If only one company participates in the competition. How to cancel a restricted e-competition. Limited Participation Competition: Dates

Article 31. Consequences of declaring the competition invalid

1. In cases where the tender is declared invalid and the contract is not concluded with the only participant in the tender or with the participant in the placement of the order who has submitted the only application for participation in the tender (if there are such participants), the customer, authorized body has the right to announce a repeated tender or send documents on the tender and declaring it invalid to the federal executive body authorized to exercise control over the placement of orders (when placing orders for the supply of goods, performance of work, provision of services for federal needs, the needs of a federal budgetary institution ), the executive authority of the subject Russian Federation (when placing orders for the supply of goods, performance of work, provision of services for the needs of a constituent entity of the Russian Federation or for the needs municipal formation, the needs of a budgetary institution of a constituent entity of the Russian Federation, the needs of a municipal budgetary institution). By agreement with the specified body, the customer may decide to place an order with a single supplier (performer, contractor). In this case, the contract must be concluded with sole supplier (performer, contractor) on the conditions stipulated by the tender documentation, the price of the concluded contract must not exceed the initial (maximum) contract price (lot price) specified in the notice of open competition or an invitation to participate in a closed competition. If the competition is declared invalid in accordance with part 2 of article 29 of this Federal Law and a contract is concluded with a single supplier (performer, contractor), such a contract must be concluded on the terms specified in the application for participation in the tender, which was assigned the first number, and tender documentation, and the price of the concluded contract must not exceed the price of the contract, specified in such an application. The procedure for agreeing on the possibility of concluding a contract with a single supplier (performer, contractor) is established federal body executive power implementing regulatory legal regulation in the field of placing orders. At the same time, the period for such an agreement should not be more than ten working days from the date of receipt of the application for agreement on the possibility of concluding a contract with a single supplier (performer, contractor).

(as amended by Federal Laws of 20.04.2007 N 53-FZ, of 24.07.2007 N 218-FZ, of 08.05.2010 N 83-FZ)

"On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs")

2. In the event that a repeated tender is announced, the customer, the authorized body has the right to change the terms of the tender.

Fields marked with * are required.

Of this Federal Law in cases where the tender was declared invalid on the grounds provided for:

1) Part 13 of Article 51 of this Federal Law due to the fact that at the end of the deadline for filing applications for participation in the competition, only one application was submitted, and such an application was recognized meeting the requirements of this Federal Law and tender documentation;

2) Part 6 of Article 53 of this Federal Law due to the fact that, based on the results of consideration of applications for participation in the tender, only one application was recognized as meeting the requirements of this Federal Law and the tender documentation;

3) Part 9 of Article 56 of this Federal Law due to the fact that, based on the results of the prequalification selection, only one procurement participant was recognized as complying with the established uniform requirements, additional requirements, and the application of such a participant was recognized as complying with the requirements of this Federal Law and tender documentation.

2. The customer makes changes to the schedule (if necessary, also to the procurement plan) and carries out a repeated tender in accordance with part 3 of this article or a new procurement in cases where the tender is declared invalid on the grounds provided for:

1) Part 13 of Article 51 of this Federal Law due to the fact that at the end of the deadline for filing applications for participation in the tender not a single such application was submitted;

2) Part 6 of Article 53 of this Federal Law due to the fact that, based on the results of consideration of applications for participation in the tender, the tender commission rejected all such applications;

2.1) Part 6 of Article 54 of this Federal Law in connection with the fact that the participant of the tender, the application for participation in the tender of which was assigned the second number, refused to conclude a contract;

3) Part 9 of Article 56 of this Federal Law due to the fact that, based on the results of the prequalification selection, no procurement participant has been recognized as complying with the established uniform requirements and additional requirements.

