COURT UPHELD POSITION OF FAS RUSSIA ON INADMISSIBILITY OF ARBITRARY LOT ENLARGEMENT

It leads to an unreasonable increase in bid security and contract performance and, as a result, to a reduction in the number of procurement participants

The FAS Russia considered a company's complaint against the actions of a customer. The organization held an electronic tender for the provision of security services for office premises in Moscow with an announced price of 1,154,896,205 rubles.

The FAS Russia found violations in the actions of the customer. Thus, the customer illegally consolidated the provision of security services for 153 separate buildings located in Moscow into a single procurement subject. At the same time, such work under the terms of the notification must be performed individually and continuously for 24 hours.

In the description of the procurement subject, the customer indicated that a minimum of 306 persons are required to perform the services. This condition restricts the participants of the procurement, which are subjects of small and medium-sized enterprises*. The participant also needs to confirm their compliance with the established additional requirements on the presence of one executed contract or agreement for the provision of security services**.

According to the FAS Russia, combining security services for premises located in different administrative districts of Moscow into one lot leads to an increase in the volume of services provided, the amount of collateral for the application, the contract enforcement, as well as the price of the contract confirming the necessary experience.

The result of the procurement with such violations was one submitted application. At the same time, the customer had previously conducted similar procurements, but divided them by administrative districts.

The FAS Russia ordered to eliminate the identified violations by conducting a new procurement (without enlarging the lot). The customer did not agree with the decision and order and appealed to the court. During the court hearing, he pointed out the compliance of his actions with the requirements of the Law on the contract system.

The Moscow City Arbitration Court supported the position of the FAS Russia and refused to satisfy the stated requirements in full.

Reference:

*in accordance with the Federal Law of July 24, 2007, No. 209-FZ “On the development of small and medium–sized Enterprises in the Russian Federation”, the average number of employees of small enterprises is up to 100 persons, medium–sized enterprises - 250 persons

** concluded within the framework of 44-FZ or 223-FZ in the amount of at least 230,979,241.01 rubles