Electronic bidding through a public offer. The procedure for the sale of property through a public offer

Prior to the entry into force of the amendments provided for by Law No. 432-FZ to the Federal Law of October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)” (hereinafter referred to as the Bankruptcy Law), which amended clause 4, art. 139 of this law, the sale of the debtor's property through a public offer provided for the recognition as the winner of the auction - the participant in the auction, who was the first to submit an application for participation in the auction within the prescribed period, containing a proposal for the price of the debtor's property, which is not lower than the initial sale price of the debtor's property established for a certain period of holding trades.

In fact, the nature of the public offer was analogous to the acceptance of an offer, by analogy with Art. 438 of the Civil Code of the Russian Federation. The debtor, represented by the organizer of the auction, offered an unlimited number of persons to purchase property at a price valid for a certain period of the public offer. If in a certain period no one “accepted the offer” at the agreed price, then the price was consistently reduced either until the moment when at least one person expressed a desire to acquire the property, or when the price was reduced to the so-called “cut-off price”. At the same time, from the date of determining the winner of the auction for the sale of the debtor's property through a public offer, the acceptance of applications was terminated.

Despite the fact that the Bankruptcy Law operates with the concept of "auction", in relation to a public offer, nevertheless, in terms of meaning, a public offer was not an auction. The concept of "bidding", as a way to conclude a contract, is not clearly defined in Art. 447 of the Civil Code of the Russian Federation. Nevertheless, it is possible to single out the main features of such a form of sale of the debtor's property as "bidding". When conducting open tenders, the two basic features are: attracting the maximum number of participants and competition in price offers, which allows you to sell property with maximum benefit. As regards the public offer, prior to the entry into force of the relevant amendments, the public offer did not satisfy either the first or the second criterion. The maximum number of participants did not make sense, since the contract was concluded with the participant who submitted the application first. For the same reason, it was pointless to talk about the competition of price offers, since the contract was concluded at the price of the offer of property, predetermined by the organizer of the auction.

This opinion was confirmed by judicial practice., according to which the absence of the need to apply paragraph 9 of Article 110 of the Bankruptcy Law in order to attract as many buyers as possible to obtain the maximum result, since in this case the total number of applications does not matter. At the same time, it was also confirmed that the sale of property through a public offer is not a sale at auction within the meaning of Article 447 of the Civil Code of the Russian Federation and paragraph 5 of Article 110 of the Bankruptcy Law.

Before the amendments to the Bankruptcy Law, there was a practice according to which a number of requirements for the procedure for conducting tenders through a public offer provided for by the Bankruptcy Law were not applied, which led to a violation of the rights of bidders and put them in unequal conditions. In particular, the courts did not apply the norms of par. 11, paragraph 8, art. 110 and the provisions of paragraph 9, art. 110 of the Bankruptcy Law, according to which the deadline for submitting bids for participation in the auction must be at least 25 working days from the date of publication and posting of the notice of the auction, as well as the obligation of the organizer of the auction to publish the notice no later than 30 days before the date of the auction. on the sale of property. This state of affairs led to the fact that the organizer of the auction could start accepting bids in a public offer the next day after the announcement of the auction was published, receive the first bid on the first day, stop accepting bids and conclude a contract for the sale of property. Complaints against such actions of the organizers of the auction have been repeatedly considered both by the courts and by the bodies of the Federal Antimonopoly Service. However, often, the courts did not find violations in the actions of the auction organizer. In particular, the courts have stated, what in a sale by means of a public offer, the duration of the offer is decisive. Otherwise, the publication of a notice of a public offer no later than thirty days before the date of its placement will lead to an unreasonable delay in the period of bankruptcy proceedings and an increase in the corresponding costs. Federal Law No. 127-FZ of October 26, 2002 “On Insolvency (Bankruptcy)” does not set a 30-day time limit in the bankruptcy proceedings for posting a notice about the sale of the debtor’s property through a public offer.

