing applications for participation in the request for quotations, specified in the notice of the extension of the deadline for submitting such applications, not a single such application has been submitted, the customer makes changes to the schedule (if necessary, also to the procurement plan) and buy again.

Has many nuances. The first thing the customer needs to know is that participation in a failed purchase cannot be called a loss. A supplier that has taken part in such tenders has certain risks, while it may also receive some benefits.

When the purchase is declared invalid

A distinction should be made between failed, invalid and canceled procurement.

Invalid purchase - one in which the customer violated the provisions of the relevant legislation (44-FZ or 223-FZ) or the Civil Code of the Russian Federation. The contract concluded as a result invalid trades, must be terminated.

For certain reasons, the customer or the supervisory authority may cancel the purchase at any of its stages.

Purchase Recognized failed when in fact there was no competitive definition of the supplier. Depending on the type of trade, the specific reasons may be different.

When bidding under 44-FZ is declared invalid

It is worth considering cases of failed purchases in the three most popular types purchasing procedures:

• no applications have been submitted;
• only one application has been submitted;
• only one application met the documentation requirements;
• the winner avoided signing the contract, and the second participant refused to conclude it (because he has the legal right to do so);
• according to the results of the pre-qualification, none of the participants met the requirements.

2. In the auction

• no applications have been submitted;
• only one application submitted
• all the first or all second parts of the applications do not meet the requirements;
• during the consideration of the first or second parts of applications, only one was admitted;
• within ten minutes from the start of the auction, no price bids were made;
• the winner avoided signing the contract, and the second participant refused to sign it;

3. In the request for quotations

• no applications have been submitted;
• only one application has been submitted;
• all submitted applications were rejected by the commission;
• only one application was admitted by the commission.

Failed auctions under 223-FZ

It has been repeatedly noted that Law 223-FZ is more loyal to the procurement procedure and the actions of customers. This also applies to their actions in cases of recognition of purchases as failed: they are not defined by the law itself, and the Civil Code regulates only failed tenders and auctions.

Most customers take 44-FZ as a basis, replacing some conditions with more flexible ones. Other documents on which the actions of customers are based are the procurement regulation and the Law on Protection of Competition.

Customer actions

1. When no supplier met the requirements

First, changes are made to the schedule. After 10 days, the customer can announce:

• re-tender if the tender did not take place;
• about another procurement procedure if the auction did not take place;
• on a new purchase, if the request for proposals did not take place;
• on extending the deadline for submitting bids or conducting procurement in another way, if the request for quotations did not take place.

2. When only one supplier qualified

• the customer concludes a contract with him if a request for quotations or an auction was held;
• the customer agrees on the possibility of concluding a contract with the regulatory authority, if it was a request for proposals or a tender;

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 contract system in the field of procurement of goods, works, services...”. This provision of the law describes the applicable procedure for conducting procedures on the electronic platform.

In particular, the recognition of the auction as invalid allows you to sign a contract with one participant or hold an auction in another form.

We are talking about the fact that when closing tenders without applications, the state-owned enterprise gets the opportunity to select a supplier by requesting proposals. Let's consider the most typical scenarios of failed trades.

Single Application - Procedure

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

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 in the work of the site, it is she who is considered the winner.

The key feature of the recognition of the auction as invalid for this reason is the admission to participation in it of only one participant. The customer can conclude a contractual agreement with a single participant.

Consider the conditions under which you can sign a contract. This is possible only with the participant (Art. 70 FZ-44), whose application fully meets the requirements. Keep in mind that consideration of a single application is possible if within 10 minutes after the start of trading the supplier submitted a price offer (Article 68 FZ-44, part 20). At least it should be 0.5% lower than the NMCC.

If the auction did not take place and none of the bids meet the requirements, then the customer can purchase by the method of request for proposals.

The auction was declared invalid - no bids were submitted

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

So, the tender is declared invalid if:

one application has been submitted;

lack of applications;

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

in cases where there was no bid for the price at the set time.

Failed auction - consequences

As we wrote above, depending on the reasons for the recognition of a failed auction, the customer can conclude a contract with a single supplier or conduct a new tender in the form of a request for proposals or otherwise established by law.

Repeat auction

Re-bidding is also carried out on the basis of Federal Law-44. IN currently the state customer has the right to select a counterparty only by requesting proposals, but new amendments are expected soon, which will require additional. approvals.

In order to apply for participation in the auction without violations and corresponding to the requirements of the customer, it is best to contact the specialists. RusTender already has significant experience in this area, so it will be able to prepare everything with high quality and in a short time. Required documents and transfer them to the site for participation in the auction.

OOO IWC"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 invalid). In fact, the situation is not as unpleasant as it might seem at first glance, since the recognition of the auction as invalid does not mean that you have not won this contract. True, under the new laws, quite a lot of controversial issues arise, in which, naturally, each side wants to take advantage of itself, and fool the other parties. Therefore, it is necessary to take into account all this, and try to act competently so as not to fall for the stupid bait of the state customer in which case. Government customers are hired employees who hold on to their jobs. Therefore, it is purple for them, what problems the contractor will have, because the contractor is a bourgeois who only seeks to pocket public funds. So, consider the situation in which the auction did not take place. What to do next?

Depending on the reason for which this situation arose, there are several ways to successfully (and sometimes unsuccessfully) resolve it. It all depends on the situation itself, and sometimes on your actions.

1. The auction did not take place if there is one participant in it

In this case, the customer concludes a contract with this participant as with the winner, provided that the second part of the application complies with the established ones and the auction documentation. Coordination with the regulatory authorities in this case is not required, since according to the conditions, one application is enough for a quorum, if it is executed correctly. Naturally, if you refuse, you will be held liable as if you had participated in a full tender with many participants and won it. If you submit a single bid and it fails, the contracting authority must re-bid.

2. The auction did not take place if there are several participants in it

a) Suppose that there are several participants in the electronic auction, but only one of them satisfies the requirements for the second part of the application. Accordingly, in this case, the rule of paragraph “1” applies, that is, the state customer concludes a contract with this participant without approval from the regulatory authority.

b) There are several participants in the auction, but the state customer rejected all applications at the stage of consideration of the second parts. The solution is to conduct new auctions.

3. No bids have been submitted (there are no bidders 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 the request for proposals after a failed auction, however, it is prohibited, however, to change the object of procurement (but at the same time it is formally possible, but not recommended, to change its cost, as well as the deadlines). A notice to the EIS must be submitted by the customer no later than 5 days (calendar) before the date of the request for proposals. At the same time, according to 44-FZ, the customer has the right to independently send invitations to participate in the procurement process to those persons who, in his opinion, are capable of fulfilling the terms of the contract. However, these persons in this case must be indispensable counterparties of the customer for at least 18 months before the date of the request for similar supplies.

The auction did not take place if all bids were rejected at the stage of consideration of the first parts

In theory, this is hardly possible, but in fact, anything can happen in electronic trading. Accordingly, in this case, the previous paragraph on the request for proposals applies. 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 solved by agreement in the supervisory authority.

The auction did not take place because none of the participants went to it

According to part 3 of article 71, the problem is solved by coordination with the regulatory authority (the first application that meets the conditions of the auction). If no application complies, or the application complies, but the participant is ready for termination, then a clause is applied that is suitable under the terms of 44-FZ:

"3. In the event that an electronic auction is declared invalid on the grounds provided for by 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 on the contract price:

4) the contract is concluded in accordance with Clause 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, an application for participation in which is submitted:

a) earlier than other bids for participation in such an auction, if several participants in such an auction and the bids submitted by them are recognized as complying with the requirements of this Federal Law and documentation on such an auction.