A Guide to Procurement Disputes:

1. The auction commission reviews the second parts of applications for participation in the electronic auction, information and electronic documents, sent to the customer by the operator electronic platform in accordance with Part 19 of Article 68 of this Federal Law, in terms of compliance with their requirements established by the documentation of such an auction.

2. Based on the results of consideration of the second parts of applications for participation in an electronic auction, the auction commission makes a decision on the compliance or non-compliance of an application for participation in such an auction with the requirements established by the documentation for such an auction, in the manner and on the grounds provided for in this article.

(see text in the previous edition)

3. The auction commission reviews the second parts of applications for participation in the electronic auction, sent in accordance with Part 19 of Article 68 of this Federal Law, before making a decision on the compliance of five such applications with the requirements established by the documentation for such an auction. If less than ten participants took part in such an auction and less than five applications for participation in such an auction meet the specified requirements, the auction commission considers the second parts of applications for participation in such an auction submitted by all its participants who took part in it. Consideration of these applications begins with an application for participation in such an auction submitted by its participant who offered the most low price contract, the smallest sum of prices of units of goods, work, services, and is carried out taking into account the ranking of these applications in accordance with Part 18 of Article 68

(see text in the previous edition)

4. If, in accordance with Part 3 of this article, five applications for participation in an electronic auction that meet the requirements established by the documentation for such an auction have not been identified, out of ten applications for participation in it, previously sent to the customer based on the ranking results, within one hours from the moment of receipt of the corresponding notification from the customer, the operator of the electronic site is obliged to send to the customer all the second parts of these applications, ranked in accordance with Part 18 of Article 68 of this Federal Law, in order to identify five applications for participation in such an auction that meet the requirements established by the documentation about it.

5. The total period for consideration of the second parts of applications for participation in an electronic auction cannot exceed three working days from the date of posting the protocol of the electronic auction on the electronic platform.

6. An application for participation in an electronic auction is recognized as not meeting the requirements established by the documentation for such an auction in the following cases:

1) failure to provide documents and information that are provided for in Part 11 of Article 24.1, Parts 3 or 3.1, 8.2 of Article 66 of this Federal Law, non-compliance of these documents and information with the requirements established by the documentation about such an auction, the presence in these documents of inaccurate information about the participant in such an auction on the date and time of the deadline for filing applications for participation in such an auction;

(see text in the previous edition)

(see text in the previous edition)

3) provided for by regulations legal acts adopted in accordance with Article 14 of this Federal Law.

7. Making a decision on the non-compliance of an application for participation in an electronic auction with the requirements established by the documentation for such an auction on grounds not provided for in Part 6 of this article is not permitted. An application for participation in an electronic auction cannot be recognized as not meeting the requirements established by the documentation for such an auction due to the lack of information and electronic documents provided for in paragraph 5 of part 5 of Article 66 of this Federal Law, as well as paragraph 6 of part 5 of Article 66 of this Federal Law, with the exception of the case of procurement of goods, works, services in respect of which the prohibition provided for in Article 14 of this Federal Law is established.

(see text in the previous edition)

8. The results of consideration of applications for participation in an electronic auction are recorded in the protocol for summing up the results of such an auction, which is signed by all members of the auction commission participating in the consideration of these applications, and no later than the working day following the date of signing of the specified protocol, are posted by the customer on the electronic platform and in single information system. The specified protocol must contain information about the identification numbers of five applications for participation in such an auction (in the event of a decision being made that five applications for participation in such an auction comply with the requirements established by the documentation for such an auction, or in the event of acceptance by the auction commission based on consideration of the second parts of applications for participation in such an auction, submitted by all participants in such an auction who took part in it, decisions on the compliance of more than one application for participation in such an auction, but less than five of these applications with the established requirements), which are ranked in accordance with Part 18 of Article 68 of this Federal law and in respect of which a decision was made on compliance with the requirements established by the documentation for such an auction, or if, based on the consideration of the second parts of applications for participation in such an auction, submitted by all its participants who took part in it, a decision was made on compliance with the established requirements of more than one application for participation in such an auction, but less than five of these applications, as well as information about their identification numbers, a decision on the compliance or non-compliance of applications for participation in such an auction with the requirements established by the documentation about it, with the rationale for this decision and indicating the provisions of this Federal Law, which a participant in such an auction does not comply with, the provisions of the documentation about such an auction, which the application for participation in it does not comply with, the provisions of the application for participation in such an auction, which do not meet the requirements established by the documentation about it, information about the decision of each member of the auction commission in relation to each application for participation in such an auction.

Protocols in an electronic auction are documents that first record applications that have passed the bidding stage, and then the winner of the electronic auction - the participant with whom the government contract will be signed. Law on contract system There are three main protocols, which are drawn up not only by the customer, but also by the operator of the trading platform.

