How the arbitration court decided a case in which a participant’s application was rejected for a larger quantity of goods. Indication of the quantity of goods as part of the first parts of participants' applications Rejection of the application for discrepancy in the quantity of goods

Legislation is constantly changing and you cannot be 100% sure that you did everything correctly when making a purchase. In this article we have collected the most common customer mistakes that occur in practice and which you need to learn to avoid.

Most often, errors are made when preparing procurement documentation, in particular, when describing the procurement object. The outcome of the purchase depends on how correctly the procurement documentation is drawn up. Let's look at the most common mistakes customers make at the stage of generating documentation.

1. Excessive requirements when describing the procurement object

Sometimes customers include unnecessary requirements in procurement documentation. For example, they indicate characteristics that can only be tested in laboratory conditions - “crystallization onset temperature”, “viscosity index”, “density”, “sulfur content in %”.

In order to test a product, a procurement participant must first produce or purchase it. At the same time, Law No. 44-FZ does not oblige the contract applicant to have the goods in stock at the time of bidding.

Therefore, the terms of reference should not include requirements for the chemical composition, components of the product, its production technology, and indicators whose values ​​can be determined from test results (as a rule, an indication that this indicator is determined by testing is available in GOST).

The corresponding clarifications are in the letter of the Federal Antimonopoly Service of Russia dated July 1, 2016 No. ИА/44536/16. The position of the FAS Russia is supported by the decision of the Supreme Court of the Russian Federation dated 02/09/2017 No. AKPI16-1287.

Example: Decision of the Federal Antimonopoly Service of Russia dated 06/08/2018 on case No. 18/44/105/640 (purchase number in the Unified Information System 0315100000318000106)

2. Lack of proper instructions for filling out the application

Law No. 44-FZ establishes a requirement for the procurement documentation to include instructions for filling out an application. However, there are no direct requirements for the content of the instructions.

In this regard, some customers neglect the development of this section and limit themselves to the formal presence of instructions in the text of the documentation.

The FAS Russia has already formed a position on this matter, which considers improper instructions a violation of Law No. 44-FZ.

The provisions of the instructions must be clear and consistent. Thus, the instructions must contain, among other things, an indication of the sections of the documentation that contain the indicators for which participants submit their proposals, and the procedure for filling them out.

The requirements for the instructions for filling out the application are set out by the FAS of Russia in letter No. IA/44536/16 dated 07/01/2016.

Example: Decision of the Federal Antimonopoly Service of Russia dated September 13, 2016 in case No. K-1462/16 (purchase number in the EIS 0158200002016000011)

3. Drawing up documentation that creates advantages for individual suppliers

This violation manifests itself in two main forms:

• establishing in the technical specifications the requirements for the supply of goods with certain characteristics, which are met by the goods of the “needed” suppliers (these may be requirements for weight, packaging, dimensions, completeness);
• the use in documentation of evaluation criteria that unreasonably create advantages for certain suppliers (successful experience of deliveries in the territory of one locality, availability of equipment and material resources under the right of ownership).

Such requirements indicate a restriction of competition and the unreasonable creation of advantages for individual procurement participants, which may serve as the basis for reviewing the customer’s actions for compliance not only with the requirements of Law No. 44-FZ, but also with the requirements of antimonopoly legislation (Article 17 of Law No. 135-FZ).

Example: Decision of the Tyumen OFAS Russia dated May 18, 2018 in case No. FKS18/156 (purchase number in the EIS 0167200003418002162).

4. Requirement for the supply of goods from a certain manufacturer without the word “or equivalent” and the absence of equivalence parameters

Sometimes in procurement documentation, customers indicate the name of the manufacturer, country of origin and trademark of the product without the words “or equivalent”.

This is permissible only in cases where the customer justifies the need to ensure the interaction of purchased goods with goods that are already used by him.

In other cases, indicating the trademark of a product without the words “or equivalent” is a direct violation of Law No. 44-FZ.

The customer is also obliged to set equivalence parameters - the maximum and minimum values ​​of indicators, as well as which indicators cannot be changed. By failing to establish equivalence parameters, the customer violates Law No. 44-FZ.

Important! If it is not written what parameters to determine equivalence, then any product can be considered equivalent.

Example: Decision of the Federal Antimonopoly Service of Russia dated December 13, 2017 No. KGOZ-424/17 (purchase number in the EIS 0548100000217000022).

5. Non-copyable documentation

The problem is that customers place documentation in the “*.pdf” format, drawings, files with the “*.exe” extension and in other formats that do not allow the procurement participant to search and copy the terms of reference.

The inability to copy text forces procurement participants to retype the text themselves, which leads to typos in the application and entails the risk of not completing the application within the established time frame.

The position of the FAS Russia is that documentation in a non-copyable/non-editable format violates Law No. 44-FZ, limits competition, and indicates the “tailoring” of procurement to the “right” supplier.

On this matter, there are letters from the Federal Antimonopoly Service of Russia dated November 16, 2016 No. IA/79173/16 and the Ministry of Economy of Russia dated May 23, 2016 No. D28i-1299, dated February 22, 2017 No. D28i-1121.

Example: Decision of the Federal Antimonopoly Service of Russia dated August 2, 2017 in case No. K-986/17 (purchase number in the EIS 0158100017017000043).

6. Placement of design and estimate documentation is not complete

Failure to post design and estimate documentation in full is a violation. Customers sometimes motivate their reluctance to post all design and estimate documentation by the desire not to confuse procurement participants or by the lack of need for this, since only part of the work is being carried out within the budget.

However, the placement of not all design and estimate documentation limits the possibility of preparing an application for participation in the electronic auction and entails a limitation on the number of procurement participants.

This position is shared by specialists from the Federal Antimonopoly Service of Russia (letter No. ATs/14427/16 dated 03/09/2016) and the Ministry of Economic Development of Russia (letter No. D28i-1623 dated 04/20/2017). A similar position is contained in the Review of the Presidium of the Supreme Court of Russia dated June 28, 2017.

Example: Decision of the Federal Antimonopoly Service of Russia dated May 10, 2017 No. 432 (purchase number in the Unified Information System 0119200000117001503).

Another series of common mistakes is associated with the unreasonable rejection of participants' applications. Here you can focus on the following errors:

7. Rejection of a participant’s application due to lack of indication of a trademark

Rejection of an application due to lack of indication of a trademark is unlawful. Even if the customer believes that the product cannot but have a trademark (for example, when purchasing computer equipment), he does not have the right to demand that the procurement participant indicate it.

Only the country of origin is required to be indicated (if the customer applies the national regime).

The purchase participant must indicate the brand or trade name of the product only if it is available.

If the procurement participant has correctly completed the first part of the application, rejection of such an application on the basis that the participant did not indicate the trademark violates the provisions of Law No. 44-FZ.

Example: Decision of the St. Petersburg OFAS Russia dated June 22, 2018 in case No. 44-3106/18 (purchase number in the EIS 0372200152418000003)

8. Rejection of a participant’s application when there is agreement to supply the goods, but its characteristics are not indicated

The application is rejected by the customer commission if it contains consent, but does not contain specific indicators of the product.

However, if the customer indicated in the documentation a trademark, company name, or country of origin of the goods, then the participant in the first part of the application only needs to provide consent to supply the goods.

Indication of specific indicators of the product is necessary if the participant offers for delivery a product that is equivalent to the product specified in this documentation, or the customer has not established requirements for the indicators of the product and its trademark.

Letters of the Ministry of Economy of Russia dated March 17, 2016 No. D28i-666 and dated December 30, 2015 No. OG-D28-16596.

Example: Decision of the Federal Antimonopoly Service of Russia dated 02/06/2018 No. PGOZ-001/18 (purchase number in the EIS 0373100056017000620)

9. Deviation for presence in the RNP under 223-FZ

Customers, not wanting to work with unreliable suppliers, establish in the procurement documentation a requirement that there is no information about the procurement participant in the Register of Unscrupulous Suppliers.

The UIS contains 2 registers - according to Law No. 223-FZ and Law No. 44-FZ. Despite their similar purpose and single location, these are two different registries. And by virtue of direct instructions in Law No. 44-FZ, customers do not have the right to establish requirements for procurement participants about the absence of information in the Register under Law No. 223-FZ and reject a procurement participant on this basis.

