Judicial practice according to the Law N 44-FZ

5 February 2020, Wednesday

The customer is not required to specify all possible penalty thresholds in the draft contract

The customer announced an auction with an initial maximum contract price of 7.7 million rubles. the draft contract specified a fine of 5 thousand rubles (corresponding to the contract price in the range of 3-50 million rubles).

The FAS saw this condition as a violation. Theoretically, the winner of the purchase could offer a price less than 3 million rubles, and for it there is a different amount of the fine-1 thousand rubles. this Means that the customer had to specify both sizes of the fine in the draft contract.

The courts of three instances supported the customer, who appealed the decision of the inspectors. The courts noted that the terms of liability of the parties are set in relation to the contract itself, not its project. The customer has the right to determine the final amount of the fine at the conclusion of the contract with the winner.

Document: Resolution of the Volga-Vyatka district Arbitration court dated 02.10.2019 in case N A17-4015/2018

Applying anti-dumping measures when evaluating applications of participants of the competition, you need to approach each application individually

In tenders for the purchase of consulting services, research and development works and technological works, the customer has the right to set different values of the significance of the evaluation criteria, depending on whether the participant has reduced the initial maximum contract price by 25 or more percent or not.

In one of these purchases, three participants reduced the initial maximum contract price by 25%, 15.3% , and 88%, respectively. The customer evaluated the applications of all participants according to the same rules.

The courts supported the FAS, which considered this a violation: the application of the second participant, who offered a price of more than 25% of the initial maximum price of the contract, had to be evaluated using other values and criteria.

Document: Resolution of the Arbitration court of the Moscow district of 16.01.2020 in case N A40-92176/2019