Tenders for premises from the city. How to hold an auction for the right to conclude lease agreements (gratuitous use, trust management) in relation to state (municipal) property

How to hold an auction for the right to conclude lease agreements (gratuitous use, trust management) in relation to state (municipal) property

Head of the Budget Control and Audit Methodology Department of the Budget Policy and Methodology Department of the Ministry of Finance of Russia

One of the methods of bidding for the right to conclude lease agreements (gratuitous use, trust management) of property and other agreements providing for the transfer of rights in relation to state (municipal) property is an auction.

Chief Accountant advises

Bidding for the right to conclude contracts in relation to state (municipal) property can be started before the expiration of the current lease agreement (gratuitous use, trust management).

In this case, the new contract shall enter into force upon the expiration of the term of the contract in force at the time of the auction. That is, by the time the contract concluded as a result of the auction comes into force, state (municipal) property must be free from the rights of third parties (except when it is enshrined in the right of operational management).

This is stated in paragraph 8 of the clarifications of the FAS Russia dated November 1, 2011.

The rules for holding bidding in the form of an auction are established by Order No. 67 of the Federal Antimonopoly Service of Russia dated February 10, 2010 (Part 5 Article 17.1 of the Law No. 135-FZ dated July 26, 2006). They do not apply to land and forest plots, water bodies, subsoil plots, as well as to property transferred under concession agreements (part 2 of article 17.1 of the Law of July 26, 2006 No. 135-FZ).

Some provisions for conducting tenders and concluding contracts in relation to state and municipal property set out in the clarifications of the FAS Russia dated November 1, 2011.

Attention!

Non-compliance with the Rules approved by Order of the FAS Russia dated February 10, 2010 No. 67 is recognized as a violation. Such a violation is the basis for the court to recognize the auctions and transactions concluded as a result of them as invalid (including at the suit of the antimonopoly authority) (part 4 of article 17 of the Law of July 26, 2006 No. 135-FZ, articles 168, 449 Civil Code of the Russian Federation, letter of the Ministry of Economic Development of Russia dated January 21, 2011 No. D05-171).

The auction must be held in respect of property that is not included in the list approved by Order No. 67 of the Federal Antimonopoly Service of Russia dated February 10, 2010. Bidding for property included in the specified list should be carried out through a tender. Such a conclusion follows from the provisions of paragraph 3 of the Rules approved by Order No. 67 of the Federal Antimonopoly Service of Russia dated February 10, 2010. At the same time, according to the decision of the organizer, bidding for the right to conclude contracts in respect of property, for which contracts can be concluded only through a tender, can be held in auction form. This is stated in paragraph 18 of the clarifications of the FAS Russia dated November 1, 2011, the letter of the FAS Russia dated March 17, 2010 No. АЦ/7021.

An auction does not need to be held when granting rights in relation to state (municipal) property, in particular:

state bodies, local governments, state non-budgetary funds; Bank of Russia; state (municipal) institutions; educational institutions, regardless of their organizational and legal forms; medical institutions of the private healthcare system; to accommodate communication networks, postal facilities; for a period not exceeding 30 calendar days within six consecutive calendar months; citizens who are not individual entrepreneurs; non-profit organizations that do not carry out income-generating activities; which is a part (parts) of the premises (buildings, structures, structures), if the total area of ​​the transferred property is not more than 20 sq. m and does not exceed 10 percent of the area of ​​​​the premises (buildings, structures, structures), the rights to which belong to the institution transferring such property.

Also, an auction does not need to be held when granting rights in relation to state (municipal) property:

the person who submitted a single application for participation in the auction. But only on condition that the specified application complies with the requirements and conditions stipulated by the auction documentation; the person recognized as the sole participant of the auction. Conclude the contract on the terms and at the price stipulated by the application for participation in the auction and the auction documentation. In this case, the price should not be less than the initial (minimum) price of the contract (lot) indicated in the notice of the auction.

At the same time, for the organizer of the auction, the conclusion of contracts in these two cases is mandatory.

Full list the conditions under which it is not necessary to hold an auction is specified in part 1 of Article 17.1 of the Law of July 26, 2006 No. 135-FZ and explained in the letter of the FAS Russia of March 17, 2010 No. АЦ/7021.

In addition, educational institutions of higher professional education, state scientific institutions should not hold an auction when concluding lease agreements for state (municipal) property, while simultaneously observing the following requirements:

tenants are business companies established by the said institutions; the activity of tenants consists in the practical application (implementation) of the results of intellectual activity (computer programs, databases, inventions, etc.), the right to use which is made as a contribution to their authorized capital; lease agreements establish a ban on the sublease, gratuitous use of this property, a ban on the pledge of lease rights.

The procedure and conditions for concluding lease agreements without bidding were approved by Decree of the Government of the Russian Federation of August 12, 2011 No. 677.

This is stated in part 3.1 of article 17.1 of the Law of July 26, 2006 No. 135-FZ, paragraph 20 of the clarifications of the FAS Russia of November 1, 2011.

The auction is open in terms of the composition of participants and the form of submission of the proposal (clause 2 of the Rules approved by Order of the FAS Russia dated February 10, 2010 No. 67).

The process of bidding by holding an auction can be divided into several stages:

preparation for the auction; consideration of applications for participation in the auction; conducting auctions.

