UFAS: the customer, according to Law No. 223-FZ, cannot be required to agree with him to involve third parties
The customer has established in the draft contract that, by written agreement with him, the contractor may involve third parties at his own expense to perform the work. At the same time, he is obliged to submit copies of contracts with these persons at the request of the customer.
The participant complained about the restriction of competition. The controllers supported him, because the condition:
violates the contractor's right to freedom of legal relations with third parties. He can determine by himself with whose help he will achieve the best result of the work;
it may lead to abuse on the part of the customer, since he chooses third parties at his discretion. There are no criteria for consent to their involvement in the documentation. According to the Law N 223-FZ, the customer has the right to establish requirements only for the participants of the purchase;
it is an interference with the performer's business activities and limits the number of participants.
A similar position is taken, in particular, by the Moscow and Yakut UFAS.
Krasnodar UFAS decided otherwise: the condition of approval does not oblige participants to provide any documents during the procurement. It refers to relations at the stage of contract execution and does not restrict competition.
Document: Decision of the Samara Federal Antimonopoly Service of Russia dated 06.04.2022 N 063/07/3-253/2022