Signing a contract under Federal Law 44 is an open competition. Options for action when a competition is declared invalid

Conclusion of a contract with a single counterparty on the basis of clause 25, part 1, art. 93 of Law N, by virtue of the instructions of this paragraph itself, does not require any additional approval in the event of a competition held by an autonomous institution or other legal entity being declared invalid on the basis of Part 4 or Part 5 of Art. 15 of Law N, respectively.
If the tender is declared invalid by customers, guided by the general rule of Law No., the conclusion of a contract with a single counterparty on the basis of clause 25, part 1, art. 93 of Law N is carried out by agreement:
– when making purchases to meet federal needs – with the federal executive body authorized to exercise control in the field of procurement;
– when making purchases to meet the needs of a constituent entity of the Russian Federation - with the executive authority of the constituent entity of the Russian Federation authorized to exercise control in the field of procurement;
– when making purchases to meet municipal needs with a local government body of a municipal district or a local government body of a city district authorized to exercise control in the field of procurement.
The customer’s request for approval of the conclusion of a contract with a single counterparty is sent to the control body in the field of procurement no later than 10 days from the date of placement in the unified information system (hereinafter referred to as the UIS) of the relevant protocols containing information on declaring the tender invalid. In this case, the approval period should not be more than 10 working days from the date of receipt of the specified request.
The procedure for agreeing to conclude a contract with a single counterparty in accordance with clause 25, part 1, art. 93 of Law N, on the basis of this paragraph itself, was approved by order of the Ministry of Economic Development of Russia dated March 31, 2015 N 189. More details about the approval of the conclusion of a contract in this case are described in a separate material.

The issue of the customer’s actions in the event of a refusal by the control body to approve the conclusion of a contract with a single counterparty is not regulated by law. According to the Ministry of Economic Development of Russia, reflected in letter dated 02/05/2015 N D28i-193, in this case the customer makes changes to the schedule (if necessary, also to the procurement plan) and carries out a re-tender in accordance with Part 3 of Art. 55 of Law N or a new purchase in accordance with the provisions of this Law.

Contract with a single counterparty on the basis of clause 25, part 1, art. 93 of Law N, when a competition is declared invalid due to the instructions of this paragraph, it is concluded within the following terms:
– when a competition held by an autonomous institution, state, municipal unitary enterprise or other legal entity is declared invalid on the basis of Part 4 or Part 5 of Art. 15 of Law N, respectively, - within a period of no more than 20 days from the date of posting in the Unified Information System the relevant protocols containing information on declaring the competition invalid;
– when a tender conducted by a customer, guided by Law No. as a general rule, is declared invalid within a period of no more than 20 days from the date of receipt by this customer of approval to conclude a contract from the relevant authority.

The law does not directly regulate the issue of disagreements arising when concluding a contract in accordance with clause 25, part 1, art. 93 Law No. The conclusion of a contract based on the results of a competition is regulated in detail by the provisions of Law N, which do not provide for the possibility of submitting a protocol of disagreements (see also the relevant material). However, concluding a contract in accordance with clause 25, part 1, art. 93 of Law N is carried out, as stated above, within the framework of a separate procurement procedure, which does not directly regulate the signing of a contract. In theory, this allows for the possibility of forwarding a protocol of disagreements. At the same time, clause 25, part 1, art. 93 Law N

In 44-FZ, holding a competition in electronic form is regulated by articles 54.1 - 54.7, 55.1, 56.1 and 57.1.

From July 1, 2018, customers have the right to conduct open tenders in electronic and printed forms; from January 1, 2019, they can only be held in electronic form.

Notice of the competition in electronic form must be published no less than 15 working days before the deadline for submitting applications. Compared to the paper version, the period is 5 days shorter.

Procurement documentation is published in a unified information system and is available all the time until the deadline for accepting applications.

If participants have any questions about the tender documentation, they can send a request for clarification of the provisions to the operator of the electronic platform, but no later than 5 days before the deadline for submitting applications. Each supplier can submit no more than 3 such requests.

The customer responds to such a request within 2 business days.

The customer has the right to make changes to the tender documentation no later than 5 days before the deadline for submitting applications. At the same time, he must extend the deadline for accepting applications so that at least 10 working days remain.

Important: changing the procurement object and increasing the application security is not allowed.

Application for an open competition in electronic form

An application for an open tender consists of two parts and a proposal for the contract price; they are sent by the participant to the operator of the electronic platform in the form of 3 electronic documents.

Part 4 art. 54.4 44-FZ regulates the complete list of information that must contain the first part of an application for an open competition in electronic form.