Example: Decision of the Ryazan OFAS Russia dated May 18, 2017 on case No. 220-03-3/2017 (purchase number in the EIS 0859300019617000450)

10. Changes in supply volumes and terms of contract execution

Customers sometimes use the right to increase the volume of goods supplied. This is where errors arise regarding how much these supply volumes can be increased. An increase in supply volumes is possible at the stage of concluding and executing a contract.

An increase in supply volumes at the stage of concluding a contract is permissible if there is a corresponding condition in the procurement documentation.

Important! Achieving an increase in the contract price is carried out only due to the volume of delivery. The price of the product per unit must remain unchanged, and any increase in the price of the contract must not exceed its NMCC.

As for the increase in the cost of the contract as part of its execution, it is also achieved solely through an increase in delivery volumes, but not by more than 10%. A provision of an additional agreement that increases the contract price by more than 10% is void.

Moreover, even if the volume of delivery has increased, the delivery time of the goods and the terms of payment for the goods are not subject to change.

Having considered the complaint of Byzantium LLC (hereinafter referred to as the applicant, the Company) against the actions of the single commission of the federal state government military educational institution of higher education “Military Academy of Logistics and Technical Support named after Army General A.V. Khrulev" of the Ministry of Defense of the Russian Federation (hereinafter referred to as the customer, VA MTO, single commission) when carrying out a purchase in the form of an electronic auction to carry out work on routine repairs of buildings and premises for the needs of the Omsk Automotive and Armored Engineering Institute (notice No. 0372100028516000081) (hereinafter referred to as the electronic auction) ,

in the presence of representatives:

applicant -<…>;

branch of VA MTO -<…>;

specialized organization LLC "OTS-55" -<…>;

in the absence of a customer representative duly notified of the date, time and place of consideration of the complaint,

INSTALLED:

1. The Omsk OFAS Russia received a complaint from the applicant (entry No. 4247e dated June 14, 2016) about the actions of the customer’s single commission during an electronic auction.

According to the applicant, the single commission violated the requirements of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (hereinafter referred to as the Federal Law on the Contract System) when refusing the Company admission to participate in the auction.

2. At the request of the Omsk OFAS Russia (out. No. 03-3922 dated June 15, 2016), the specialized organization submitted procurement materials, as well as written objections to the applicant’s complaint (out. No. 4403 dated June 17, 2016).

From the presented materials and information it follows that on April 29, 2016, on the official website of the Unified Information System in the field of procurement (hereinafter referred to as the official website of the UIS), a notice of an electronic auction and auction documentation with an initial (maximum) contract price of 19,440,554.68 rubles was posted.

On May 13, 2016, changes were made to the notice and documentation about the electronic auction.

On May 19, 2016, clarifications of the provisions of the documentation on the electronic auction were posted on the official website of the EIS.

According to the protocol for considering the first parts of applications dated 06/03/2016, twenty applications were received for participation in the electronic auction; fifteen procurement participants, including the applicant, were denied admission to participate in the electronic auction.

In accordance with the protocol of the electronic auction dated 06.06.2016, one participant took part in the electronic auction procedure (order number 4). The reduction in the initial (maximum) contract price was 0.5%.

The protocol for summing up the results of the electronic auction dated 06/08/2016 established that the application of the procurement participant Instroy LLC was recognized as meeting the requirements established by the electronic auction documentation.

3. As a result of considering the applicant’s complaint, submitted materials, objections from representatives of the parties, and carrying out an unscheduled inspection in accordance with Part 15 of Article 99 of the Federal Law on the Contract System, the Commission established the following:

3.1. By virtue of paragraph 1 of part 1 of Article 64 of the Federal Law on the Contract System, documentation on an electronic auction, along with the information specified in the notice of such an auction, must contain, in particular, the name and description of the procurement object and terms of the contract in accordance with Article 33 of this Federal Law, including justification for the initial (maximum) contract price.

In particular, paragraph 1 of part 1 of Article 33 of the Federal Law on the Contract System establishes that the customer, when describing the procurement object in the procurement documentation, must be guided, inter alia, by the rule that. The description of the procurement object shall indicate the functional, technical and quality characteristics, operational characteristics of the procurement object (if necessary).

documentation Part 1 of this article must contain indicators that make it possible to determine the compliance of the purchased goods, work, and services with the requirements established by the customer.

In this case, the maximum and (or) minimum values ​​of such indicators are indicated, as well as the values ​​of indicators that cannot be changed.

These requirements, stipulated by the Federal Law on the Contract System, are established by the customer, a specialized organization in Appendix No. 1 “Technical Specifications” (hereinafter referred to as the Technical Specifications) to the electronic auction documentation.

At the same time, it is not allowed to establish requirements that entail limiting the number of participants in such an auction or restricting access to participation in such an auction.

a) consent provided for in paragraph 2 of this part, including consent to the use of goods in respect of which the documentation for such an auction contains an indication of the trademark (its verbal designation) (if any), service mark (if available), brand name (if available), patents (if available), utility models (if available), industrial designs (if available), name of the country of origin of the goods, or the consent provided for in paragraph 2 of this part, an indication of the trademark (its verbal designation) (if available), service mark (if available), brand name (if available), patents (if available), utility models (if available), industrial designs (if available), name of the country of origin of the goods and, if a participant in such an auction offers for use a product that is equivalent to the product specified in this documentation, specific indicators of the product corresponding to the equivalence values ​​established by this documentation, provided that it contains an indication of the trademark (its verbal designation) (if any), service mark (if available), brand name (if available), patents (if available), utility models (if available), industrial designs (if available), name of the country of origin of the goods, as well as the requirement to indicate in the application for participation in such an auction for a trademark (its verbal designation) (if available), service mark (if available), brand name (if available), patents (if available), utility models (if available), industrial designs (if available), name of the country of origin of the product;

b) consent provided for in paragraph 2 of this part, as well as specific indicators of the goods used, corresponding to the values ​​​​established by the documentation for such an auction, and an indication of the trademark (its verbal designation) (if any), service mark (if available), brand name (if available), patents (if available), utility models (if available), industrial designs (if available), name of the country of origin of the product.

Similar requirements for the content of the first part of an application for participation in an electronic auction are established in paragraph 1 of Section 20 “Requirements for the content and composition of an application for participation in an electronic auction in accordance with parts 3 - 6 of Article 66 of the Federal Law and instructions for filling it out” of the electronic documentation auction.

By virtue of Part 1 of Article 67 of the Federal Law on the Contract System, the auction commission checks the first parts of applications for participation in the electronic auction, containing the information provided for part 3 of article 66 of this Federal Law, for compliance with the requirements established by the documentation of such an auction in relation to the purchased goods, works, and services.

Based on the requirements of Part 4 of Article 67 of the Federal Law on the Contract System, a participant in an electronic auction is not allowed to participate in it if:

1) failure to provide information provided for in Part 3 of Article 66 of this Federal Law, or provision of false information;

2) non-compliance of the information provided for in Part 3 of Article 66 of this Federal Law with the requirements of the documentation about such an auction.

As follows from the information posted on the official website of the EIS, applications for participation in the electronic auction were considered by a single commission of the customer in Omsk at the location of the VA MTO branch.

In accordance with the protocol for considering the first parts of applications for participation in the auction dated 06/03/2016, the applicant (order number of application 1) was denied admission to participate in the auction on the following grounds : “Clause 2 of Part 4 of Article 67 of the Federal Law. Rationale: information on the characteristics of the materials used, provided for in Part 3 of Article 66 of the Federal Law, does not comply with the requirements of Section 20 of the auction documentation, namely: - for position No. 20 “Polyurethane foam sealant” in column 5 “Value proposed by the participant” the value of the indicator is indicated “ The spontaneous combustion temperature of hardened foam is “plus 390”, which does not meet the requirements of the Technical Specifications (“Must be more than +380”). Taking into account the requirements of the Instructions for filling out the first part of the application (“The first part of the application for participation in the auction must contain specific indicators of the goods, with the exception of the following cases: - in accordance with these instructions, the indicators of goods refer to indicators whose values ​​cannot be changed; - specified temperature indicators") the value of this indicator should be “more than +380”; - for position No. 29 “Corrugated pipe” in column 5 “Value proposed by the participant” the value of the indicator “Fire resistance temperature” is indicated - “800”, which does not meet the requirements of the Technical Specifications (“Must be above 600”). Taking into account the requirements of the Instructions for filling out the first part of the application (“The first part of the application for participation in the auction must contain specific indicators of the goods, with the exception of the following cases: - in accordance with these instructions, the indicators of goods refer to indicators whose values ​​cannot be changed; - specified temperature indicators") the value of this indicator should be “above 600”. Reason: clause 1 of part 4 of article 67 of the Federal Law. Justification: provision of unreliable information on position No. 35 “Ceramic stone”, namely, in column 5 “Value proposed by the participant” unreliable information is indicated about the value of the indicator “Voidness” - “0”%, since according to paragraph 4.1.2 of GOST 530- 2012 stone is made only hollow. (In accordance with paragraph 7.6 of GOST 530-2012, the voidness of products is defined as the ratio of the volume of sand filling the voids of the product to the volume of the product. Therefore, the voidness value for a stone cannot be equal to zero)».

