Cancellation of the auction by the decision of the customer at 44. Cancellation of the purchase through the electronic auction

Often, the bidding process is accompanied by significant violations of the rights of other participants. There are frequent cases of illegal suspension from participation in the auction, as well as cancellation (rejection) of the bid (step) in the auction. We will not list all the reasons for such actions on the part of the state customer, but they are obvious. However, this does not mean that nothing can be done. Our practice shows that it is possible, and sometimes just necessary, to cancel an auction. To do this, it is important to follow the right steps.

How can we help with an illegal auction?

studying the mistakes of the auction

By virtue of Art. 449 of the Civil Code of the Russian Federation, auctions conducted in violation of the rules established by law may be recognized by the court as invalid at the suit of an interested person. This means that the first step is to prioritize legally correctly and see the most important mistakes in the bidding process. Our lawyers will carefully study your case and documents and determine what tactics should be applied when canceling the auction results.

The formal reasons for canceling the auction are listed in the law and among them:
- failure to comply with the deadline for accepting applications for participation in the auction (at least 25 days - Article 18 of the Federal Law 178) when selling state property;
- illegal refusal of admission to participate in the auction;
- incorrect determination of the winner, etc.

in which authority should the auction be canceled?

According to Part 1 of Art. 105 FZ No. 44 any procurement participant, as well as those carrying out public control public associations, associations legal entities in accordance with the law Russian Federation have the right to appeal in court or in the manner prescribed by this chapter to the control body in the field of procurement actions (inaction) of the customer, authorized body, authorized institution, specialized organization, the procurement commission, its members, officials contract service, contract manager, operator electronic platform if such actions (inaction) violate the rights and legitimate interests of the procurement participant. The decoding of the control body is given in Art. 99 of the Federal Law No. 44, however, this decoding is very confusing, but in the end it turns out that it is possible to file a complaint about the auction with the FAS Directorate for the relevant region. If this body does not satisfy the requirements of the applicant, this decision of the FAS can be appealed in court.

term for appeal of the auction - 10 days

Appealing against actions (inaction) of a customer, an authorized body, an authorized institution, a specialized organization, a procurement commission, its members, official contract service, contract manager, operator of an electronic site in the event that these actions (inaction) were performed when determining a supplier (contractor, executor) through an electronic auction, is carried out in the manner prescribed by this chapter, at any time when determining a supplier (contractor, executor), as well as during the accreditation period on the electronic site, but no later than ten days from the date of posting on the electronic site the minutes of summing up the results of such an auction or the minutes of considering applications for participation in such an auction or the minutes of holding such an auction if such an auction is declared invalid. A complaint about the provisions of the documentation on such an auction may be submitted by a procurement participant before the deadline for submission of applications for participation in such an auction. In this case, if the appealed actions (inaction) were committed after the start of consideration of applications for participation in such an auction, the appeal of these actions (inaction) may be carried out only by the procurement participant who submitted an application for participation in such an auction. If the appealed actions (inaction) were committed during the consideration of the second parts of applications for participation in an electronic auction or when concluding a contract, the appeal of these actions (inaction) is carried out before the conclusion of the contract. Upon the expiration of the specified time limits, the appeal of these actions (inaction) of the customer, the authorized body, the authorized institution, the specialized organization, the operator of the electronic site, the auction commission is carried out only in court.

cancellation of bidding through the court

If the OFAS made a negative decision to cancel the auction, then the applicant who disagrees with this decision has the right to apply in a general manner to the arbitration court within 3 months. The motivation for canceling the FAS decision must be identical to the one in the complaint to the FAS itself. In fact, it is not the auction itself that is challenged in court, but the attitude of the control body to its holding.

Please contact our company and we will definitely help you to resolve the issue of canceling the auction (bidding)! And if we can't, then let's say so!

According to Part 1 of Art. 105 FZ No. 44, any procurement participant, as well as public associations exercising public control, associations of legal entities in accordance with the legislation of the Russian Federation have the right to appeal in court or in accordance with the procedure established by this chapter to the control body in the field of procurement actions (inaction) of the customer , an authorized body, an authorized institution, a specialized organization, a procurement commission, its members, officials of the contract service, a contract manager, an operator of an electronic site, if such actions (inaction) violate the rights and legitimate interests of the procurement participant. The decoding of the control body is given in Art. 99 of the Federal Law No. 44, however, this decoding is very confusing, but in the end it turns out that it is possible to file a complaint about the auction with the FAS Directorate for the relevant region.

