INADMISSIBILITY OF PLACING PROJECT DOCUMENTATION IN CLOUD STORAGE DURING PROCUREMENT

The Cassation supported the position of the FAS Russia*

Earlier, the FAS Russia recognized the Federal State Budgetary Institution "The first center of the customer-developer of the national guard" as violating the Law on the Contract System. The authorized institution did not place the project construction documentation in the Unified Information System (UIS) in the field of procurement. Instead, it attached a link to the electronic auction documentation for reviewing and downloading the project documentation via the cloud storage (service "Облако@mail.ru")**.

The antimonopoly service issued remedies to cancel determination of the contractor. The winner of the auction did not agree with the decision of the antimonopoly service and appealed to the court against it.

The first instance and appeal courts agreed with the applicant, in contrast to the Moscow District Federal Arbitration Court. In its appeal, the antimonopoly service noted that during the storage of documents in the cloud storage, the user may change and delete their content. Respectively, the authorized institution can change the project documentation without control at any stage of the procurement. This is contrary to the principles of openness and transparency***, as well as the rules for storage of data in the field of procurements within the relations specified in ****.

The first instance and appeal courts did not take into account that the legislation does not regulate the limitation period for conducting unscheduled procurement inspections. For example, in the case of filling with the FAS Russia a petition, the service may start the inspection of procurement procedures even after they were completed. If the project documentation was published in the cloud storage, the authorized institution may delete or change its content. This makes it impossible to conduct the inspection.

The Moscow District Federal Arbitration Court supported the arguments of FAS Russia and annulled the judicial acts of previous instances. Thus, this decision confirms the position of the FAS Russia on the inadmissibility of placing project documentation during the procurement process on any resources other than the UIS.

* Case No. А40-151818/2020

** cloud storage Mail.ru Group (service «Облако@mail.ru») is not included in the register of official Internet sites of the authorities and not defined by the EIS regulations as the official site of the EIS

*** Article 7 of the Law on the Contract System

**** Article 4 of the Law on the Contract System