It was also impossible to define the concept of "bidding" in the public offer. And as a result, apply the provisions of paragraph 9, Art. 110 of the Bankruptcy Law, on at least 30 days of publication before the date of the auction and determine the deadline for accepting applications at least 25 working days from the date of publication of the announcement of the auction, since the acceptance of applications could be completed at any time.

In fact, the situation changed radically with the adoption of Law No. 432-FZ, which amended paragraph 4, art. 139 of the Bankruptcy Law, according to which in the event that several bidders for the sale of the debtor's property through a public offer submitted bids within the established period containing various proposals for the price of the debtor's property, but not lower than the initial sale price of the debtor's property established for a certain period of the bidding, the right to acquire the debtor's property belongs to the participant bidding, offering the maximum price for this property. We can say that this state of affairs has changed the nature of the public offer, equating it to an auction, since this interpretation of the definition of the winner contains the basic features of an auction: attracting the maximum number of participants in order to obtain the maximum price offer and competition of price offers.

In connection with the change in this order, it must be taken into account that all the above practice will most likely be revised in the opposite direction. Thus, observance of the deadline of at least 25 working days for the possibility of filing an application for participation in the auction (paragraph 11, paragraph 8, article 110 of the Bankruptcy Law) already has a completely understandable meaning: ensuring the possibility of filing an application for participation in the auction for the maximum possible number of interested persons. As well as the period of 30 days from the date of publication of the announcement of the auction, provided for in paragraph 9, art. 110 of the Bankruptcy Law. The indicated terms, as in the case of bidding in the form of an auction, are primarily aimed at the applicant's ability to carry out the necessary procedures for registration on the electronic site, familiarize himself with the property and submit an application. A formal approach to meeting the deadline of 25 working days for filing an application may be that in the first period of the public offer, the deadline for accepting applications can be defined as a period of at least 25 working days.

The question of understanding the term "bidding" in a public offer in accordance with the new procedure remains uncertain. Understanding this term is important when determining the period for publishing a notice of the auction at least 30 days before the date of the auction. However, here we can turn to analogies. According to par. 5, paragraph 13, art. 110 of the Bankruptcy Law, when bidding with a closed form for submitting bids, the organizer of the bidding publicly on the day, at the time and in the place indicated in the notice of the bidding, announces the price bids submitted by the bidders. The organizer of the auction considers the proposals of the participants in the auction on the price and determines the winner of the auction. Often there is an opinion that "bidding" is a continuing procedure. However, if we determine the point in time when it is possible to “conduct” an auction, then we can assume that “conducting an auction” has a certain time frame. Both in an auction with a closed form for submitting price offers, and in a public offer. Until the bidders are determined, it is impossible to conduct an auction. As well as it is impossible to carry them out until the moment of public announcement of price offers and their comparison. That is, in fact, "bidding" can be considered the procedure for comparing the submitted price proposals.

In accordance with the new procedure for bidding through a public offer, set out in clause 5.2. Order No. 495, all registered applications for participation in the auction are sent by the operator of the electronic site to the organizer of the auction no later than thirty minutes after the end of the trading period. Thus, the organizer of the auction can consider the received applications for participation in the auction through a public offer, determine the participants in the auction and compare price offers no earlier than the end of the first period of the auction. Therefore, the trading date can be considered the next day after the end of the first trading period.

It should be noted that a bidder may submit a bid within the "fixed date", which effectively means any time interval within the "fixed date" when the call for bids is announced. Therefore, the situation in which this period can be reduced, or the results of the auction can be summed up before the end of the "set period" is unacceptable. In contrast to the previous procedure for summing up the results of a public offer, when the results of the auction could be summed up at any time.

In conclusion, it should be noted that the provisions of par. 5, paragraph 6.1.3. Order No. 495 put an end to the disputes regarding the issue of choosing the winner of the auction through a public offer based on the receipt of all applications during all periods of the public offer or on the basis of applications received during a certain period of the public offer. Order No. 495 established that Applications for participation in the auction received during a certain period of the auction are considered only after consideration of the applications for participation in the auction received during the previous period of the auction, if the winner of the auction is not determined by the results of consideration of such applications.

