The content of the Declaration of conformity of the participant specified in the Law № 44-FZ requirements must be unambiguous

8 October 2018, Monday

The participant appealed to the Antimonopoly authority the actions of the auction Commission of the customer in determining the winner of the electronic auction for the supply of spare parts and consumables for cars. During the consideration of the complaint, the Antimonopoly authority found a violation in the actions of the customer, including the recognition of applications of three participants as non-compliant with the requirements of the auction documentation. So, in the Protocol of summing up of auction it was noted that in the second parts of applications of a number of participants there is no Declaration on their compliance with item 7 and item 7.1 h. 1 art. 31 Federal law of April 5, 2013 No. 44-FZ" on the contract system in the procurement of goods, works and services for state and municipal needs " (hereinafter – Law No. 44-FZ).

The Antimonopoly authority concluded that these declarations were available on the basis that the second part of the participants ' applications contained a document confirming compliance with the requirements set out in paragraph 3-9 of part 1 of article 31 of the Law № 44-FZ. At the same time, the regional office of the FAS of Russia saw no contradiction in the fact that the document additionally declared the participants ' compliance with these requirements, except for the requirements provided for in paragraphs 7 and paragraph 7.1 of part 1 of article 31 of the Law № 44-FZ. Actions of the auction Commission were found to violate including part 1 and part 6 of article 69 of the Law № 44-FZ.

Disagreeing with the decision of the Antimonopoly authority in this part, the customer appealed to the arbitration court, which, however, supported the conclusions of the regional office of the FAS Russia. At the same time, the courts of the second and third instances of the plaintiff's claim to recognize the actions of the auction Commission legitimate satisfied.

The Supreme court of the Russian Federation also sided with the customer, considering the actions of the auction Commission, rejected the applications of participants on the basis of ambiguity of the content of the Declaration of compliance with paragraph 3-9 part 1 of article 31 of the Law № 44-FZ, does not violate the requirements of Law № 44-FZ. In particular, the definition notes that the content of declarations of companies, taking into account the detailed designation of the provisions of Law No. 44-FZ, which they correspond, does not allow to draw an unambiguous conclusion about their compliance with the specified provisions of Law No. 44-FZ.

Document: ruling of the Supreme Court of the Russian Federation No. 309-KG18-13301 of 3 September 2018

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