Also, in the first part of the application it is prohibited to indicate any information about the supplier and the proposed contract price.

Part 6 art. 54.4 44-FZ establishes a package of documents that the participant must provide in the second part of the application for an open competition in electronic form.

Namely the second part should contain:

name of the participant, address, contact telephone number, TIN of the participant, founders, person performing the functions of the sole executive body;

copies of documents confirming the compliance of goods, work or services with the requirements established in accordance with the legislation of the Russian Federation;

documents confirming the right to receive benefits (for example, as small and medium-sized businesses);

documents confirming the compliance of goods, work or services with the national regime of Art. 14 44-FZ (if this requirement is established in the documentation);

documents used to assign points according to criteria (except for information on the quality, functional and environmental characteristics of the procurement object).

All parts of the application are submitted simultaneously using the electronic trading platform. Within one hour after receiving the application, an identification number is assigned to it, and a notification is sent to the participant indicating this number.

Deadline for consideration of applications in an electronic competition

Consideration of the first parts of the application varies depending on the contract price:

for NMTsK over 1 million rubles - cannot exceed 5 working days.

All open tender participants admitted to the procurement procedure have the right to submit a final proposal for the contract price.

Final proposals are submitted on the date indicated as the electronic competition date. Time for submission is limited - 3 hours. The participant may refuse this procedure, in which case the original offer will be considered final.

Important: The participant cannot submit a final proposal worse than the original one. Only the best conditions can be offered.

After this, the stage of consideration of the second parts of applications begins:

for NMCC less than 1 million rubles - consideration within 1 business day;

for NMCC over 1 million rubles - no more than 3 working days.

Exceptions are made for purchases the object of which is goods, performance of work or provision of services in the field of science, culture or art. The second parts of such applications should be considered no more than 5 working days.

After consideration of the second parts of applications, a protocol is published in the EIS. And within one hour after its placement, the operator sends the final proposals to the customer.

If, based on the results of consideration of the second parts of the applications, they were all found not to comply with the documentation requirements or only one participant was admitted, the open competition in electronic form is declared invalid.

After this, within one working day, the competition commission, based on all protocols, assigns serial numbers to the accepted applications, in order of decreasing profitability of the proposal.

The winner is the participant who offers the best conditions for the execution of the contract, according to the criteria established by the tender documentation.

Conclusion of a contract in an electronic competition

The conclusion of a contract based on the results of an open competition in electronic form takes place on an electronic platform.

During 5 days from the date of posting the summing up protocol, the customer must post the draft contract in the unified information system.

The winner is given 5 days for its signing (counted from the date of publication of the draft contract in the Unified Information System) or for sending a protocol of disagreements, if there are comments.

Consideration of the protocol of disagreements is carried out within 3 working days from the date of its submission.

If a protocol of disagreement is submitted, the winner must sign the contract within 3 workers days from the date of publication of the revised contract or document with the reasons for refusal.

Terms of the contract

The conclusion of the contract takes place no earlier than 10 days from the posting of the summing up protocol and no later than 20 days.

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The considered form of public procurement does not apply to electronic trading, and therefore does not imply that the participant has an electronic digital seal and accreditation on the trading platform.

At the same time, the need to fill out an application for participation in an open competition in paper form can cause serious inconvenience to a large number of potential participants who have long ago successfully switched to electronic document management.

The application is submitted, and this is also a requirement of 44-FZ, in a sealed envelope.

The announcement of the competition is published at least 20 days before the closing date for applications. In addition, if any changes are made to the published tender documentation five or more days before this deadline, the duration for the customer to accept applications increases by 10 days.

It is these deadlines that the supplier must follow when organizing work on completing and submitting an application that allows him to take part in an open competition.

The easiest way to correctly prepare an application is to fill out the forms of this document located in the tender documentation, in addition to which is attached a list of documentation requested by the customer.

Quite often the competition organizer does not impose requirements on the type of application. In such a situation, it is drawn up in free form, the main thing is to enter all the necessary information.

Submission of a request for clarification by a participant in an open competition If questions arise, as well as inaccuracies, contradictions or errors are discovered in the published documentation for an open competition, a potential participant has the opportunity to submit a request for clarification.

It can be sent no later than 5 days before the deadline for submitting applications. 44-FZ provides the state customer with 2 days during which a response must be sent to the participant. It must be published on the official website of the procurement portal.

If it is necessary to make changes to the existing competition documentation related to the response to a request, a revised version of the documentation is posted on the website, and the deadline for submitting applications is increased by 10 days.

