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. A contract concluded as a result of an invalid auction 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 of procurement 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;

In this article I will focus on the recognition of the auction as invalid.

When can this even happen?

Firstly, if no bids were submitted for the auction at all, it is quite logical, what kind of auction is there if there is no one. What's next? Re-bidding will be scheduled with a decrease in the initial price (NC) by 10% from the NC at the primary auction. If the repeated ones do not take place, then they will appoint an auction in the form public offer with a decrease in NC.

The most interesting thing is not this.

Imagine this situation: you decide to buy something from the primary or re-auction (i.e. from the auction to increase). You have submitted your application for electronic platform. And it just so happened that no one except you was allowed to bid, or no one except you submitted any bids. What will happen in such a case?

Now these auctions will be called failed. But it's too early to panic.

For all that sounds sad, you're like sole member such bidding is recognized as the winner of the auction at the initial price. Have you applied for an auction at the starting price? And it's not your problem that no one else applied or no one was admitted except you. You were ready to pay the initial price, because. what you applied for. Therefore, the organizer of the auction has no grounds, incl. the legislators do not designate you as the winner of such bidding.

What part of the law do we rely on? Of course on the main document - Federal Law No. 127 "On Insolvency", to be more precise, on paragraph 17 of Article 110 "Sale of the debtor's enterprise" (download the Federal Law from the link)

“If only one participant was allowed to participate in the auction, whose application for participation in the auction meets the conditions of the auction or contains a proposal for the price of the enterprise not lower than the established initial sale price of the enterprise, the contract for the sale of the enterprise is concluded by the external manager with this participant in the auction”

Thus, if you are the only participant in the auction and your application with the Annexes to it comply, you can count on the fact that you bought the lot at the starting price.

This is how things stand with the recognition of the auction as invalid.

Therefore, when I showed in my video lesson these auctions for the purchase of a land plot in the city of Yartsevo, some attentive readers of our mailing list had fair bewilderment: “How is he telling us here that he bought the land, but the auction didn’t take place”?

That's how they "did not take place"!

And this is a certificate of ownership of the same land. This is Anyone who has access to the Sberbank-AST platform can also view the trading procedure - SBR013-1404110020

TendersFAQ II edition: 48 / 210

Therefore, competitions in the sense of Articles 447-448 of the Civil Code of the Russian Federation and competitions in the sense of Article 1057 of the Civil Code of the Russian Federation (“public competition”) are special cases of competition in the general sense, but cases that almost do not intersect.

Thus, a public competition is understood as a competition that is necessarily aimed at achieving socially useful goals and, in addition, its result is "the payment of a monetary reward or the issuance of another award ... for the best performance of work or the achievement of other results."

When we talk about the competition in Articles 447-449 of the Civil Code of the Russian Federation, then this is not just a choice of the best, but with the aim of concluding a specific contract.

Let's illustrate the difference with an example. Let's assume that the organizer of the competition needs stools (and let this fall under the "achievement of socially useful goals"). In this case, if all participants in the competition made a stool in advance and brought it to the competition commission, and it chose the best one and paid only the master of this stool, and the amount of remuneration was determined by the organizer himself, then this is a “public competition”. If all the participants drew up detailed plans on how they would make these stools, indicated the required remuneration for this, and the organizer chose the best solution from his point of view and concluded a contract for the manufacture of the stool with the one who offered him, then this is a competition in the sense of Articles 447-448 Civil Code of the Russian Federation.

Thus, Article 1057 of the Civil Code of the Russian Federation is almost never applied to tenders for the purchase of goods, works, services. I say “almost”, because sometimes, although very rarely, the sets “public competition” and the competition in the sense of Articles 447-448 of the Civil Code of the Russian Federation can intersect, which is reflected in paragraph 5 of Article 1057 of the Civil Code of the Russian Federation,

2.9. In what cases is the competition declared invalid?

Answer: In accordance with paragraph 5 of article 447 of the Civil Code of the Russian Federation, an auction and a competition in which only one participant participated are recognized as failed.

It would seem that everything is clear: the competition is considered invalid if, for example, only one application was initially submitted or, at the stage of qualifying, all other applicants did not meet the conditions of the competition.