How to cancel an electronic auction

Make changes if your technical specialists have decided on the requirements for the product for environmental safety. More details Part 6 of Art. 65. If they (technical specialists) have not yet decided, but they know for sure that the requirements have not been established, and they need time to formulate such requirements and revise those. cancel tasks. Art. 36. You can endlessly postpone the dates, it is not prohibited. Look at the situation, what is the best way to proceed, cancel and then announce a new auction or extend the terms until the specialists finally decide on the requirements.

In procurement since 2005.

Cancellation of procurement and e-auction

Attention

After the conclusion about the cancellation of the auction under 44-FZ, the organizer of the auction must draw up:

1. cancellation decision;
2. cancellation order.

Let's consider what the Decision is - it reflects the very fact of taking this action and indicates the reasons for which it was taken. The second document is the Order. It reflects that the decision was made reasonably, and also indicates further actions following from this circumstance. Cancellation of the auction for 44-FZ - reasons The reasons for this decision may be various factors:

• the customer may decide that the choice of a supplier in this way is impractical
• or it may turn out that there is not sufficient funding to conclude a contract.

In such cases, the customer can cancel purchases no later than 5 days before the deadline for accepting applications.

But force majeure also happens.

Cancellation of the auction

Important

The customer has the right to cancel the electronic auction later than the specified date and before the conclusion of the contract, only if circumstances have arisen force majeure, that is, in emergency and unavoidable situations (clause 3 of article 401 of the Civil Code of the Russian Federation). But what about the customer if the deadline for canceling the electronic auction under 44-FZ has expired, and the reason does not fall under the conditions of emergency? In such a case, you can first amend the purchase, stating a reasonable reason for doing so. The decision to make changes is made no later than two days before the deadline for the submission of applications (p.

6 tbsp. 63). At the same time, the deadline for submitting applications will be extended by at least seven days - this time is quite enough to cancel the purchase. Algorithm of the procedure Step 1. Determine the need to refuse to conduct the auction and fix the reason why the procurement is inappropriate. Step 2.

Cancellation of the auction via fas and court

• RusTender
• Question answer
• 44-FZ
• Cancellation of the auction

Cancellation of the auction by the customer In accordance with 44-FZ, the customer has the right to refuse to conduct the announced purchase, observing deadlines... Article 36 of Federal Law 44 regulates general order refusal from all methods of selection of counterparties, except for the request for proposals. According to the legislation, the customer has the right to cancel the determination of the supplier of goods or services for the fulfillment of the contract no later than 5 days before the end of the application submission.

If the auctions are held in the form of a request for quotations, then the terms are set no later than 2 days. After the expiration of this period, cancellation electronic auction under 44 FZ is possible only due to the occurrence of force majeure circumstances, i.e. in case of force majeure. Circumstances that fit this definition are governed by civil law, namely in paragraph 3 of Art. 401 of the Civil Code of the Russian Federation.

Public Procurement Institute Forum (Moscow)

At the same time, an official decree on the cancellation of the implementation of an electronic auction should be posted in the EIS. This must be done on the same day the decision is made. After that, the customer is not entitled to view the content of applications already submitted by participants.
If the customer has not met the deadline, then the cancellation of the purchase is possible only in extraordinary circumstances. Such a rule is established by part 2 of 36 of article 44-FZ. The auction is considered canceled from the moment the document on its cancellation is posted in the EIS. Registration of refusal to conduct an electronic auction In order to cancel an electronic auction, the customer must follow a certain procedure.

It will consist of the following steps:

1. First of all, the customer must formalize his decision in writing.

Electronic auction: sorting out the pitfalls

Appealing against actions (inaction) of a customer, an authorized body, an authorized institution, a specialized organization, a procurement commission, its members, an official of the contract service, a contract manager, an operator of an electronic site if these actions (inaction) were performed when determining a supplier (contractor) , contractor) through an electronic auction, carried out in the manner prescribed by this chapter, at any time when the supplier (contractor, performer) is determined, as well as during the accreditation period on the electronic site, but no later than ten days from the date of posting the protocol of summing up on the electronic site the results of such an auction or the minutes of consideration of applications for participation in such an auction or the minutes of holding such an auction in the event that such an auction is declared invalid.