Federal Law No. 127-FZ of October 26, 2002 “On Insolvency (Bankruptcy)” regulates the grounds for declaring a debtor insolvent or bankrupt, measures taken by the state in the event of such circumstances and other relationships related to the debtor’s inability to fulfill its obligations to creditors. UPD: On July 22, 2015, the amendments regulating the process of holding an auction through a public offer came into force. Let us consider in more detail the situation when auctions are held to sell the debtor's property through a public offer.

Reasons for conducting this type of auction
According to the current legislation of the Russian Federation, initially the debtor's property is put up for sale by bidding in the form of an auction. The following submission forms may be used:
1) open, implying an open auction, in which the price of each submitted offer is visible to other participants;
2) closed, in which an offer is submitted along with the application for participation, its price is not disclosed until the start of the auction.

If the auction was declared invalid, a decision is made to re-conduct it, while the initial price is reduced by ten percent. If the repeated auction for the sale of property did not lead to the purchase of property and the signing of a sale and purchase agreement, auctions are held through a public offer. Thus, if, in accordance with Article 110 of the above Federal Law, the sale of property was not carried out, the auctions are held by submitting a public offer.

Bidding Definition and Procedure

A public offer is an auction for the sale of the debtor's property at a reduced price, which was not sold at the originally formed cost using the initial auction and its re-holding.

The organizer announces the start of the auction and the starting price, which is equal to the price put up for the second auction
A period is also set, after which (if no proposals for the purchase of property have been submitted), the price of the lot is reduced by a certain percentage. All these data are indicated in the notice of the sale of the debtor's property and are made publicly available.
Bidding is held until an offer is received from a participant that meets all the requirements and its price is not lower than the required minimum. The winner is the participant who first submitted such an offer. After that, the acceptance of applications is closed, the auction is considered to have taken place. A contract of sale is signed with the winner.

It is worth noting that the main advantage of the buyer in conducting this kind of auction is the possibility of acquiring the property put up for sale at a reduced price, which can be much less than the originally declared value.

1. The sale of state or municipal property through a public offer (hereinafter referred to as the sale through a public offer) is carried out if the auction for the sale of the said property was declared invalid. At the same time, an information message about the sale through a public offer shall be placed in accordance with the procedure established by Article 15 of this Federal Law no later than three months from the date the auction was declared invalid.

2. An information message about a sale through a public offer, along with the information provided for in Article 15 of this Federal Law, must contain the following information:

1) the date, time and place of the sale through a public offer;

2) the amount of the reduction in the price of the initial offer ("decrease step"), the amount of price increase in the case provided for by this Federal Law ("auction step");

3) the minimum offer price at which state or municipal property can be sold (cut-off price).

3. The price of the initial offer shall not be lower than the initial price indicated in the information notice on the sale of the property specified in paragraph 1 of this article at an auction that was declared invalid, and the cut-off price shall be 50 percent of the initial price of such an auction.

4. The duration of the receipt of applications must be at least twenty-five days. One person has the right to submit only one application. Recognition of applicants as participants in the sale through a public offer is carried out within five working days from the date of the deadline for accepting applications. Sale by means of a public offer shall be carried out no later than the third working day from the date of recognition of applicants as participants in the sale by means of a public offer.

(see text in previous edition)

4.1. In order to participate in the sale through a public offer, the applicant shall make a deposit in the amount of 20 percent of the initial price indicated in the information notice on the sale of state or municipal property.

The document confirming the receipt of the deposit to the account specified in the information message is an extract from this account.

(see text in previous edition)

5. Sale through a public offer is carried out using an open form for submitting proposals for the acquisition of state or municipal property during one procedure for such a sale.

When selling through a public offer, the price of the initial offer is gradually reduced by a "step down" to the cut-off price.

