When public procurement of medical equipment required a license and personal execution — the courts did not see violations
The customer purchased medical equipment with installation services, employee training and warranty service. The participant complained about illegal purchase conditions:
- the contract was obliged to be executed only personally. The requirement did not meet the standard contract — according to its terms, it is permissible to involve co-executors;
- participants had to have a license for the maintenance of medical equipment.
The controllers found a violation. Three instances did not agree with them:
- the standard contract provides that the services are provided personally or with the help of co-executors. However, the section of the document contains a note that the customer can change the conditions taking into account the specifics of the purchase;
- the customer purchased a range of services, in particular, for delivery, installation, training in the rules of operation and warranty repair of equipment. Some require a license. Since the customer has obliged to fulfill the contract personally, the requirement to have a license is legal;
- the ability to attract a co-executor with a license does not mean that the participant does not need his own. He must comply with the terms of the purchase, since a contract is concluded with him. The participant is also responsible for the actions of the co-executors.
It should be noted that Tatarstan and Khabarovsk UFAS in a similar situation did not see a violation in the fact that participants were required to have a license. However, in practice, there is an opinion that a license can only be required from the direct contractor.
Document: Resolution of the Administrative Court of the East Siberian District of 31.01.2023 in case N A58-2190/2022