How to make a protocol for reviewing applications

Since information about the participants’ contact details is confidential, the auction commission considers only the first part of the participant’s proposal, which contains consent to the supply or performance of work, services, as well as specific information about the quality and functional characteristics of the procurement object. That is, the customer, without having information about the names of the participants, determines whether their proposals meet the requirements that have been established terms of reference and part 3 of Art. 66 44-FZ.

The document determines the admission of participants and, in accordance with Part 6 of Art. 67, must contain:

• serial numbers of applications;
• decision on admission or refusal of admission to participation with justification and indication of the decision of each member of the commission;
• information about the presence among applications of an offer to supply goods that are produced abroad or in a group of foreign countries. This data must be entered into the protocol if the conditions, prohibitions, restrictions on the admission of goods, works, services are established by the customer within the framework of the national regime under Art. 14 44-FZ.

It is compiled on the trading platform. You need to fill out a special form. The functionality of the platforms allows you to use templates and save data into a text document. The paper version is signed by all members of the commission who are present at the meeting no later than the expiration date for consideration of the first parts. It is recommended that you attach a scanned copy of the document to electronic form on the site, and then send it to the operator, who will publish it in the Unified Information System (UIS).

The period for consideration of the first parts is no more than seven days from the closing date for filing applications and is determined in the auction documentation and notice upon publication in the Unified Information System.

From 07/01/2018, the period for consideration of the first parts in purchases with an initial (maximum) contract price of up to 3 million rubles. is 1 working day.

If there are no proposals, or only one is submitted or accepted, or all are rejected, a protocol declaring the auction invalid is published. If only one application is submitted, the operator sends the customer two parts at once, which the auction commission must consider within three working days. The document for considering a single proposal must reflect information about its compliance or non-compliance with the requirements of the documentation and the law, indicating the decision of each member of the commission (Part 1, Article 71).

How the protocol for conducting an electronic auction is formed

Suppliers whose bids are approved by the customer may participate in the tender. The procedure is carried out while maintaining the confidentiality of information about its participants. Within thirty minutes after the end of the auction, the operator places on the site a document that contains information (Article 68):

• trading platform address;
• date, start and end time of trading;
• initial (maximum) contract price;
• all minimum offers about contract price indicating the serial numbers of the participants.

If no one submits a price proposal within ten minutes after the start of the procedure, the auction is considered invalid. This must be indicated in the bidding document. At the same time, you should not confuse the deadlines for publishing the protocol of the auction in electronic form and the deadlines for the protocol for summing up the results of the electronic auction 44-FZ. We will talk about them further.

How to draw up a protocol for summing up the auction results

After the bidding, the operator sends the second part of the proposals and accreditation data of the participants to the customer. 3 working days are given to prepare the document (Part 5 of Article 69, Parts 2, 3 of Article 71).

The protocol for summing up the results of the auction 44-FZ must contain (part 8 of article 69):

• serial numbers of five suppliers that comply with documentation and legal requirements;
• decision on the compliance or non-compliance of applications with justification and indication of the decision of each member of the commission.

The results of the electronic auction under 44-FZ are summed up on the day the protocol is posted. It is published in a manner similar to the procedure for reviewing the first parts. The deadline for publication of the protocol for summing up the results of the electronic auction is the next working day after signing by the commission members.

If no application meets the requirements or only one is found compliant, the electronic procedure will be deemed unsuccessful.

On this issue we take the following position:
The customer has the right to draw up and post a protocol for summing up the results of the electronic auction on the electronic platform and in the unified information system on the day of the auction.

Justification for the position:
The procedure for conducting an electronic auction and drawing up the final protocol is regulated by Federal Law dated 04/05/2013 N 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (hereinafter referred to as Law N 44-FZ).
Within the meaning of the provisions of Law No. 44-FZ, the auction is held continuously for one working day. The results of the auction are documented in a protocol (hereinafter referred to as the auction protocol), which is posted on the electronic platform by its operator within 30 minutes after the end of the auction. Within 1 hour after posting the specified protocol, the operator of the electronic site is obliged to send to the customer this protocol and the second parts of applications for participation in such an auction, as well as information and electronic documents of these participants, provided for in Part 11 of Art. 24.1 of Law No. 44-FZ.
According to Law No. 44-FZ, the total period for consideration of the second parts of applications for participation in an electronic auction cannot exceed 3 working days from the date of posting the protocol of the electronic auction on the electronic platform.
The results of consideration of applications for participation in an electronic auction are recorded in the protocol of summing up the results of such an auction, which is signed by all members of the auction commission participating in the consideration of these applications, and no later than the working day following the date of signing of the specified protocol, are posted by the customer on the electronic platform and in the unified information system (Law No. 44-FZ).
As we see, the law establishes only maximum periods for performing the actions prescribed by it, but not minimum ones.
Accordingly, the final protocol can be posted on an electronic platform and in a unified information system either on the next working day after the day of signing, or directly on the day of signing (see:
- Question: What is the date of publication of the protocol of consideration of the second parts of applications for participation in the electronic auction? (response from the Main Control Department of the Chelyabinsk Region, December 2017)
- decision of the Office of the Federal Antimonopoly Service for the Irkutsk Region dated December 13, 2018 N 1405/18).