In the complaint, the applicant stated verbatim: « Reason for deviation 1, 2.

For positions 20 and 29.

No. 20 “Spontaneous combustion temperature of hardened foam” is required (“Must be more than +380”). They indicated “plus 390”. The customer claims that the value “more than +380” should be indicated, because (“The first part of the application for participation in the auction must contain specific indicators of the goods, with the exception of the following cases: - in accordance with these instructions, the indicators of goods refer to indicators whose values ​​​​cannot be changed; - temperature indicators are indicated."

No. 29 Requires “Fire Resistance Temperature” (“Must be above 600”). "800" is indicated. The customer claims that the value “above 600” should be indicated, because (“The first part of the application for participation in the auction must contain specific indicators of the goods, with the exception of the following cases: - in accordance with these instructions, the indicators of goods refer to indicators whose values ​​​​cannot be changed; - temperature indicators are indicated."

According to instructions:

When describing the requirements for the values ​​of indicators (characteristics) of the product used in the performance of work, in the technical specifications, words and phrases:

"no more…" "more…", “does not exceed...”, “exceeds...”, “not higher...”, "higher…", “no less...”,

“less...”, “no less than...”, “not lower...”, “below...”, “better...”, “worse...”, “more than...” establish requirements for the maximum or minimum values ​​of indicators (characteristics) of the product, and the words, phrases, symbols: “no less... and no more...”, “more than... no more...”, “...-...” set the requirements for the maximum and minimum values ​​of the indicators (characteristics) of the product.

Requirements for the values ​​of indicators (characteristics) of a product using other words, phrases, symbols are requirements for indicators (characteristics) of a product, the values ​​of which cannot be changed .

Below is another rule:

- temperature indicators are indicated.

In accordance with the provisions of the instructions, when using the words “more” and “higher”, specific indicators should be indicated, as was done when filling out the application.

Thus, the procurement participant filled out the application in accordance with the requirements of the Customer, as well as in accordance with the explanations provided by him. Rejection is illegal.

Reason for rejection 3.

GOST 530-2012 does not contain minimum and maximum values ​​for the “voidness” parameter for ceramic stone. In addition, the hollowness of products can only be determined based on test results, according to the methodology given in GOST 530-2012.

In this case, the procurement participant also indicated the indicator in accordance with the Customer’s requirements. In this case, the Customer violated the requirements of clause 2, part 1, art. 33 of Law No. 44-FZ, because indicators were used that differed from the requirements of GOST, thus, based on the justification for the deviation, it was initially impossible to indicate an indicator that simultaneously complies with the requirements of both the Customer and GOST, although in this particular case GOST does not impose any requirements, accordingly, the procurement participant complied with the requirements of the Customer.

The customer violated the provisions of Part 5 of Art. 67 44-FZ, because rejected the participant’s application on grounds not provided for by law.”

To the above arguments of the applicant’s complaint, the specialized organization submitted written objections with the following content:

“In accordance with the requirements of Article 33 of Federal Law 44-FZ, the Customer in Appendix No. 1 to the documentation on the electronic auction (hereinafter referred to as the Terms of Reference) established requirements for the functional, technical and qualitative characteristics of the procurement object.

In particular, when describing the procurement object in the Terms of Reference, indicators (characteristics) were established that made it possible to determine the compliance of the goods used in performing the work with the requirements established by the customer. At the same time, requirements were established for the maximum and/or minimum values ​​of indicators, as well as requirements for indicators whose values ​​cannot be changed.

Thus, for the disputed items of goods No. 20 and No. 29, the following requirements were established in the Technical Specifications:

1) position No. 20 - “Polyurethane foam sealant”; The required parameter is “Spontaneous combustion temperature of hardened foam”; The required value is “Must be more than +380”; Unit of measurement - “°C”;

2) position No. 29 - “Corrugated pipe”; The required parameter is “Fire resistance temperature”; The required value is “Must be above 600”, Unit of measurement is “°C”.

In accordance with paragraph 1 of section 20 of the electronic auction documentation, the auction participant had to indicate in the first part of the application, in particular, the following: “... the auction participant’s consent to perform work under the conditions provided for in the electronic auction documentation, as well as specific indicators of the used goods, corresponding to the values ​​​​established in Appendix No. 1 to the documentation (Technical specifications), and an indication of the trademark (its verbal designation) (if available), service mark (if available), brand name (if available), patents (if available ), utility models (if available), industrial designs (if available), name of the country of origin of the goods.”

Based on the above and in accordance with the Instructions for filling out the first part of the application, when describing the requirements for the values ​​of indicators (characteristics) of goods for positions No. 20 and No. 29 in the Technical Specifications, using the words “more ...” and “higher ...” the Customer established the requirements to the minimum values ​​of indicators (characteristics):

- “Spontaneous combustion temperature of hardened foam”; The required value is “Must be more than +380” (position No. 20);

• "Fire resistance temperature"; The required value is “Must be above 600” (position No. 29).

According to the Instructions for filling out the first part of the application, if the technical specifications establish requirements for maximum or minimum values indicators (characteristics) of the product, procurement participant indicates a specific indicator value.

Moreover, further in the Instructions for filling out the first part of the application it is stated that the information provided by the procurement participants on the specific indicators of the goods used to perform the work should not be speculative(intelligence should not be accompanied by words"must", "must be" and other forms of these words).

However, below, the Instructions for filling out the first part of the application contain a condition (exception) relating directly to the above “temperature” indicators, namely: “The first part of the application for participation in the auction must contain specific indicators of the goods, with the exception of the following cases:

In accordance with these instructions, product indicators refer to indicators whose values ​​cannot be changed;

Specified temperature indicators».

Thus, following the instructions for filling out the first part of the application, when filling out the first part of the application for the above indicators of goods (positions No. 20 and 29), the auction participant should have indicated the following values ​​of these indicators: “more than +380” and “above 600”, since , otherwise, by indicating in his application the values: “plus 390” and “800”, the Applicant also changed the minimum threshold for the values ​​of these indicators, which does not meet the requirements established by the Customer.

Consequently, guided by the provisions of paragraph 2 of part 4 of Article 67 of Federal Law 44-FZ, the Customer’s unified commission, in the opinion of the Customer and OTS-55 LLC, rightfully refused the Applicant admission to participate in the auction due to the fact that information about the characteristics of the used the materials specified in the first part of the application do not comply with the requirements of section 20 of the auction documentation.

In accordance with the requirements of Article 33 of Federal Law 44-FZ, in the Technical Specifications for position No. 35 “Ceramic Stone”, the Customer established the following requirements for the functional, technical and quality characteristics of the product: The required parameter is “Voidness”; The required value is “No more than 30”; Unit - "%". At the same time, in the section “Information on compliance with GOST”, GOST (“GOST 530-2012”) was indicated, to which the values ​​of the indicators of this product, including the values ​​of the “Voidness” indicator, had to correspond.

In the first part of the application for position No. 35 "Ceramic stone" namely, in column 5 “Value proposed by the participant”, the Applicant indicated information about the value of the indicator “Voidness”: “0”%, which, in the opinion of the single commission of the Customer and OTS-55 LLC, was recognized as providing false information about the product, used when performing work.».

This position of the single commission of the Customer and OTS-55 LLC is based on the information contained in GOST 530-2012, namely, in paragraph 4.1.2 of this GOST, which states the following: “Brick is made solid and hollow, stone - only hollow” .

Moreover, in accordance with paragraph 7.6 of GOST 530-2012 “The hollowness of products is defined as the ratio of the volume of sand filling the voids of the product to the volume of the product.

The voids of the product, lying on a sheet of paper on a flat surface with the holes facing up, are filled with dry quartz sand of fraction 0.5-1.0 mm. The product is removed, the sand is poured into a glass measuring cylinder and its volume is recorded. The hollowness of the product, %, is calculated using the formula:

The voids of the product, lying on a sheet of paper on a flat surface with the holes facing up, are filled with dry quartz sand of fraction 0.5-1.0 mm. The product is removed, the sand is poured into a glass measuring cylinder and its volume is recorded. The hollowness of the product, %, is calculated using the formula

where is the volume of sand, mm;

- product length, mm;

- product width, mm;

- product thickness, mm.

