If the only bidder. What to do if the purchase did not take place
In most cases, when the phrase “the purchase did not take place” is announced, the participants have the opinion that either there are no proposals for the tender, or all applications for its participation have been rejected. However, there are many more cases where the purchase was declared invalid.
Consider this for different stages procedures.
All bases are collected in the table.
| Applying | Consideration | Conclusion of a contract | ||
|---|---|---|---|---|
|
1. There are no offers. 2. Only one application has been submitted. |
General base | For competitive procedures | For electronic auction | Evasion of the winner from the conclusion of the contract and the subsequent evasion of the second participant from signing the contract. |
|
1. All offers rejected. 2. Only one is recognized as compliant. |
When held in a competition with limited participation: 1. No competitor is called upon to meet additional requirements. 2. Only one participant is admitted based on the results of pre-qualification. |
When conducting an electronic auction, if there are no price offers at the auction within 10 minutes after the start of the auction. | ||
| During the second stage 1. There are no offers. 2. Only 1 proposal is submitted or all participants are rejected. 3. Only one application was found eligible. |
||||
Competitive procedures
If during the competition the public procurement is declared invalid, 44-FZ provides for two cases further development events: conduct a new or repeated one, or purchase from a single supplier.
The difference between a new public procurement and a repeated one is that if the object, volume, requirements for participants do not change, that is, all the conditions remain the same (with the exception of the term for fulfilling the terms of the contract, which is extended by the time necessary for re-ordering, as well as the initial price, which can be increased by no more than 10%), then the order is repeated, otherwise it is new.
When there are no submitted applications or they are found to be inappropriate, a second procedure is carried out. The publication of the notice in the repeated procedure is carried out at least 10 days before the date of opening the envelopes (not 20 days, as in the usual one).
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 in order to reduce the deadline for submitting applications to 5 working days or in another way 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 receive (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 (). 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.
Electronic auction
When recognizing an electronic auction failed customer or enters into a contract with, while coordination with the control body is not required (in cases provided for in part 16 of article 66, part 8 of article 67, part 20 of article 68, part 13 of article 69).
Or, if the auction did not take place, changes in the procurement plan are made, if necessary, in accordance with Part 6 of Art. 17, changes in the schedule are mandatory, then the order is carried out again (part 16 of article 66, part 8 of article 67, part 13 of article 69, part 15 of article 70). Art. 92, in addition to the possibility to re-order, the customer has the right, in agreement with the control authority, to purchase from a single supplier in accordance with paragraph 24 of Part 1 of Art. 93.
Consequences of declaring an electronic auction invalid:
1. If an electronic auction is declared invalid due to the fact that at the end of the deadline for filing applications for participation in such an auction, only one application for participation in it has been submitted:
the contract is concluded with a participant in such an auction who has submitted a single application for participation in it, if this participant and the application submitted by him are recognized as complying with the requirements of the Law and the documentation for such an auction, in accordance with clause 25 of part 1 of Article 93 federal law N 44-FZ in the manner prescribed by Article 70 of Federal Law N 44-FZ.
2. If the electronic auction is declared invalid due to the fact that the auction commission decided to recognize only one procurement participant who submitted an application for participation in such an auction as its participant:
a contract with a sole participant in such an auction, if this participant and the application submitted by him for participation in such an auction are recognized as complying with the requirements of Federal Law No. 44-FZ and the documentation for such an auction, is concluded in accordance with paragraph 25 of Part 1 of Article 93 of Federal Law No. 44-FZ in the manner prescribed by Article 70 of Federal Law N 44-FZ.
3. In the event that an electronic auction is declared invalid 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, the contract is concluded in accordance with paragraph 25 of part 1 of Article 93 of the Federal Law N 44-FZ in the manner prescribed by Article 70 of Federal Law N 44-FZ, 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 Federal Law N 44-FZ and documentation on such an auction;
b) The sole participant in such an auction, if only one participant in such an auction and the application submitted by him are recognized as complying with the requirements of Federal Law N 44-FZ and the documentation for such an auction.