Prepared answer:
Expert of the Legal Consulting Service GARANT
Verkhova Nadezhda

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Serkov Arkady

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.

Each stage of the procurement - from the moment the notice is issued to the completion of the contract - must be properly documented. The procedure for conducting an electronic auction is reflected in the protocols drawn up by the customer’s auction commission. The customer is obliged to place the specified protocols in the unified information system (hereinafter referred to as the UIS), and the posted information must be complete and reliable (Part 3 of Article 7 of Law No. 44-FZ).

Let's try to figure out what types of protocols are drawn up at certain stages of the procurement life cycle. At the same time, we will discuss some related difficulties that workers face contract services, contract managers and members of procurement commissions.

Protocols drawn up during an electronic auction

The procedure for conducting an electronic auction is divided into three main stages, and at each of them a protocol is formed.

1. Protocol for consideration of the first parts of applications is formed by the auction commission (hereinafter, the auction commission refers not only to the auction commission in the proper sense of the word, but also to the unified procurement commission). No later than the expiration date for consideration of applications, the customer sends such a protocol to the operator of the electronic platform and places it in the Unified Information System. The content of this protocol and the procedure for its placement in the Unified Information System are established in Part 6 and Part 7 of Art. 67 Law No. 44-FZ.

2. Protocol of the electronic auction placed on the electronic platform by its operator within 30 minutes after the end of the electronic auction (Part 18, Article 68 of Law No. 44-FZ).

3. Auction summing up protocol formed by the auction commission. No later than the next business day after the date of its signing, such a protocol must be posted on the electronic platform and in the Unified Information System. The content of the protocol and the procedure for its placement in the Unified Information System are defined in Part 8 of Art. 69 of Law No. 44-FZ.

Members of procurement commissions should carefully consider the formation of protocols for summing up the results of the electronic auction. First of all, it is necessary to ensure the accuracy of the information reflected in the protocols. In particular, special care must be taken to indicate:

Provisions of the auction documentation that the application does not comply with procurement participant;

Provisions of the application for participation in the electronic auction that do not comply with the requirements of the auction documentation.

Thus, by decision of the Khanty-Mansiysk OFAS Russia dated 09.09.2015 N 03/PA, the auction commission was found to have violated clause 2, part 4 of art. 67 of Law N 44-FZ, since the protocol for considering the first parts of applications for participation in the electronic auction indicated an incorrect reason for refusal of admission.

The subject of the electronic auction was the supply of a set of products for umbilical vein catheterization. The procurement participant's application was recognized as not meeting the requirements of the technical specifications due to changes in characteristics that should not have been changed. The procurement participant added the names of the manufacturer and country of origin of each product included in the catheterization kit in the column “name of indicator (unchangeable)”, although in accordance with the instructions for filling out an application for participation in the electronic auction, the name of the indicator was among the characteristics that the procurement participant had no right to change.

Having studied the case materials, the commission of the Khanty-Mansiysk OFAS Russia considered that adding the name of the manufacturer and the country of origin of the product to the column “name of the indicator (unchangeable)” did not change the characteristics of the products required by the customer and did not distort the information about the unchangeable indicators established by the technical specifications. According to the antimonopoly authority, it was impossible to recognize the procurement participant’s application as not meeting the established requirements only for the specified reason. In fact, the customer’s auction commission rejected the procurement participant’s application on grounds not provided for by the legislation on the contract system, thereby violating Part 5 of Art. 67 Law No. 44-FZ.

At the same time, the commission of the Khanty-Mansiysk OFAS Russia found that the complainant indicated the name of the country of origin for each of the products included in the catheterization kit, but did not indicate the name of the country of origin of the set as a whole, as a single item of purchase. Since this is a violation of clause 1, part 3, art. 66 of Law N 44-FZ, the customer’s auction commission should have rejected the controversial bid of the procurement participant precisely on this basis.

Also, customers should be careful about the so-called. "technical errors" when drawing up protocols. For example, the auction commission decided to recognize the procurement participant’s application as meeting the requirements of the auction documentation, but the protocol for considering the second parts of applications for participation in the electronic auction indicated the exact opposite decision - to recognize the application as non-compliant.