The arithmetic mean of three parallel determinations is taken as the test result and rounded to 1%.

Based on the above, in the opinion of the unified commission and OTS-55 LLC, the voidness value for a stone cannot be equal to zero.

Thus, the actions of the Customer’s single commission regarding the refusal of the Applicant’s admission to participate in the auction on this basis, in the opinion of the Customer and OTS-55 LLC, are also lawful.”.

Having analyzed the provisions of the documentation on the electronic auction and heard explanations from representatives of the parties, the Commission established the following.

As stated earlier in this decision, clause 1 of part 1 of Article 33 of the Federal Law on the Contract System establishes that the customer, when describing the procurement object in the procurement documentation, must be guided, inter alia, by the rule that the description of the procurement object must be objective.

In accordance with Part 2 of Article 33 of the Federal Law on the Contract System documentation on procurement in accordance with the requirements specified in Part 1 of this article, must contain indicators that allow determining the compliance of the purchased goods, works, services with the requirements established by the customer. In this case, indicate .

maximum and (or) minimum values ​​of such indicators, as well as values ​​of indicators that cannot be changed

According to Section 5 “Name and description of the procurement object with information on the quantity of goods supplied” of the electronic auction documentation, the description of the procurement object is specified in Appendix No. 1 “Technical Specifications” and Appendix No. 2 “Statement of Quantities of Work and Materials Used” to the electronic auction documentation .

Information about the quality, technical characteristics of the product, its safety, functional characteristics (consumer properties) of the product, size, packaging, shipment of the product and other information about the product, the presentation of which is provided for by the documentation of an open auction in electronic form
	Name of product (material)	Indication of the trademark (model, manufacturer)	Specifications			Unit change	Information on compliance with GOST
			Required parameter	Required value	The value proposed by the participant
20	Polyurethane foam sealant		Description	A one-component sanitary sealant that hardens when exposed to air humidity and contains antiseptic properties that prevent the formation of mold.
			Density
			Foam yield more
			Maximum curing time	No more than 24
			Auto-ignition temperature of hardened foam	Must be more than +380		°C
			Flammability group	should be B3
	Corrugated pipe		Description	There must be a flexible pipe made of self-extinguishing PVC plastic. Should not support combustion			GOST 14254-96
			IP (degree of protection)	At least 54
			Outside diameter	At least 20
			Dielectric strength (50 Hz for 15 min.)	Should be > 900
			Fire resistance temperature	Must be above 600		0C
			Minimum bend radius	Must be at least 4 diameters
				Must be light or heavy, with a steel broach (probe)
	Ceramic stone		Strength grade	Not lower than M100			GOST 530-2012
			Frost resistance	must be at least F50.
			Lenght and width	Not less than 120
			Thermal characteristics group	conditionally effective\ effective\ ordinary
			Emptiness	No more than 30
			Thickness	Not less than 140

The Commission believes that from the above description of the procurement object it is initially impossible to determine:

What values ​​of product indicators are unchangeable;

What variable indicators should be specifically presented in the application;

Which indicator values ​​should be presented as a range value.

Under these circumstances, the Commission finds in the actions of the customer, a specialized organization, a violation of paragraph 1 of part 1 of Article 33 and part 2 of Article 33, paragraph 1 of part 1 of Article 64 of the Federal Law on the Contract System.

By virtue of paragraph 2 of part 1 of Article 64 of the Federal Law on the Contract System, the documentation on the electronic auction, along with the information specified in the notice of such an auction, must contain requirements for the content and composition of the application for participation in such an auction in accordance with parts 3 - 6 of the article 66 of this Federal Law and instructions for filling it out.

In Section 20 “Requirements for the content and composition of an application for participation in an electronic auction in accordance with parts 3-6 of Article 66 of the Federal Law and instructions for filling it out” of the electronic auction documentation in the instructions for filling out the first part of the application, by the customer, by a specialized organization, in particular it is established:

“When describing the procurement object, the technical specifications establish indicators (characteristics) that make it possible to determine the compliance of the goods used in performing the work with the requirements established by the customer. At the same time, requirements are established for the maximum and/or minimum values ​​of indicators, as well as requirements for indicators whose values ​​cannot be changed. The names of indicators (characteristics) of goods and requirements for the values ​​of indicators (characteristics) of goods are indicated in accordance with state standards. An interval value of an indicator (characteristic) of a product is understood as a range of numerical values ​​of an indicator (characteristic) of a product with boundaries corresponding to the requirements of the technical specifications. If the technical specifications establish requirements for the values ​​of indicators (characteristics) of a product that are mutually exclusive or variable, the procurement participant indicates one of the values ​​allowed by this technical specification. Such requirements are established using the word “or” or the symbol “\”. When describing the requirements for the values ​​of indicators (characteristics) of the product used in the performance of work, in the technical specifications, words and phrases: "no more…" « more… "higher…", set requirements for maximum or minimum values ​​of indicators (characteristics) of a product, and words, phrases, symbols: “no less... and no more...”, “more than... no more...”, “...-...” set requirements for maximum and minimum values. indicators (characteristics) of the product. Requirements for the values ​​of indicators (characteristics) of a product using other words, phrases, symbols are requirements for indicators (characteristics) of a product, the values ​​of which cannot be changed. When specifying information about specific indicators used to perform work on a product, the procurement participant is obliged to indicate the values ​​of such indicators that exactly correspond to the values ​​​​established in the technical specifications for indicators whose values ​​cannot be changed. If the technical specifications establish requirements for the maximum or minimum values ​​of indicators (characteristics) of a product, the procurement participant indicates the specific value of the indicator. When establishing in the technical specifications the requirements for the maximum and minimum values ​​of the indicator (characteristics) of the product, the procurement participant indicates a specific interval value of the indicator (characteristics) of the product less than or equal to that specified in the technical specifications. When establishing in the technical specifications a requirement for the maximum or minimum value of an indicator (characteristic) of a product, the procurement participant indicates a specific non-interval value of the indicator (characteristic) of a product. An exception is the case of establishing these requirements for the maximum value of an indicator (characteristic) of a product using the words “does not exceed...”. The use of the words “does not exceed...” in the technical specifications specifies a range of values ​​with the maximum permissible upper limit of the value of the indicator (characteristics) of the product. The procurement participant must indicate a specific interval value of the indicator (characteristic) of the product with an upper limit equal to or less than the value of the indicator (characteristic) of the product established in the technical specifications. In this case, it is allowed to indicate in the application a specific interval value of the indicator (characteristic) of the product, or using the words “does not exceed...” (in this case, an interval with an upper limit equal to or less than the value of the indicator (characteristic) of the product established in the technical specifications will be indicated, then there is a lower limit of the interval not indicated), or indicating the lower and upper limits of the interval (for example: “0-5”). When using the word “allowed” in the technical specifications, the procurement participant indicates a specific indicator value indicating the absence or presence of the characteristic. In this case, the information specified by the procurement participant in the application should not be accompanied by the word “allowed”. The names of indicators (characteristics) of goods must be indicated without changes. The information provided by procurement participants about the specific indicators of the goods used to perform the work should not be of a presumptive nature (the information should not be accompanied by the words “should”, “must be” and other forms of these words). If the required parameter contains indicators marked with the symbols “*”, “”, then this indicator refers to indicators whose values ​​cannot be changed.

The first part of the application for participation in the auction must contain specific indicators of the goods, with the exception of the following cases:

- in accordance with these instructions, indicators of goods refer to indicators whose values ​​cannot be changed;

- temperature indicators are indicated ».

