The Supreme court: the requirement of the customer to indicate specific product characteristics that can only be determined according to test results, improper
Customer on the basis of subp. "b". 2 h. 3 of article 66 of Law No. 44-FZ rejected the application of a number of electronic auctions due to the fact that the application was not provided information regarding specific indicators of "Electrical life" and "Mechanical wear" product, which was supposed to work.
The party appealed these actions to the customer to the competition authority, the Commission ruled, in accordance with which the complaints are substantiated, and the actions of the customer identified violations of section 5 of article 67 of Law No. 44-FZ.
Not agreeing with the position of the Antimonopoly authority, the customer appealed to the arbitration court with an application for recognition of the decisions and orders invalid.
Refusing satisfaction of requirements of the customer courts of three instances proceeded from compliance of the disputed non-normative acts to the current legislation and absence of violation of the right. Thus, the courts noted that the application contains an indication, including the fact that the goods comply with GOST, while the participant gave specific indicators taking into account GOST, which meets the requirements of the auction documentation, taking into account the instructions for filling out the application. By the way, the party led values are: "electrical life, cycles IN not less than 6000; mechanical wear resistance, cycles IN at least: 20 000".
Judge of the Supreme court of the Russian Federation agreed with the conclusions of the lower courts and dismissed the plaintiff in the transfer of cassational complaint for consideration in judicial session of SC on economic disputes of the Supreme court noting that when applying a procurement participant could not specify the value of indicators of "Mechanical life" and "Electrical life" without using the words "not less than" that specified by the manufacturer of the goods in accordance with the requirements of GOST, because the requirements on the conformity of the goods stipulated by the customer are checked by the testing and cannot be specified as a specific value.
Document: Determination of the Supreme court of the Russian Federation of August 8, 2019 № 309-ES19-12379