3. The customer places a notice of a repeated tender in a single information system not less than ten days before the date of opening of envelopes with applications for participation in this tender. At the same time, the procurement object, the quantity of goods, the amount of work or services, the requirements for the procurement participants, the procurement object, the terms of the contract contained in the tender documentation and the draft contract must comply with the requirements and conditions that were contained in the tender documentation of the tender, which was declared invalid, with the exception of the contract execution period, which must be extended for a period not less than the period required for a re-tender, and the initial (maximum) contract price, which can be increased by no more than ten percent of the initial (maximum) contract price stipulated by the competitive tender the documentation of the competition, which was declared invalid. A repeated tender is carried out in accordance with the provisions of this Federal Law on an open tender, taking into account the provisions of this article. In the event that uniform requirements and additional requirements are established for the participants in a repeated tender, the provisions of Article 56 of this Federal Law shall apply, taking into account the provisions of this article.

4. If the repeated tender is declared invalid on the grounds provided for in paragraphs 1 - 3 of part 2 of this article, the customer makes changes to the schedule (if necessary, also to the procurement plan) and carries out this purchase by conducting a request for proposals in accordance with Clause 8 of Part 2 of Article 83 of this Federal Law (in this case, the procurement object cannot be changed) or otherwise in accordance with this Federal Law.

5. In the event that a two-stage tender is declared invalid on the grounds provided for in Part 10 of Article 57 of this Federal Law, the customer makes changes to the schedule (if necessary, also to the procurement plan) and again carries out the purchase.

6. In the event that a two-stage tender is declared invalid on the grounds provided for in part 15 of Article 57 of this Federal Law due to the fact that at the end of the deadline for submitting final applications for participation in a two-stage tender, no such application has been submitted or the tender commission has rejected all such applications, the customer makes changes to the schedule (if necessary, also to the procurement plan) and carries out a repeated tender in accordance with part 3 of this article with the participation of an unlimited number of persons or carries out procurement again.

7. In the event that a two-stage tender is declared invalid on the grounds provided for in Part 15 of Article 57 of this Federal Law due to the fact that at the end of the deadline for submitting final applications for participation in a two-stage tender, only one such application has been submitted, and such an application is recognized complying with the requirements of this Federal Law and tender documentation or based on the results of consideration of final applications for participation in a two-stage tender, only one application is recognized as meeting the requirements of this Federal Law and tender documentation, the customer concludes a contract with a single supplier (contractor, performer) in accordance with Clause 25 of Part 1 Article 93 of this Federal Law.

There are no new revisions of the article that have not entered into force.

Compare with the revision of the article dated 01.01.2014

The customer concludes a contract with a single supplier (contractor, performer) in accordance with Clause 25 of Part 1 of Article 93 of this Federal Law in cases where the tender is declared invalid on the grounds provided for:

The customer makes changes to the schedule (if necessary, also to the procurement plan) and carries out a repeated tender in accordance with part 3 of this article or a new procurement in cases where the tender is declared invalid on the grounds provided for:

The customer places a notice of a repeated tender in the unified information system at least ten days before the date of opening the envelopes with applications for participation in this tender. At the same time, the procurement object, the quantity of goods, the amount of work or services, the requirements for the procurement participants, the procurement object, the terms of the contract contained in the tender documentation and the draft contract must comply with the requirements and conditions that were contained in the tender documentation of the tender, which was declared invalid, with the exception of the contract execution period, which must be extended for a period not less than the period required for a re-tender, and the initial (maximum) contract price, which can be increased by no more than ten percent of the initial (maximum) contract price stipulated by the competitive tender the documentation of the competition, which was declared invalid. The repeated tender is carried out in accordance with the provisions of this Federal Law on the conduct of an open tender, taking into account the provisions of this article. In the event that uniform requirements and additional requirements are established for the participants in a repeated tender when holding a repeated tender, the provisions of Article 56 of this Federal Law shall apply, taking into account the provisions of this Article.

If the repeated tender is declared invalid on the grounds provided for in clauses 1 - 3 of part 2 of this article, the customer makes changes to the schedule (if necessary, also to the procurement plan) and carries out this purchase by conducting a request for proposals in accordance with clause 8 Part 2 of Article 83 of this Federal Law (in this case, the procurement object cannot be changed) or otherwise in accordance with this Federal Law.

