FAS: NON-PLACEMENT OF INFORMATION ABOUT PURCHASE IN THE UIS DOES NOT GIVE CUSTOMER THE RIGHT TO CANCEL IT BEFORE BEFORE CONCLUDING THE CONTRACT

This position of the authority was supported by the court

FAS Russia has considered complaints about the actions of customers who have established in the documentation the right to cancel the purchase at any time before the conclusion of the contract. As a result, the authority recorded violations of the Procurement Law by customers (1).

Therefore, at present, a number of customers – state-owned companies fix such a right in their documentation. They refer to the fact that their purchases are not competitive, since information about them is not posted in the Unified Information System in the field of Public Procurement (UIS) due to the effect of the Resolution of the Government of the Russian Federation No. 301 (2). According to the customers, in such cases, the rule of Part 5 of Article 3.2 of the Procurement Law is not applicable, and they get the right to establish such provisions.

The authority found that information about disputed purchases was not really posted on the official website of the UIS, however, it was posted on the website of the operator of the electronic platform and is available for an unlimited number of persons. Thus, within the framework of disputed purchases, competition between participants was actually ensured, applications for participation in purchases were submitted. According to the authority, such purchases should be subject to the rules provided for competitive procurement (3).

The customers did not agree with the rulings of FAS Russia and appealed to the court.

Arbitration Court of the City of Moscow and the Ninth Arbitration Court of Appeal initially agreed with the position of the customers (4).

However, the Arbitration Court of the Moscow District agreed with the position of FAS Russia. The court annulled the decisions of the lower instances and refused to satisfy the stated requirements of the customers.

FAS Russia additionally notes that the norms of the Resolution of the Government of the Russian Federation No. 301 are primarily aimed at protecting participants in procurement procedures from the possible imposition of sanctions against them by unfriendly states and do not contain indications of the uncompetitive nature of such purchases.

(1) Part 1 of Article 2, Part 5 of Article 3.2 of the Federal Law No. 223-FZ

(2) Resolution of the Government of the Russian Federation of March 6, 2022 No. 301 "On the grounds for non-placing on the official website of the unified information system in the field of procurement of goods, works, services to meet state and municipal needs in the information and telecommunications network Internet information on purchases of goods, works, services, information about suppliers (contractors, performers), with whom contracts have been concluded "

(3) In accordance with Part 3 of Article 3 of the Federal Law No. 223-FZ

(4) Cases No. A40-16654/23, No. A40-254140/22