Sometimes "technical errors" of a different kind occur. Thus, in the decision of the Novgorod OFAS Russia dated July 27, 2015 N 08-01-273, the appeal of SpetsProekt LLC was considered, which reported that its application was recognized as not meeting the requirements of the auction documentation, however, in the protocol for summing up the results of the electronic auction, the justification for the decision of the auction commission indicated not SpetsProekt LLC, but Accord LLC. Having made sure that the arguments of the complaint were true, the commission of the Novosibirsk OFAS Russia recognized the actions of the auction commission as violating the requirements of Part 3 of Art. 7 of Law N 44-FZ, according to which only reliable information should be placed in the UIS.

In relation to our topic, acts are also of interest scheduled inspections compliance with certain norms of Law N 44-FZ, compiled by the authorities executive power subject Russian Federation authorized to exercise control in the field of procurement. Yes, the Ministry social relations Chelyabinsk Region, in its inspection report dated December 21, 2015 No. 10, when conducting an inspection of one of its subordinate institutions, found the following violations.

1. In violation of Part 6 of Art. 67 of Federal Law No. 44-FZ, the protocol for considering the first parts of applications for participation in an electronic procurement auction was incorrectly drawn up. The protocol states: “The protocol for considering applications for participation in the auction was signed by all members of the auction commission present at the meeting, customer and authorized body and sent to the operator of the electronic platform", although the columns “on behalf of the customer” and “on behalf of the authorized body” are not filled in (standard protocol generated by the electronic platform). Moreover, by virtue of Part 6 of Article 67 of Law No. 44-FZ, the protocol for considering applications subscribes to participate in the electronic auction by all members of the auction commission present at its meeting.

2. In violation of Part 8 of Art. 69 of Law No. 44-FZ is incorrectly drawn up in the protocol for summing up the results of the electronic procurement auction, namely, information is indicated that is not provided for by the provisions of Law No. 44-FZ:

Location address / postal address of the procurement participant;

Contact tel. (fax) / address Email procurement participant;

Offer price of the procurement participant (RUB);

Date and time of receipt of the procurement participant's proposal.

The commission of the control body indicated that the protocol for summing up the results of the electronic auction in accordance with the requirements of Art. 69 of Law No. 44-FZ must contain:

1) information about the serial numbers of applications;

2) a decision on compliance or non-compliance of applications with the requirements of the auction documentation with the rationale for this decision and indicating:

The provisions of Law No. 44-FZ, which the participant in the electronic auction does not comply with;

Provisions of the auction documentation that the procurement participant’s application does not comply with;

Provisions of the application for participation in the electronic auction that do not comply with the requirements of the auction documentation;

3) information about the decision of each member of the auction commission regarding each application for participation in such an auction.

As we can see, the commission of the Ministry of Social Relations of the Chelyabinsk Region considers it unacceptable to indicate in the protocol information not provided for by Law No. 44-FZ. This position is not uncommon, but we should not forget that Law No. 44-FZ does not contain a direct prohibition on the inclusion of other information in protocols.

Protocol on the failed procedure

Depending on the grounds for declaring an electronic auction invalid, the customer must draw up his own protocol.

1. If only one application is submitted, is being compiled protocol for considering a single application for participation in an electronic auction, requirements for the content of which are defined in clause 3, part 1, art. 71 of Law No. 44-FZ. Such a protocol is sent to the operator of the electronic site no later than three working days from the date of receipt of the only application for participation in the electronic auction.

2. If the application of only one procurement participant meets the requirements of legislation and customer documentation, a application review protocol the only participant electronic auction(Clause 3, Part 2, Article 71 of Law No. 44-FZ). This protocol is sent to the operator of the electronic site no later than three working days from the date of receipt of the second part of the application for participation in the electronic auction.

3. If within 10 minutes after the start of the auction no bid has been made for the contract price, in accordance with clause 3, part 2, art. 71 of Law No. 44-FZ is drawn up auction summing up protocol. The deadline for sending this protocol to the operator of the electronic site is exactly the same - no later than three working days from the date the customer receives the second parts of applications for participation in the electronic auction. In addition, in this case, there is another protocol that is formed by the operator of the electronic platform - a protocol on declaring the auction invalid (Part 20, Article 68 of Law No. 44-FZ). The protocol indicates the address of the electronic platform, the date of the electronic auction, its start and end time, as well as the initial (maximum) price of the contract.

Protocol of customer refusal to conclude a contract

If the contract has not yet been concluded, and the customer has discovered that the procurement participant does not meet the requirements imposed on him or has provided false information regarding his compliance with the specified requirements, the customer is obliged to refuse to conclude a contract with such a winner in the procedure for determining the supplier (contractor, performer). The corresponding requirement is established in Part 9 of Art. 31 of Law No. 44-FZ.

In addition, in Part 10 of Art. 31 of Law No. 44-FZ establishes additional grounds for refusing to conclude a contract during procurement medicines from the list of vital and essential drugs (VED):

1) the maximum selling price of medicinal products offered by the procurement participant is not registered;

2) the price of the purchased medicinal products offered by the procurement participant exceeds their maximum selling price specified in state register maximum selling prices of manufacturers for medicines included in the list of vital and essential drugs. This rule applies only if the procurement participant is a manufacturer of such medicines or if the initial (maximum) contract price exceeds 10 million rubles. in case of procurement for federal needs.