Failure to respond to a request or violation of the deadlines for its submission, as well as refusal to admit errors in existing documentation, are grounds for the participant to file a complaint with the FAS.

An open tender in electronic form Federal Law 44 is a competitive way to determine a supplier, which is posted in the Unified Information System in the public domain and the winner of which is the participant who offered the best terms for the execution of the contract. Let's figure out how to conduct an open competition in electronic form.

Where does it take place?

The answer to the question of where an open competition is held in electronic form is simple. Trading takes place on all electronic platforms in accordance with 44-FZ. Let us remind you that as of October 1, 2018 there are eight of them. And all documentation is placed in the open part of the UIS. Everything is similar to an electronic auction.

Brief instructions for conducting an electronic competition

Step by step:

1. Prepare and publish the notice and other procurement documentation.
2. Collect applications.
3. Process applications and select participants.
4. Review the first parts of applications.
5. Consider the second parts of applications.
6. Summarize and publish the protocol.
7. Explain the results of the purchase.

Preparing notice and documentation

In such a competitive procedure, information about government procurement is communicated to an unlimited number of persons, and uniform requirements are established for all participants. Conducting an open competition in electronic form is ensured by the current legislation in the field of public procurement, as well as various by-laws and Government Decrees. The main one is 44-FZ, it regulates the electronic competition 44-FZ with article 54.1-54.7.

In order for the competitive procurement to take place, the customer’s specialist must prepare and approve the tender documentation. In this case, the customer has the right to involve third-party specialized organizations to prepare documents for the competition (Part 3 of Article 54.1 of 44-FZ). An expert company can develop documentation for the customer organization, but it does not have the right to take part in the procurement procedure (Part 1, 5, Article 40 44-FZ).

In addition to the documentation, it is also necessary to prepare and place in the Unified Information System a notice and a draft contract (Parts 1, 2 of Article 54.1, Part 3 of Article 54.3). Without these three documents it is impossible to carry out uh electronic competition under 44-FZ, the time frame within which they must be placed in the Unified Information System is no later than 15 working days before the expiration of the period for submitting applications for electronic government procurement.

The procedure for drawing up a notice is prescribed in Art. 54.2 44-FZ. If necessary, the customer can place a notice in any open sources of information. It is also possible to make changes to the notice, provided that the adjustments are made no later than 5 days before the deadline for filing applications. The customer organization is prohibited from changing the procurement object and increasing the amount of application security.

In the article you can download and study the documents that are drawn up at each stage of the procurement. This is what the documentation for an open competition in electronic form for 2019 looks like.

Definition of participants

Potential suppliers simultaneously submit three documents - two parts of applications for participation in tenders, as well as a price proposal (Parts 2, 3 of Article 54.4 of 44-FZ). The deadline for submitting applications in the electronic competition is 15 working days from the date of publication of the notice of the procedure.

After the period allotted for submitting applications has ended, the operator of the electronic platform sends their first parts to the customer. Next, the purchasing commission begins its work. Members of the commission of the contracting organization review and evaluate the first parts of requests from bidders. The results of the analysis are recorded. This protocol must be submitted to the electronic signature operator in due time - during the day allotted for consideration and evaluation of the first parts of applications (part 13 of article 54.4, part 6.7 of article 54.5 of 44-FZ).

The peculiarities of holding an open tender in electronic form are that the operator sends the second parts of the participants’ proposals, as well as all necessary documentation (Part 11, Article 24.1 44-FZ) to the customer after the expiration of the period provided for the submission of final price proposals, after the formation of the corresponding protocol (part 7 of article 54.6, part 1 of article 54.7 44-FZ).

The customer should remember that at the moment and until December 31, 2019, a transition period has been declared, therefore, the documents provided for in Part 11 of Art. 24.1 44-FZ.

If the customer has not received the above documentation along with the second part of the application, then he needs to check those documents that are listed in Letter of the Ministry of Finance of the Russian Federation No. 24-05-08/69766 dated September 28, 2018 for the register of auction participants in electronic form.

Next, the procurement commission studies and analyzes the second parts of proposals from potential suppliers. Then the commission members draw up a corresponding protocol and send it to the electronic signature operator directly on the day allotted for the consideration and evaluation of the second parts of the bid proposals of public procurement participants (Parts 7, 8, Article 54.7 44-FZ).

After publishing the protocol for considering the second parts, the operator transfers to the customer the recorded results with the final proposals of the participants.

The procurement commission once again carefully studies all proposals and protocols, and then ranks the applications of government procurement participants. The result of the commission’s work is a protocol for summing up the results of the electronic procedure (Parts 10, 11, Article 54.7 44-FZ).

