Question: Consequences of unreasonable rejection of a procurement participant’s application by the customer, as well as judicial practice on this issue. Question: Consequences of unreasonable rejection of a procurement participant’s application by the customer, as well as judicial practice on this issue

1. Violation by an official of the customer, an official of an authorized body, an official of an authorized institution, a specialized organization of the terms of posting information in the unified information system in the field of procurement of goods, works, services to meet state and municipal needs (hereinafter referred to as the unified information system in the field of procurement) and documents, the placement of which is provided for by the legislation of the Russian Federation on the contract system in the field of procurement, during a tender, auction, with the exception of cases provided for in parts 1.2 and 1.3 of this article, for no more than two working days -

shall entail the imposition of an administrative fine on officials in the amount of five thousand rubles; for legal entities - fifteen thousand rubles.

1.1. Violation by an official of the customer, an official of an authorized body, an official of an authorized institution, a specialized organization of the terms of placement in a unified information system in the field of procurement of information and documents, the placement of which is provided for by the legislation of the Russian Federation on the contract system in the field of procurement, during a competition, auction, for except for the cases provided for in parts 1.2 and 1.3 of this article, for more than two working days -

shall entail the imposition of an administrative fine on officials in the amount of thirty thousand rubles; for legal entities - one hundred thousand rubles.

(see text in the previous edition)

1.2. Violation by an official of the customer, an official of an authorized body, an official of an authorized institution, a specialized organization of the terms of posting in a unified information system in the field of procurement of information and documents, the placement of which is provided for by the legislation of the Russian Federation on the contract system in the field of procurement, when conducting a request for quotations, request for proposals , making a purchase from a single supplier (contractor, performer) for no more than one working day -

shall entail the imposition of an administrative fine on officials in the amount of three thousand rubles; for legal entities - ten thousand rubles.

(see text in the previous edition)

1.3. Violation by an official of the customer, an official of an authorized body, an official of an authorized institution, a specialized organization of the terms of posting in a unified information system in the field of procurement of information and documents, the placement of which is provided for by the legislation of the Russian Federation on the contract system in the field of procurement, when conducting a request for quotations, request for proposals , making a purchase from a single supplier (contractor, performer) for more than one working day -

(see text in the previous edition)

1.4. Placing by an official of the customer, an official of an authorized body, an official of an authorized institution, a specialized organization in a unified information system in the field of procurement or sending to an operator of an electronic platform information and documents to be posted, sent, in violation of the requirements provided for by the legislation of the Russian Federation on the contract system in procurement, or violation by these persons of the procedure for providing tender documentation or auction documentation, the procedure for explaining the provisions of such documentation, the procedure for accepting applications for participation in determining the supplier (contractor, performer), final offers, except for the cases provided for in parts 1 - 1.3 and 1.7 of this article, -

(see text in the previous edition)

shall entail the imposition of an administrative fine on officials in the amount of fifteen thousand rubles; for legal entities - fifty thousand rubles.

(see text in the previous edition)

1.5. Placing a notice of a procurement in the unified information system in the field of procurement or sending an invitation to participate in determining a supplier (contractor, performer) earlier than ten calendar days from the date of changes to the schedule in relation to such procurement -

1.6. Placing in a unified information system in the field of procurement a notice of a procurement or issuing an invitation to take part in determining a supplier (contractor, performer) if information about such a procurement is not included in the schedule -

shall entail the imposition of an administrative fine on officials in the amount of thirty thousand rubles.

1.7. Placing a notice of a procurement in the unified information system in the field of procurement or issuing an invitation to take part in determining a supplier (contractor, performer) if an order was issued to recognize such a purchase as unfounded and if the violation specified in the order has not been eliminated -

shall entail the imposition of an administrative fine on officials in the amount of thirty thousand rubles.

