Courts explained what requirements to the materials applied at performance of works customers have the right to establish in documentation on purchase
The customer on the basis of the project documentation which passed in accordance with the established procedure the state examination established in documentation on auction which also passed coordination, requirements to the materials applied at performance of works. The values of the performance characteristics of the product were established with regard to the further operation of the renovated object of capital construction.
The participant, believing that the customer violated the rules for describing the object of purchase by setting requirements for the indicators of goods used in the performance of work, the values of which become known only when testing a certain batch of goods, filed a complaint with the Antimonopoly authority. The complaint was found partially justified, and the customer is in breach of the requirements of clause 1-2 of part 1 of article 64, paragraph 3 of part 3 of article 66, n. 1-2, part 1, part 2 of article 33 of the Federal law of April 5, 2013 № 44-FZ "On the contract system in the procurement of goods, works and services for state and municipal needs" (hereinafter – the Law № 44-FZ).
Not agreeing with the findings of the Antimonopoly authority, the customer appealed to the arbitration court with the appropriate application. Meanwhile, the courts concluded that the decision of the Antimonopoly authority is contrary to the provisions of the law and violates the rights and legitimate interests of the applicant.
In particular, the courts noted that when filling out the first part of the application, the participant is not required to conduct tests, but rather to specify the characteristics and values of the characteristics of the goods in accordance with the requirements of the auction documentation, the indicators and characteristics in which correspond to technical regulations and requirements in the field of standardization.
The judges also stressed that the purpose of legal regulation of competitive procedures is not only to ensure access to the procurement of the largest possible number of participants, but also quality satisfaction of the needs of the state customer. At the same time, the requirement for compliance of the materials used with GOST, which must be declared by the manufacturer, and not the contractor, complies with the norms and objectives of Law No. 44-FZ, contributes to the efficiency, effectiveness of procurement and can not limit the range of participants in the procurement.
The Russian armed forces agreed with the findings of lower courts and refused to transfer the appeal to the Antimonopoly authority for consideration in the court session of the Judicial Board on economic disputes of the Russian armed forces.
Document: Determination of the Supreme Court of the Russian Federation of April 8, 2019 № 307-ES19-3608