4. If the electronic auction is declared invalid on the grounds provided for by Part 13 of Article 69 of Federal Law N 44-FZ due to the fact that the auction commission has made a decision on compliance with the requirements established by the electronic auction documentation, only one second part of the application to participate in it, a contract with a participant in such an auction who submitted the said application is concluded in accordance with clause 25 of part 1 of Article 93 of Federal Law No. 44-FZ in the manner established by Article 70 of Federal Law No. 44-FZ.
5. If the electronic auction is declared invalid due to the fact that at the end of the deadline for filing applications for participation in such an auction, no applications for participation in it have been submitted or based on the results of consideration of the first parts of applications for participation in such an auction, the auction commission has made a decision to refuse admission to participation in it of all its participants who have submitted applications for participation in such an auction, the customer makes changes to the schedule (if necessary, also to the procurement plan) and carries out the procurement by conducting a request for proposals in accordance with clause 8 of part 2 of Article 83 of Federal Law N 44-FZ (in this case, the object of procurement cannot be changed) or otherwise in accordance with Federal Law N 44-FZ.
Section 5 Conclusion of a contract based on the results of an electronic auction
- FAS Russia dated 24.04.2014 N CA/16309/14 "On sending clarifications on the application of Article 17.1 of the Federal Law dated 26.07.2006 N 135-FZ "On Protection of Competition"
- Application . EXPLANATIONS OF THE FAS OF RUSSIA ON THE APPLICATION OF ARTICLE 17.1 OF THE FEDERAL LAW OF 26.07.2006 N 135-FZ "ON PROTECTION OF COMPETITION"
3. Concluding an agreement with a single bidder
In accordance with paragraph 15 of part 1 of Article 17.1 of the Law on Protection of Competition, the right of possession and (or) use in relation to state or municipal property may be transferred without bidding to the person who submitted the sole application for participation in the tender or auction, if the specified application meets the requirements and conditions provided for by the tender documentation or auction documentation, as well as to the person recognized as the sole participant in the tender or auction, on the terms and at the price stipulated by the application for participation in the tender or auction and the tender documentation or auction documentation, but at a price not less than the initial (minimum) price of the contract (lot) specified in the notice of the tender or auction. At the same time, for the organizer of the auction, the conclusion of the contracts provided for by this part in these cases is mandatory.
Paragraphs 101 (151) of the Rules for holding tenders or auctions for the right to conclude lease agreements, gratuitous use agreements, property trust management agreements, other agreements providing for the transfer of rights in relation to state or municipal property, approved (hereinafter referred to as the Rules), provide that in the event if the auction is declared invalid due to the submission of a single application for participation in the auction or recognition of only one applicant as a participant in the auction, with the person who submitted the only application for participation in the auction, if the specified application meets the requirements and conditions provided for by the auction documentation, as well as with a person recognized as the sole participant in the auction, the organizer of the auction is obliged to conclude an agreement on the terms and at the price that are provided for in the application for participation in the auction and the documentation on the auction, but at a price not less than the initial (minimum) price of the contract (lot) indicated in the notice of conducting auctions.
Also, in accordance with paragraph 28 of the Rules, posting information about holding competitions or auctions on the official website of the auction in accordance with the Rules is a public offer provided for (hereinafter -).
In accordance with paragraphs 50 and 120 of the Rules, an application for participation in the auction is submitted on time and in the form established by the auction documentation. Submission of an application for participation in the auction is an acceptance of the offer in accordance with.
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. Auction fails if all bids are rejected at the stage of consideration of the first parts In theory, this is hardly possible, but in reality anything can happen in electronic auctions. Accordingly, in this case, the previous paragraph on the request for proposals applies.
Article 71. Consequences of declaring an electronic auction invalid
of the Federal Law and documentation on such an auction or on the non-compliance of the participants in such an auction and the applications submitted by them with the requirements of this Federal Law and (or) documentation on such an auction; 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 filed: a) before other applications 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; b) the only participant in such an auction, if only one participant in such an auction and the application submitted by him are recognized as complying with the requirements of this Federal Law and documentation on such an auction. 3.1.