Refusal of the customer to conclude a contract on the grounds provided for in parts 9 and 10 of Art. 31 of Law No. 44-FZ, formalized as protocol of refusal to conclude a contract(Part 11, Article 31 of Law No. 44-FZ). The specified protocol is drawn up and posted in the Unified Information System no later than one business day following the day when it was established that the participant did not meet the requirements for him. In addition to this, such a protocol must be sent to the procurement participant within two working days from the date of its signing.

Protocol for recognizing the winner as having evaded concluding a contract

1. If during an auction the initial (maximum) contract price is less than 15 million rubles, and the winner of the electronic auction has reduced the price by 25 percent or more, the contract is concluded with him only if he performs one of the following actions:

Will provide security for the execution of the contract in an amount that is one and a half times greater than the amount established by the auction documentation;

Along with the standard contract security, will provide reliable information confirming its good faith as of the date of application ( registration numbers contracts previously executed by such procurement participant; detailed requirements for the content of information confirming the integrity of the procurement participant are defined in Part 3 of Art. 37 Law No. 44-FZ).

If the procurement participant has not completed any of the specified actions, a protocol for recognizing the winner of an electronic auction as having evaded concluding a contract, which is placed in the Unified Information System and brought to the attention of all procurement participants no later than the working day following the day of its signing. The composition and content of information reflected in such a protocol is not regulated by Law No. 44-FZ (a similar opinion was expressed in the decision of the commission of the Vladimir OFAS Russia dated May 20, 2014 N G-288-04/2014).

2. If a participant is recognized as having evaded signing a contract on other grounds (for example, if the winner of an electronic auction signed the contract within the regulated period), Law No. 44-FZ does not determine specific ways to formalize such a decision of the customer. Despite this, we recommend that customers adhere to the practice of logging each decision of the auction commission throughout the entire procurement procedure. In such a protocol you can specify the following:

The date of recognition of the winner of the electronic auction as having evaded concluding a contract;

Information about the customer;

Information about the purchase;

Information about the procurement participant who was found to have evaded concluding the contract;

Grounds for recognizing the winner of an electronic auction as having evaded concluding a contract.

Protocol for the removal of a procurement participant due to the provision of false information

If it is established that a procurement participant has submitted documents containing false information as part of his application for participation in an electronic auction, the auction commission is obliged to remove such participant from participation in the electronic auction at any stage of its conduct (Part 6.1 of Article 66 of Law No. 44- Federal Law). A similar rule is contained in Part 9 of Art. 31 of Law N 44-FZ, according to which the customer is obliged to refuse to conclude a contract with such a winner of the procedure for determining a supplier (contractor, performer) if at any time before the conclusion of the contract he discovers that the procurement participant does not meet the requirements for him or has submitted an unreliable information about your compliance with such requirements.

Law No. 44-FZ does not define the procedure for formalizing a decision to exclude a procurement participant from participation in determining a supplier (contractor, performer). In particular, there is not even an obligation to send such a decision to the procurement participant and place it in the Unified Information System. We believe that when forming this decision, one should proceed from an analogy with the norms of Law No. 44-FZ, which regulate the procedure for processing the results of consideration of applications during an electronic auction and summing up its results.

The wording “to remove such a participant from participation in the electronic auction at any stage of its conduct” (Part 6.1, Article 66 of Law No. 44-FZ) and “the removal of a procurement participant is carried out at any time before the conclusion of the contract” (Part 9, Article 31 of the Law N 44-FZ) indicate that removal of an auction participant is possible not only during the consideration of applications submitted by participants, but also until the conclusion of a contract. In this regard, it is logical to formulate on the basis of Part 6.1 of Art. 66 of Law No. 44-FZ, a separate decision (protocol) on the removal of a procurement participant from participation in an electronic auction in connection with the establishment of unreliable information contained in the documents submitted by such participant.

In such a situation, the customer can draw an analogy with Part 11 of Art. 31 of Law N 44-FZ, which regulates the procedure for registering a refusal to conclude a contract on the grounds provided for in parts 9 and 10 of this article, and send such a protocol to the procurement participant no later than one business day following the day the fact that served as the basis for the decision to remove was established participant from participating in the electronic auction. We recommend that customers include the following information in this protocol:

An indication of the place and time of its compilation;

Information about the person in respect of whom this decision was made;

A statement of the facts that served as the basis for the decision, and details of documents confirming this fact.

Protocol on the removal of a participant from participation in an electronic auction on the basis of Part 6.1 of Art. 66 of Law N 44-FZ can be placed in the Unified Information System in a manner similar to that established by Part 11 of Art. 31 of Law No. 44-FZ.