Preparation for the auction

The decision to hold an auction is made by the organizer of the auction.

If the auction is held in relation to the property of the treasury, the organizer of the auction is the owner of the property. At the same time, on behalf of the owner, the following acts:

federal executive body (executive body of a constituent entity of the Russian Federation, local self-government body), which is entrusted with the functions of property management; federal executive body (executive body of a constituent entity of the Russian Federation, local self-government body), which is entrusted with the functions of organizing and conducting competitions and auctions; another person who has the rights of possession and (or) use of this property.

If an auction is held in respect of property assigned to a state (municipal) institution on the right of operational management, the organizer of the auction is:

state (municipal) institution that has the rights of operational management of this property; another organization that has the rights of possession and (or) use of this property.

This procedure is established by paragraph 4 of the Rules, approved by the order of the FAS Russia dated February 10, 2010 No. 67.

To conduct an auction, an auction commission is created (clause 8 of the Rules approved by order of the FAS Russia dated February 10, 2010 No. 67).

The organizer of the auction must publish a notice of its holding on the official website of the auction www. ***** (Decree of the Government of the Russian Federation of September 28, 2010 No. 767). This must be done at least 20 days before the deadline for submitting applications for participation in the auction. In addition, if desired, the organizer may publish such a notice in the media (media). However, such publication does not replace the publication on the site. This is stated in parts 5.1, 6 of Article 17.1 of the Law of July 26, 2006 No. 135-FZ, paragraph 104 of the Rules approved by Order of the FAS Russia of February 10, 2010 No. 67, paragraph 19 of the clarifications of the FAS Russia of November 1, 2011.

Attention!

Part 5.1 of Article 17.1 of the Law of July 26, 2006 No. 135-FZ (introduced by the Law of December 6, 2011 No. 401-FZ) establishes that the notice of the auction must be published at least 20 days before the deadline for filing applications to participate in the auction. However, no similar amendments were made to Order No. 67 of February 10, 2010 of the FAS Russia (which approved the rules for holding auctions in the form of an auction).

Clause 103 of the Rules, approved by Order No. 67 of the Federal Antimonopoly Service of Russia dated February 10, 2010, states that a notice of an auction must be published at least 30 days before the specified date. Despite the fact that the Law takes precedence over other regulations (clause 7, article 3 of the Civil Code of the Russian Federation), in order to avoid possible disagreements with inspectors, continue (until this discrepancy is eliminated) to post a notice at least 30 days before the deadline for filing applications to participate in the auction. This option allows you to meet the requirements established by both the Law and the order of the FAS Russia.

Attention!

Non-posting of information about the auction for the right to conclude contracts on the official website of the auction (www. *****) is recognized as a violation of the Rules approved by Order of the FAS Russia dated February 10, 2010 No. 67 (clause 19 of the explanations of the FAS Russia dated November 1, 2011 ., letter of the Treasury of Russia dated July 14, 2010 No. IA / 22275).

The notice of the auction must contain, in particular:

name, location, postal address, e-mail address and contact telephone number of the auction organizer; location, description and technical characteristics of the property, the right to which is transferred under the contract (including the area of ​​the premises (buildings, structures, structures)); the initial (minimum) price of the contract (price of the lot) (indicating, if necessary, the initial (minimum) price of the contract (price of the lot) per unit area of ​​the property); contract time. Thus, for the provision of state property for rent (sublease) by business incubators to small and medium-sized businesses, the term of the contract should be no more than three years; in relation to property provided for by the Law of July 24, 2007 No. 209-FZ - at least five years; for other property (not included in the lists of state property specified in part 4 of article 18 of the Law of July 24, 2007 No. 209-FZ) - for any period. This is stated in paragraphs 5, 6 of the clarifications of the FAS Russia dated November 1, 2011; the time, place and procedure for submitting documentation about the auction.

A complete list of data that must be included in the published notice is contained in paragraph 105 of the Rules approved by Order No. 67 of the FAS of Russia dated February 10, 2010.

Situation: how to determine the initial (minimum) contract price (lot price) for the purposes of bidding for the right to conclude lease agreements (gratuitous use, trust management) in relation to state (municipal) property

The initial (minimum) contract price (lot price) is determined by the auction organizer. Information on the initial (minimum) price of the contract (price of the lot) in the notice of the auction (tender) shall be indicated by the auction organizer in the amount of:

or a monthly (annual) payment for the right to own or use property (i.e., in the amount of rent); or payment for the right to conclude an agreement on the gratuitous use of property.

Thus, the procedure is established by paragraphs 5, 31 and 105 of the Rules, approved by order of the FAS Russia dated February 10, 2010 No. 67.

At the same time, the procedure for determining the amount of the above payments is not established by the Rules approved by Order No. 67 of the Federal Antimonopoly Service of Russia dated February 10, 2010. Therefore, the organizer of the auction must independently determine the initial (minimum) price of the contract (price of the lot), taking into account the norms of the legislation governing valuation activities (in particular, the Law of July 29, 1998 No. 135-FZ). This is stated in paragraph 11 of the clarifications of the FAS Russia dated November 1, 2011.