In the event that a two-stage tender is declared invalid on the grounds provided for in Part 10 of Article 57 of this Federal Law, the customer makes changes to the schedule (if necessary, also to the procurement plan) and then purchases again.

Article 57 of this Federal Law due to the fact that after the deadline for submission of final applications for participation in the two-stage tender, no such application was submitted or the tender commission rejected all such applications, the customer makes changes to the schedule (if necessary, also to the procurement plan ) and carries out a repeated tender in accordance with part 3 of this article with the participation of an unlimited number of persons or carries out procurement again.

If a two-stage tender is declared invalid on the grounds provided for in Part 15 of Article 57 of this Federal Law due to the fact that at the end of the deadline for submitting final applications for participation in a two-stage tender, only one such application has been submitted, and such an application is recognized as meeting the requirements of this Federal Law and tender documentation or based on the results of consideration of final applications for participation in a two-stage tender, only one application is recognized as meeting the requirements of this Federal Law and tender documentation, the customer enters into a contract with a single supplier (contractor, performer) in accordance with Clause 25 of Part 1 of Article 93 of this Federal Law.

The choice of the method of managing the apartment building is the prerogative of the owners of the premises of such a house. When they delay the adoption of a decision, local governments come into play. They hold an open competition for the selection of the managing organization.

It happens that the competition is declared invalid. Most often this happens when not a single candidate is applied for it. Today we will tell you what to do in such a situation.

Determine why the competition did not take place

This article will be useful for local governments that need to conduct open competitions for the selection of an MA. The material will help management companies who want to take part in such a competition, and companies whose services have been refused by the owners of MKD premises.

There can be two reasons for declaring the tender for the selection of a management organization invalid. They are listed in the decree of the Government of the Russian Federation of 06.02.2006 N 75:

• no applications have been submitted to the competition;
• applications were received, but all candidates were refused.

If only one candidate has entered the open competition, his application is considered in general order, this is not a reason to cancel the competition (clause 58 of the Rules). If the candidate meets the requirements for the applicants, they conclude an MKD management agreement with him. He cannot refuse to conclude a management agreement (clause 71 of the Rules).

Run another competition

Not a single application was received for the competition, it was declared invalid. What to do next?

If before the beginning of the procedure for opening envelopes with applications for participation in the tender not a single application has been submitted, the local government body, as the organizer of the tender, shall conduct new competition (Clause 59 of the Rules). The second competition is held within three months from the deadline for submitting applications.

The organizer can change the conditions of the second competition. But what he is obliged to do is to increase the estimated amount of payment for the maintenance and repair of residential premises by at least 10% (paragraph 59 of the Rules).

The same is to be done if, based on the results of consideration of applications for participation in the competition, the organizer refuses admission to participation in the competition to all applicants (clause 73 of the Rules).

Conclusion: if the tender for the selection of the managing organization did not take place for any of two reasons, the OMC holds a new tender until it takes place. There is no limit on the number of competitions, the competition can be declared invalid an unlimited number of times.

But if the competition did not take place, it is possible to conclude an agreement for the management of the MKD without holding it (clause 8 of article 161 of the RF LC).

Sign a management contract without a competition

As we said, according to the Rules, which were approved by the RF Resolution No. 75, if the competition is declared invalid, the OMC holds a new competition. Its winner concludes a management agreement with each owner of the premises in the MKD.

OMS cannot impose a certain managing organization on the owners of premises. He conducts an open competition for the selection of an MA only if the residents of the house have not independently chosen a manager within the established time frame.

At the same time, the owners, up to the day of the competition, have the right to choose an MA for general meeting... If they have exercised their right, an open tender will not be held (clause 39 of the Rules).

The RF Housing Code stipulates the possibility of concluding an agreement for the management of an apartment building without holding an open tender, if this tender was declared invalid (clause 8 of article 161 of the RF Housing Code).

