What mistakes do the commissions make when rejecting the first parts of bids from public procurement participants
The participant did not specify the trademark in the application
The absence of a trademark is the only claim to the application
According to the Law N 44-FZ, the participant must indicate the trademark in the application if it is available. Often there is such a position of control bodies: if the participant did not reflect it, it means that his product does not have a trademark. It is not lawful to reject the application in this case. This argument was used by the Stavropol, St. Petersburg, and Novosibirsk Departments of the Federal Antimonopoly service.
There is another position. The Samara Department of the Federal Antimonopoly service decided that the absence of a trademark must be proved by the bidder. He did not do this, so the control body recognized the legitimate rejection of the application.
The argument in favor of admitting an application without specifying a trademark may be different: its absence does not mean that the product does not meet the functional, technical and quality characteristics set out in the documentation. This conclusion was reached by the Buryat, St. Petersburg, and Moscow regional Departments of the Federal Antimonopoly service.
The participant did not specify the trademark or other indicators
If the participant's application does not contain other indicators required by the documentation, the control body will most likely recognize the rejection as legitimate. If there is no country of origin of the product or specific indicators, this does not allow you to identify the proposed product. In these cases, the inspectors also cited the absence of a trademark as one of the reasons for rejecting applications.
For example, the Kaluga and Moscow regional Offices of the Federal Antimonopoly service supported the rejection of applications that did not contain any trademarks or specific indicators. For lack of indication of trademarks, the Krasnodar Department of the Federal Antimonopoly service recognized the legitimate rejection of applications.
The trademark was mentioned in the Guest provided in the documentation
The problem may arise when the indication of the trademark was mandatory according to GOST, which the product had to meet according to the terms of the documentation. The control body and the courts considered it lawful to reject the participant for the absence of a trademark in the application. However, the Arbitration court of the West Siberian district supported the participant, canceling the previous decisions. The court noted that the customer does not have the right to set requirements so that the presence of a trademark is mandatory, since this limits the number of participants in the purchase.
In another situation, the St. Petersburg Office of the Federal Antimonopoly service concluded that the state Standards cannot oblige a manufacturer to register a trademark, since under the civil code of the Russian Federation this is a right, not a duty. This point of view was also expressed by the FAS.
The participant did not provide specific indicators in the application
The participant duplicated values from the documentation in the format "no more" and "no less", "must be" , etc.
If the documentation reflects the rules for which the participant must specify the values, the inspectors usually support the rejection of applications if the words "no more", "no less", etc. remain in them. for Example, such decisions were made by the Yakut and Altai regional Departments of the Federal Antimonopoly service.
The participant was not able to bypass the instructions for filling out applications in the case of the "+/- "sign. The Commission and the control body did not consider this designation in the application as an error, because the instructions in these cases had to specify a specific indicator. The rejection of the application was recognized as legitimate.
If you do not specify in the documentation which parameters need specific indicators, the inspectors can take the side of the participant. Thus, the control body and the courts did not support the Commission that rejected the participant for using the words "no more", "no less", since the customer did not require the documentation to specify the values of the disputed indicators. What played a role was that with these words, the indicators were set out in the Guest that the product was supposed to match. The customer's argument that the requirement to provide specific indicators is enshrined in Law N 44-FZ did not work.
However, supervisors may consider the Commission's approach to be overly formal if it follows the instructions for filling out applications literally. This conclusion was reached by the Smolensk Department of the Federal Antimonopoly service, considering the rejection of the application illegal. Although the participant left a range of values in the description of the proposed product, as well as the words "should be", "or", it was clear from his application that he presented specific indicators that meet the requirements of the customer. The priority of the application form over its content is contrary to Law N 44-FZ.
The participant did not select one of the suggested values
When resolving disputes about the rejection of applications in which the participant specified several alternative values, the inspectors also usually take as a basis the rules set out in the instructions for filling out the first parts of applications.
So, the Ivanovo Department of the Federal Antimonopoly service supported the Commission's decision to reject the application of a participant who specified both GOST standards from the proposed Ones, while according to the rules of the instruction, only one had to be selected. The Altai regional Department of the Federal Antimonopoly service received a similar response.
When the instruction provided for the possibility to give several variants of values, the control body and the courts found it unlawful to reject the participant's application for specifying two variants for the Shoe lining material.
The participant only agreed to the terms of the documentation when specific indicators were needed
This error often occurs when it comes to purchasing services or works, and the documentation sets requirements for the product used. In these cases, the consent is not sufficient, the participant must provide specific values for the indicators, the requirements for which the customer has set in the documentation. If the participant is limited to consent, their application must be rejected. This is what the Pskov, St. Petersburg, Moscow, and Kemerovo Departments of the Federal Antimonopoly service thought.
Complexity occurs when the documentation contains erroneous statements. For example, the customer has set requirements for the product used, but the customer only requested consent to provide services in the application. The control body decided that the Commission should have followed the provisions of the documentation and not rejected the application for not providing specific indicators of the product. The office of the Federal Antimonopoly service recognized the actions of not only the customer, but also the Commission as a violation.
The Commission issued a Protocol with errors
Errors during the auction
If the Commission refuses admission to the auction participant, the Protocol for consideration of applications must include a justification for such a decision. Among other things, you must specify the provisions of the documentation that do not correspond to the participant's application, its provisions that do not meet the requirements set by the documentation.
The absence of this information is one of the most common errors in the design of protocols. Such violations were found by the Krasnodar, Buryat, Novosibirsk, Omsk, and Krasnoyarsk Departments of the Federal Antimonopoly service.
Note that the inclusion of this information in the Protocol with technical errors is also considered a violation.
Errors during the contest
When considering bids, the Commission must attach to the Protocol proposals of participants on the quality, functional and environmental characteristics of the object of purchase, if such a criterion is set in the documentation. The absence of this information will also be considered a violation.