So, when involving in a transaction property owned in whole or in part by Russia, constituent entities of the Russian Federation or municipalities, an independent assessment is mandatory. Therefore, the organizer of the auction must involve an appraiser and determine the initial (maximum) price of the contract (lot) based on the appraisal report. An exception is established only in relation to the property of state (municipal) institutions, which they have the right to dispose of without the consent of the owner. When bidding for this property, the organizer of the bidding can determine the price independently (both based on the results of the valuation, and without it). This follows from the provisions of Article 8 of the Law of July 29, 1998 No. 135-FZ.

If the auction is declared invalid and the organizer conducts a new auction, the initial (minimum) price of the contract (lot) can be changed. At the same time, in relation to property owned in whole or in part by Russia, constituent entities of the Russian Federation or municipalities, it should not be lower than the value determined on the basis of the valuation report. This opinion is shared by the Ministry of Economic Development of Russia in a letter dated December 7, 2011 No. D08-4971.

Simultaneously with the publication of the notice, the auction documentation is posted on the official website along with the draft agreement (clauses 115, 117, 43 of the Rules approved by Order No. 67 of the FAS of Russia dated February 10, 2010).

In addition to the information contained in the notice of the auction, the auction documentation must contain complete information about the auction and the lot. At the same time, it should not contradict the information specified in the notice (clause 116 of the Rules, approved by order of the FAS Russia dated February 10, 2010 No. 67). In particular, the documentation must contain:

the procedure, place, start date, date and time of the deadline for filing applications for participation in the auction; instructions for filling out an application for participation in the auction, methods of its submission and opening (including applications in the form of an electronic document signed with an electronic signature) (clause 7 of the clarifications of the FAS Russia dated November 1, 2011); the amount of security for the performance of the contract, the term and procedure for its submission (if the organizer has established a requirement to secure the performance of the contract). At the same time, the amount and procedure for providing security for the performance of the contract is established by the organizer independently (clause 9 of the clarifications of the FAS Russia dated November 1, 2011); the procedure and term for withdrawing bids for participation in the auction; auction step; the procedure for revising the price of the contract (price of the lot) upwards, as well as an indication that the price of the concluded contract cannot be revised downwards (clause 14 of the clarifications of the FAS Russia dated November 1, 2011); place, date and time of the auction; a copy of the document confirming the consent of the owner of the property (when concluding a sublease agreement, also of the tenant) to grant the relevant rights under the agreement, the right to conclude which is the subject of bidding.

A complete list of information that must be contained in the auction documentation is established by clause 114 of the Rules approved by Order No. 67 of the FAS of Russia dated February 10, 2010. The auction organizer independently develops and approves the auction documentation (clause 5 of the Rules approved by the order of the FAS of Russia dated February 10, 2010 No. 67, paragraph 7 of the clarifications of the FAS Russia dated November 1, 2011).

When developing auction documentation, do not include technologically and functionally unrelated property in one lot. For example, property intended for power supply, heat supply, gas supply, as well as water supply and sanitation. This is stated in paragraph 112 of the Rules, approved by the order of the FAS Russia dated February 10, 2010 No. 67.

There are also a number of conditions that the auction organizer is not entitled to include in the documentation. For example, these are requirements for the business reputation of participants, their production facilities, technological equipment, etc. The list of such information is established by clause 111 of the Rules approved by Order No. 67 of the Federal Antimonopoly Service of Russia of February 10, 2010.

The auction documentation is provided free and free access. The only exception is if, at the request of the applicant, the documentation is submitted to him on paper. It happens like this. The applicant submits a request in writing or electronically. Within two working days after receiving it, the auction organizer sends the requested documentation in the manner specified in the notice. If the notice of the auction provides for the payment of documentation submitted on paper, the auction organizer sends the documents after receiving the payment. In this case, the amount of payment should not exceed the expenses of the organizer for the production of copies of documents and their delivery. In the case of submission of documentation in the form of an electronic document, no fee is charged. This procedure is established by paragraphs 117, 43 and 44 of the Rules, approved by order of the FAS Russia dated February 10, 2010 No. 67.

Chief Accountant advises

When issuing auction documentation, register the applicants who received it, indicating their postal details. If the auction documentation is changed, these participants will need to send notifications by registered mail (clause 119 of the Rules, approved by order of the FAS Russia dated February 10, 2010 No. 67).

Any applicant has the right to send a written request to the auction organizer for clarification of the provisions of the auction documentation. If the request was received no later than three business days before the deadline for submission of applications, send the applicant clarifications in writing or electronically. This must be done within two working days from the date of receipt of the request. Requests received less than three days before the application deadline may not be considered.

Within one day from the moment of sending the clarification to the applicant, they must be posted on the official website indicating the subject of the request, but without indicating the organization from which the request was received.

This procedure is established by paragraphs 118, 47 and 48 of the Rules, approved by the order of the FAS Russia dated February 10, 2010 No. 67.

Not later than five days before the deadline for submission of applications, the institution may change the documentation and notice of the auction. Changing the subject of the auction is not allowed.

Within one day from the date of the decision to make changes, they must be posted on the official website. In addition, the changes must be sent by registered mail or in the form of electronic documents to all applicants who were provided with the auction documentation (within two business days from the date of the decision to make changes).

The deadline for submitting bids for participation in the auction must be extended so that from the date of placement of the changes made to the deadline for submitting bids, it is at least 15 days.

This procedure is established by paragraphs 106 and 119 of the Rules, approved by the order of the FAS Russia dated February 10, 2010 No. 67.

