Courts: no need to reject the application if the state customer was offered a product with a different code of the all-Russian classifier of products by type of economic activity
A procurement participant with a ban on the admission of foreign manufactured goods complained that the winner's application was not rejected. He submitted an extract from the register of industrial products for goods with a different code of the all-Russian classifier of products by type of economic activity, which did not match the code in the notice.
The customer objected. The proposal of the winner corresponded to the terms of reference. He said that he himself manufactures products, agreed to supply them on the terms of purchase and attached documents regarding the national regime.
Controllers found no violations. Three instances agreed with them:
- the customer indicated the parameters of the desired product in the terms of reference. The products of the winner answered them;
- according to Law No. 44, the difference between the code of the all-Russian classifier of products by types of economic activity in the notification from the code in the application is not a reason to reject it. It is for informational purposes only and does not describe functional, technical or quality characteristics. The fact that the customer indicated in the notice a different code of the all-Russian classifier of products by type of economic activity does not mean that the disputed product did not suit him;
- the winner confirmed that his product complies with the national regime. He assumed the obligations of due performance and the risks of delivering products that did not meet the contract. In the draft of the latter, in such a case, the right of the customer was secured to refuse acceptance and terminate the transaction unilaterally.
The Supreme Court of the Russian Federation did not review the case.
A similar position was previously expressed by the Federal Antimonopoly Service. Note that in practice there is an example when controllers supported the rejection of an application in a similar situation. The specifics of the customer's work did not allow purchasing goods with a different code of the all-Russian classifier of products by type of economic activity.
Document: Ruling of the Supreme Court of the Russian Federation dated 06.12.2022 N 305-ES22-22995