Appeal: in procurement under Law N 223, samples of goods cannot be required when submitting bids
The customer has established in the procurement the requirement to provide samples of goods when submitting bids. They were non-refundable and non-refundable. Without them, the applications were rejected.
Controllers and courts considered this condition to restrict competition:
- participation in the purchase depends on the availability of goods. Law N 223 does not oblige to have it when applying. It suffices to declare the full compliance of the products with the terms of the documentation;
- the sample requirement obliges the entrant to purchase or manufacture the product in advance, with no guarantee that it will be the winner and sell the product. It excludes the possibility of taking part in the tender due to the lack of such a sample;
- the desire of the customer to choose the right product cannot justify the disputed claim. It does not affect the quality of performance of the contract;
- the submission of an application means that the participant has accepted the terms of the purchase, and the signing of the contract confirms the compliance of the transferred goods with the established requirements.
A similar position is taken, in particular, by the Federal Antimonopoly Service and the Arbitration Court of the Moscow District. The Ulyanovsk Department of the Federal Antimonopoly Service found no violations in the disputed requirement.
Document: Resolution of the 11th Arbitration Court of Appeal dated November 28, 2022 in case N A49-2445 / 2022