Applicants for the right to conclude an agreement submit applications for participation in the auction within the time limits and in the form established by the auction documentation (clause 120 of the Rules approved by Order No. 67 of the Federal Antimonopoly Service of Russia dated February 10, 2010).

The application for participation in the auction must contain:

information about the applicant (name, legal form, location, etc.); documents about the applicant (in particular, an extract from the Unified State Register of Legal Entities received no earlier than six months before the day the notice of the auction was posted on the website); proposals on the conditions for the performance of work, which must be performed in relation to the property, the rights to which are transferred under the contract.

A complete list of information and documents that must be reflected (attached) in the application for participation in the auction is given in paragraph 121 of the Rules approved by Order of the FAS Russia dated February 10, 2010 No. 67.

The organizer of the auction is not entitled to demand any additional information or documents (clause 122 of the Rules, approved by order of the FAS Russia dated February 10, 2010 No. 67).

When accepting applications, the organizer of the auction registers the date and time of their receipt. At the request of the applicant, he is issued a receipt of receipt of the application (clause 126 of the Rules, approved by order of the FAS Russia dated February 10, 2010 No. 67). If the application was submitted in electronic form, confirmation of its receipt must be sent to the applicant within one working day from the date of receipt of such an application (clause 123 of the Rules approved by Order of the FAS Russia dated February 10, 2010 No. 67).

Acceptance of applications is terminated on the day of their consideration immediately prior to the start of the consideration procedure (clause 125 of the Rules approved by Order of the FAS Russia dated February 10, 2010 No. 67).

The auction organizer may provide in the notice of the auction the need to make a deposit. Then the applicant for participation in the auction (applicant) must pay a certain amount of money. The size of the deposit is determined by the organizer of the auction. At the same time, it is impossible to establish a requirement for the mandatory conclusion of a separate deposit agreement between the auction organizer and the applicant. This is stated in paragraph 22 and part 12 of paragraph 114 of the Rules, approved by Order of the FAS Russia dated February 10, 2010 No. 67, paragraph 3 of the clarifications of the FAS Russia dated November 1, 2011.

The organizer of the auction returns the deposit to the applicants for participation in the auction (applicants) who did not become winners. There is an exception to this rule: if the participant for whom the conclusion of the contract is mandatory (i.e. the winner; the participant who made the penultimate offer) evades its conclusion, the deposit is not returned.

The auction winner's deposit is credited to him against the fulfillment of obligations under the contract concluded as a result of the auction (but only if such obligations arise within five working days from the date of conclusion of the contract in the amount of such obligations). Only the part of the deposit that exceeds the amount of contractual obligations is returned to the winner.

This is stated in paragraphs 107, 127, 128, 134, 147 of the Rules approved by the order of the FAS Russia dated February 10, 2010 No. 67, paragraph 4 of the clarifications of the FAS Russia dated November 1, 2011, paragraph 4 of Article 448 of the Civil Code of the Russian Federation.

Consideration of applications for participation in the auction

If applications for participation in the auction were not submitted, the auction is recognized as failed (clause 129 of the Rules approved by Order of the FAS Russia No. 67 dated February 10, 2010). In this case, the auction organizer has the right to announce a new auction or tender (clause 151 of the Rules, approved by order of the FAS Russia dated February 10, 2010 No. 67).

If several applications were submitted, the commission considers them within ten days from the date of the deadline for accepting applications (clause 130 of the Rules approved by order of the FAS Russia dated February 10, 2010 No. 67). As a result, the commission must decide on the admission of applicants who have submitted applications to participate in the auction. If the application (applicant) does not meet the requirements established by the auction documentation, as well as the conditions specified in paragraphs 24–26 of the Rules approved by Order No. 67 of the Federal Antimonopoly Service of Russia dated February 10, 2010, the commission refuses the applicant to participate in the auction. This procedure is provided for in clauses 130–134 of the Rules approved by Order No. 67 of the FAS of Russia dated February 10, 2010. For more information on the requirements for bidders (applicants), see Who can participate in the tender (auction) for the right to conclude lease agreements ( gratuitous use, trust management) in relation to state (municipal) property.

In this case, if the fact of unreliability of the information contained in the documents submitted by the applicant is established, the auction commission must remove such an applicant (participant) at any stage of the auction. Draw up the removal of the applicant in a protocol. In it, indicate the established facts of false information. Place such a protocol on the official website no later than the day following the day the decision to refuse the applicant is made. This is stated in paragraph 26 of the Rules, approved by the order of the FAS Russia dated February 10, 2010 No. 67.

To formalize the results of consideration of applications, the commission prepares a protocol. It should contain:

information about applicants; a decision on their admission to participation in the auction or on refusal to admit them with the rationale for such a decision and an indication of the provisions of Order No. 67 of the Federal Antimonopoly Service of Russia dated February 10, 2010 and the provisions of the auction documentation that the applicant and (or) application does not comply with.

The minutes are signed by all members of the auction commission who were present at the meeting and posted on the official website on the day the applications are considered.

Applicants are sent notifications of the decisions taken against them. This must be done no later than the day following the day of signing the protocol.

This procedure is provided for by paragraph 133 of the Rules, approved by the order of the FAS Russia dated February 10, 2010 No. 67.