Failed auction
Approvals in accordance with paragraph 25 of part 1 of Article 93 of the Law on contract system arises only in the event of invalidation open competition, competition with limited participation, two-stage competition, repeated competition, request for proposals. Clarifications on this issue are given in the Letter of the Ministry of Economic Development of Russia No. 658-EE/D28i, FAS Russia No. АЦ/1587/15 of 01/20/2015. The data in the table without changes since 01/01/2015 (now the agreement is not required) failed Actions of the customer Approval Conclusion of the contract 1 Not a single application has been submitted (p.
16 art. 66 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.
Article 71 44-FZ - the consequences of declaring an electronic auction invalid
of the Federal Law and documentation on such an auction, or on the non-compliance of this participant and this application with the requirements of this Federal Law and (or) documentation on such an auction with the rationale for the said decision, including an indication of the provisions of this Federal Law and (or) documentation on such an auction, to which this application does not comply; b) the decision of each member of the auction commission on the compliance of the sole participant in such an auction and the application submitted by him for participation in it with the requirements of this Federal Law and documentation on such an auction, or on the non-compliance of this participant and the application submitted by him for participation in such an auction with the requirements of this Federal Law and ( or) documentation of such auction; ConsultantPlus: note. From July 1, 2018, Federal Law No. 504-FZ of December 31, 2017 amends paragraph 4 of part 2 of Article 71. Cm.
Federal Law) 4 Based on the results of consideration of the first parts of applications by the auction commission, a decision was made to refuse admission to participation of all participants in the procurement (part 8 of article 67 44-FZ) The customer makes changes to the schedule (purchase plan) and carries out the procurement by making a request 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) 5 The auction commission decided to recognize only one procurement participant who submitted an application for participation in such an auction as its participant (part 8 67 44-FZ) Coordination of the Customer's decision with the body authorized to exercise control in the field of procurement (FAS, Rosoboronzakaz) (clause 25, part 1, article 93 44-FZ) Concluding a contract with sole supplier(Clause 4, Part 2, Article 71, Clause 25, Part 1, Art.
Auction declared invalid
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.
The electronic auction was declared invalid
From July 1, 2018, Federal Law No. 504-FZ of December 31, 2017 amends Part 3.1 of Article 71. See text in a future edition. 3.1. If the electronic auction is declared invalid on the grounds provided for by Part 13 of Article 69 of this Federal Law due to the fact that the auction commission has made a decision on compliance with the requirements established by the electronic auction documentation, only one second part of the application for participation in it, a contract with a participant in such an auction that has filed the said application shall be 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. (Part 3.1 was introduced by Federal Law No. 140-FZ of 04.06.2014) ConsultantPlus: note. From July 1, 2018, Federal Law No. 504-FZ of December 31, 2017 amends Part 4 of Article 71.
Cm.
If the auction is declared invalid due to
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 sole participant in 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.
If the electronic auction is declared invalid
Attention
The only application - the order of actions Laws on electronic trading FZ-44 and FZ-223 are constantly supplemented and coordinated with others 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. Key Feature 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.
This document should include the following information:
- Title of the document;
- place, time and date of its compilation;
- list of members of the auction commission;
- the name of the failed auction;
- information about the customer;
- auction object;
- the reason for declaring the auction invalid;
- information about the site where the protocol will be placed.
So Art. 71 of Law No. 44 defines 5 possible situations in which an auction is declared invalid. The same article defines the order of actions that the customer must take after the event receives the specified status.
Federal Law "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 said property is sold through a public offer. If the auction did 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 contract of sale or a lease contract for the land plot put up for auction, and the state authority or local government, by whose decision the auction was held, is obliged to conclude an agreement with a single bidder at the initial auction price.
The auction was declared invalid, one application was submitted under 44 fz
In view of the foregoing, the conclusion of an agreement with the only participant in the failed auction does not meet the requirements of civil law, and also contradicts the essence of the auction itself. In addition, in accordance with established judicial practice, filing an application for participation in the auction does not mean the conclusion of an agreement with the organizer of the auction by accepting a public offer. An agreement is a two or multilateral transaction, which implies the emergence of rights and obligations for all its parties.
If we assume that the notification of the organizer of the auction is an offer to conclude a contract that is the subject of the auction, then the application of a potential participant should indeed be considered an acceptance. But the bidder does not bear any obligation to conduct the bidding, since the provision of the required documents and the payment of a deposit are his rights, but not his obligations.
