What errors in procurement under the Law N 223-FZ drew the attention of the FAS in the February reviews
The Antimonopoly authority drew attention to the fact that in recent years, customers have demanded extra things from participants when submitting applications and did not comply with the instructions of the control body. Read more in our review.
They demanded extra money when submitting applications
Product samples
The customer demanded to submit samples of the product. The controllers decided that this was illegal: participants are not required to purchase the goods in advance. These are additional expenses.
In addition, if the participant is not a manufacturer, he will have to request samples from him. The manufacturer is not obliged to respond to such requests. Participation in the purchase depends on third parties.
Note that there is an opposite opinion. Thus, the Buryat Federal Antimonopoly Service, although it agreed that the participant should not have all the goods before the conclusion of the contract, did not recognize the requirement to submit samples when submitting an application as illegal.
The Antimonopoly authority stressed that as a sample, participants have the right to submit, among other things: cards of goods, their photos with the application of certificates of conformity.
Experience and logistical resources
The customer required experience in providing services and the availability of material and technical resources.
The supervisors did not agree with this. The fact that there is no experience and resources does not affect the quality of the contract execution.
They also indicated that the purchase was carried out among MSPs. For newly created entities, this is a restriction of competition, since they do not yet have experience.
Note that in practice there are different approaches to the requirement of having experience.
Agreement on the allocation of liabilities
The customer required that the collective participant's application contain the agreement of its members. Among other things, the document required to specify the data:
on the scope of obligations of each participant in the performance of the contract;
about the distribution of payment between them.
The supervisors considered this illegal: the customer interferes with the contractor's activities with this requirement. This condition does not affect the quality of the contract performance.
Failed to comply with the order
The supervisors demanded to change the documentation in order to eliminate the violations. The customer did not do this, as he appealed to the court to appeal the order. He drew this conclusion from Part 2 of Article 52 of the Law on Protection of Competition.
The FAS noted that an appeal against the order does not suspend the execution of it. Only a court can do this.
The provisions of Part 2 of Article 52 of the Law on Protection of Competition do not apply to regulations on the elimination of violations under Law No. 223-FZ. There is a special norm for this. It does not say about the suspension of the order when it is appealed.
The court supported the supervisors: the order had to be executed. Among other things, the court noted:
the decision of the antimonopoly authority is the result of administrative control. Its non-execution deprives the complaint of meaning;
the order is issued to eliminate the violation of the law.
The position that the appeal of the order does not suspend its execution, the controllers expressed earlier. The Russian Armed Forces recognized it as legitimate.
Documents:
Review of the practice of reviewing complaints in procurement under Law No. 223-FZ (February 2021)
Review of administrative practice in the field of procurement under Federal Law No. 223-FZ (February 2021)
Review of judicial practice in the field of procurement under Federal Law No. 223-FZ (February 2021)