Bidding

Persons admitted by the commission to participate in the auction participate in it through their representatives or independently (clause 136 of the Rules, approved by order of the FAS Russia dated February 10, 2010 No. 67).

The auctioneer is selected from among the members of the auction commission by open voting by a majority of votes (clause 140 of the Rules, approved by order of the FAS Russia dated February 10, 2010 No. 67). Its functions include conducting auctions.

The bidding process is as follows.

First, the commission registers those participants (their representatives) who came to the auction. If the auction is held for several lots (for the right to conclude several contracts for different property), then the participants are registered separately before the start of each lot. Each registrant is given a numbered card.

The initial (minimum) contract price increases gradually. Each time she goes up one step of the auction. The auction step is 5 percent of the initial (minimum) contract (lot) price. After the increased price is announced, the participants raise their cards, thus indicating that they are ready to conclude an agreement at this price. If, after the auctioneer announces the last bid for the price of the contract three times, none of the participants has declared its intention to offer more than high price, the auctioneer must reduce the auction step by 0.5 percent of the initial (minimum) price of the contract (lot), but not less than 0.5 percent of the initial (minimum) price of the contract (lot). Such an action is performed until the “auction step” decreases to 0.5 percent of the initial (minimum) price of the contract. This is the limit below which the auction step should not fall.

After the price increases by a new lower auction step, the participants raise their cards again. In this case, the auctioneer announces only the number of the participant who raises the card first.

If after the next triple announcement of the price of the contract (lot) not a single card has risen, the auction participant - the current owner of the property, the rights to which are transferred, may declare in writing his desire to conclude a contract at the declared price. After that, the auctioneer again invites the participants to submit their proposals for the price of the contract. If such proposals are made and after the contract price has been announced three times, no participant has raised a card, the current right holder may again declare his desire to conclude the contract at the announced price.

The auction is held until after the next triple announcement of the price or after the statement of the current right holder about the desire to conclude an agreement at the announced price, no auction participant has raised a card.

The winner is:

the participant who offered the highest contract price (price for the right to conclude a lease agreement or the highest rent); the current copyright holder, if he has declared his desire to conclude an agreement at the highest price announced by the auctioneer.

In this case, the auctioneer announces not only the winner, but also the participant with the penultimate bid. The fact is that if the participant under the first number refuses to conclude an agreement, the participant under number two will become the winner.

Such a procedure is established by paragraphs 138–142 of the Rules approved by Order No. 67 of the FAS Russia dated February 10, 2010, and is explained in paragraphs 11, 15, 17 of the FAS Russia clarifications dated November 1, 2011.

An example of increasing the step of the auction for the conclusion of a lease agreement for state (municipal) property

The initial price of the lease agreement for state (municipal) property is 100,000 rubles.

The auction step is:
100 000 rub. × 5% = 5,000 rubles.

The auctioneer announces an increased contract price - 105,000 rubles. (1,000,000 rubles + 5,000 rubles). Several participants raised their cards. The auctioneer announced the participant who raised the card first, and the new price - 110,000 rubles. (105,000 rubles + 5,000 rubles). None of the participants raised a card. The auctioneer reduces the auction step by 0.5% of the initial contract price. Consequently, the new step of the auction amounted to 4500 rubles. (5,000 rubles - 100,000 rubles × 0.5%).

The auctioneer announces a new price - 109,500 rubles. (105,000 rubles + 4,500 rubles). Nobody raised a card.

The auctioneer again reduces the auction step by 0.5% of the initial price of the contract: 4000 rubles. (4,500 rubles - 100,000 rubles × 0.5%) and announces a new price - 109,000 rubles. (105,000 rubles + 4,000 rubles). One of the participants held up a card.

The auctioneer announces a new price - 113,000 rubles. (109,000 rubles + 4,000 rubles). After the price was announced three times, no one raised a card.

The auctioneer reduces the auction step by 0.5% of the initial contract price: 3,500 rubles. (40,000 rubles - 100,000 rubles × 0.5%). After the announcement of the new price (112,500 rubles (109,000 rubles + 3,500 rubles)) no one raised a card.

In a similar manner, the auctioneer reduced the auction step to 500 rubles. This is the minimum size of the auction step (100,000 rubles × 0.5%). After the next triple announcement of the price (109,500 rubles (109,000 rubles + 500 rubles)) not a single card went up. The auction participant - the current owner of the property, the rights to which are being transferred, declared in writing his desire to conclude an agreement at the announced price (109,500 rubles).

The auctioneer invites the participants to submit their proposals for the price of the contract. Since no such offers have been received, the auctioneer ends the auction. He announces the winner (participant - the current owner of the property, who agreed with the declared price of 109,500 rubles) and the participant who made the penultimate offer (109,000 rubles).

If there are no proposals to conclude an agreement at an increased price, and at the same time the auction step has already been lowered to the possible limit, and after the price was announced three times no one raised the card, the auction is recognized as failed (clause 148 of the Rules approved by Order No. 67).

After that, the auction organizer has the right to announce a new auction or tender (clause 151 of the Rules, approved by order of the FAS Russia dated February 10, 2010 No. 67).

During the auction, the organizer must keep an audio or video recording and protocol of the auction. The protocol is signed by all present members of the commission on the day of the auction. During the next day, the protocol must be posted on the official website of the auction.

