Government bidding can be conducted in various ways. The most common options are auctions and competitions. They can be closed or open. Features of their conduct are disclosed in Art. 448 of the Civil Code of the Russian Federation . Consider the norm in detail.
General information
As art. 448 of the Civil Code of the Russian Federation , any person is allowed to participate in an open auction / tender . Only specially invited entities are allowed to close tenders. Unless otherwise provided by law, a notice of tendering shall be published by the organizers no later than one month prior to the date of tendering. In the notice, according to 2 tbsp. 448 of the Civil Code of the Russian Federation , there should be information about the place, form, subject, time of bidding, existing encumbrances of the sold values, the procedure for holding the event, the rules for registering for participation, determining the winner and data on the initial price of the property. The organizers of the tender / auction determine the terms of the contract signed with the winning entity. They are also indicated in the notice.
Organizer Features
Unless otherwise provided in the notification or the law, the entity that published the notice may refuse to bid. According to paragraph 4 tbsp. 448 of the Civil Code of the Russian Federation, the corresponding decision regarding the auction should be made public no later than 3 days. before the due date. A notice of refusal to hold a competition shall be published no later than a month before its commencement. If the organizer has violated the deadlines, he is liable for compensation for the damage caused to bidders. Compensation for real harm is carried out regardless of the period in which the refusal followed the notification.
Deposit
It is referred to in paragraph 5 of Art. 448 of the Civil Code of the Russian Federation . As the norm indicates, tenderers should make a deposit in the manner, amount and on time established in the notice of the tender / auction. If, for one reason or another, bidding has not been held, the deposit will be refunded. P. 5, Art. 448 of the Civil Code of the Russian Federation also provides that persons who participated in the auction / tender, but did not win them, also receive a deposit back. Upon execution of the contract with the winner, the amount contributed by him shall be counted towards the fulfillment of the transaction obligation. Unless otherwise provided by law, the integrity of the organizers and participants may be ensured by an independent guarantee.
Documentation Features
Unless otherwise provided by law, the entity that won the tender and the organizer should sign a protocol on their results on the day of the event. This document has the force of contract. An entity evading its signing must compensate for the damage caused by this in part that exceeds the amount of the security provided. In some cases, the conclusion of the contract is allowed exclusively through bidding. If, in accordance with the law, such a situation takes place, then if the organizer evades signing the protocol, the person who won the auction / competition may apply to force the conclusion of the contract in court. In addition, the entity is entitled to file a claim for damages caused to it.
Additionally
In accordance with Part 7 of Art. 448 of the Civil Code of the Russian Federation , if the execution of the contract is allowed only based on the results of the bidding, the winner cannot assign rights and transfer debt for obligations arising from such a contract. The terms of the agreement must be executed by the person who won the tender / auction in person, unless otherwise provided by law. The content of the contract in the case when its execution is allowed only on the basis of bidding, may be changed by the parties. At the same time, the adjustments should not affect the essential terms of the contract, which were important in determining the price, as well as in other cases fixed by law.
Art. 448 of the Civil Code of the Russian Federation with comments 2016
Paragraph one of the considered norm provides for the separation of tenders and auctions into closed and open. The classification level is based on the level of freedom of participation. Any entities may be involved in open biddings, and in closed ones, respectively, exclusively specially invited. Meanwhile, it is necessary to take into account the nuance. The possibility of any entity participating in an open auction / tender does not mean that the legislation cannot establish certain requirements or restrictions. So, according to Article 5 of the Federal Law No. 178, in such tenders any organizations and citizens, except unitary enterprises, institutions and companies, can be the purchasers of municipal / state property if the share of the Russian Federation in their capital is more than 25%. These restrictions apply to entities that may participate in privatization auctions / tenders. However, these restrictions do not transform open tenders into closed tenders. It follows from this that the sign fixed in the first part of Art. 448 of the Civil Code of the Russian Federation , should be interpreted in the sense that any person who meets the requirements established by law (if defined) can be involved in a tender / auction.
Notification Rules
The general procedure for notification of upcoming tenders is secured by clause two of Art. 448 of the Civil Code of the Russian Federation. The provisions set, inter alia, the period by which a notice is to be published. The notice is considered an important and binding legal act in the framework of the bidding procedure. It captures the key parameters of the upcoming tender / auction. It should be noted that the notice is not a public offer. This is due to the fact that the contract, which is executed according to the results of the bidding, cannot be concluded with any entity that has responded to the offer. The latter, in turn, is an essential sign of the offer. Considering Art. 448 of the Civil Code of the Russian Federation with expert comments , it is necessary to pay attention to the fact that specialists regard the notice as an act expressing the will of the organizer to conclude an agreement through a tender / auction. This determines the content of the notification.
Minimum requirements
Analyzing Art. 448 of the Civil Code of the Russian Federation with the comments of lawyers, the following mandatory items can be distinguished included in the notification: time, place, form, subject and procedure for conducting tenders. An indication of the starting price must be present in the tender notice in which the condition of value is material. The term for signing the contract is included in the notice of the tender / auction, the subject of which is only the right to draw up the contract ( Articles 447, 448 of the Civil Code of the Russian Federation ). These requirements are considered minimum for all trades. The organizer may indicate in the notification information other than required. Additional requirements for the content of the act may be enshrined in law.