The Commission believes that a joint reading of the Terms of Reference of the auction documentation and the instructions for filling out the first part of the application does not allow one to properly submit an application for participation in the auction, since,

on the one hand, the instructions for filling out the first part of the application contain the condition that “ words, phrases: "no more…" « more…", "does not exceed...", "exceeds...", "not higher than...", "higher…",“no less...”, “less...”, “no less than...”, “no lower...”, “lower...”, “better...”, “worse...”, “more than...” install requirements to the maximum or minimum values ​​of indicators(characteristics) of the product. Requirements for the values ​​of indicators (characteristics) of a product using other words, phrases, symbols are requirements for indicators (characteristics) of a product, the values ​​of which cannot be changed. If in the technical specifications requirements for maximum or minimum indicator values ​​have been established(characteristics) of the product, the procurement participant indicates a specific indicator value» (i.e. in the case under consideration, the procurement participant must indicate specific indicators of the product) ,

on the other hand, the instructions for filling out the first part of the application also contain the condition that « When specifying information about specific indicators used to perform work on a product, the procurement participant is obliged to indicate the values ​​of such indicators that exactly correspond to the values ​​​​established in the technical specifications, for indicators whose values ​​cannot be changed », while from the Terms of Reference of the auction documentation it is impossible to determine which values ​​of goods indicators are unchangeable; what variable indicators should be specifically presented in the application; what indicator values ​​should be presented as a range value.

Taking into account the above, due to the ambiguity of perception regarding which indicators should be specified and which should be indicated without changes, the Commission comes to the conclusion that the single commission unlawfully refused to allow the applicant to participate in the auction for items No. 20 “Polyurethane foam sealant” and No. 29 “Corrugated pipe”, which indicated a specific indicator of the product in its application for participation in the auction.

At the same time, the Commission notes that in the Terms of Reference of the electronic auction documentation there are goods in which the values ​​of the indicators are indicated with punctuation marks «;», «,» (for example, position No. 4 “Heavy concrete” contains the indicator “concrete class for compressive strength” indicating the following value: “should be B3.5; B15”; position No. 26 “butyl tape” contains the indicator “composition” indicating the following meaning “polyester, aluminum”, etc.).

Similarly, with punctuation marks “;”, “,”, several values ​​of product indicators are indicated for positions No. 11, 12, 15, 16, 17, 19, 20, 21, etc. Technical specifications for the auction documentation.

At the same time, neither the documentation about the electronic auction, nor the direct instructions for filling out the first part of the application contain information about whether these values ​​relate to changeable indicators or whether these indicator values ​​are unchangeable.

Considering the above, it is clearly impossible to understand from the documentation how procurement participants were supposed to indicate the values ​​of product indicators in their applications for participation in the auction: indicate one value or indicate all values ​​using the punctuation mark “;”, “,”.

The Commission believes that this circumstance does not allow one to properly submit an application for participation in the auction, which is confirmed by the significant number of applications from procurement participants not allowed to participate in the auction.

At the meeting of the Commission, representatives of the customer and the specialized organization explained that in this case the following condition specified in the instructions for filling out the first part of the application will apply: “Requirements for the values ​​of indicators (characteristics) of a product using other words, phrases, symbols are requirements for indicators (characteristics) of a product, the values ​​of which cannot be changed.”

According to a representative of a specialized organization, such an indication in the technical specifications as “;”, “,” can be classified as symbols.

In accordance with the Decree of the Government of the Russian Federation of November 23, 2006 No. 714 “On the procedure for approving the norms of the modern Russian literary language when used as the state language of the Russian Federation, the rules of Russian spelling and punctuation” it is established that the Ministry of Education and Science of the Russian Federation approves based on the recommendations of the Interdepartmental Commission on the Russian Language, a list of grammars, dictionaries and reference books containing the norms of the modern Russian literary language when used as the state language of the Russian Federation (based on the results of the examination), as well as the rules of Russian spelling and punctuation.

Currently, the Rules of Russian Spelling and Punctuation are in force, approved by the USSR Academy of Sciences, the USSR Ministry of Higher Education and the RSFSR Ministry of Education in 1956, in paragraphs 130-135 of which the rules and cases of putting punctuation marks, in particular “,”, “;” etc.

In accordance with the specified rules of punctuation in the Russian language, for example, a semicolon is placed, including between groups of independent clauses, as well as between groups of subordinate clauses related to the same main clause, if it is necessary to indicate the boundaries between groups of sentences in contrast to the boundaries between individual proposals.

Taking into account the above, the Commission cannot agree with the stated position of the representatives of the customer and the specialized organization, since the case established in the instructions for filling out the first part of the application applies exclusively to those cases when the Terms of Reference contain words, phrases, symbols, but in the case under consideration the Terms of Reference contains signs punctuation ";", ",".

Due to the above, the Commission sees in the actions of the customer, a specialized organization, a violation of paragraph 2 of part 1 of Article 64 of the Federal Law on the Contract System.

Regarding the grounds for refusing the applicant admission to participate in the auction for item No. 35 “Ceramic stone,” the Commission notes the following.

In the Terms of Reference of the auction documentation for item No. 35 “Ceramic Stone”, the customer, a specialized organization, established the following requirements for the functional, technical and quality characteristics of the product: required parameter "Voidness", the required value is "no more than 30%".

Moreover, in the section “Information on compliance with GOST” for this item it is indicated: “GOST 530-2012”.

In the application for participation in the auction for item No. 35 “Ceramic stone”, the applicant indicated: the value of the “Voidness” indicator is “0%”.

As follows from the protocol of consideration of the first parts of applications for participation in the auction, the Company was denied admission to participate in the auction for this position, indicating the following grounds: “ Reason: clause 1 of part 4 of article 67 of the Federal Law. Rationale: provision unreliable information on position No. 35 “Ceramic stone”, namely, in column 5 “Value proposed by the participant”, unreliable information is indicated about the value of the indicator “Voidness” - “0”%, since according to clause 4.1.2 of GOST 530-2012 the stone is manufactured only hollow. (In accordance with paragraph 7.6 of GOST 530-2012, the voidness of products is defined as the ratio of the volume of sand filling the voids of the product to the volume of the product. Therefore, the voidness value for a stone cannot be equal to zero».

The commission found that in accordance with paragraph 4.1.2 of GOST 530-2012 “Ceramic brick and stone. General technical conditions" (hereinafter - GOST 530-2012), a reference to which is made by the customer in the electronic auction documentation, bricks are made solid and hollow, stone - only hollow.

Having analyzed the contents of GOST 530-2012, the Commission found that this GOST does not contain information on the minimum and (or) maximum values ​​of the “voidness” parameter for ceramic stone.

Moreover, in accordance with GOST 530-2012, specific values ​​of these indicators can only be obtained after laboratory tests after the manufacture of a specific batch of goods.

At the Commission meeting, the customer’s representative found it difficult to explain how the customer would accept the “Ceramic Stone” product for compliance with the “voidness” indicator, given that this indicator can only be obtained after laboratory tests after the manufacture of a specific batch of goods.

Considering that the Federal Law on the Contract System does not oblige the procurement participant to have in stock a product that is subject to description in accordance with the requirements of the documentation, the above example of a detailed presentation in the auction documentation of the requirements for describing the characteristics of the product obtained during testing after the manufacture of the product limits the ability of procurement participants provide an appropriate proposal as part of the bids for participation in the auction.

Due to the above, the Commission sees in the customer’s actions a violation of clause 1 of part 1 of Article 33, clauses 1 and 2 of part 1 of Article 64 of the Federal Law on the Contract System due to the fact that the description of the procurement object under item No. 35 “Ceramic stone” is not objective in nature .

Under these circumstances, due to the bias in the description of the procurement object, the Commission considers unlawful the actions of the single commission to deny the applicant access to participate in the electronic auction on the grounds specified in the protocol for considering the first parts of applications for participation in the auction dated 06/03/2016.

In connection with the above, the Commission sees in the actions of the single commission a violation of Part 4 of Article 67 of the Federal Law on the Contract System and recognizes the Company’s complaint justified.

3.2. In accordance with paragraph 2 of part 1 of Article 64 of the Federal Law on the Contract System, documentation on the electronic auction, along with the information specified in the notice of the auction, must contain requirements for the content and composition of the application for participation in the auction in accordance with parts 3 - 6 of Article 66 Federal Law on the Contract System and instructions for filling it out. At the same time, it is not allowed to establish requirements that entail limiting the number of auction participants or restricting access to participation in the auction.

Clause 2 of Part 5 of Article 66 of the Federal Law on the Contract System stipulates that the second part of the application for participation in an electronic auction must contain documents confirming the compliance of the participant in such an auction with the requirements established by Clause 1 of Part 1, Parts 2 and 2.1 of Article 31 (if there are such requirements ) Federal Law on the Contract System, or copies of these documents, as well as a declaration of compliance of the participant in such an auction with the requirements established by paragraphs 3 - 9 of Part 1 of Article 31 of the Federal Law on the Contract System.