The protocol must contain the following information:

the place, date and time of the auction; about the auction participants; on the initial (minimum) contract price (lot price); on the last and penultimate proposals for the price of the contract; on the name and location (for a legal entity), last name, first name, patronymic, place of residence (for an individual) of the winner of the auction and the participant who made the penultimate offer on the price of the contract.

The protocol is drawn up in two copies. One remains with the organizer of the auction, the other (together with the draft contract) is transferred to the winner of the auction within three working days from the date of signing the protocol.

This procedure is provided for by paragraphs 143, 144 of the Rules, approved by order of the FAS Russia dated February 10, 2010 No. 67.

Based on the results of the auction, a contract is concluded with the winner. Conclude the contract within the period established by the auction documentation, but not earlier than 10 days from the date of posting information about its results on the official website. This procedure is established by part 7 of Article 17.1 of the Law of July 26, 2006 No. 135-FZ, paragraphs 96, 150 of the Rules approved by Order of the FAS Russia of February 10, 2010 No. 67.

If the subject of the auction was only the right to conclude a contract, then it must be signed no later than twenty days or another period specified in the notice after the completion of the auction and the execution of the protocol. In this case, the contract may enter into force not from the date of signing, but from the date established by the contract. This is stated in paragraph 10 of the clarifications of the FAS Russia dated November 1, 2011.

It should be taken into account that the essential terms of the contract (for example, the area or purpose of the facility) concluded as a result of the auction cannot be changed either by agreement of the parties or unilaterally (clause 13 of the clarifications of the FAS Russia dated November 1, 2011). At the same time, at the conclusion of the contract (or in the process of its execution), by agreement of the parties, the price of the contract may be increased (in the manner prescribed by the contract) (part 8 of article 17.1 of the Law of July 26, 2006 No. 135-FZ).

Within three years after the auction, its organizer must keep:

protocols drawn up during the auction; applications for participation in the auction; auction documentation (changes made to the auction documentation) and explanations of the auction documentation; audio or video recording of the auction.

This requirement is established by paragraph 149 of the Rules, approved by the order of the FAS Russia dated February 10, 2010 No. 67.

Situation: which days - calendar or working - should be taken into account when determining the date, no earlier and no later than which the auction organizer must place a notice of the auction (competition) and the deadline for concluding an agreement. Bidding is held for the right to conclude agreements providing for the transfer of ownership and (or) use rights in relation to state (municipal) property

Determine the duration of the period in calendar days.

By general rule notice of the auction (competition) must be posted on the official website at least 20 days before the deadline for filing applications for participation in the auction (30 days before the deadline for filing applications for participation in the competition) (part 5.1 of article 17.1 of the Law of 26 July 2006 No. 135-FZ, clauses 29, 103 of the Rules approved by order of the FAS Russia dated February 10, 2010 No. 67).

The contract can be concluded within the period established by the auction documentation, but not earlier than 10 days from the date of posting information about its results on the official website (part 7 of article 17.1 of the Law of July 26, 2006 No. 135-FZ, paragraph 96, 150 of the Rules approved by the order of the FAS Russia dated February 10, 2010 No. 67).

At the same time, neither the order of the Federal Antimonopoly Service of Russia dated February 10, 2010 No. 67, nor the Law dated July 26, 2006 No. 135-FZ indicate in which days (working or calendar) the established period should be calculated. However, a number of articles (both the Rules and the Law) clearly state that working days must be taken into account to determine the term (see, for example, paragraphs 33, 44, 123, 134 of the Rules approved by order of the FAS Russia dated February 10, 2010 No. No. 67, part 10 article 18.1, part 12 article 25.1, part 3 article 25.4 of the Law of July 26, 2006 No. 135-FZ). Based on this, we can conclude that if the period is not set in working days, it must be calculated in calendar days. Thus, when determining the date no later than which a notice of an auction (tender) must be posted, and the date no earlier than which the auction organizer must conclude an agreement, calendar days must be taken into account, since in parts 5.1 and 7 of Article 17.1 of the Law of July 26, 2006 No. 135-FZ and paragraphs 29, 103, 96, 150 of the Rules approved by order of the FAS Russia dated February 10, 2010 No. 67, there is no indication of working days.

confirm this conclusion and general provisions of the Civil Code of the Russian Federation concerning the procedure for determining the term. The course of a period determined by a period of time begins on the next day after the occurrence of the event that determined its beginning (Article 191 of the Civil Code of the Russian Federation). If the last day of the term falls on a non-working (weekend) day, the expiration day of the term is the working day following it (Article 193 of the Civil Code of the Russian Federation).

Since neither Order No. 67 of the Federal Antimonopoly Service of Russia dated February 10, 2010, nor Law No. 135-FZ dated July 26, 2006 determine the procedure for determining the term, in this situation it is necessary to be guided by the provisions of the Civil Code of the Russian Federation (Article 2 of the Law dated 26 July 2006 No. 135-FZ). Therefore, when determining the date not earlier than which the institution must conclude an agreement, weekends must be taken into account.

In addition, this conclusion is confirmed by the fact that in the previous version of the Rules, approved by the order of the FAS Russia dated February 10, 2010 No. 67, there was an indication of working days (clauses 29, 103 of the Rules approved by the order of the FAS Russia dated February 10, 2010 No. 67).