This means that the CHI can choose a temporary MA for the house. The provision on the choice of a temporary managing organization applies to houses for which there is a high risk of being left without management or from which unilaterally and without objective reasons refused management Company... In this case, the OMC, according to the recommendation of the Ministry of Construction of the Russian Federation, may appoint a temporary managing organization.

The management contract with the temporary MA will be valid until the selection of the management organization on a competitive basis. The owners of the premises cannot be forced to conclude such an agreement, this is not provided for by law.

Such a management agreement cannot be concluded if an open tender for the selection of a management organization has not been held at all. LSG cannot refuse to hold an open tender. Any owner of the premises in the house can, through the court, require the local self-government to choose a management organization (clause 7 of article 161 of the RF LC).

Determine who runs the house during the competition

The law explains what to do if the competition for the selection of the managing organization did not take place in a new building or in a house previously managed by the MA. In the second case, the house continues to be managed by the previous company (clause 2 of article 18 N 189-FZ). She provides home management services throughout the open competition until a new MA is selected.

For new buildings, the rules are different. After receiving permission to put the house into operation, the developer, within 5 days, selects the MA and concludes with it a management contract for 3 months (clause 14 of article 161 of the RF LC).

Such a company manages the MKD until a new one is determined at an open tender or the owners choose another MA or a new management method for the OSS. If desired, the developer may not choose a management organization and manage apartment building yourself.

The order of actions in a situation where the tender for the selection of the managing organization did not take place is as follows:

1. Determine the reason why the competition did not take place.

There may be two such reasons: not a single application was submitted or all candidates were refused.

2. Run another competition, and another if needed.

An open tender is held until it takes place or the owners of the premises in the MKD choose another method of management or decide on the MA on their own.

3. Conclude a management contract without a tender

According to paragraph 8 of Art. 161 of the Housing Code of the Russian Federation, it is possible to conclude a management agreement for an MKD without holding an open tender if this tender was declared invalid.

4. Determine who will manage the house during the competition.

It is impossible to throw an ICM without control. If the previous MA has terminated the management agreement unilaterally, the OMS will find a temporary company. If the house was previously managed by the UO, then she continues to do so until the moment of choosing a new one. In the case of a new building, the developer chooses the MA for three months or manages the house independently.

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Therefore, competitions in the sense of Articles 447-448 of the Civil Code of the Russian Federation and a competition 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 overlap.

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 monetary remuneration or the issuance of another award ... for the best performance of work or the achievement of other results."

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

Let's illustrate the difference with an example. Suppose that the organizer of the competition needs stools (and let this fall under “achieving socially useful goals”). In this case, if all the participants in the competition made a stool in advance and brought it to the competition committee, and the latter chose the best one and paid only to 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 detailed plans of how they would make these stools, indicated the remuneration required for this, and the organizer chose the best solution from his point of view and concluded an agreement with the person who proposed him to make the stool, 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 of "public competition" and 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 clause 5 of article 447 of the Civil Code of the Russian Federation, the auction and competition in which only one participant participated are recognized as invalid.

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

However, there may be a more complicated situation, when, for example, applications from 3 applicants were submitted for participation in the competition, but 2 of them were not submitted by all required documents... Did such a competition take place or not? To answer this question, it should be remembered that the competition is the choice of the best applicant from those who have correctly drawn up and submitted their proposal. And in this case, after the retirement of the applicants who have incorrectly drawn up their offer, there will be only one left, and there will be no one to compare him with. In this regard, such a competition is also declared invalid.

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

However, the court, having understood the situation, found the actions of the liquidator unlawful, since the law provides for the right to sell without bidding "property not sold at the first auction" rather than "if the auction did not take place" [Footnote: "The debtor's property not sold at the first auction is put up for re-auction or is sold

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bankruptcy commissioner on the basis of a sale and purchase agreement concluded without bidding "(Clause 4 of Article 112 of the Federal Law of the Russian Federation of 08.01.1998 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 there were none at all. Those. for the possibility of direct sale of property, it is necessary that the first auction took place, and at this failed auction, the property could not be sold for any reason.