The Commission notes that the Decree of the Government of the Russian Federation dated December 27, 2015 No. 1457 (hereinafter referred to as Resolution No. 1457) approved a list of certain types of work (services), the performance (rendering) of which on the territory of the Russian Federation prohibited from January 1, 2016 organizations under the jurisdiction of the Republic of Turkey, as well as organizations controlled by citizens of the Republic of Turkey and (or) organizations under the jurisdiction of the Republic of Turkey (hereinafter referred to as the List) (published on the Official Internet portal of legal information http://www.pravo. gov.ru 12/30/2015).

The specified List includes, among other things, works and services performed to meet state and municipal needs (item 5 of the List).

The Commission found that in Section 18 “An exhaustive list of documents that must be submitted by participants in an electronic auction in accordance with paragraph 1 of Part 1 and Part 2 of Article 31” of the auction documentation by the customer, a specialized organization, a requirement is established to provide the following document confirming the compliance of the procurement participant Clause 1 of Part 1 of Article 31 of the Federal Law on the Contract System: “ An extract from the Unified State Register of Legal Entities, submitted by the procurement participant in the second part of the application for participation in the electronic auction, is a document with the help of which the Customer, among other things, establishes the compliance of such participant with the requirementsparagraph 1 of part 1 of article 31 Federal Law».

At the same time, in subparagraph 5 of paragraph 2 of section 20 “Requirements for the content and composition of an application for participation in an electronic auction in accordance with parts 3 - 6 of Article 66 of the Federal Law and instructions for filling it out” of the electronic auction documentation, it is established that the second part of the application must contain , including:

“5) an extract from the Unified State Register of Legal Entities, submitted by the procurement participant in the second part of the application for participation in the electronic auction, is a document with the help of which the compliance of such participant with the requirements of paragraph 1 of part 1 of Article 31 of the Federal Law will be established.”

Directly in the instructions for filling out the second part of the application, in particular, it is stipulated that « Second part of the applicationto participate in an electronic auction must contain the following documents and information (if the provision of this information and documents is provided for in paragraph 2 of this section):

- documents confirming the participant’s compliance with the requirements of the legislation of the Russian Federation for persons who carry out the work that is the object of the procurement (a document or a copy thereof is provided if the corresponding requirement for participants is established in the documentation - extract from the State University L Legal entity (or its copy))».

Clause 1 of Section 15 “Requirements for participants in an electronic auction established in accordance with Part 1 of Article 31 of the Federal Law” of the electronic auction documentation contains a ban on the performance of work to meet state needs on the territory of the Russian Federation by organizations under the jurisdiction of the Republic of Turkey, as well as organizations , controlled by citizens of the Republic of Turkey and (or) organizations under the jurisdiction of the Republic of Turkey, provided for by Decree of the Government of the Russian Federation of December 29, 2015 No. 1457.

In accordance with Part 1 of Article 69 of the Federal Law on the Contract System the auction commission reviews the second parts of applications to participate in the electronic auction And documents sent to the customer by the operator of the electronic platform in accordance with Part 19 of Article 68 Federal Law on the Contract System, in terms of compliance with their requirements established by the documentation of such an auction.

According to Part 19 of Article 68 of the Federal Law on the Contract System, within one hour after posting on the electronic platform the protocol specified in Part 18 of Article 68 of the Federal Law on the Contract System, the operator of the electronic platform is obliged to send to the customer the specified protocol and the second parts of applications for participation in such an auction submitted by its participants, proposals for the contract price of which, when ranking in accordance with Part 18 of Article 68 of the Federal Law on the Contract System, received the first ten serial numbers, or if less than ten of its participants took part in such an auction, the second parts of applications for participation in such an auction submitted by its participants, as well as documents of these participants provided for in paragraphs 2 - 6 and 8 Part 2 of Article 61 Federal Law on the Contract System and contained on the date and time of the deadline for filing applications for participation in such an auction in the register of its participants who have received accreditation on the electronic platform. During this period, the operator of the electronic platform is also obliged to send appropriate notifications to these participants.

Clauses 2 and 3 of Part 2 of Article 61 of the Federal Law on the Contract System stipulate that in order to obtain accreditation, a participant in an electronic auction provides the operator of the electronic site with a copy of an extract from the Unified State Register of Legal Entities (for a legal entity), a copy of an extract from the Unified State Register of Individual Entrepreneurs (for individual entrepreneur) received no earlier than six months before the date of application specified in paragraph 1 of part 2 of Article 61 of the Federal Law on the Contract System, a copy of the identity document of this participant (for another individual), a duly certified translation into Russian language of documents on state registration of a legal entity or individual as an individual entrepreneur in accordance with the legislation of the relevant state (for a foreign person); copies of the constituent documents of this participant (for a legal entity), a copy of the document proving his identity (for an individual).

Considering that the current legislation of the Russian Federation does not contain the type of supporting document, the procurement participant’s compliance with the requirements of Resolution No. 1457 established in the procurement documentation is confirmed by the information contained in the above documents. Thus, the procurement participant does not need to provide any additional documents as part of the application.

Under these circumstances, the Commission finds in the customer’s actions a violation of paragraph 2 of part 1 of Article 64 and paragraph 2 of part 5 of Article 66 of the Federal Law on the Contract System.

As follows from the procurement materials presented by the specialized organization, the documentation on the electronic auction for the execution of work on routine repairs of buildings and premises for the needs of the Omsk Automotive and Armored Engineering Institute (notice No. 0372100028516000081) was approved by an official of the branch of the VA MTO in Omsk (Omsk Automotive and Armored Engineering Institute) .

At the same time, the Commission notes that the violations specified in this decision contain signs of an administrative offense, liability for which is provided for in Part 2 and Part 4.2 of Article 7.30 of the Code of the Russian Federation on Administrative Offenses.

Based on the above, guided by subparagraph “b” of paragraph 1 of part 3, part 4 and paragraph 1 of part 15 of article 99, part 8 of article 106 of the Federal Law on the Contract System, the Commission

DECISION:

1. Recognize justified complaint of LLC "Byzantium" against the actions of the single commission of the customer - the federal state government military educational institution of higher education "Military Academy of Logistics Support named after Army General A.V. Khrulev" of the Ministry of Defense of the Russian Federation when carrying out a purchase in the form of an electronic auction to carry out work on the current repair of buildings and premises for the needs of the Omsk Automotive and Armored Engineering Institute (notice No. 0372100028516000081).

2. Recognize the actions of the federal state government military educational institution of higher education “Military Academy of Logistics and Technical Support named after Army General A.V. Khrulev" of the Ministry of Defense of the Russian Federation represented by the branch of the VA MTO in Omsk (Omsk Automotive and Armored Engineering Institute), a single commission violation of the requirements of paragraph 1 of part 1 and part 2 of article 33, paragraphs 1 and 2 of part 1 of article 64, paragraph 2 of part 5 of article 66, part 4 of article 67 of the Federal Law on the Contract System.

3. Based on Part 22 of Article 99 of the Federal Law on the Contract System, issue to the federal state government military educational institution of higher education “Military Academy of Logistics Support named after Army General A.V. Khrulev" of the Ministry of Defense of the Russian Federation and its single commission, the specialized organization OTS-55 LLC, an order to eliminate violations of the legislation on the contract system in the field of procurement.

4. Based on the facts of identified violations of legislation in the field of procurement, transfer the materials of the electronic auction (notice No. 0372100028516000081) to an official of the Omsk OFAS Russia to resolve the issue of initiating cases of administrative offenses under Part 2 and Part 4.2 of Article 7.30 of the Code of the Russian Federation on Administrative Offenses.

This decision can be appealed in court within three months from the date of its adoption.