Prepared on the basis of the materials of the BSS "System Glavbukh"

Each individual entrepreneur of a small (medium) business has the opportunity to conclude a contractual agreement with the municipal body of the Russian Federation for the lease of premises. The leasing of municipal property, state property for rent differs in some features. A number of restrictions apply to such a lease.

The conclusion of an agreement can be made in accordance with the Federal Law () in two ways:

• based on the results of bidding for the right to draw up a lease agreement for municipal property assets;
• without bidding.

What types of property, the leasing of which is not allowed by a state institution or is limited, the features of the procedure for concluding a lease agreement on municipal property (state property) are explained by the notice of the Federal Antimonopoly Service No. CA / 16309/14.

In this article

Rules, exceptions

The rules for drawing up contractual agreements for the lease of state property are established by Federal Law No. 135 (Article No. 17/1). According to this provision, autonomous municipal organizations, state institutions have the right to lease real estate, which they have as operational management, only on the basis of the results of auctions for the right to sign lease agreements of this type. At the same time, Federal Law No. 135 (Article No. 17/1) provides for exceptions that simultaneously apply to ACs.

Without auctions, municipal organizations can be rented out real estate in the following situations:

• the agreement is concluded for a period of less than 30 days of the calendar during the last 6 months of the calendar;
• another municipal organization, a state institution, a non-profit structure (also socially oriented), a medical institution, a structure engaged in activities in the field of education apply for signing a lease agreement;
• the transferable immovable property subject to taxation is considered to be part of an area of ​​less than 20 m 2 , and the person transferring the relevant immovable assets has the rights to 10 percent of the area of ​​this building (premises);
• the contractual agreement is signed with the person who is the only one who submitted the application for competitive participation, for the auction (in this case, if this person meets the established standards), which is the only participant in the auction.

The obligation to sign a lease agreement before an autonomous state organization arises only in the extreme of the listed cases (agreement with the only participant in an organized auction, tender). In other situations, when the lease of property is provided without auctions, the right holder is not required to sign a contractual agreement, the applicant does not have the right to put forward claims for such areas.

The organization of an auction for the lease of real estate is allowed in relation to contenders-beneficiaries. If there are more than one such entities per immovable state object, then the autonomous state institution has the right to refuse to rent real estate on preferential terms and organizes auctions between them. This, in the opinion of the antimonopoly organization, is not a violation of the interests of applicants in this category.

But caution when deciding to organize auctions for the lease of property values ​​of the AC, assigned to them as operational management, must be shown as the owners of this property. When agreeing to rent out housing, a certain area of ​​\u200b\u200bthe organization, the founder must be guided by the requirements of Federal Law No. 135/2.

Signing contractual agreements for the lease of state property without organizing auctions

The law provides for several exceptions when an autonomous state institution has the right to lease space without auctions.

Tenant - educational, medical institution

What exactly is meant by educational, medical organizations (budgetary institutions) is indicated in the explanations of the FAS (Chapter 5-6). In this situation, it is necessary to be guided by the provisions of the legislation of industry activities.

According to the Federal Law (Article No. 2/11), medical institutions include legal entities, regardless of the organizational and legal form used, whose business is primarily related to the field of medicine, with the appropriate license. Also, medical organizations are considered individual entrepreneurs(IP), whose activities are related to medicine.

A short-term lease agreement for real estate, signed not as a result of auctions, for a new period is not extended without bidding. In this case, the established norm applies, which limits the period of validity of this agreement for the lease of premises.

Educational (budgetary) institutions - structures whose main activities are related to the field of education, as well as institutions directly involved in training. According to Federal Law No. 273 (), such organizations additionally include individual entrepreneurs engaged in educational activities.

Bottom line: legal entities, individual entrepreneurs whose main activity is related to the field of education or medicine, but with the appropriate licenses, have the opportunity to rent the area of ​​​​an immovable object of an autonomous municipal organization (state institution) without participating in auctions.

Short term rental

According to Federal Law No. 135 (Article No. 17.1/11/1), municipal organizations and state institutions are allowed to lease immovable objects for a short period without organizing tenders or auctions. At the same time, it is prohibited to provide such a service to one person for more than 30 days of the calendar, for 6 consecutive months without organizing tenders, competitions.

But according to the Russian State Code (Article No. 610/3), an agreement on the lease of municipal property (state property) signed for a period exceeding the maximum possible period determined by the current legislation is considered to be issued for a deadline.

This means that lease agreements for property values ​​assigned to the municipality (Russian state) and signed for a short period without an auction are not extended (FZ No. 135 (Article No. 17.1/9), Civil Code ()). A similar position is in the Clarifications of the FAS (Chapter 10).

Rent of a part of the area of ​​the premises

It has already been noted earlier that it is possible to lease part of the area of ​​a building (apartment) without a preliminary auction, but subject to the following requirements:

• the leased area must not exceed 20 m 2 and 10 percent of the area of ​​the property to which it refers.

• when establishing such a share, it is not necessary to take into account the area of ​​​​an immovable object, the right to use, the possession of which was transferred before the entry into force of Federal Law No. 135 (Article No. 17.1), based on other exceptions determined by Federal Law No. 135 (Article No. 17.1), based on trades.