Forum on public procurement and tenders good-tender

To do this, it is important to follow the right steps. How can we help with an illegal auction? study of the mistakes of the auction By virtue of Art. 449 of the Civil Code of the Russian Federation, auctions conducted in violation of the rules established by law may be recognized by the court as invalid at the suit of an interested person. This means that the first step is to prioritize legally correctly and see the most important mistakes in the bidding process. Our lawyers will carefully study your case and documents and determine what tactics should be applied when canceling the auction results.

Formal reasons for canceling the auction are listed in the law and among them: - failure to comply with the deadline for accepting applications for participation in the auction (at least 25 days - Article 18 of the Federal Law 178) when selling state property; - illegal refusal to admit to participation in the auction; - incorrect determination of the winner, etc.
The document directly specifies the fact of making a decision, as well as the reasons that formed the basis of this action.

• The customer draws up an order to cancel the electronic auction. It should contain the details of the decision, spelled out further measures that follow from this action.
• The organizer of the procurement posts information about the refusal to carry out the procurement in the EIS. From now on, the auction will be considered canceled. In addition, the customer is obliged to notify all participants who submitted their proposals about their actions.
• The customer is obliged to make adjustments to his schedule. At the same time, information on the reason for the changes is recorded in column 14 of the document drawn up in accordance with the requirements of the order of the Government of the Russian Federation No. 761 / 20n dated 06/10/2013.

Cancellation of purchases via electronic auction

• There is no longer the need for delivery, for the provision of services.
• Antimonopoly order.
• Decision based on the results of public discussions.
• Force majeure circumstances.
We add that 44-FZ does not regulate the cases due to which it is possible to cancel the notice of an electronic auction, i.e. the law does not provide for a closed list of reasons. The customer does not have to adhere to the listed grounds, he has the right to determine the reasonableness of the further procedure and decide to abandon it. Procedure and terms Art. 36 44-FZ sets General requirements to the procedure and terms of cancellation: it is possible to cancel the determination of the supplier of the electronic auction at least five days before the deadline for the submission of applications.

A complaint about the provisions of the documentation on such an auction may be submitted by a procurement participant before the deadline for submission of applications for participation in such an auction. In this case, if the appealed actions (inaction) were committed after the start of consideration of applications for participation in such an auction, the appeal of these actions (inaction) may be carried out only by the procurement participant who submitted an application for participation in such an auction. If the appealed actions (inaction) were committed during the consideration of the second parts of applications for participation in an electronic auction or when concluding a contract, the appeal of these actions (inaction) is carried out before the conclusion of the contract.

In what cases the customer can terminate the already announced procurement procedure, acting in accordance with the legislation of the Russian Federation, in what time frame it is possible to cancel the procurement according to the law, what features of the cancellation of the procurement and what exactly should the supplier expect from such actions on the part of the customer - we will consider in this article. During the announcement of a tender, an open auction or the conduct of quotation bids within the framework of Federal law 44 fz, the customer may need to cancel the purchase. For example, very often the purchase is canceled due to the untimely allocation of budget funds or the introduction of some kind of correction in the terms of reference. The above federal law describes in detail the scheme for terminating the procurement, and how to cancel the procurement without breaking the law.

1. Terms of termination of the procurement procedure in accordance with the law

The procedure for terminating the tender itself is fully reflected in part 1 of article 36 of Federal Law 44 - FZ. Here you can find the answer to an important question: how to cancel a purchase. It is important to note that the period in which any customer has the right to interrupt the procurement procedure is different for the competitive procedure and for conducting quotation bids.

The customer is allowed to interrupt the procurement procedure only when there are more than five days left until the day the acceptance of bids from participants is terminated. In case of termination of the request for quotations, until the day of termination of acceptance of applications from participants - more than two days.

After the cancellation of the purchase, the members of the procurement commission do not have the right to open, view packages with applications for participation or open access to applications already submitted via the Internet. Also, the authorized person of the customer (contract manager) must, as soon as possible, that is, the next day, make the required adjustments to the schedule.

2. How to cancel a purchase and what to do if the deadline for cancellation of the purchase established by law 44 FZ has expired

Also, Law 44 FZ allows the termination of the procurement if the customer did not manage to terminate the procurement process within the established five or two days. This is permitted only in the event of a force majeure situation, which is briefly set out in part 2 of Article 36 of Federal Law 44 fz. How to cancel the purchase in this case.

The fact is that general concept force majeure is deciphered only in article 401 of the Civil Code. Force majeure, in other words, is military action, natural disasters, natural and man-made disasters, coups in the state, uprisings, etc., in which the procurement procedure or the execution of the parties cannot be continued, and the procurement administrator simply cannot then influence the process.