Protocols of disagreements when signing a contract

The contract based on the results of the electronic auction must be concluded on the terms established by the customer in the notice of the electronic auction and in the auction documentation (including the draft contract): the corresponding requirement is established in Part 10 of Art. 70 Law No. 44-FZ. However, in practice, contradictions often arise between the customer and the procurement participant when signing a contract.

If there are disagreements regarding the draft contract, the winner of the electronic auction sends to the customer protocol of disagreements. Such a protocol can be sent by the winner of the electronic auction no later than thirteen days from the date of posting the protocol for summing up the results of the auction in the Unified Information System (Part 5, Article 70 of Law No. 44-FZ).

The protocol of disagreements is drawn up in any form and may only contain an indication of discrepancies between the terms of the draft contract and the provisions of the documentation. Such a protocol is signed electronic signature a person authorized to conclude a contract on behalf of the procurement participant. The maximum number of protocols of disagreements that can be sent by the winner of an electronic auction when signing a contract is not limited by law. The only “limit” is the time frame defined by the thirteen-day period mentioned above.

The problems of calculating this period were examined in the decision of the Arbitration Court of the Krasnoyarsk Territory dated July 7, 2014 in case No. A33-7712/2014, which has the following plot.

The customer refused to conclude a contract with the auction winner due to the fact that the winner of the electronic auction sent a protocol of disagreements after 13 days from the date of posting the protocol of summing up the auction results. The procurement participant appealed the customer’s actions to the Krasnoyarsk OFAS Russia, but the antimonopoly authority, by its decision dated March 31, 2014 No. 193, recognized his complaint as unfounded. In this regard, the procurement participant appealed to the Arbitration Court of the Krasnoyarsk Territory.

The court cited in its decision Part 8 of Art. 69 of Law N 44-FZ, according to which the results of consideration of applications for participation in an electronic auction are recorded in the protocol for summing up the results of such an auction, and no later than the working day following the date of signing of the specified protocol, are posted by the customer on the electronic platform and in the Unified Information System. In the case under consideration, the protocol for summing up the results of the electronic auction was signed by all members of the auction commission on 03/05/2014, and posted in the Unified Information System on 03/06/2014.

As follows from Art. 190 of the Civil Code of the Russian Federation, the period established by law is determined by a calendar date or the expiration of a period of time, which is calculated in years, months, weeks, days or hours. In this case, the course of a period defined by a period of time begins the next day after the calendar date or the occurrence of an event that determines its beginning (Article 191 of the Civil Code of the Russian Federation).

Since Law No. 44-FZ does not establish otherwise, the thirteen-day period in question is subject to calculation starting from the day following the posting of the protocol for summing up the auction results in the Unified Information System (i.e., from 03/07/2014). Consequently, the winner of the electronic auction had the right to send a protocol of disagreements on the draft contract until March 19, 2014 inclusive. And from the case materials it follows that the first protocol of disagreements on the draft contract was posted in the Unified Information System on March 14, 2014; second protocol of disagreements - 03/19/2014. Thus, the winner of the electronic auction duly complied with the requirements of Art. 70 of Law N 44-FZ: the protocol of disagreements on the draft contract was sent within the legally established period.

Also, customers should not lose sight of the fact that the thirteen-day period in accordance with Art. 70 of Law N 44-FZ must be calculated from the day following the posting of the protocol for summing up the results in the Unified Information System, and not from the date of signing such a protocol by members of the auction commission. As we remember, the dates indicated may vary.

Let us remind you what can be changed in the text of the contract:

Provisions of the draft contract that do not correspond to the notice of the auction, documentation about it and the application of the procurement participant;

Supplier details if they have changed since the deadline for submitting applications;

Typos, grammatical and punctuation errors, technical errors and inaccuracies.

In the decision of the Arbitration Court Novosibirsk region dated December 10, 2014, in case No. A45-17177/2014, another interesting point was considered related to the direction of protocols of disagreements.

From the totality of Parts 5 and 6 of Art. 70 of Law N 44-FZ, the court came to the conclusion that the thirteenth day is the last day for sending a protocol of disagreements if there are objections to the draft contract posted by the customer in the Unified Information System.

The right of the winner of an electronic auction to place a protocol of disagreements on a draft contract in the Unified Information System is enshrined in Part 4 of Art. 70 Law No. 44-FZ. However, this provision does not set a deadline for posting a protocol of disagreements for the first time. Therefore, Part 4 of Art. 70 of Law 44-FZ must be considered in conjunction with Part 13 of Art. 70 of Law N 44-FZ with regard to failure to send a signed draft contract to the customer within five days from the date of its placement in the Unified Information System.

If a participant does not agree with the draft contract sent to him, he must post a protocol of disagreements in the Unified Information System for the first time before the expiration of the period established for signing the contract, namely, within five days from the date of posting the draft contract. Having failed to complete these actions within five days, the winner of the electronic auction, by virtue of Part 13 of Art. 70 of Law N 44-FZ is recognized as having evaded concluding a contract.

