LECTURE № 22. Legal regulation of trading. Bidders

1. Legal regulation of trading

Bidding is one of the ways to conclude contracts that are aimed at selling property, with the exception of contracts whose execution at auction is incompatible with their essence. The essence of the auction is that the contract is concluded by the organizer of the auction with the person who won the auction. Bidding is a legally regulated mechanism aimed at the most effective determination of the owner of property or property rights. In a broad sense, bidding is understood as the entire mechanism for concluding a contract, and in a narrow sense, as a procedure for identifying a winner among entities wishing to enter into a contract and who have submitted applications for participation in the bidding. The main purpose of the auction is to ensure both public and private interests. The state seeks to effectively sell property, and in the competitive struggle it is most profitable to acquire certain property or rights in its own interests.

Bidding is carried out in the form of an auction or competition.

At an auction, the person who offers the highest bid wins the auction. In the competition, the winner is the person who offered the best conditions, which will be determined by the conclusion of the competition commission. Such a commission is appointed in advance by the auction organizer. The form of bidding shall be established by the owner of the item being sold or the owner of the property right being realized, unless otherwise provided by law.

Types of trades:

1) open auction - the most preferred type of tender;

2) closed auctions or tenders - are not held for everyone and only when the subject of delivery is goods for defense and security needs or property that is being sold and is classified as having restricted circulation;

3) one-stage or two-stage. In a two-stage bidding, the first stage is to negotiate with suppliers and determine their capabilities, and all suppliers submit bids without specifying prices for the subject of bidding. Based on the results of the first stage, changes to the documentation may be made. At the second stage, participants submit bids with prices.

Grounds for bidding:

1) privatization of state and municipal property;

2) supply of goods for state needs;

3) acquisition of a state or municipal land plot or conclusion of a lease agreement for such a plot;

4) placement of orders for construction, providing for the selection of a contractor (contract bidding);

5) distribution of export quotas;

6) obtaining a license under the legislation on communications for the provision of communications services, if the availability of the radio spectrum is limited in a given territory;

7) bankruptcy of an enterprise;

8) sale of the pledged property.

Legal entities carry out tenders to meet their intra-economic needs.

2. Bidders

Trading subjects:

1) the owner of the thing;

2) the owner of the property right;

3) a specialized organization that acts on the basis of an agreement with the owner and can act on his behalf or on his own behalf.

When bidding for the right to sell a land plot, the seller is a public authority or a local government. These bodies also act on their own behalf. In case of bankruptcy of an organization, an external manager acts on its behalf at the auction on the basis of a decision of the committee of creditors, who can apply to a specialized organization with payment for its services at the expense of the debtor's property. This organization should not be an interested person in relation to both the debtor and the external manager. The sale of the pledged property, carried out in the form of an auction, is intended to sell the pledged property and is carried out by a specialized organization chosen by the pledgee. The auction for the sale of the pledged property must be open. Auctions and competitions for the right to use subsoil resources are held by the Ministry of Natural Resources of the Russian Federation and its territorial bodies.

Two or more persons may participate in a competition or auction.

A commission is created for conducting tenders, the competence of which includes:

1) conducting an independent assessment of the object of the auction;

2) determination of the winner of the auction;

3) notice of the auction;

4) registration of the protocol on the results of the auction;

5) making a decision to recognize the auction as invalid.

The following are not allowed to participate in the auction:

1) organizations that are in the process of liquidation, reorganization or bankruptcy;

2) who provided false information about themselves;

3) do not have an appropriate license;

4) inconsistent with other requirements.

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