2. Rejection of an application for participation in a competition, refusal of admission to participate in an auction, recognition of an application for participation in the procurement of goods, work or services as not meeting the requirements of competition documentation, auction documentation, removal of a procurement participant from participation in a competition, auction (hereinafter referred to as of this part - refusal of admission to participate in the procurement) on grounds not provided for by the legislation of the Russian Federation on the contract system in the field of procurement, recognition of an application for participation in a competition as proper documentation that meets the requirements of the competition, recognition of an application for participation in an auction as proper documentation that meets the requirements about the auction, in the event that the participant who submitted such an application should be denied admission to participate in the procurement in accordance with the requirements of the legislation of the Russian Federation on the contract system in the field of procurement, or violation of the procedure for opening envelopes with applications for participation in a competition, closed auction and (or) opening access to such applications submitted in the form of electronic documents, violation of the procedure for consideration and evaluation of such applications, final proposals of procurement participants, established by the tender documentation -

entail the imposition of an administrative fine on officials in the amount of 1 percent of the initial (maximum) contract price, but not less than five thousand rubles and not more than thirty thousand rubles.

(see text in the previous edition)

2.1. Violation of the requirements stipulated by the legislation of the Russian Federation on the contract system in the field of procurement for the content of the protocol drawn up during the selection of a supplier (contractor, performer) -

shall entail the imposition of an administrative fine on officials in the amount of ten thousand rubles.

(see text in the previous edition)

3. Failure by an official of a customer, an official of an authorized body, an official of an authorized institution, a specialized organization in a unified information system in the field of procurement of information and documents, the placement of which is provided for in accordance with the legislation of the Russian Federation on the contract system in the field of procurement -

shall entail the imposition of an administrative fine on officials in the amount of fifty thousand rubles; for legal entities - five hundred thousand rubles.

(see text in the previous edition)

4. Establishing a procedure for reviewing and evaluating applications for participation in determining a supplier (contractor, performer), final proposals of procurement participants, requirements for procurement participants, the amount of security for applications for participation in determining a supplier (contractor, performer), the size and methods of securing the execution of a contract not provided for by the legislation of the Russian Federation on the contract system in the field of procurement, as well as the requirement for procurement participants to submit information and documents as part of an application for participation in determining a supplier (contractor, performer) not provided for by the legislation of the Russian Federation on the contract system in the field of procurement -

shall entail the imposition of an administrative fine on officials in the amount of 1 percent of the initial (maximum) price of the contract, the price of the contract concluded with a single supplier (contractor, performer), but not less than five thousand rubles and not more than thirty thousand rubles.

(see text in the previous edition)

4.1. Inclusion in the description of the procurement object of requirements and instructions regarding trademarks, service marks, trade names, patents, utility models, industrial designs, appellations of origin of goods or names of manufacturers, requirements for goods, information, works, services, provided that such requirements entail a limitation on the number of procurement participants, with the exception of cases provided for by the legislation of the Russian Federation on the contract system in the field of procurement, or the inclusion in one lot of the procurement object of goods, works, services that are technologically and functionally unrelated to each other, -

shall entail the imposition of an administrative fine on officials in the amount of 1 percent of the initial (maximum) contract price, but not less than ten thousand rubles and not more than fifty thousand rubles.

(see text in the previous edition)

4.2. Approval of tender documentation, auction documentation, documentation of a request for proposals, determination of the content of a notice of a request for quotation in violation of the requirements provided for by the legislation of the Russian Federation on the contract system in the field of procurement, except for the cases provided for in parts 4 and 4.1 of this article -

shall entail the imposition of an administrative fine on officials in the amount of three thousand rubles.

(see text in the previous edition)

(see text in the previous edition)

6. Rejection of an application for participation in a request for quotation, removal of a procurement participant from participation in a request for proposals (hereinafter in this part - refusal of admission to participate in the request) on grounds not provided for by the legislation of the Russian Federation on the contract system in the field of procurement, recognition of an application for participation in a request for quotations, a request for proposals, a final proposal that meets the requirements of the notice of a request for quotations, documentation of a request for proposals in the event that the procurement participant who submitted such a request should be denied admission to participate in the request in accordance with the requirements of the legislation of the Russian Federation on the contract system in the field of procurement, or violation of the procedure for opening envelopes with applications for participation in a request for quotations, request for proposals, with final proposals and (or) opening access to such applications submitted in the form of electronic documents, final proposals, violation of the procedure for considering and evaluating applications to participate in the request for proposals, final proposals established by the documentation on the request for proposals, -

entail the imposition of an administrative fine on officials in the amount of 5 percent of the initial (maximum) contract price, but not more than thirty thousand rubles.

