The Ministry of Finance spoke about the procedure for appealing the actions of customers guided by Federal Law No. 44
Representatives of the Ministry noted that the right to file a complaint to the control body in the field of procurement in accordance with the procedure established by Chapter 6 of Federal Law No. 44 was granted to the procurement participant, provided that the actions (inaction) of the subject of control being appealed violate the rights and legitimate interests of such a participant. Accordingly, the condition for filing a complaint is the initial availability of the rights and legitimate interests of the procurement participant, which are violated by the actions (inaction) of the subject of control during the procurement. Thus, the reason for refusal to accept a complaint for consideration may be the absence of a special legal capacity of the procurement participant (for example, the absence of membership in the relevant self-regulatory organization), the non-compliance of the participant with additional requirements established in accordance with the Decree of the Government of the Russian Federation of December 29, 2021 N 2571 "On requirements for participants in the procurement of goods, works, services to meet state and municipal needs and invalidate certain acts and certain provisions of acts of the Government of the Russian Federation."
At the same time, the control body in the field of procurement at the stage of preliminary consideration of the complaint is recommended:
- to consider the presence or absence of signs of unlawful establishment by the customer of requirements to the participants of the purchase, regardless of the arguments contained in the complaint;
- to refuse to accept the complaint for consideration if the signs of unlawful establishment by the customer of the requirements to the participants are not revealed and at the same time the inconsistency of the participant who filed the complaint with such requirements is revealed;
- to accept the complaint for consideration if there are no signs of unlawful establishment by the customer of the requirements for the participants, and also the inconsistency of the participant who filed the complaint with such requirements is not revealed;
- to accept the complaint for consideration if there are signs of unlawful establishment by the customer of the above requirements, since the violation of the rights and legitimate interests of the bidder who filed the complaint may be due to the unlawful establishment of such requirements.
Recall that in accordance with part 1 of Article 105 of Federal Law No. 44, the procurement participant has the right to appeal to the control body in the field of procurement the actions (inaction) of the subject (subjects) of control, if such actions (inaction) violate the rights and legitimate interests of the participant when conducting competitive methods and purchasing goods from a single supplier in in electronic form for the amount provided for by part 12 of Article 93 of Federal Law No. 44.
Document: Letter of the Ministry of Finance of the Russian Federation dated October 20, 2023 N 24-01-07/100177
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