Proposals for the acquisition of state or municipal property are announced by the participants in the sale by means of a public offer by raising their cards after the announcement of the price of the initial offer or the price of the offer formed at the corresponding "decrease step".

The right to acquire state or municipal property belongs to the participant in the sale through a public offer, which confirmed the price of the initial offer or the offer price established at the corresponding "decrease step", in the absence of proposals from other participants in the sale through a public offer.

In the event that several participants in the sale through a public offer confirm the price of the initial offer or the offer price established at one of the "steps of reduction", an auction is held with all participants in the sale through a public offer according to the auction rules established in accordance with this Federal Law, providing for an open the form for submitting proposals for the price of property. The initial price of state or municipal property at such an auction is the price of the initial offer or the price of the offer established at the given "decrease step".

If the participants in such an auction do not submit proposals for a price exceeding the initial price of state or municipal property, the right to acquire it belongs to the auction participant who was the first to confirm the initial price of state or municipal property.

6. Sale by means of a public offer, in which only one participant took part, is recognized as failed.

7. The applicant is not allowed to participate in the sale through a public offer on the following grounds:

1) the submitted documents do not confirm the applicant's right to be a buyer in accordance with the legislation of the Russian Federation;

2) not all documents have been submitted in accordance with the list specified in the information message on the sale of state or municipal property, or the execution of these documents does not comply with the legislation of the Russian Federation;

3) an application for participation in the sale through a public offer has been submitted by a person who is not authorized by the applicant to carry out such actions;

4) the receipt of the deposit on the accounts indicated in the information message within the established period is not confirmed.

8. The list of grounds for refusal of an applicant to participate in the sale by means of a public offer specified in paragraph 7 of this article is exhaustive.

9. The applicant has the right to withdraw the submitted application for participation in the sale through a public offer until it is recognized as a participant in such a sale.

26. If the winner of the sale of property evades or refuses to conclude a contract for the sale of property within the established period, he loses the right to conclude the said contract and the deposit is not returned to him.

If an agent or legal entities are involved, specified in paragraph three of clause 2 of these Regulations, the deposit of the winner who has lost the right to conclude a contract for the sale of property is subject to transfer by the agent or the specified legal entities, respectively, in the prescribed manner to the budget of the corresponding level of the budget system of the Russian Federation in within 5 calendar days from the date of expiration of the period established for the conclusion of the contract for the sale of property.

27. The responsibility of the buyer in the event of his refusal or evasion from paying for the property within the established time limits is provided for in accordance with the legislation of the Russian Federation in the contract for the sale of property.

28. An information message on the results of the sale of property is posted on the official website on the Internet in accordance with the requirements established by the Federal Law "On Privatization of State and Municipal Property", and no later than the working day following the day of summarizing the sale of property, is placed on the seller's website on the Internet.

Position
on organizing the sale of state or municipal property without declaring a price
(approved by Decree of the Government of the Russian Federation of July 22, 2002 N 549)

With changes and additions from:

September 15, December 29, 2008, January 26, 2010, March 3, 2012, April 3, 2015, May 16, 2016, September 26, 2017

I. General provisions

1. This Regulation determines the procedure for organizing the sale of property owned by the Russian Federation (hereinafter referred to as property) without declaring a price, summing up the results of the sale of property without declaring a price (hereinafter referred to as sale) and concluding a contract for the sale of property.

With regard to the organization of the sale of property owned by the state property of the constituent entities of the Russian Federation and municipal property, summing up the results of the sale and concluding agreements for the sale of the said property with buyers, this Regulation is exemplary.

The organization of the sale without declaring the price of land plots, objects of social, cultural and communal purposes and the transfer of these objects into the ownership of buyers is carried out taking into account the specifics established by the legislation of the Russian Federation on privatization for these types of property.