2.10. When is it necessary to sign the protocol on the results of the competition?

Answer: According to clause 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 their holding a protocol on the results of the auction, which has the force of an agreement. The person who won the auction, in case of evasion of signing the protocol, loses the deposit made by him. The organizer of the auction, who avoided 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 losses caused by participation in the auction, in the part 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 registration 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 to compel the conclusion of the contract, as well as to compensate for losses caused by the evasion of its conclusion.

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

So, for example, clause 4 of article 21 of the Federal Law dated 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 the winner to be notified in writing within three days. In this situation, in order to eliminate the risks of a possible appeal against the results of the competition on formal grounds, it is advisable to fulfill both requirements: to send a written notice and sign the protocol within the time frame indicated above.

2.11. Isn't it time to amend the RF Civil Code regarding the regulation of tenders?

Answer: Unfortunately, when they wrote Articles 447-449 of the Civil Code of the Russian Federation, they thought exclusively about concluding contracts for the sale of any property (tenders held in the order of enforcement proceedings, investment competitions 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 like, 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 was determined. As a result, we obtained norms that are often simply not implemented in practice, some of which are discussed, among other things, in this book.

IN lately it has been increasingly said that it is time to amend these articles of the Civil Code of the Russian Federation. However, the author has not yet come across a single concrete proposal for the wording of the changes.

IN connection with this author prepared and offered in the appendix10.1.2 project federal law on making changes to the discussed articles. The proposed option preserves all applicable norms to the maximum, adjusting them solely for the purpose of

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

Let's comment on the main provisions of the bill. For convenience, Articles 447-449 in the wording of the draft law will denote Articles 447-449 of the RF Civil Code, in contrast to Articles 447-449 of the Civil Code of the Russian Federation, i.e. the current edition.

IN clause 1 of Article 447 of the ZP the author defines the concept of trading 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 is perceived as any method of concluding an agreement in which the parties somehow "bargain", but the current version of the Civil Code of the Russian Federation is allowed to conduct bidding exclusively in the form of a tender or auction.

IN clause 2 of Article 447 of the ZP, the owner of financial resources is introduced into the number of the organizer of the auction, thereby securing the possibility of holding an auction not only for sale, but also for purchase.

Defines a contentious concept specialized organization as established by law or regulation legal acts executive authorities, as well as the possibility of transferring on a contractual basis all or part of the organizer's functions to a third party.

IN the second paragraph sets out the right of the organizer of the auction to sell the thing that the organizer does not have at the time of the announcement of the auction. This increases the intensity of trade for products sold by auction.

IN clause 4 of Article 447 of the ZP is given indicative list the most generally accepted forms of bidding all over the world, however, the decoding is given only for the most “rigid” of them, prescribed in the current Civil Code of the Russian Federation - competition and auction.

In practice, many were faced with the fact that after the rejection of incorrectly executed applications, only one remains. But since The current version of clause 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 specifies that at least two participants should be exactly at the last, comparative stage of determining the winner, i.e. after the rejection of all rejected bids.

Leaving the division of trades into open and closed, the bill in clause 1 of Article 448 specifies 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 a preliminary selection stage, etc.), which is reflected in the draft law. Nevertheless, although it is possible to classify tenders on completely different grounds, the bill proposes to fix only universal ones, suitable for any tenders. For example, according to the order of consideration of proposals, it could be divided into sequential (separately technical and financial) 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 period for publishing a notice for the tender, but significantly reduces it for auctions, in most of which a month's period leads to the leveling of the economic benefits from its holding (if there is a state interest for certain types tenders and auctions in the respective regulatory documents other, extended periods may be established). The bill leaves the timing of notifications about other auctions at the discretion of its organizers. Indeed, if, for example, commercial organization if she wants not just to conclude an agreement with someone, but to do so based on the results of competitive negotiations, then for her this period can be even one hour - enough time to agree on meetings.