After the protocol of disagreements is posted in the Unified Information System for the first time, both the customer and the winner can perform the actions enshrined in Parts 5 and 6 of Art. 70 of Law 44-FZ, before the expiration of the thirteen-day period. As soon as the specified period has expired, the winner should not post subsequent protocols of disagreements regarding the draft contract in the Unified Information System, and the customer should post the draft contract in the Unified Information System indicating in a separate document the reasons why he fully or partially refuses to take into account the comments of the winner of the electronic auction contained in the protocol of disagreements .

In addition, the court noted the fact that Art. 70 of Law No. 44-FZ does not regulate who makes the decision to recognize a procurement participant as having evaded concluding a contract (the auction commission or the customer) and in what form such a decision is formalized. Consequently, the decision to recognize the procurement participant as having evaded concluding a contract on the basis of Part 13 of Art. 70 of Law N 44-FZ is adopted by the customer and drawn up in any form.

Protocol for canceling the determination of a supplier (contractor, performer)

The customer has the right to cancel the electronic auction no later than five days before the deadline for filing applications for participation in the auction (Part 1, Article 36 of Law No. 44-FZ). The decision to cancel the determination of the supplier (contractor, performer) can be drawn up as a protocol for canceling the determination of the supplier (contractor, performer), which is drawn up by the customer and posted in the Unified Information System on the day this decision is made and is immediately brought to the attention of all procurement participants who submitted applications.

If the period for canceling the determination of the supplier (contractor, performer) has expired, the customer has the right to cancel the purchase before the conclusion of the contract only if circumstances arise force majeure in accordance with civil law (Part 2 of Article 36 of Law No. 44-FZ).

Protocol for making changes to documentation

The customer, on his own initiative or in accordance with a request for clarification of the provisions of the documentation on an electronic auction, has the right to decide to make changes to the documentation on such an auction no later than two days before the deadline for filing applications for participation in such an auction. Within one day from the date of adoption of this decision, changes made to the documentation about such an auction are posted by the customer in the Unified Information System (Part 6, Article 65 of Law No. 44-FZ).

Law No. 44-FZ does not determine how it should be formalized said decision customer. Still, we recommend that the customer adhere to the practice of logging every decision made throughout the entire procurement procedure. In this regard, the customer’s decision in question can be formalized as a protocol for making changes to the documentation.

I would like to remind you about responsibility officials customers for their violations of the procedure for drawing up and posting protocols during electronic auctions. Possible violations by customers and administrative liability for their commission, established by the Code of Administrative Offenses of the Russian Federation, are systematized in the following table:

The problem of routine maintenance on electronic platforms seems ambiguous in connection with the penalties established for customers for violating the deadlines for publishing protocols when conducting electronic auctions. This problem was considered in the decision of the Nenets OFAS Russia dated October 13, 2014 N 01-48/13-2014. In this case, the expiration date for consideration of the first parts of applications was 06/13/2014, and the corresponding protocol was dated exactly 06/13/2014, but was sent to the operator of the electronic platform only on 06/15/2014.

The customer submitted to the case materials a screenshot from the official website of the electronic platform of OJSC "Unified Electronic Trading Platform", from which it follows that in the period from 06/12/2014 to 06/15/2014, due to routine maintenance, the closed part of the electronic platform will be inaccessible. In addition, on June 15, 2014, the customer contacted the operator of the electronic platform with a request to provide the technical ability to review the first parts of the applications and publish the corresponding protocol. Ultimately, on the same day, such an opportunity was provided.

The Nenets OFAS Russia Commission certified the fact that the protocol for considering the first parts of applications was published on the electronic platform in violation of the deadline established by Part 7 of Art. 67 Law No. 44-FZ. At the same time, the antimonopoly authority noted that this violation was committed for reasons beyond the control of the customer, but in connection with the conduct of routine maintenance on the electronic platform. Based on the totality of the evidence presented, it was concluded that the customer was not at fault for violating the deadline for publishing on the electronic platform the protocol for considering the first parts of applications dated June 13, 2014.

In this article, we tried to introduce you to the practice of considering problems associated with drawing up protocols when conducting electronic auctions. We hope this will help you avoid mistakes when working as part of a procurement commission.

Under electronic auction period according to 44-FZ, they mean the period of time allotted for each stage of the procurement. Let's take a closer look at how many stages there are and within what timeframes, according to the law, they must take place.

Auction dates for Federal Law 44 in the table

If NMCC less than and equal to 300 million rubles(and in the case of construction, reconstruction, overhaul of capital construction projects less than or equal to 2 billion rubles), then the minimum procurement time and conclusion of the contract 19 days.