However, a more complicated situation may also occur, when, for example, applications from 3 applicants are submitted for participation in the competition, but at the same time, 2 of them did not submit all Required documents. Was there such a competition or not? To answer this question, it should be remembered that the competition is the selection of the best applicant from those who correctly completed and submitted their proposal. And in the case under consideration, after the withdrawal of applicants who incorrectly completed their proposal, only one will remain, and there will be no one to compare it with. In this regard, such a competition is also recognized as invalid.

By the way, there was an interesting precedent when the first auction for the sale of the bankrupt's property was declared invalid (only one participant participated). After that, at the meeting of creditors, the bankruptcy trustee reported that he has the right, if the first auction did not take place, to put the property up for a second auction, or sell it by concluding a contract of sale. And by decision of the meeting of creditors on the basis of paragraph 4 of Art. 112 of the Federal Law of 08.01.1998 No. 6-FZ "On Insolvency (Bankruptcy)" then in force, the property was sold without bidding.

However, the court, having understood the situation, found the actions of the bankruptcy trustee unlawful, t.to. the law provides for the right to sell without auction “property not sold at the first auction”, and not “if the auction did not take place” [Footnote: “The debtor’s property that was not sold at the first auction is put up for re-auction or sold

TendersFAQ II edition: 49 / 210

bankruptcy trustee on the basis of a purchase and sale agreement concluded without bidding" (clause 4, article 112 of the Federal Law of the Russian Federation of January 8, 1998 No. 6-FZ "On Insolvency (Bankruptcy)").].

And the opinion of the court is absolutely correct, because if the auction did not take place, then this is an analogue of the fact that they did not exist at all. Those. In order to be able to sell the property directly, it is necessary that the first auction takes place, and for some reason the property could not be sold at these failed auctions.

2.10. When do I need to sign the protocol on the results of the competition?

Answer: According to paragraph 5 of Article 448 of the Civil Code of the Russian Federation, the person who won the auction and the organizer of the auction sign on the day of the auction on the results of the auction, which has the force of the contract. The person who won the auction, if he evades signing the protocol, loses the deposit he made. The organizer of the auction, who evaded signing the protocol, is obliged to return the deposit in a double amount, as well as to compensate the person who won the auction for the losses caused by participation in the auction, to the extent exceeding the amount of the deposit.

If the subject of the auction was only the right to conclude an agreement, such an agreement must be signed by the parties no later than 20 days or another period specified in the notice after the completion of the auction and the execution of the protocol. If one of them evades the conclusion of the contract, the other party has the right to apply to the court with a demand for compulsion to conclude the contract, as well as for compensation for losses caused by evading its conclusion.

In addition, it should be borne in mind that individual acts may contain additional requirements.

So, for example, clause 4 of Article 21 of the Federal Law of 06.05.99 No. 97-FZ "On tenders for placing orders for the supply of goods, performance of work, provision of services for state needs"requires notification to be sent to the winner in writing within three days. In this situation, in order to eliminate the risks of a possible appeal of the results of the tender on formal grounds, it is advisable to fulfill both requirements: both send a written notification and sign the protocol within the above terms.

2.11. Isn't it time to make changes to the Civil Code of the Russian Federation regarding the regulation of competitions?

Answer: Unfortunately, when Articles 447-449 were written Civil Code Russian Federation, they thought only about concluding contracts for the sale of any property (tenders held in the order of enforcement proceedings, investment tenders, etc.). At that moment, they had not even thought about possible options for competitive purchases (not only tenders, but at least the same auctions). Just as, for example, they did not think about the procedures of complex multi-month competitions, when the day of opening the envelopes does not coincide with the day the winner is determined. As a result, we got norms that are often simply not implemented in practice, some of which are discussed, including in this book.

V Recently, it has been increasingly said that it is time to make changes to these articles of the Civil Code of the Russian Federation. However, the author has not yet come across any concrete proposals for the wording of the changes.

V links with this author prepared and offered in the appendix 10.1.2 project federal law on amendments to the articles under discussion. The proposed option preserves to the maximum all the existing norms, adjusting them solely for the purpose of

TendersFAQ II edition: 50 / 210

formation of a unified approach to different situations of concluding a contract on a competitive basis.