However, it is worth noting that the types of force majeure listed above are not specified in Law 44 FZ, and the very decision to accept the fact of force majeure is considered on a case-by-case basis.

3. Registration of purchase cancellation

Having understood the way how to cancel the purchase at 44 FZ, it is also necessary correct design cancellation procedures. Information about the cancellation of the auction process, quotations, the authorized person of the customer is obliged to give on the day of acceptance of the termination of the purchase, by posting the relevant information in a single information system... Only then can the purchase be considered canceled. Also, the authorized person of the customer informs the participants in the order placement about the termination of the procurement procedure.

4. What is the customer responsible for when canceling a purchase?

In accordance with part 4 of Article 36 of Federal Law No. 44-FZ, the customer, upon termination of the procurement process, is not liable to organizations that have already sent an application for participation.

Summing up ...

After reading this article, you learned how to cancel a purchase at 44 FZ - it's not difficult. If necessary, the customer has the right to interrupt the tender procedure, auction or request for quotations - the legislation of the Russian Federation allows this. And if the purchasing process is canceled in statutory the timing, the reasons for the termination of the purchase themselves, do not play a large role, that is, the justification of the reason for the cancellation itself is not required.

When preparing bids for participation in the procurement procedure, the supplier needs to track changes in the procurement procedure in the EIS, as well as plan his work on the preparation of bids, taking into account information on the cancellation of procurement. In practice, the supplier may face such a situation when the supplier has completed the preparation of the application, a package of documents has been prepared and sent to the customer's address, and the customer has already canceled the purchase procedure. In this case, the supplier's time is wasted irrationally and ineffectively.

Note: The supplier is advised to send the package of documents after the deadline for the customer to cancel the purchase has expired. Before sending a package of documents, be sure to check for changes in the purchase posted in the Unified Information System.

In accordance with 44-FZ, the customer has the right to refuse to carry out the announced purchase, observing the established deadlines. Article 36 of Federal Law 44 regulates the general procedure for refusing all methods of selecting counterparties, except for the request for proposals. According to the legislation, the customer has the right to cancel the determination of the supplier of goods or services for the fulfillment of the contract no later than 5 days before the end of the application submission.

If the auctions are held in the form of a request for quotations, then the terms are set no later than 2 days.

After the expiration of this period, the cancellation of the electronic auction under Federal Law 44 is possible only due to the occurrence of force majeure circumstances, i.e. in case of force majeure. Circumstances that fit this definition are governed by civil law, namely in paragraph 3 of Art. 401 of the Civil Code of the Russian Federation.

After the conclusion about the cancellation of the auction under 44-FZ, the organizer of the auction must draw up:

cancellation decision;

cancellation order.

Let's consider what the Decision is - it reflects the very fact of taking this action and indicates the reasons for which it was taken.

The second document is the Order. It reflects that the decision was made reasonably, and also indicates further actions following from this circumstance.

Cancellation of the auction under 44-FZ - reasons

The reasons for this decision may be various factors:

• the customer may decide that the choice of a supplier in this way is impractical
• or it may turn out that there is not sufficient funding to conclude a contract.

In such cases, the customer can cancel purchases no later than 5 days before the deadline for accepting applications.

But force majeure also happens. Let us consider more specifically what exactly can be attributed to such cases.

V Civil Code Russia has an article that defines force majeure, namely Art. 401 of the Civil Code of the Russian Federation.

It says that irreversible extraordinary circumstances that cannot be avoided or prevented under these conditions can be attributed to this concept. A specifically formulated list of cases suitable for the concept of force majeure is not provided in the code, it is limited only by a general definition.

Cancellation of electronic auctions - actions and consequences

According to Part 3 of Art. 36 FZ-44, the notice of the cancellation of the auction by the customer must be posted in the EIS on the Internet, and he is also obliged to notify all bidders who have submitted applications about the adoption of this decision, if he has the contacts of these performers.

It should be noted that the customer is not entitled to give access to the documents submitted in the electronic application to the participants. It is necessary, within a period not later than one working day after the decision is made, to amend the schedule.

After posting a notice of cancellation of the 44-FZ auction in the EIS, the electronic trading floor, at which the auction was hosted, must notify all participants who have expressed a desire to take part in the procurement about it one hour in advance. On the email, which was indicated during accreditation on this ETP, a letter is sent containing a notice of cancellation, as well as the reasons for making this decision.