INSTRUCTION No. 03-10.1/139-2016

on eliminating violations of legislation in the field of procurement

Commission of the Omsk OFAS Russia for control in the field of procurement in the Omsk region (hereinafter referred to as the Commission) consisting of:

Having considered the complaint of Byzantium LLC against the actions of the single commission of the customer - the federal state government military educational institution of higher education "Military Academy of Logistics and Technical Support named after Army General A.V. Khrulev" of the Ministry of Defense of the Russian Federation (hereinafter referred to as the customer, VA MTO, single commission) when carrying out a purchase in the form of an electronic auction to carry out work on routine repairs of buildings and premises for the needs of the Omsk Automotive and Armored Engineering Institute (notice No. 0372100028516000081) (hereinafter referred to as the electronic auction) ,

as a result of an unscheduled inspection in accordance with subparagraph “b” of paragraph 1 of part 3, part 4 and paragraph 1 of part 15 of article 99 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works and services to ensure state and municipal needs" (hereinafter referred to as the Federal Law on the Contract System), establishing in the actions of the federal state-owned military educational institution of higher education "Military Academy of Logistics Support named after Army General A.V. Khrulev" of the Ministry of Defense of the Russian Federation represented by the branch in Omsk (Omsk Automotive and Armored Engineering Institute), a single commission, violation of the requirements of paragraph 1 of part 1 and part 2 of article 33, paragraphs 1 and 2 of part 1 of article 64, paragraph 2 of part 5 of article 66, Part 4 of Article 67 of the Federal Law on the Contract System,

on the basis of its Decision No. 03-10.1/139-2016 dated June 21, 2016, guided by paragraph 2 of part 22, part 23 of article 99, part 8 of article 106 of the Federal Law on the Contract System,

PRESCRIPTS:

1. Federal State Treasury Military Educational Institution of Higher Education “Military Academy of Logistics Support named after Army General A.V. Khrulev" of the Ministry of Defense of the Russian Federation represented by the branch in Omsk and its unified commission by 07/04/2016:

- cancel all protocols drawn up during the electronic auction to carry out work on routine repairs of buildings and premises for the needs of the Omsk Automotive and Armored Engineering Institute (notice No. 0372100028516000081);

To cancel the electronic auction for the execution of work on routine repairs of buildings and premises for the needs of the Omsk Automotive and Armored Engineering Institute (notice No. 0372100028516000081).

2. To the operator of the electronic platform RTS-tender LLC:

Cancel the protocol of the electronic auction dated 06/06/2016;

To provide the Federal State Treasury Military Educational Institution of Higher Education “Military Academy of Logistics Support named after Army General A.V. Khrulev" of the Ministry of Defense of the Russian Federation, represented by the branch of the VA MTO in Omsk and its unified commission, the opportunity to perform the actions specified in paragraph 1 of this instruction.

3. Federal State Treasury Military Educational Institution of Higher Education “Military Academy of Logistics Support named after Army General A.V. Khrulev" of the Ministry of Defense of the Russian Federation represented by its branch in Omsk inform Omsk OFAS Russia on the execution of actions specified in paragraphs 1 and 2 of this instruction by 07/05/2016 in writing with supporting documents attached.

Entrust control over the execution of the order to a member of the Commission<…>

This order may be appealed in court within three months from the date of its adoption.

Failure to comply an official of the customer, an official of an authorized body, an official of an authorized institution, a member of the procurement commission, an operator of an electronic platform, a specialized organization within the prescribed period of legal order entails administrative punishment in the form of an administrative fine in accordance with Part 7 of Article 19.5 of the Code of the Russian Federation on Administrative Offences.

We will review judicial and administrative practice and identify controversial issues regarding the issue of indicating the quantity of goods in the first parts of participants’ applications.

The Law on Placement of Orders (Law No. 94-FZ - no longer in force) introduced an innovative way to determine a supplier: an open auction in electronic form, designed to eliminate the problems of a conventional hammer auction.

For ten years, the rules for conducting an electronic auction have been adjusted, leaving no chance for abuse and developing fair competition. Now even “small” regional companies competed for government orders without unnecessary time and money costs, given that the lion’s share of the budget is concentrated in the federal center. Individuals located at the other end of the country received opportunities to attract additional revenue, and customers received greater budget savings.

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Clause 1 of Part 3 of Article 66 of the Law on the Constitutional Court establishes the content of the first part of the application for participation in an electronic auction when concluding a contract for the supply of goods:

a) if the customer indicated a trademark in the documentation, provide as part of the first part of your application consent to the supply of goods with the specified trademark;

Different positions of courts and control bodies

Since the provisions of the Law on the Contract System do not provide a definite answer to the question, let us turn to administrative practice.

Arbitration practice

The OFAS for the Kaliningrad region, in its decision dated March 18, 2014 No. KS-38/2014, indicated that the quantity of goods supplied does not relate to any of the characteristics of the procurement object specified in clause 1, part 1, art. 33 of the Law on the Contract System (functional, technical, quality and performance characteristics). Consequently, in accordance with the provisions of the auction documentation and the specified norms of the Law on the Constitutional Court, the applicant had no obligation to indicate in the application for participation in the auction other characteristics of the goods that were not related to the characteristics of the goods specified in clause 1 of part 1 of Art. 33 of the Law on the contract system. The submitted application of the applicant for participation in the auction in accordance with sub. “b” clause 1 part 3 art. 66 of the Law on the Constitutional Court, clause 2, part 17 of the Information Card contains specific indicators of the goods offered for delivery.

In addition, according to clause 1.1 of the draft contract, which is an integral part of the auction documentation, the supplier, within the period established by the contract, undertakes to supply shoe covers in the quantity and assortment specified in the technical specifications (Appendix No. 1 to the specified contract). Appendix No. 1 to the contract establishes that 80,000 pairs of goods (shoe covers) are required for delivery. Thus, in accordance with the above, the commission comes to the conclusion that the submitted application of the applicant complies with the requirements of the auction documentation and the Law on the Contract System.

Another opinion

The Federal Antimonopoly Service for the Novosibirsk Region takes the opposite position. In its decision dated 03.03.2015 No. 08-01-48, the control body indicates the following:

“In accordance with subparagraph “b” of paragraph 1 of part 3 of Article 66 of the Law on the Constitutional Court and paragraph 3.1.3 of the auction documentation, procurement participants in the first part of the application were required to indicate specific indicators corresponding to the values ​​​​established by the documentation for such an auction and an indication of the commodity mark (its verbal designation) (if available), service mark (if available), trade name (if available), patents (if available), utility models (if available), industrial designs (if available), name of the country of origin of the product. At the same time, this norm does not contain provisions limiting the content of specific indicators only to qualitative indicators. In the description of the purchase item by the customer, in addition to the quality characteristics of the product, the quantity of the product was also indicated. As it was established at a meeting of the Commission of the Novosibirsk OFAS Russia, in violation of the requirements of the auction documentation, the procurement participant did not indicate the quantity of goods supplied as part of the first part of the application. Based on the above, the Commission of the Novosibirsk OFAS Russia recognized the decision of the customer’s auction commission to refuse admission to the first part of the application of NPP ETS LLC as legal and justified.”

Arbitrage practice

Judicial practice on the issue of indicating the quantity of goods as part of the first part of an application for participation in an electronic auction is also ambiguous.

The Arbitration Court of the Perm Territory, in my opinion, quite objectively and in detail outlined its position in the decision dated 02/05/2015 in case No. A50-25962/2014:

“The quantity of the purchased product is not a functional, technical, quality or operational characteristic of the product as an object of purchase; it does not specify the product and its properties, but determines the volume of purchase, which is set by the customer and cannot be changed by the auction participant. The participant, by submitting an application to participate in the auction, agrees to the supply of goods in the required volume.

The instructions for filling out the application indicate the need to comply with the indicators characterizing the product with the indicators established in the specification.

The provisions of the said instructions do not contain requirements to indicate the quantity of goods supplied. The mere presence in the specification of information about the quantity of goods, which is not a functional, technical or qualitative characteristic of the goods, does not indicate that the quantity of goods must be indicated in the first part of the application.

Considering it mandatory to indicate the quantity of goods in the first part of the application, the customer, in violation of clause 1 of part 1 of Article 64 of Law No. 44-FZ, did not include in the auction documentation proper instructions for filling out the application for participation in the procurement, which allows determining the procedure for filling out the application in terms of indicating the indicators of the goods, its quantity.

Consequently, procurement participants had no reason to indicate information about the quantity of goods when submitting an application.

Taking into account the above, the court recognizes that in the first part of the application with protected number 8433437 (IP Snitko M.A.) for participation in the auction, specific indicators corresponding to the values ​​​​established by the documentation for the open auction in electronic form are indicated. At the same time, in the first part of the application, the individual entrepreneur confirmed his consent to the supply of goods on the terms provided for in the documentation for an open auction in electronic form, thereby accepting the terms of the contract and specifications for it, which are part of the auction documentation, that is, he confirmed the delivery of goods of the required quantity in accordance with the terms of the auction documentation."

