Courts: public procurement participant can not submit part of the documents in the form of a link to the cloud service
Due to the large amount of documents confirming the experience of work, the participant of the electronic auction uploaded copies of acts of work performed to the cloud service. In the application, he indicated a link to the file storage and a comment on its use. The Commission of the customer did not consider the documents by reference and rejected the participant for their failure to submit. The participant appealed to the control body.
Irkutsk Uprvlenie Federal Antimonopoly felt that the party should avoid. The arguments were so:
the application met the requirements of the legislation and documentation;
the file on the link specified in the application was opened on any computer, additional software was not required — the auction Commission could examine the documents;
cloud service guarantees the invariance and safety of information;
the operator of the electronic platform did not return the application to the participant — so it was filed in compliance with the requirements.
The Supervisory authority issued an order to the customer to cancel the minutes of the auction and re-consider the second part of the applications. However, the customer appealed the decision.
The courts took the side of the customer. In their opinion, the submission of documents through a link to the cloud service is contrary to the Law N 44-FZ. In this case documents are not unloaded on a platform though under the Law N 44-FZ it is necessary to interact by means of electronic document flow on an electronic platform. The operator is responsible for the invariance of information in the submitted documents and information. However, it does not have the authority to evaluate participants ' applications for compliance with the documentation. Therefore, in the situation under consideration it is impossible to refer to the fact that the application was not returned to the participant.
The courts recalled that the law does not oblige the Commission to look for documents confirming the experience of the participant by reference. To upload large files to the electronic platform, the participant could split them into several parts.
Document: Decision of the Arbitration court of the East Siberian district of 27.06.2019 in the case N A19-20325/2018