If NMCC more than 300 million rubles(and in the case of construction, reconstruction, overhaul of capital construction projects more than 2 billion rubles), then the minimum time for procurement and conclusion of the contract 26 days.

Deadlines for filing applications for an electronic auction under 44-FZ

1. The very first step in organizing an electronic auction is posting a notice of its holding and tender documentation. The deadline for submitting applications for the electronic auction varies depending on the amount of the NMCC: if it exceeds 300 million rubles. (and in the case of construction, reconstruction, and major repairs of capital construction projects exceeds 2 billion rubles), then the notice must be posted in 15 days(or more) until the closing date for applications. If the initial price is 300 million rubles. and less (or less than 2 billion rubles in the case of construction work) - then in 7 days(or more).

2. There are times when it is necessary to make changes to the notice or documentation itself. For this purpose, electronic auctions under 44-FZ provide for the following deadlines: no later than 2 days before the deadline for accepting applications.

And if changes are made, then the time for filing should be increased in accordance with paragraph 1 of our article, i.e. up to 15 days and up to 7 days, respectively.

3. If the customer decides to refuse the auction, he can do so no later than 5 days before the end of applications.

4. A participant may submit a request for clarification of auction documentation, but no later than 3 days before the end of applications. The customer must publish the response within 2 days from the receipt of this request.

5. A participant in an electronic auction can change or withdraw his application at any time before the deadline for acceptance. If he does not have time to do this within the established period, his first part of the application will be considered and, if it is consistent, the participant will be admitted to the auction, but he has the right not to submit price proposals.

6. The next stage is the consideration of the first parts of applications submitted by participants. It amounts to 1 working day after the deadline for submission, if the contract price is less than or equal to RUB 300,000,000. (in the case of construction work, 2 billion rubles or less).

In all other cases, the period for consideration of the first parts of applications is 3 working days. During this period, applications that do not meet the requirements for the composition of the first part of the application specified in the documentation are eliminated.

At the same time, a protocol for considering the first parts of the application is sent to the operator of the electronic trading platform, where procurement takes place, and the data is placed in the Unified Information System.

However, if the documentation includes design documentation, then the deadline for submitting applications is also the deadline for reviewing the first parts of applications. In other words, if a participant submits an application to participate in such an auction, it is automatically considered accepted.

7. Then the deadline for the auction under 44-FZ comes, this is the working day following the end date for consideration of the first parts.

For example, if applications were reviewed on Friday, then the electronic auction will be on Monday, because after Friday the next working day is Monday.

If project documentation is included as part of the documentation, the auction takes place 4 hours after the end of applications.

8. After this, it is necessary to announce the protocol of the auction. This information is posted on the electronic procurement platform within 30 minutes after the completion of the last phase of bidding, and the protocol is sent to the customer within 1 hour, together with the second parts of the applications, after publication on the ETP.

9. Review of 2 parts of the application must take place on time no more than 3 working days, from the moment the protocol on the electronic auction is posted on the site. The final protocol, drawn up after consideration of the second parts of the applications, will determine the winner of the purchase.

10. Within 5 calendar days, from the date of publication of the final protocol in which the winner is determined, the customer in personal account the winner sends him a draft contract.

Deadlines for signing a contract under 44-FZ in an electronic auction

11. Within 5 calendar days After receiving the draft contract from the customer, the winner must sign the contract on his part, attaching a document confirming the execution of the contract, or send the customer a protocol of disagreements.

12. If a protocol of disagreements has been sent, then the customer is given 3 days to study it and publish a modified version of the contract. If the contract is posted without changes, then the customer must justify the refusal of the participant’s proposed changes.

13. Over the next 3 working days after publication of the revised (or the same) version of the contract, the winner is obliged to sign the contract on his part, attaching a document confirming the execution of the contract.

14. The customer must sign the contract within 3 working days after the winner does so. From this moment the contract is considered concluded.

Please note that the contract cannot be concluded earlier than 10 days from the date the winner is determined, those. placement of the final protocol.

15. If the participant’s application was rejected in the first / second part or during the auction, violations were identified on the part of the customer or the operator of the electronic platform, the participant has 5 days from the date of the final protocol(i.e. from the moment the winner is determined) to send a complaint to the FAS.

You can learn about all the timing of the electronic auction and its features in our training course “Government Order”. RusTender employees specially collected all necessary information, supported by your own experience of participation, thanks to which you will be able to successfully participate in government procurement and receive contracts.

These are the main stages and terms of the auction under 44-FZ, held electronically on the ETP of federal operators. All time characteristics given in the text are current at the time of writing. To always keep abreast of the latest changes, follow the norms of the legislation of the Russian Federation.

These are the main stages and terms of the electronic auction under 44-FZ, reflected in a tabular schematic form. All time characteristics given in the text are current at the time of writing. To always keep abreast of the latest changes, follow the articles on our website and subscribe to our news!

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