(see text in the previous edition)

7. Recognition of the winner of the determination of the supplier (contractor, performer) in violation of the requirements of the legislation of the Russian Federation on the contract system in the field of procurement -

shall entail the imposition of an administrative fine on officials in the amount of fifty thousand rubles.

(see text in the previous edition)

8. Reducing the deadline for filing applications for participation in the determination of a supplier (contractor, performer), except for cases where the legislation of the Russian Federation on the contract system in the field of procurement allows for a reduction of these deadlines, or violation of the procedure and deadlines for canceling the determination of a supplier (contractor, performer) -

The FAS can restore the violated rights of a supplier who was illegally denied by the customer access to participate in the auction. In this article we will look at how exactly this happens.

Reason for consideration of the complaint

The law dictates to customers strict grounds for rejecting an application under 44-FZ (Part 4 of Article 67 and Part 6 of Article 69). Any deviation from these standards will be considered a violation of the law.

Therefore, if an auction participant believes that the rejection of the first parts of 44-FZ bids does not comply with the above rules, and therefore violates his rights, then he can appeal the actions of the customer in accordance with Art. 105 of the Law.

You can do the same if there is an illegal rejection of the second part of the application under 44-FZ. Only in this case is it important to have time to send documents to the antimonopoly authority before concluding a contract with the winner of the tender.

Thus, dishonest actions of the customer, namely the unjustified rejection of an application under 44-FZ, will be grounds for consideration of a complaint by the FAS. The result of the process may be the restoration of the violated rights of the participant.

Procedure for considering a complaint

First, the FAS conducts a preliminary examination. The complaint is then considered on its merits. At the same time, the FAS commission conducts an unscheduled inspection of documents, as well as the procurement organizers and everyone involved in them.

As an example, let us consider the case of unjustified rejection of the first part of the application.

Example

Based on the results of consideration of the first parts of applications (auction No. 0373100015817000177 dated June 19, 2017), the commission of the Federal State Budgetary Institution “National Medical Research Center of Cardiology” rejected the participant IP Popov A.S. (No. 25) for the reason: “There is no warranty period (clause 1, part 4, article 67 No. 44-FZ).” In this regard, on September 09, 2017, the latter submitted documents to the FAS, since he considered these actions to be unfounded. As evidence, the document detailed the relevant articles of Law No. 44, as well as the provisions of the auction documentation.

On September 18, 2017, the FAS commission in Moscow issued a decision in which it found that the customer had violated Part 5 of Art. 67 No. 44-FZ. And during the inspection, it turned out that supplier No. 20 was illegally rejected for similar reasons. As a result, the request was recognized as justified and the customer was issued an order to eliminate the violations.

A participant can also be rejected for the second part, but after the auction. The following is an example of such a situation.

On March 30, 2017, an electronic auction No. 0127200000217000260 was held. The winner is JSC Pharmaceft. At the same time, another participant, BSS LLC, which received the second number as a result of the auction, appealed the unlawful admission of the winner in the second part of the application. The latter, as the applicant assumed, could offer only foreign-made drugs (Denmark), while the law required only Russian ones. The FAS Commission examined all applications for these auctions and declared the admission of the winner illegal (decision and order dated April 13, 2017). As a result, the customer received an order, and the contract was concluded with BSS LLC.

Procedure for holding the meeting

The meeting itself is held in the following sequence:

1. Registration of those present.
2. Opening of the meeting, announcement of the order, names, rights and obligations of the parties.
3. Voicing the actions being appealed.
4. Comments from those present on the process.
5. Announcement of results.

The time frame for consideration of a complaint is presented in the table:

Recognition of the complaint as justified/partially justified/unfounded

As a result of the audit, the appeal may be accepted by:

1. Justified.
2. Partially justified.
3. Unfounded.

The second option is appropriate if not all of the actions being complained of are considered illegal.

If there are no violations, the procurement is resumed without changes, but with an extension of the deadline in proportion to the time spent on the appeal.