All protocols are drawn up in accordance with the decision made on admission or a reasonable conclusion on refusal, as well as on the assignment of points in accordance with the criteria established by the documentation from each member of the commission. Recording documents are signed by all members of the procurement commission present.

Members of the commission have the right to remove a procurement participant for providing false information at any stage of the tender (Part 5 of Article 54.7 of 44-FZ). If the commission has discovered such a discrepancy, then in the justification it is necessary to indicate what exactly does not correspond in the participant’s application and compare this data with the provisions of the documentation (clause 3, part 6, article 54.5, clause 3, part 7, clause 2, 4 h 12 Article 54.7 44-FZ).

We are considering the first parts of applications

Conducting an electronic tender under 44-FZ obliges members of the customer’s procurement commission to review and evaluate the first parts of applications within 5 working days from the end of their submission and no later than 1 working day if the initial (maximum) contract price is no more than one million rubles (Part 1 of Article 54.5 44-FZ).

After all the first parts of the applications have been analyzed, the commission forms an appropriate protocol into which the data specified in Part 6 of Art. 54.5 44-FZ, namely:

• identification numbers assigned to each application;
• date, place and time of their analysis;
• the rules by which accepted applications are evaluated if the documentation establishes the criterion “qualitative, functional and environmental characteristics of the procurement object”;
• admission or denial of admission to a potential supplier.

Holding an open competition in electronic form allows potential performers to be refused participation, in accordance with Parts 3 and 4 of Art. 54.5 44-FZ.

Reasons for refusal may be:

1. Failure to provide or provision of false information necessary for participation in the competitive procedure on the basis of the provisions of the law on the Federal Contract System (clause 2, part 4, article 54.5).
2. Inconsistency of the submitted request with the conditions and requirements imposed by the contracting organization for the first parts of the proposals (clause “b”, clause 3, part 4, article 54.5).
3. Indication of specific information about the potential supplier who submitted the first part of the application, or about his price proposal.

We are considering the second part of applications

Competitive procedures in electronic form must also contain the second parts of applications. The commission studies and analyzes them within 1 working day, if the NMCC is no more than one million rubles, and no later than 3 working days in other cases (Part 2 of Article 54.7 of 44-FZ).

• about all participants in the procedure;
• on the date, place and time of consideration of the second parts of applications submitted for an open competition in electronic form under 44-FZ;
• on the rules for analyzing participants’ proposals in accordance with the evaluation criteria established in the procurement documentation;
• about whether or not the potential contractor meets the requirements and conditions specified in the procurement documents (Part 3 of Article 54.7).

The participant's proposal is recognized as non-compliant with procurement requirements only in accordance with the violations specified in 44-FZ. A participant does not comply with the terms of the documentation if he:

• does not provide or provides false information and documents (clauses 1-3, 7, part 6, article 54.4 44-FZ);
• does not meet the requirements specified by the customer in the procurement documents (Part 1, 1.1, Article 31 44-FZ);
• does not provide the customer with documents in accordance with clause 5, part 6, art. 54.4 in cases where the documentation indicates a prohibition on the basis of Art. 14 44-FZ.

Let's sum it up

An open one-stage competition in electronic form ends after the publication of the protocol of summing up the results. The commission forms this protocol the next day after receiving final proposals from the participants in the procedure from the electronic signature operator (parts 11, 12 of 44-FZ). The final protocol reflects information about all participants involved in the bidding, about their admission or refusal of admission, about the compliance of applications with established requirements, as well as about the rules for evaluating proposals from potential suppliers and about serial numbers that are determined by members of the commission during the analysis.

All eligible entries must be listed with their assigned identification number.

The rules for assigning serial numbers are as follows: applications are numbered in order depending on the profitability of their offers, that is, the first number is given to the participant with the most advantageous offer. In the event that several suppliers have offered the same conditions, applications are ranked based on the deadline for their submission. The first number will receive the offer that arrived earlier than the others.

The winner of an open tender in electronic form is the participant who, before anyone else, sent the customer the most advantageous offer that meets all the criteria and requirements of the procurement documentation (Part 14, Article 54.7 44-FZ).

Explaining the results

After the electronic competition under 44-FZ is completed, the customer may receive a request for clarification of its results. If such a request is received, the customer organization must provide appropriate explanations by publishing them in the Unified Information System. The specialist is given 2 working days for this (Part 16, Article 54.7 44-FZ).

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 under 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 a repeat competition does not take place in the future for the same reasons (Part 2 of Article 55), then the customer has the right to carry out the procedure by reducing 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 receive (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 (). 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, and 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 of 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). 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.