The courts recognized the legal Association in one lot of different categories of products under the Law N 44-FZ
The customer combined products of different categories into one lot: milk, cereals, meat, etc. They were planned for long-term weekly delivery on preliminary requests for socially significant institutions.
The Supervisory authority recognized this as a restriction on competition on the following grounds:
-the subject of purchase of products in different categories. They constitute independent commodity markets. Suppliers may not be able to deliver products in aggregate;
- products have different consumer properties. They are not connected technologically and functionally;
- it is difficult for manufacturers to participate in the purchase, because they need to purchase products from other economic entities.
The Antimonopoly authority considered that the products should be purchased in separate lots.
The courts did not agree with this approach, in particular, on the following grounds:
- Law N 44-FZ does not prohibit the purchase of one lot of goods that can be divided into separate types;
- the documentation does not have to specify conditions that satisfy all possible participants;
-different products within a single lot constitute a single object of purchase. It belongs to one type of product — food products;
-the main task of the auction is to use the budget effectively, and not to ensure that the maximum number of bidders can participate. If any participants are unable to deliver the product, it does not mean that their rights are violated or competition is restricted;
-6 bidders participated in the purchase. The controllers did not prove that dividing the purchase into separate lots would increase the number of participants, and the price of the product would decrease or remain unchanged.
In addition, the courts took into account the following explanations of the customer:
- purchasing products under one contract for a long time is more convenient and profitable;
- combining products into one lot meets the needs of different categories of people;
- the parties to the agreement will be able to redistribute commodity units within the same contract without changing the price;
-when purchasing goods in several lots, there will be more contracts. This will increase the customer's labor costs, complicate the delivery and acceptance of goods, as well as the registration of accounting documents.
Document:Resolution of the AC of the East Siberian district of 14.10.2020 on the case N A33-311/2020