And again the opposite

The Arbitration Court of the Penza Region (decision dated June 15, 2015 in case No. A49-3699/2015) expressed a polar position: “If the auction documentation contains such an indicator of the procurement object as the quantity of goods, this indicator must also be indicated in the application for participation in the auction . The first part of the bid of one of the auction participants did not contain an indicator of the quantity of goods to be supplied. Consequently, such an application does not comply with the requirements of Part 3 of Article 66 of Law No. 44-FZ, which constitutes an act of failure to provide information provided for in Part 3 of Article 66 of Law No. 44-FZ, and is grounds for refusal of admission to participate in an electronic auction on the basis provided for in paragraph 1 of part 4 of article 67 of Law No. 44-FZ.”

The Arbitration Court of the Northwestern Federal District, in its ruling dated 06/02/2015 in case No. A05-11949/2014, which challenged the decision of the Arkhangelsk Regional Arbitration Court dated 10/30/2014 and the ruling of the Fourteenth Arbitration Court of Appeal dated 02/09/2015, gave a very interesting argument to justify the decision:

“The information card of the auction indicates specific indicators: subject - production and delivery of “Pension Files” folders; quantity of goods supplied - 1030 pieces; product characteristics.

Sweep wrote: I mentioned this article when calling the Customer. They find fault with the phrase information about the product (specific indicators of the product). They claim that this phrase includes itself and the quantity of goods offered by me in the application. However, I categorically disagree that specific information about a product can include its quantity. They even state in the draft contract the quantity that I am ready to supply. They changed it using an error in my application. Tomorrow morning I will draw up a protocol of disagreements. In it I would like to refer to article Art. 41.12ch. 2. And attach the draft contract with the correct quantity. I wish I could find the practice of the Federal Antimonopoly Service. Does anyone have any thoughts? Auction documentation, in accordance with clause 1, part 4, art. 41.6 must also contain parameters that cannot be changed.

• Tender

Author: Tatyana Cherdantseva July 25, 2017 The article will help you understand in what cases the customer has the right to reject an application and how to prevent unreasonable rejection of an application under 44-FZ, which is fraught with a fine and a complaint to the FAS. An electronic auction not only implies a reduction in the initial contract price by suppliers during the bidding process, but also requires a qualified approach when checking applications for compliance with legal requirements.

The goods, works and services offered by the supplier must meet the customer’s requirements, and the participant himself must have the necessary qualifications and experience. In this regard, the relevant question is about the rules by which participants are admitted to electronic auctions and which affect the level of competition and the number of procedures taken place.

If the customer has determined the quantity of the required product, then the procurement for a specific product requires the submission of a final proposal by the procurement participant. If the documentation requires information on specific indicators corresponding to the values ​​​​established by the documentation, the participant is obliged to provide specific indicators of the product, usually on the basis of the technical specifications.
According to Part 13 of Art. 34 of Law 44-FZ, the contract includes a mandatory condition on the procedure and timing of payment for goods, work or services, on the procedure and timing of the customer’s acceptance of the delivered goods, work performed (its results) or services provided in terms of compliance of their quantity, completeness, volume with the requirements , established by the contract, as well as the procedure and timing for processing the results of such acceptance. Within the framework of Part 2 of Art.

Attention

If such conditions are not established, the applicant indicates information on the first three points (without exceptions):

• consent to perform work and services;
• specific indicators corresponding to the values ​​​​established by the documentation;
• name of the country of origin of the goods;
• indication of the means of individualization (if available).

If the participant does not fulfill this condition, his proposal will be rejected. Rejection of the second parts of applications, 44-FZ Part 6, Art. 69 establishes the reasons for deviation in the second parts:

• failure to provide documents and information in accordance with paragraph.

1, 3–5, 7 and 8 hours 2 tbsp. 62, parts 3 and 5 art. 66 (see article “Documents for tender”);

non-compliance with the conditions established by the documentation;

false information;

non-compliance of the auction participant with the requirements established in accordance with Part.

Info

1 part of the application was rejected due to the quantity of goods. For example, some characteristic in the auction documentation must be at least 120, and according to GOST, at least 130. It is a rare supplier who knows GOST by heart, and, trusting the customer, writes the number that is in the technical specifications.

At the same time, he also agrees that his product also complies with this GOST. After this, such an application is rejected due to the inconsistency of the specified information with the requirements of the auction documentation, since in our example the value of 120 GOST does not correspond. The relationship between the specific characteristics of the product for a government order is also worth considering , that you cannot thoughtlessly write all the characteristics as the extreme boundaries of the ranges specified by the customer. Characteristics can be associated not only with GOST, but also with each other, that is, certain values ​​of one parameter can impose restrictions on the values ​​of another parameter.

Law No. 44-FZ, based on the results of consideration of the first parts of applications for participation in an electronic auction, the auction commission makes a decision on the admission of a participant to participate in the auction or on the refusal of admission to participate in such an auction in the following cases: failure to provide information provided for in Part 3 of Art. Grounds for rejecting an application under Federal Law 44 Therefore, we believe that the exclusion of such a person from participation in the procedure for determining a counterparty even before the conclusion of a contract (including at the stage of consideration of the second parts of applications) cannot be considered a violation of the legislation on the contract system. In conclusion, let us remind you that in order to recognize a participant’s application as not meeting the documentation requirements due to the provision of unreliable information about the product, the customer must have evidence confirming the unreliability of such information.

Preparing and submitting an application is the most difficult and responsible part of the process of participation in public procurement for a supplier. It requires lengthy preparation and certain knowledge.

It is enough to make the slightest mistake due to inattention or due to an incorrect understanding of the documentation and the application risks being rejected. The preparation of the first part of the application, which contains information about the goods supplied or services provided, requires the most time.

Important

In this article, we will look at the main stumbling blocks of supplier representatives and look at how to avoid them. Reasons for rejecting 1 part of applications for the supply of goods After the time for submitting applications ends, the procurement commission begins work.

Its task is to evaluate the compliance of all submitted applications with established requirements.
Based on the practice of considering cases, there are several recommendations for filing an application:

1. The customer has no right to reject an application that does not contain the quantity of goods offered for delivery. Such a requirement is not directly stated in 44-FZ, therefore, the quantity of goods is not included in the list of mandatory information that must be contained in the application.

Customers should not require that the application include the chemical composition of the material from which the supplied product is made. According to the FAS, this is a violation of the norms of Part 5 of Article 51 of 44-FZ.

Therefore, the absence of such information in the supplier’s proposal cannot serve as a reason for non-admission to the trading procedure.

When offering goods for delivery, the supplier must indicate the specific name of its country of origin.

If you did not indicate the quantity from the first part of the application

The reason for rejection of the application can only be the complete absence of such consent. The customer has no right to make any claims regarding its content. If the supplier must use certain consumables or tools to perform the work, then the application must specify the characteristics of the products used. Inconsistency between the declared and required characteristics causes the application to be rejected.

The first part of the application should not contain any indication of the name and details of the participant. But submitting an application on company letterhead is not a reason for the proposal to be rejected.

Features of filling out an application, based on the practice of the FAS If disputes arise with the customer, suppliers are recommended to contact the FAS.

• When purchasing vital and essential medicines, the maximum price is not registered or the offered price exceeds their maximum selling price under the conditions specified in clause 2 of Part 10 of Art. 31.
• The information contained in the documents specified in parts 3 and 5 of Art. was revealed to be unreliable. 66 (first and second parts) in accordance with Part 6.1 of Art. 66. For example, the characteristics contained in the first part are unreliable according to GOST specified in the technical specifications.
Responsibility of the commission members It is worth considering that not only an unjustified refusal of admission to participate in the auction entails the imposition of administrative liability in accordance with clause 2 of Art.

• Indication of the quantity of goods in the first parts of participants' applications
• Forum of the Institute of Public Procurement (Moscow)
• Part 1 of the application was rejected due to the quantity of goods
• Forum about government procurement and tenders good-tender
• Grounds for rejecting an application under 44-FZ

Indication of the quantity of goods in the first parts of participants' applications In cases where the customer indicates that certain characteristics must be agreed upon with the customer, we recommend indicating what range of characteristics you can offer him to choose from. Important Read more about such cases in our article. You can find a lot of tricks in technical specifications. Attention Our company has extensive experience in drawing up applications and appealing against customer actions.
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Good afternoon The auction committee rejected part 1 of our application due to a discrepancy in the quantity of goods for one of the items. Is the deviation legal? Is the quantity of goods a condition of the contract, which is mandatory for fulfillment, or is it a characteristic of the goods? Collapse Victoria Dymova Support employee Pravoved.ru Similar questions have already been considered, try looking here:

• Is it possible to reject 1 part of an application in an auction?
• Part 1 of the electronic auction application

Lawyers' answers (3)

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