2. The organization of the sale of property is carried out by the Federal Agency for State Property Management, the Ministry of Defense of the Russian Federation (in relation to the released military property of the Armed Forces of the Russian Federation) or federal executive authorities in which military service is provided (in relation to the released movable military property) (hereinafter referred to as - salesman).

By decision of the Government of the Russian Federation, the organization of the sale of privatized federal property and (or) the performance of the functions of the seller on behalf of the Russian Federation in the prescribed manner is carried out by legal entities acting in accordance with an agency agreement (hereinafter referred to as the agent).

3. The seller in the process of preparing and conducting the sale of property:

a) sets the deadline for accepting applications for the acquisition of property (the date and time of the beginning and end of accepting applications), as well as the date for summing up the results of the sale of property;

b) organizes the preparation and placement of an information message on the sale of property on the Internet information and telecommunication network (hereinafter referred to as the Internet network) in accordance with the requirements established by the Federal Law

c) accept applications from legal entities and individuals for the acquisition of property (hereinafter referred to as applications and applicants, respectively), as well as proposals attached to them on the price of acquisition of property and other documents according to the inventory submitted by the applicant;

d) keep records of applications and proposals for the purchase price of property by registering them in the manner prescribed by the seller;

e) notifies the applicant of the refusal to consider the application submitted by him and the offer on the price of acquiring property or of recognizing him as the buyer of property;

f) concludes a property purchase and sale agreement with the buyer;

g) makes settlements with the buyer;

h) organizes the preparation and placement of an information message on the results of the sale of property on the Internet in accordance with the requirements established by the Federal Law "On the Privatization of State and Municipal Property" and these Regulations;

i) ensures the transfer of property to the buyer and performs the necessary actions related to the transfer of ownership of it;

j) performs other functions stipulated by the Federal Law "On Privatization of State and Municipal Property" and these Regulations.

4. The functions provided for in paragraph 3 of these Regulations are the exclusive functions of the seller and cannot be transferred to other persons, except as provided by the legislation of the Russian Federation.

II. The procedure for organizing the receipt of applications and proposals for the price of acquiring property

5. Applications with all documents attached to them are sent to the seller at the address indicated in the information message, or submitted directly to the place where applications are received.

The Seller accepts applications within the period specified in the information message.

The deadline for receiving applications must be at least 25 calendar days. The date of summing up the results of the sale of property determined by the seller is indicated in the information message.

6. The form of the application form is approved by the seller and is given in the information message.

The application must contain the applicant's obligation to conclude a contract for the sale of property at the price offered by him.

The proposal for the purchase price of the property is attached to the application in a sealed envelope. The purchase price of the property proposed by the bidder shall be indicated in figures and in words. If different prices are indicated in figures and words, the price indicated in words shall be taken into account.

The Bidder has the right to submit only one proposal for the purchase price of the property.

The application is also accompanied by documents according to the list specified in the information message, and an inventory of the attached documents in two copies, one of which remains with the seller, the other, with the seller's mark on acceptance of the application and the documents attached to it, with the applicant.

7. When accepting an application, the seller:

a) certifies the identity of the applicant or his authorized representative and checks the proper execution of the document certifying the right of the authorized representative to act on behalf of the applicant;

b) consider applications with documents attached to them for their compliance with the requirements of the legislation of the Russian Federation.

8. The seller refuses the applicant to accept the application if:

a) the application is submitted after the deadline for accepting applications specified in the information message;

b) the application is submitted by a person not authorized by the applicant to carry out such actions;

c) the application is executed in violation of the requirements established by the seller;

d) not all documents provided for in the information message have been submitted, or they have been drawn up improperly;

e) the submitted documents do not confirm the applicant's right to be the buyer of property in accordance with the legislation of the Russian Federation.

The specified list of grounds for refusal to accept an application is exhaustive.

The employee of the seller who accepts documents makes a note on the copy of the inventory of documents remaining with the applicant, indicating the refusal to accept the application, indicating the reason for the refusal, and certifies it with his signature. An unaccepted application with the documents attached to it is returned on the day it is received by the seller to the applicant or his authorized representative against receipt or by mail (registered letter).