Let us comment on the main provisions of the bill. For convenience, Articles 447-449 in the wording of the draft law will be referred to as Articles 447-449 of the RFP, in contrast to Articles 447-449 of the Civil Code of the Russian Federation, i.e. current edition.

V Clause 1 of Article 447 of the RFP, the author defines the concept of bidding as the conclusion of an agreement on any competitive basis. As a result, the resulting discrepancy in the concept of bidding is removed, which at the household level are perceived as any way of concluding an agreement in which the parties somehow “bargain”, but at the same time, in the current version of the Civil Code of the Russian Federation, it is allowed to conduct bidding exclusively in the form of a tender or auction.

V clause 2 of article 447 of the RFP, the owner is introduced into the number of the organizer of the auction financial resources, thereby securing the possibility of bidding not only for sale, but also for purchase.

The controversial concept is defined specialized organization how statutory or regulatory legal acts executive authorities, as well as the possibility of transferring all or part of the functions of the organizer to a third party on a contractual basis.

V the second paragraph fixes the right of the organizer of the auction to sell a thing that the organizer does not have at the time of the announcement of the auction. This increases the intensity of turnover for products sold through auctions.

V Clause 4 of Article 447 of the RFP is given indicative list the most commonly accepted forms of bidding throughout the world, however, a breakdown is given only for the most “rigid” of them, prescribed in the current Civil Code of the Russian Federation - a tender and an auction.

In practice, many are faced with the fact that after the rejection of incorrectly executed applications, only one remains. But since the current version of paragraph 5 of article 447 of the Civil Code of the Russian Federation does not specify at what point at least two participants are required, this made it possible to recognize such togas as valid with the determination of this single participant as the winner. In this regard, the proposed draft law clarifies that at least two participants should be at the last, comparative stage of determining the winner, i.e. after the rejection of all bids to be rejected.

Leaving the division of auctions into open and closed ones, the draft law clarifies in paragraph 1 of Article 448 that such a classification depends on the possible circle of participants. However, the classifications may be different (depending on the stages, the presence or absence of the preliminary selection stage, etc.), which is reflected in the draft law. Nevertheless, although it is possible to classify auctions on completely different grounds, the draft law proposes to fix only universal ones suitable for any auction. For example, according to the order in which proposals are considered, one could divide into sequential (technical and financial proposals separately) and parallel (technical and financial proposals are considered simultaneously), but this classification is not suitable for auctions in which there is no technical proposal.

The draft law leaves the current deadline for publishing a notice for a tender, but significantly reduces it for auctions, in most of which a one-month period leads to the leveling of the economic benefits from holding it (if there is a state interest for certain types competitions and auctions in the respective normative documents other, extended periods may be established). The draft law leaves the deadlines for notifications of other auctions to the discretion of its organizers. Indeed, if, for example, commercial organization wants not only to conclude an agreement with someone, but to do it based on the results of competitive negotiations, then for her this period can be one hour - sufficient time in order to arrange meetings.

Failed electronic auction. Failed auction in electronic form.

• The concept of "failed electronic auction" means no bidding when placing a specific order. At the same time, it is not at all necessary to imply that the contract (for this order) will not be concluded. For example, only 1 URZ was declared for auction, it turns out that there will be no bidding, this URZ is with itself will not play at the auction.It turns out that the electronic auction (UAEF) is declared invalid, and the state contract will be concluded with this (the only declared) URZ.

A list of situations in which electronic auctions are recognized as failed, but government contracts are still concluded.

The electronic auction was declared invalid. Regulations and documents.

Recognition of the electronic auction as invalid.

Protocol for declaring an electronic auction invalid. There is a (admitted) participant, and a state contract will be concluded with him.

Protocol for declaring an electronic auction invalid. There were no applications at all.

• Fixation of the fact: the electronic auction is recognized (the reason is indicated) as failed.

• The reason for declaring the auction invalid: no bids have been submitted.

Consequences of the fact that the electronic auction was declared invalid.

Cases of recognition of an electronic auction as invalid.