How customers were wrong under Law No. 223: a review of the practice of the Federal Antimonopoly Service for August 2022
Subtracted points for facts of improper performance. Participants were required to have accident insurance for employees. They demanded that the winner provide documents for the goods before the conclusion of the contract. More in the review.
When evaluating applications, points were reduced for facts of improper execution.
According to the terms of the procedure for evaluating applications, the participant was deducted from the total amount of 5 points if he did not fulfill or improperly fulfilled his obligations to the customer or third parties.
Controllers found a violation:
- since the facts of improper performance are disputed in court, by the time the applications are evaluated, the appeal may still be ongoing. The presence of such facts will be confirmed only by a judicial act that has entered into force;
- the customer has not established a procedure for checking cases of improper performance;
- the controversial condition is applied regardless of the number and nature of violations. For 1 case of termination of the contract or 5 cases of evasion, the same number of points is deducted, which puts the participants in an unequal position.
The court upheld the position.
They demanded accident insurance from the participant's employees.
The draft contract provided for a condition: the contractor guarantees for the entire period of work that his and all subcontractors' employees are voluntarily insured against accidents. The customer motivated this by the injury risk of the subject of the purchase.
Controllers recognized the requirement as superfluous. Voluntary insurance is a measure of material support for employees. Its presence does not affect the possibility of performance of the contract.
Obliged to transfer to the customer the documents for the goods before the conclusion of the contract.
Under the terms of the procurement, the winner provides the customer with documents for the goods no later than 5 calendar days from the date of receipt of the draft contract.
The participant considered this a violation: Federal Law No. 223 does not oblige to have the goods before the conclusion of the contract.
Controllers supported him. Documents are transferred to the customer along with the goods. The fact that they are not there before the draft contract was sent by the customer does not affect the execution.
Document: Review of judicial practice in the field of procurement under Law N 223-Federal Law (August 2022)
Overview of the practice of handling complaints in procurement under Law N 223-Federal Law (August 2022)
Review of administrative practice in the field of procurement under Law N 223-Federal Law (August 2022)