9. Accepted bids and proposals for the price of acquiring property, the seller registers in the bid acceptance log, assigning a number to each bid and indicating the date and time of its receipt.

A registered bid is the offer (offer) of the applicant received by the seller, expressing his intention to consider himself to have concluded a contract for the sale of property with the seller at the acquisition price proposed by the applicant.

The applicant is not entitled to withdraw the registered application, unless otherwise provided by the legislation of the Russian Federation.

III. The procedure for summing up the results of the sale of federal property

10. Based on the results of consideration of the submitted documents, the seller makes a separate decision on the consideration of proposals for the price of acquiring property for each registered application. The said decision shall be documented in a protocol on the results of the sale of property in the manner prescribed by these Regulations.

11. To determine the buyer of the property, the seller opens the envelopes with proposals for the price of the acquisition of the property. When opening envelopes with proposals, applicants or their authorized representatives may be present.

d) information on the considered proposals on the price of acquiring property, indicating the applicants who submitted them;

e) information about the buyer of the property;

f) the purchase price of the property offered by the buyer;

g) other necessary information.

14. Notifications about the refusal to consider the proposal submitted by the applicant on the price of acquiring property and about recognizing the applicant as the buyer of property are issued respectively to the applicants and the buyer or their authorized representatives against receipt on the day of summing up the results of the sale of property or sent to their address by registered mail on the next day after summarizing the sale of the property day.

15. If no application was registered within the period specified in the information message for accepting applications, or, based on the results of consideration of registered applications, not a single proposal for the price of acquiring property was accepted for consideration, the sale of property is recognized as failed, which is recorded in the protocol on the results of the sale of property .

15.1. An information message on the results of the sale of property is posted in accordance with the requirements of the Federal Law "On the privatization of state and municipal property" on the official website of the Russian Federation on the Internet for posting information about the auction determined by the Government of the Russian Federation, and also no later than a working day, following the day of summarizing the sale of property - on the seller's website on the Internet.

IV. The procedure for concluding a contract for the sale of property, payment for property and its transfer to the buyer

16. The contract for the sale of property is concluded within 5 working days from the date of summing up the results of the sale.

17. The contract for the sale of property must contain all the essential conditions provided for such contracts by the Civil Code of the Russian Federation, the Federal Law "On Privatization of State and Municipal Property" and other regulatory legal acts of the Russian Federation.

Funds in payment for the privatized federal property in the amount of the purchase price proposed by the buyer are sent in the prescribed manner to the federal budget to the account specified in the information message on the sale of property, within the time limits specified in the property sale and purchase agreement, but no later than 30 business days from the date of its conclusion.

If an agent is involved to perform the functions of a seller of privatized federal property, the Federal Agency for State Property Management sends the agent, no later than 3 working days from the date of receipt of funds to the account specified for payment of federal property, an extract from the specified account.

When selling property that is state-owned by the constituent entities of the Russian Federation or municipal property, the procedure and terms for transferring funds as payment for the privatized property to the budget of the constituent entity of the Russian Federation or to the local budget are determined in accordance with the laws and other regulatory legal acts of the constituent entities of the Russian Federation or legal acts of local governments.

If an installment plan is granted, payment for the property is carried out in accordance with the decision on the provision of installment plan.

The contract of sale provides for the payment of a penalty by the buyer in case of his evasion or refusal to pay for the property.

18. If the buyer evades from concluding a contract for the sale of property within the prescribed period, the buyer loses the right to conclude such an agreement. In this case, the sale of the property is recognized as failed.

19. The fact of payment for property is confirmed by an extract from the account indicated in the information message on the sale of property, confirming the receipt of funds in the amount and terms specified in the contract for the sale of property or the decision on the installment payment for property.

20. The seller ensures that the buyer receives the documentation necessary for the state registration of a property purchase and sale transaction and the state registration of the transfer of ownership arising from such a transaction.