Antimonopoly practice

According to Part 1 of Art. 105 of the Federal Law No. 44-FZ, complaint against action or inaction of the customer, the state body, the organization or commission for the procurement and its members may be submitted both to the judicial authority and to the procurement control and supervisory body at the federal, regional or local level.

There is no direct reference to the mandatory separate indication of VAT in the contract price in Law No. 44-FZЗ. At the same time, articles 146, 149 of the Tax Code of the Russian Federation provide for a list of goods, works and services subject to VAT. If the state customer does not include VAT in the price of the contract, then it will still have to be paid at the price offered by the winner. Thus, the state contract will be concluded with the winner of the auction at the price offered by the latter, regardless of what taxation system the bidder applies.

There are several ways to resolve these kinds of situations: judicial and extrajudicial procedures. In any case, it is necessary to adhere to the order of interaction with the state customer, established by the signed contract. Unfortunately, is not possible to resolve such situations in advance in the framework of public procurement. Often proving the quantity and quality of work performed under government contracts can only be resolved in court.

The customer has the right to cancel the auction. To do this, he must place a notice of purchases cancellation in the Unified Information System (UIS), as well as notify all participants who have submitted applications. In addition, the trading platform provides for the messaging of decisions about the auction cancellation to the participants’ e-mail addresses, after the placement of such a statement in the EIS.

The bidder may appeal against the actions of the competition commission, as well as the results of the auction, bidding and concluded contracts. The guarantees of the participants are regulated by the Federal Law No. 223-FZ of July 18, 2011 “On the procurement of goods, works, and services by certain types of legal entities”. You can appeal the decision:

- by sending a complaint about the action or inaction of the customer, or unfair competition to FAS /OFAS ;
- by submitting a claim to the court.

In the case of a complaint to the court, the claimant must prove the existence of the right or interest that the legal entity is trying to protect using measures prescribed in civil law. This is because merely a violation of the bidding procedure cannot serve as a basis for declaring the results invalid by the claim of a person whose property interests and rights are not affected by these violations of the regulations.

According to Part 10 of Art. 3 of Law No. 223-FZ, the tenderers may appeal against the results of the auction to the anti-monopoly authority in the manner established by FAS. Such complaints are considered in accordance with Art. 18.1 of the Federal Law "On Protection of Competition" № 135-FZ.

Law No. 44-FZ does not limit the rights of bidders depending on the legal form of their activities. Thus, not only the organization can become a bidder, but also a self-employed individual, and in some cases an individual who is not self-employed.

You need to confirm your sound business practice. This can be done using information from the register of contracts with customers, which will confirm one of the following conditions:

- executing 3 or more contracts within 1 year prior to the filing date of the application (all contracts must be executed without penalties or fines),
- executing 4 or more contracts within 2 years prior to the filing date of the application (at least 75% of the contracts must be executed without penalties or fines),
- executing 3 or more contracts within 3 years prior to the filing date of the application (all contracts must be executed without penalties or fines).

In these cases, the price of one of the contracts must be at least 20% of the price at which they make an offer for the tenderer to conclude a contract in accordance with Part 2 of Art. 37 of Law No. 44-FZ.

You can appeal the unlawfulness of the provisions to the antimonopoly authorities by filing a complaint against the actions of the state customer with the obligatory indication of the state contract provisions that violate the rights and legitimate interests of the procurement participant, as well as with the legal background of your position within the framework of existing legislation.

According to Art. 52 of the Federal Law “On Protection of Competition” No. 135-FZ dated July 26, 2006, a legal entity is entitled to appeal the decision or order of the antimonopoly body to the commercial court or to the FAS collegial body within 3 months. The term is calculated from the moment the decision is made or FAS order is issued.

There are two reasons for a substantiated refusal: you applied to the court on this issue or you applied to antimonopoly authorities. If you are not satisfied with the decision, the law provides the right to appeal against it within three months to the commercial court.

The responsibility of the customer arises in cases of untimely or even lack of information about the planned procurement. The companies will face fines ranging from 100 to 300 thousand rubles and officials from 30 to 50 thousand rubles for unpublished information in the Unified Information System (UIS).

A company that FAS have included in the register of unscrupulous suppliers is entitled to appeal against the decision of FAS to the commercial court. The deadline for appealing such decisions is 3 months from the day FAS adopted the decision. Appeal against the decision of FAS depends on the location of the OFAS or FAS. For example, if it was OFAS in Moscow that adopted the disputed decision, then you need to appeal the decision to the Moscow Arbitrazh Court.

A participant who does not agree with the results announced by FAS /OFAS may appeal against the decision to the commercial court within 3 months from the date of its adoption.

According to paragraph 3 of Art. 52 of Law No. 44-FZ, one can change or withdraw his applications until the envelopes are opened or there is access to them in the Unified Information System (ENI).

The protocol of disagreements is an integral part for procurement process in the form of an electronic auction. After successful participation in the auction, the customer sends you a contract. In case of disagreement with the terms of the contract, the participant cannot individually make adjustments. For this, the parties shall draw up a protocol of disagreements.

Paragraph 8 of Art. 44 of Law No. 44-FZ stipulates that the funds contributed as security for an application for participation in a tender are returned to the account of a procurement participant during a public tender, a limited participation tender, a two-stage tender, closed methods for identifying suppliers (contractors, performers) within no more than 5 business days.