FAS REMINDS THAT ECONOMIC ENTITIES HAVE THE RIGHT TO COMPLAIN ABOUT NON-FULFILLMENT OF PREVIOUSLY ISSUED REMEDIES IN THE FIELD OF PUBLIC PROCUREMENT

The Court once again confirmed the powers of the Competition Authority

In accordance with the Law on Procurement [1], any participant in the procurement procedure, if his rights and legitimate interests are violated, has the right to appeal to the Competition Authority [2] the actions (inaction) of the customer, the procurement commission, the operator of the electronic platform. One of the grounds for filing a complaint is the procurement in violation of legal requirements.

Such violations include, in particular, procurement without taking into account the remedies of the Competition Authority.

Earlier, the courts of lower instances in their decisions indicated that the Authority did not have the powers to consider complaints about non-compliance with previously issued remedies.

However, the Arbitration Court of the Moscow District has confirmed that the existence of reference in the complaint that the customer made a purchase in violation of the provisions of the Law [3] is an independent basis for accepting the complaint for consideration.

The Court also pointed out that the FAS Russia is an executive authority with special powers to control the provision of equal conditions for participants during competitive procedures. The Authority has the right to evaluate the complaint of the procurement participant and make an appropriate conclusion about the attribution/non-attribution of the customer's actions under appeal to those violations that are subject to appeal. The Authority also has the right to qualify violations committed by the customer during the procurement, taking into account the arguments of the complaint under consideration.

Additionally, the Competition Authority reminds that the legislation provides for administrative fines for failure to comply with the remedies of the Authority in time [4].

[1] Part 10 of Article 3 of Federal Law № 223-FZ of 18.07.2011 “On Procurement of Goods, Works, Services by Certain Types of Legal Entities”

[2] in accordance with the procedure established by Article 18.1 of Federal Law № 135-FZ of 26.07.2006 “On Protection of Competition”

[3] of the Law on Procurement, other regulatory legal acts adopted in its implementation, procurement regulations during the procurement procedure

[4] Part 7.2 of Article 19.5 of the Administrative Code of the Russian Federation