Cassation: according to Law N 223, it is possible to require a participant to have the status of a manufacturer or dealer
The customer purchased work on the repair and diagnostics of the air conditioning system. The inspectors received a complaint that the documentation illegally established the requirement that the procurement participant has the status of a manufacturer or dealer of goods that will be used when performing work. It was recognized as justified.
Three instances supported the customer, since the disputed claim:
- it is necessary to obtain a guarantee that the counterparty will fulfill its obligations qualitatively. Only the manufacturer or dealer can provide this;
- allows you to exclude unscrupulous and unprofessional procurement participants;
- apply equally to all participants. It does not give advantages to a particular person. The condition was provided for the selection of the most suitable counterparty. The controllers did not prove the opposite.
The courts, among other things, recalled:
- Law N 223 does not oblige to allow all business entities to purchase with the intention of making a profit. The fact that some of them will not be able to participate in the tender does not mean that competition is limited;
- according to Law N 223, customers have the right to form their own procurement system depending on the specifics of their activities. If necessary, they can set additional requirements for participants.
Note that in practice there is a different opinion.
Document: Resolution of the Arbitration Court of the Moscow District of 07.02.2023 in case N A40-45387/2022