Supreme Court: The customer has the right not to use the items of the catalog of goods, works, services, if there is no product with the necessary characteristics in the catalog.
The customer, a medical institution, was guided by the provisions of Article 33 of Federal Law No. 44 when describing the object of purchase - the tomograph. At the same time, the institution established requirements for the characteristics of the purchased goods that are not provided for by the corresponding items of the catalog of goods, works, services for state and municipal needs, which served as the basis for the participant's appeal to the antimonopoly authority with a complaint. The Office of the Federal Antimonopoly Service of Russia recognized the complaint as unfounded due to the fact that the object of purchase was described based on the specific needs of the customer, and the important characteristics of the equipment for the customer were missing in the items of the catalog of goods, works, services.
The participant did not agree with the position of the antimonopoly authority and appealed to the arbitration court with an application to cancel the decision. However, the courts refused to satisfy the stated requirements. At the same time, in particular, the judges noted that since the items in the catalog of goods, works, services did not contain the goods needed by the customer, the description of the goods in accordance with the requirements of Article 33 of Federal Law No. 44 in this case does not contradict the requirements of the legislation on the contract system. At the same time, the absence of a product with the required characteristic in the catalog means that there is no corresponding position in it, therefore, in this case, the customer has the right to describe the object of purchase using the OKPD 2 classifier (the All-Russian classifier of products by type of economic activity).
The judges of the Supreme Court of the Russian Federation agreed with the arguments of the lower courts and refused to transfer the plaintiff's application for challenging court decisions to the Judicial Board for Economic Disputes of the Supreme Court.
Document: Ruling of the Supreme Court of the Russian Federation of September 18, 2023 N 310-ES23-16627 in case N A36-4181/2022