In conclusion, we can say that the customer can cancel the procurement, the main thing is that it complies with the rules and regulations established by law.

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In the schedule, the end of the contract is 06/30/2018, and in the documentation on 05/31/2018, Should the customer first make changes to the schedule, as well as cancel the purchase, and 10 days after placement new version schedule to post a new notice?

Answer

Oksana Balandina, editor-in-chief of the State Order System

From July 1, 2018 to January 1, 2019, customers have a transitional period - it is allowed to carry out both electronic and paper procedures. As of 2019, paper tenders, auctions, quotes and requests for proposals will be banned, with eight exceptions.
Read what purchases to carry out on the ETP, how to choose a site and get electronic signature, according to what rules to conclude contracts in the transition period and after.

According to part 1 of article 36 of Law No. 44-FZ, the customer has the right to cancel the purchase no later than five days before the deadline for submission of applications for participation in a tender or auction, or no later than two days before the deadline for submission of applications for participation in the request for quotations ... In this case, the customer, no later than the next working day after the date of the decision to cancel the determination of the supplier (contractor, performer), is obliged to make the appropriate changes to the schedule.

That is, the customer first needs to cancel the purchase, then make changes to the schedule. Then, 10 days after the changes were made to the schedule, announce the purchase.

How to cancel an electronic auction

If you violate the procedure for canceling the auction, the FAS will oblige the customer to carry out the purchase, and the contract manager will pay a fine of 30,000 rubles. I am telling you how to cancel the auction correctly, taking into account the practice of the Federal Antimonopoly Service and litigation.

In what cases does the customer have the right to cancel the electronic auction?

The customer has the right to cancel the electronic auction. The customer is not obliged to explain the reason to the control authorities or participants. The main thing is to place the decision on cancellation in the EIS on time (Art. 36 of Law No. 44-FZ).

The auction is canceled:

• with a lack of funds;
• due to errors in the documentation;
• based on the results of public discussion of the procurement;
• by order of the supervisory authority;
• By the tribunal's decision.

How long does it take for the customer to cancel the electronic auction?

The customer can cancel the auction five days before the deadline for submission of applications. For example, if you finish accepting applications on May 22, 2017, then you can cancel the purchase until May 16. You can also cancel the purchase later than the deadlines specified in the law, if insurmountable circumstances arise - natural disasters, fires, epidemics, strikes, military actions, terrorist attacks, sabotage, restrictions on traffic, sanctions and other circumstances that do not depend on the customer (Resolution of the Board of the Chamber of Commerce and Industry Russia dated December 23, 2015 No. 173-14).

How to cancel an auction if the deadline has expired

If you missed the deadline for canceling the auction, please change the notice. At the same time, it is necessary to extend the deadline for submitting applications, and you will receive the required five days to cancel purchases. You can change the notice two days before you finish accepting applications. Read more about this in the recommendation.

The terms in which the customer has the right to cancel the purchase are specified in parts 1 and 2 of article 36 of Law No. 44-FZ.

How can a customer cancel an electronic auction

Cancel the auction in accordance with the rules of Article 36 of Law No. 44-FZ, amend the schedule. Follow three steps.

Step 1. Decide to cancel the electronic auction.

To cancel a purchase, draw up an order, decision or other normative act... Indicate in the document the number of the notice of purchase and the reason why the auction was canceled: for example, the decision of the FAS Russia. Draw up the document in any form.

Step 2. Publish a supplier cancellation notice in the EIS.

Post a notice in the EIS on the day you decide not to hold the auction. Enter the procurement register in the EIS, open the "Submission of applications" tab and select the "Procurement documents" context menu item. Select on whose initiative you are canceling the purchase: customer, control body, court. Cancel the purchase in whole or in an individual lot. For more information on how to cancel a purchase in the EIS, see the recommendation. The moment you publish the notice, the purchase is canceled.

The customer is obliged to notify the participants about the cancellation of the purchase. During the auction, the notification is sent by the operator of the electronic platform where the purchase was made.

Step 3. Make changes to the schedule.

After canceling the purchase, you need to change the schedule. Please make changes on the day you decide to cancel the auction, or the next business day. A recommendation will help to make changes to the schedule.

Goszakupki.ru magazine Is a magazine on the pages of which the leading experts of the industry give practical explanations, and the materials are prepared with the participation of specialists from the Federal Antimonopoly Service and the Ministry of Finance. All articles of the journal are highest degree reliability.