Recognition of auctions as invalid under Federal Law 44. The customer held an electronic auction, for which not a single application was submitted and the auction was declared invalid

In most cases, when the phrase “the purchase did not take place” is announced, participants have the impression that either there are no proposals for the tender, or all applications for participation in it have been rejected. However, there are many more cases where a purchase is declared unsuccessful.

Let's look at this for different stages of the procedure.

All bases are collected in the table.

Competitive procedures

If, during a competition, a public procurement is declared invalid, 44-FZ provides for two cases of further developments: to carry out a new or repeated one, or to purchase from a single supplier.

The difference between a new government procurement and a repeated one is that if the object, volume, requirements for participants do not change, that is, all conditions remain the same (except for the period for fulfilling the terms of the contract, which is extended for the period necessary for the repeated order, as well as the initial price, which can be increased by no more than 10%), then the order is repeated, otherwise - new.

When there are no applications submitted or they are found to be inappropriate, the procedure is repeated. The publication of the notice in the Unified Information System according to the repeated procedure is carried out no less than 10 days before the date of opening of the envelopes (not 20 days, as in the usual case).

If in the future a repeat competition 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 in another way at the discretion of the customer.

If the procurement does not take place, the sole supplier enters into a contract if its application meets 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, based on the results of the prequalification selection of a two-stage competition, only one participant is recognized as meeting the requirements (Part 10, Article 57). The customer makes 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

If an electronic auction is declared invalid, the customer or enters into a contract with a single supplier, while approval from 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 Art. 69).

Or, if the auction did not take place, changes to the procurement plan are made if necessary in accordance with Part 6 of Art. 17, changes in the schedule are required, 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).

Request for quotation

If the request for quotation is declared invalid, the customer either enters into a contract with a single supplier, without requiring approval from the control body, or conducts the public procurement again, reflecting the changes in the planning documents.

Request for proposals

Let's consider what to do with failed purchases at different stages of the procedure.

Closed procedures

Failed procurement under 44-FZ during a closed auction and competition is recognized in cases similar to open methods of identifying a supplier. However, according to Art. 92, in addition to the possibility of re-ordering, the customer has the right, in agreement with the control body, to purchase from a single supplier in accordance with clause 24, part 1 of Art. 93.

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:

1. one high-quality application has been submitted;
2. 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, it is necessary to conduct a request for proposal, because its conduct 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.

According to paragraph 16 of the notes of the Order of the Ministry of Economic Development and the Treasury of the Russian Federation No. 761/18n, changes to schedules in connection with repeated procedures for placing orders are made only in terms of the timing and method of placing an order and executing the contract.

At the same time, according to Part 2 of Art. 112 of the Federal Law of 04/05/2013 No. 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter referred to as Law No. 44-FZ), customers place plans and schedules for placing orders on the Official website 2014-2016 according to the rules in force before the entry into force of Law No. 44-FZ, taking into account the Features of placement in a unified information system or before the commissioning of the said system on the official website of the Russian Federation on the Internet information and telecommunications network for posting information about placing orders for the supply of goods, performance of work, provision of services, schedules for placing orders for 2015 - 2016, approved by Order of the Ministry of Economic Development of Russia No. 182, Treasury of Russia No. 7n dated 03/31/2015 (hereinafter referred to as the Features).

For example, clause 6 Features, according to which, changes to the schedule posted on the official website for each procurement object are carried out no later than ten calendar days before the date of posting on the official website of the notice of procurement or sending an invitation to participate in determining the supplier (contractor, performer). The exceptions are the cases specified in clause 7 Features.

In accordance with clause 7 Features in the case of procurement through a request for quotations for the purpose of providing humanitarian assistance or eliminating the consequences of emergencies of a natural or man-made nature in accordance with Art. 82 of Law No. 44-FZ, changes are made to the schedule posted on the official website on the day a request for quotation is sent to procurement participants, and in the case of a purchase from a single supplier (contractor, performer), in accordance with clause 9 and 28 hours 1 tbsp. 93 of Law No. 44-FZ, no later than one calendar day before the date of conclusion of the contract.

A notice of procurement (for example, an electronic auction, an open tender) can be posted by the customer on the official website no earlier than 10 calendar days from the date of changes to the schedule posted on the official website.

From all of the above, we can conclude that the placement by the customer on the official website of a notice of procurement earlier than 10 calendar days from the date of changes to the schedule posted on the official website will violate the provisions of the legislation of the Russian Federation on the contract system. This applies only to those purchases for which changes have been made to the schedule posted on the official website.

Let's consider the joint Order of the Ministry of Economic Development of the Russian Federation and the Federal Treasury dated December 27, 2011 No. 761/20n "On approval of the procedure for posting on the official website schedules for placing orders for the supply of goods, performance of work, provision of services for the needs of customers and the form of plans - schedules for placing orders for the supply of goods, performance of work, provision of services for the needs of customers" (hereinafter referred to as Order No. 761/20n).

According to paragraph 15 of the notes of Order No. 761/20n, changes to schedules are made in the following cases:

Changes of more than 10% in the cost of goods, works, services planned for acquisition, identified as a result of preparation for placing a specific order, as a result of which it is impossible to place an order for the supply of goods, performance of work, provision of services in accordance with the initial (maximum) contract price stipulated schedule;

Changes in the planned terms of acquisition of goods, works, services, method of placing an order, contract execution period;

Cancellation by the customer or authorized body of the order provided for in the schedule;

The resulting savings from the use of budgetary allocations in the current financial year in accordance with the legislation of the Russian Federation;

If circumstances arise that were impossible to foresee at the date of approval of the schedule;

In the event that a customer, an authorized body is issued an order by a federal executive body, an executive body of a constituent entity of the Russian Federation, a local government body authorized to exercise control in the field of placing orders to eliminate violations of the legislation of the Russian Federation on placing orders in accordance with the legislation of the Russian Federation, including about cancellation of the auction.

We also draw your attention to the fact that in accordance with clause 16 of the notes of Order No. 761/20n, changes to schedules in connection with repeated procedures for placing orders are made only in terms of the timing and method of placing an order and executing the contract.

If the Customer held an electronic auction for which not a single application was submitted and the auction was declared invalid, then when the procedure is repeated, new terms for the electronic auction and new terms for the execution of the contract are entered into the schedule. These changes are entered into a line that already contains information about the purchase, i.e. There is no need to create a new line for repeating the procedure in the schedule. And if, during a repeated procedure, the method of placing an order (the method of determining the supplier) changes, then the new method of determining the supplier is entered instead of the old one. For example, instead of the method of determining the supplier “electronic auction”, “request for proposals” is indicated.

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

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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 carry out a new purchase, but to choose a contractor by requesting proposals in the manner provided for in 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.

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? Is it possible for me to create a new notice immediately after posting a protocol about a failed auction and within what time frame?

Answer