The courts did not find a violation of Law N 223 in rejecting applications for the participant's bad business reputation
The procurement regulation allowed the customer to reject the application if, within 2 years before the date of summing up the results, he unilaterally terminated the contract with the participant for improper performance. A procurement participant among small and medium-sized businesses, who was removed on this basis, complained to the Office of the Federal Antimonopoly Service.
Controllers found a violation. The appeal and cassation did not agree with them:
- Law N 223 contains an exhaustive list of information and documents that can be required from participants in competitive procurement among small and medium-sized businesses. However, neither in the procurement regulation nor in the documentation there is a condition to provide information about the absence of terminated contracts by the participant. The customer identified a negative experience based on his archival data;
- the law does not prohibit making additional requirements for procurement participants among small and medium-sized businesses if the customer needs them. The disputable conditions were fixed in the documentation and the procurement regulations in order to identify the best offer. They did not restrict competition and did not contradict the purposes and principles of Law N 223.
In practice, there is an example when the courts also did not find violations in similar selection criteria and in procurement not from small and medium-sized businesses. According to the terms of the procurement documentation, the application could be rejected for the facts of improper execution of contracts both with the customer and with third parties.
Document: Resolution of the Arbitration Court of the Moscow District dated December 23, 2022 in case N A40-237260 / 21-92-1617