The disagreement of the Federal Antimonopoly Service with the terms of the tender under Law No. 223-FZ is not a reason to interfere in the procurement of the customer
The antimonopoly authority received a complaint. Among other things, it indicated that the customer illegally set a condition for evaluating the participants of the purchase at the contract price: the highest score will be given to the one who offers a price more than 4% lower than the initial one.
The supervisors considered that such an assessment procedure violates the principle of targeted and effective budget spending.
The customer did not agree: the
complainant did not participate in the purchase, so he could not appeal against the customer's violations. Considering his complaint, the FAS exceeded its powers;
the controversial evaluation procedure is established to ensure fair competition. In addition, the maximum reduction in the contract price is not a priority, since other conditions are also evaluated.
Three instances supported the controllers:
before the deadline for submitting applications, any person has the right to appeal against violations of the customer, regardless of whether he submitted an application for participation in the purchase or not;
a price reduction of more than 4% affects the quality of work. This can lead to a disruption of the purchase.
The Armed Forces of the Russian Federation did not agree with this:
According to the Law No. 223-FZ, customers have the right to form their own procurement system depending on the specifics of their activities. This right meets the objectives of this law: to identify the winner, the contract with which most meets the effective use of finance and meets the needs of the customer;
the reasonableness of the requirements in the procurement can not be an independent subject of the assessment of the controllers. Their disagreement with the terms of the tender does not mean that there are violations in the actions of the customer. This is not a reason to interfere in its procurement activities;
a special procedure for evaluating applications is established to prevent dumping. The courts did not justify how this procedure affects the quality of work and the possible disruption of the purchase. A participant with any price that is more than 4% lower than the initial one will receive the maximum score;
the complainant did not actually participate in the purchase. He did not prove that the order of evaluation of applications prevented him from becoming a winner. His interests are not violated.
Document:
Definition of the Armed Forces of the Russian Federation from 09.08.2021 N 305-ES21-5801