The auction was declared invalid due to the only participant whose application meets the requirements of the documentation. Is the customer obliged to conclude a contract with this participant or can he refuse it and hold the auction again?
Answer
Oksana Balandina, chief editor of the State Order System
From July 1, 2018 to January 1, 2019, customers have a transition period - it is allowed to carry out both electronic and paper procedures. From 2019, competitions, auctions, quotes and requests for proposals on paper will be prohibited, with eight exceptions.
Read what purchases to make on the ETP, how to choose a site and get an electronic signature, what are the rules for concluding contracts during the transition period and after.
According to clause 4, part 1, article 71, 44-FZ, if the electronic auction is recognized as not having taken place on the grounds provided for by part 16 of article 66 of this Federal Law due to the fact that at the end of the deadline for filing applications for participation in such an auction only one application for participation in it is submitted, the contract is concluded with the participant of such an auction who submitted the only application for participation in it, if this participant and the application submitted by him are recognized as complying with the requirements of this Federal Law and the documentation of such an auction, in accordance with paragraph 25 of part 1 Article 93 of this Federal Law in the manner established by Article 70 of this Federal Law.
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Thus, if such an application and such a participant are recognized as relevant, then the customer is obliged to conclude a contract with this participant.
Letter of the Ministry of Economic Development of Russia dated 12.01.2015 No. D28i-3885
Letter of the Ministry of Economic Development of Russia dated 12.01.2015 No. D28i-3885
On clarifications related to the application of the Federal Law of April 5, 2013 No. 44-FZ
The Department for the Development of the Contract System of the Ministry of Economic Development of Russia considered an appeal on clarification of the provisions of the Federal Law of April 5, 2013 No. 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law No. 44- FZ), sent to the FAS Russia, and informs.
In accordance with clause 4 of part 1 of article 71 of Law No. 44-FZ, if the electronic auction is declared invalid on the grounds provided for in part 16 of article 66 of Law No. 44-FZ due to the fact that at the end of the deadline for filing applications for participation in only one application for participation in such an auction is submitted, the contract is concluded with the participant of such an auction who submitted the only application for participation in it, if this participant and the application submitted by him are recognized as complying with the requirements of Law No. 44-FZ and documentation on such an auction, in accordance with clause 25 of Part 1 of Article 93 of Law No. 44-FZ in the manner prescribed by Article 70 of Law No. 44-FZ.
According to clause 25 of part 1 of article 93 of Law No. 44-FZ, a contract must be concluded with a single supplier (contractor, performer) on the terms provided for in the procurement documentation, at the price offered by the procurement participant with whom the contract is concluded. Such price shall 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.
At the same time, a contract with a single supplier (contractor, performer) is concluded within the time limits established by Article 70 of Law No. 44-FZ.
Thus, in accordance with Part 3 of Article 70 of Law No. 44-FZ, within five days from the date of placement by the customer in the unified information system of the draft contract, the winner of the electronic auction places in the unified information system a draft contract signed by a person entitled to act on behalf of the winner of such an auction, as well as a document confirming the provision of security for the performance of the contract and signed with an enhanced electronic signature of the specified person.
The winner of the electronic auction with which the contract is concluded, in the event of disagreements on the draft contract, has the right to place in the unified information system a protocol of disagreements signed with an enhanced electronic signature of a person entitled to act on behalf of the winner of such an auction (Part 4 of Article 70 of Law No. 44-FZ ).
Given the above, after the customer places the draft contract in the unified information system, the supplier (contractor, performer) is obliged to sign the draft contract or place a protocol of disagreements within 5 days.
Please note that the clarifications of a public authority are legally valid if this authority is vested in accordance with the law Russian Federation special competence to issue clarifications on the application of the provisions of regulatory legal acts. The Ministry of Economic Development of Russia is a federal executive body, the current legislation of the Russian Federation, including the Regulations on the Ministry of Economic Development of the Russian Federation, approved by Decree of the Government of the Russian Federation of June 5, 2008 No. 437, is not empowered to clarify the legislation of the Russian Federation.