Tenant - contractor of the institution

It is necessary to separately note such an exception to the rules for renting municipal real estate (state property), which does not apply to ACs (at least to autonomous state institutions that make purchases relying on Federal Law No. 223). In this case, this refers to the signing without bidding of a lease agreement with a person who has concluded a contract with a municipal (state) organization based on the results of an auction (on a competitive basis) organized in accordance with Federal Law No. 44. At the same time, the rights granted were provided for by documented auctions (competition) in order to fulfill the obligations of this contract (FZ No. 135, Article No. 17.1/10/1).

According to the FAS Clarifications (Chapter 9), civil law agreements drawn up within the framework of Federal Law No. 223 are not considered municipal (state) contracts. In this regard, the provisions of Federal Law No. 135 (Article No. 17.1/1/10) do not apply to such cases. That is, when an autonomous state institution, referring to the norms of Federal Law No. 223, incurred expenses for the purchase of certain works or services, the execution or provision of which requires the obligatory presence of a contractor on the premises of the organization (for example, a theater purchased repair services, sewing stage costumes), to lease the corresponding areas are possible only at organized auctions.

Important! In such situations, as described above, the purchase of services, the auction for the right to draw up a lease agreement are two independent processes.

Prolongation of the contract

The current lease agreements for municipal real estate (state property), property values ​​transferred to the state body for operational management in accordance with Federal Law No. 135 (Article No. 17.1 / 9-11) are subject to extension. In the event that an individual has properly performed his own obligations under this agreement, a contract is signed for a new period without organizing an auction (unless otherwise provided by the contractual agreement and the period of validity of such a contract is not limited by the provisions of the current Russian legislation).

In this situation, two mandatory conditions must be met:

• the minimum period for reissuing a lease agreement must be at least 3 years (a shorter period is possible, but only when the tenant writes a corresponding application);
• the amount of the fee, on the basis of which income for the rental of premises is recorded, is determined based on the results of real estate appraisal in accordance with market prices.

If all the conditions are met, the lessor, represented by an autonomous state institution, in accordance with Federal Law No. 135 (Article No. 17.1/10), does not have the right to refuse to prolong the contractual agreement to the tenant.

Refusal is possible if the individual has debts at the time of the completion of the lease contract or if there is a decision to dispose of the relevant property in another manner.

Based on this, the antimonopoly organization made the following conclusions:

• T Since it is possible for a tenant not to grant an extension of the lease agreement based on a new decision on the disposal of real estate, the landlord needs to obtain consent from the owner of the relevant property to renegotiate the lease contract.
• Posting the renewal of a lease agreement in accordance with Federal Law No. 135 (Article No. 17.1/9) can be performed an unlimited number of times according to similar grounds. At the same time, it is important to comply with the requirements for each new prolongation of the document.

Sublease

According to Federal Law No. 135 (Article No. 17.1/1/16), it is possible to sublease municipal property (state property) without an auction in such cases:

• the right to sign a lease agreement is granted to the tenant on the basis of a municipal (state) agreement;
• the state institution concluded a lease contract following the results of the auction, on the basis of the failed auction.

Subject to these requirements, real estate of any area can be subleased (FZ No. 135 does not provide for any restrictions in this regard). In the opposite situation, the relevant areas are provided for sublease on the general basis determined by Federal Law No. 135 (Article No. 17.1) with the organization of an auction, without it, but with other exceptions.

Are you looking for information about municipal property rental auctions in Moscow because it is inexpensive and reliable? It is possible that for one reason or another you need to sign a lease agreement for residential or non-residential premises owned by city authorities or even the state. In this case, the municipal rental of premises in Moscow is what will allow you to rent a suitable object.

At the same time, GlavUpDK under the Ministry of Foreign Affairs of Russia brings to your attention information about auctions for the lease of federal property - i.e. owned by the state The secret lies in the fact that state-owned non-residential real estate practically does not fall into the databases of real estate agencies. For this reason, many simply do not know that there is an opportunity to rent an object at a lower price. It is also necessary to distinguish the lease of federal real estate from the lease of real estate received during the auction for the lease of municipal premises.

The GlavUpDK company under the Ministry of Foreign Affairs of Russia regularly organizes and conducts auctions for the lease of federal real estate transferred to its management on the right of economic management. If you are looking for office space, be sure to visit our website, where you can get acquainted with rental offers and become a participant in the auction - the benefits of signing a lease agreement are quite obvious, because you can conclude an absolutely legal lease agreement that will protect your interests as a tenant.

Auction Rules:

The auction is held in accordance with the current legislation, which obliges Federal State Unitary Enterprises to put up all the premises offered for rent for auction. In the event that only one application is submitted, the auction is declared invalid, and the contract is signed with the potential tenant who submitted the only application at the minimum (starting) rental rate. In the event that several participants apply for the same premises, an auction is held, during which the rates may increase significantly during the auction.

In order to become a participant in the real estate rental auction, you must fill out an application, where your data will be indicated, as well as attach constituent documents and a document confirming the payment of the deposit. Before the start of the auction, the client has the right to refuse to participate and withdraw the submitted application.

If you become the winner of the auction, then you need to conclude a lease agreement within 20 days from the date of the auction. In this case, the deposit to the winner of the auction will be returned or accepted towards the fulfillment of obligations under this agreement.

But if the contract for one reason or another is not signed by the winner within the specified time, then the deposit will not be returned to him.

If you have any questions about the rules of the auction, you can contact our consultants by phone or by e-mail indicated on the site.