COURT SUPPORTED FAS IN A DISPUTE ON ROAD FACILITIES CONCESSION IN ADYGEYA

The concession conditions did not allow choosing the bets offer in terms of spending budgetary funds

In June 2019, FAS considered a complaint of “Regional Information Centre” against actions of the Ministry of Construction, Transport, Housing-and-Utilities and Road Facilities of the Adygeya Republic in the course of a tender for a concession to create a system of photo- and video-registration of traffic offences, automatic vehicle control stations.

As established by FAS Commission, the tender documentation specified only one way to secure the concession: bank guarantee. According to Deputy Head of FAS Department for Control over Construction and Natural Resources, Oksana Malaya, this requirement is contrary to the Law on concession agreements since the Law allows deposits and risk insurance along with bank guarantees.

Also the tender organizer wrongly formed the concedent payment criteria, estimated based on administrative fines fixed by the system.

“The initial payment sum by the state to the company for the system was 70% of such fines and was limited by the minimum size at 60%. At the same time, the Law on concession agreements sets only the initial value for each criterion and does not provide for any additional thresholds, as 60%, in the case in question”, explained Deputy Head of FAS Rachik Petrosyan. “In fact, the bidder could not report about its readiness to get less that 60% from the total sum of the fines collected by the system, for example, 50%. This condition breaches the principles of concession agreements, and does not allow choosing the best offer in terms of spending budgetary funds”.

The Ministry was ordered to abolish the tender outcome, make changes to the tender documentation and announce the new deadline for accepting offers. The Ministry disagreed and filed a lawsuit.

Oleg Korneev, Head of FAS Department forControl over Construction and Natural Resources, informed: “Moscow Arbitration Court supported FAS position aimed at competition support and dismissed the claim of the Ministry”.