In the state contract with the involvement of small businesses specify a specific percentage of their participation
The state customer demanded to involve subcontractors from among the subjects of small business or socially oriented non-profit organizations in the execution of the contract. However, FAS found out that he did it incorrectly. In the documentation, the customer indicated that it has the right to establish the volume of participation of small businesses and socially oriented non-profit organizations in the amount of 20%. At the same time, the draft contract provided that this volume should be at least 20% of the price of work.
The Supervisory authority recognized this as a violation, considering that the customer has not established a specific amount of attraction.
In another situation, the customer indicated in the documentation a specific amount of participation of small businesses and socially oriented non — profit organizations — 15% of the price of work, and in the draft state contract-at least 15%. In this case, the FAS has considered that the conditions of the Law N 44-FZ are not met.
Many courts take the same position in similar situations (for example, AC Feb and AC VSO).
Documentation:
The decision of the FAS Russia from 23.11.2018 in the case of N 18/44/105/1777
The decision of the FAS Russia from 23.11.2018 in the case of N 18/44/105/1791