Notification form
The rule in question does not establish any requirements for the type of notification. Meanwhile, the meaning and nature of the notice indicate the priority of writing. Oral notification of potential participants is also allowed. For example, the owner of the property, who wants to sell it more expensive, can himself act as the organizer of a closed auction. In this case, he is entitled to notify each person invited to participate in the auction by telephone.
Event cancellation
Its conditions and consequences are fixed in paragraph three of the commented article. As a general rule, it is provided for the organizer of an open auction / tender that has published a notice to refuse to hold the event. A notice or law may, however, stipulate a restriction on this right. For private events, the possibility of refusal is not provided directly, but is implied indirectly. This is indicated by the provisions of paragraph 3 governing the consequences of refusing to hold such an auction / tender.
P. 7 Art. 448 of the Civil Code of the Russian Federation: comments
When applying certain points of the considered norm quite often difficulties arise. In particular, we are talking about paragraph 7 of Art. 448 of the Civil Code of the Russian Federation. Practice shows that not all applicants correctly interpret the norm. The clause prohibits cases in which the customer does not purchase goods, services or work for municipal or state needs, and the individual or enterprise receives rights in relation to public education in its own interests. In such situations, paragraph 7 of Art. 448 of the Civil Code of the Russian Federation in the absence of regulation of specific relations in special legislation. That is, the ban is valid due to the significant importance of the identity of the creditor.
The fate of the deposit
The fourth paragraph of the considered norm establishes the obligation of bidders to make a preliminary (security) amount. It is worth noting that the question of the deposit and its subsequent fate is regulated by the article so that there is no need to apply the provisions of Art. 380 and 381 of the Code. The amount, the procedure and deadline for payment is determined by the organizer and is indicated in the notification. The deposit must be returned to all participants if the event did not take place. If the auction / tender was held, then the security payment is transferred back to those entities that did not win.
Important point
When considering the issue of a deposit, you need to pay attention to one nuance. According to the rules of the norm, if a contract is concluded with an entity, then the amount contributed by it as security is counted towards the fulfillment of the obligation, if the relevant condition is provided for in the agreement. However, there is an exception to this rule. The deposit will be returned to the winner of the state contract bidding for the supply of products for state needs. This is due to the fact that the contract does not establish the obligation of the supplier to pay any amount to the counterparty.
Last stage of the auction / tender
It is regulated by paragraph five of the commented article. To clarify the essence of the provisions, it is necessary to clearly distinguish the types of bidding, delineated by their subject. In paragraph 5 there are relevant instructions. In particular, the conclusion of the contract may be the subject of bidding. In other words, an auction / competition is organized directly for the execution of the contract. Accordingly, the result of the event will be a contract concluded with the winning entity. The subject of bidding may be the right to draw up a contract. The provisions of the first paragraph of clause 5 apply to a certain extent to all types of auctions / tenders. Abs. 2 applies to only those tenders, the subject of which is the right to issue a contract. The general meaning of the first paragraph is that the need to draw up and sign a protocol based on the results of the event, the consequences of avoiding this action in the form of a loss of the deposited deposit or payment of its double amount, as well as compensation for losses apply to auctions / tenders of both types. The order that this document has the force of a contract applies only to those tenders, the subject of which is the conclusion of the contract.
conclusions
Considering the above, within the meaning of paragraph five, we can conclude the following:
- The subject, who won the tender of any type, and the organizer must sign a protocol on its results on the day of the event.
- A document executed as a result of tenders in which the subject was the conclusion of a contract is equal in strength to the contract.
- A protocol signed as a result of an auction / competition held for the right to conclude an agreement is considered a legal act. He fixes the results of the bidding and confirms the competence of the winner.
- In case of evasion of signing the protocol, the subject who loses the protocol loses the deposit paid by him, and the organizer in the same situation must return its double amount to the interested person, as well as compensate the latter for losses associated with participation in the event in the part exceeding the double payment amount . These rules apply to tenders, the subject of which is both the conclusion of the contract and the right to execute it.
Thus, it is necessary to clearly distinguish and understand the specifics of a particular type of auction / tender, in order to avoid negative consequences. Each type of bidding has its own rules regarding the provision of participants with certain legal capabilities. Additionally, it should be said about the timing. The contract based on the results of the auction / tender, the subject of which was the right to sign the contract, must be concluded no later than 20 days after the end of the event and the preparation of the protocol. The notice may also provide for another time period for this action.
Going to court
It is allowed in the event that either party evades signing the contract. An interested entity may send a request for coercion to a contract to a court. In addition, he is entitled to reimburse compensation for losses caused by the counterparty’s evasion of signing the contract. Here you should pay attention to another difference in bidding, the subject of which is the conclusion of the contract and the right to execute it. If in the first case the possibility to appeal to the court to enforce the signing of the contract is envisaged, then in the second situation it is impossible to force the counterparty to sign in the protocol. Clause 5 does not explain when a contract is deemed to be concluded. It seems that due to the fact that the signed protocol has the force of a contract, the latter will be considered executed at the time of certification of the act.