The Supreme Court of the Russian Federation recalled: the procedure for evaluating applications under Law N 223-FZ cannot depend on the taxation regime
The customer has established a procedure for evaluating applications without VAT. Controllers recognized this as a violation.
The courts of three instances supported them because:
the price in the application must be indicated without VAT. This forces DOS bidders to lower their bids by the amount of the tax to keep them from exceeding the NMTsD. Otherwise, the application would not be considered;
such an assessment procedure creates advantages for VAT payers, since the deduction of tax from the price in the application allows you to win with a price higher than that of participants in the simplified tax system;
Law N 223-FZ does not allow the customer to make deductions from the price offers of participants.
The Supreme Court of the Russian Federation did not review the case.
The opinion that it is impossible to bring the price proposals of participants with different taxation systems to a single basis has been expressed by the Supreme Court of the Russian Federation before. It is also shared, in particular, by the AS of the Moscow and Northwestern districts, as well as the Moscow OFAS.
Note that in practice there is another approach.
Document: Determination of the Armed Forces of the Russian Federation of 04.04.2022 N 304-ES22-2729