RF Armed Forces: the customer's unjustified refusal to conduct competitive procedures is contrary to the principles of Law No. 223-FZ
The educational institution, in its procurement regulation, provided for the right to purchase from a single supplier, including in the case of providing catering services for students. The company, believing that it was unlawfully deprived of the opportunity to offer the institution its catering services within the framework of a competitive procurement procedure, applied to the court with a demand to invalidate the specified clause of the provision.
The arbitration court refused to satisfy the claim to the company. The courts of appeal and cassation also did not find grounds to satisfy the claims of the plaintiff. At the same time, they proceeded from the fact that the institution is endowed with the right to independently determine the methods of procurement, and the inclusion in the position of the customer of cases of procurement from a single supplier does not contradict the Federal Law of July 18, 2011 No. 223-FZ "On the procurement of goods, works, services by certain types legal entities".
At the same time, the RF Armed Forces did not agree with the position of the lower courts (Definition of the Investigative Committee on economic disputes of the RF Armed Forces dated September 16, 2021, No. 306-ES21-13581 in case No. A57-6788 / 2020). In particular, the Court noted that the customer's right to independently determine the procedure and conditions for the use of non-competitive procurement methods should be implemented taking into account the goals of legal regulation enshrined in Law No. 223-FZ. The choice by the customer of the procurement method, which entails an unreasonable restriction of the range of potential participants, violates the principles of procurement activities and leads to discrimination and restriction of competition. At the same time, for the purposes of economic efficiency, purchasing from a single supplier is advisable if the relevant goods, works, services are circulated in low-competitive markets, or conducting competitive procedures is impractical for objective reasons, for example, in the event of liquidation of the consequences of emergencies, the consequences of force majeure.
The judges also emphasized that when determining the cases of non-application of competitive procedures, the customer must have reasonable and objective reasons explaining that the bidding is either ineffective or largely deprives the customer of the result he intends to achieve. Otherwise, the choice of this method of determining the counterparty is an abuse of the right, deliberate evasion from competitive procedures contrary to the principles of procurement.
Thus, the judge concluded that in the given situation, the customer illegally restricted access to participation on a competitive basis in the relevant procurement of entrepreneurs providing catering services. In this regard, the relevant clause of the regulation on the procurement of an educational institution was invalidated.