Decision and order based on the results of the review

The FAS always formalizes the results of the process in the form of a single decision. Additionally, an order may be drawn up (clause 2, part 22, article 99) or other documents (part 22, article 99), including a list of actions required to be performed by violators. For violation of the law, the perpetrators bear responsibility under Art. 107 of Law No. 44.

Information about the results of the appeal is published in the Unified Information System in the appropriate register.

But do not forget that the decision of the control body can be challenged in court.

Participation in bidding always begins with the submission of an application. The requirements for such a document are specified in the tender documentation. In this regard, not every application received for participation in procurement can be considered. The auction organizer has the legal right to reject the application and not take it into account during the competition.

However, rejection of an application that meets the requirements of the competition documentation is not legal (more details on the issue in the link). In this case, it is necessary to immediately respond to such decisions, since the presence of a dispute regarding one or more applications does not prevent the holding of a competition between the remaining participants and subsequently concluding a contract.

Unreasonable rejection of applications for participation in the auction

Based on current practice, it is possible to identify the main reasons for the rejection of applications for participation in the tender, which are not legal:

1. Technical errors. This paragraph includes arithmetic inaccuracies, typos in the execution of an application for participation in the auction and similar minor violations. Formally, all of the above is a non-compliance of the application with the requirements of the competition documentation. However, often arbitration courts and the antimonopoly service recognize such an approach as illegal and do not allow excessive formalism when assessing received proposals.
2. Lack of required information. Each tender establishes requirements, for example, for the contractor’s qualifications, work experience, brand of goods supplied, their quantity, and so on. At the same time, it is legally possible to reject an application only if the tender documentation directly establishes these rules. Any additional requirements cannot be presented to the auction participant; accordingly, the grounds for rejecting applications on additional points are illegal.
   

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Penalty for rejecting an application under 44-FZ

The consequences of illegally rejecting an application for participation in the auction are the possibility of challenging the competition as a whole (more about this on the main part of the site), as well as invalidation of the contract concluded on its basis. In addition, the violation in question of the requirements of antimonopoly legislation, which calls for ensuring equal access to the competition for all auction participants, entails a fine.

The amount of liability is set as a percentage of the initial price of the disputed purchase, and cannot exceed thirty thousand rubles.

The presence of an administrative fine on this basis will significantly facilitate the resolution of the issue of appealing and canceling the results of the auction as a whole. A decision on an administrative violation that has entered into legal force will already have an indication of the presence of violations of the law during the tender, which will be additional evidence for the arbitration dispute.

Complaint to the FAS about the rejection of an application

Each illegal action of the auction organizer, including the illegal rejection of an application, can be appealed to the territorial body of the antimonopoly service. An important point in this case is compliance with the deadlines for appeal. A complaint to the FAS must be submitted no later than ten days from the date of publication of the decision to reject the application.

The specific authorized body of the antimonopoly service is selected at the location of the auction organizer.

The text of the complaint must contain an indication of the full details of the competition, the location of the tender notice, and contact information about the auction organizer. At the same time, you should also attach to the complaint all available competitive procurement documentation and the controversial rejected package of documents submitted for auction, along with the controversial application itself.

It is important to clearly indicate the basis for the complaint - specific illegal actions that led to the unreasonable rejection of the application, since the government body will consider the issue of the legality of the competition solely based on the specified arguments of the complaint. Read also, with the help of our lawyer.

The positive side of appealing the illegal rejection of an application through the antimonopoly service is the possibility of suspending the entire bidding procedure, including the conclusion of a contract based on its results, until the complaint is resolved. This must additionally be indicated in the pleading part of the complaint.

Based on the results of the resolution of the complaint, the FAS is authorized to declare the auction completely invalid and to recognize the rejection of the application as illegal. Accordingly, the tender organizer will have to re-conduct the auction, taking into account the previously unreasonably rejected application.

Consequences of rejecting the first part of the application or its entirety

It is possible to reject an application both at the initial stage and after consideration of all proposals and announcement of the winner. Moreover, in both situations, if such refusals are illegal, they can be appealed to the FAS or court.

The rejection of the first part of the application is due to the presence of formal inconsistencies in the enterprise’s proposal itself. As a result of such a deviation, the auction is held without taking into account this application.

Further rejection of the application - the second part, the law stipulates due to defects in the submitted package of documents for the auction or non-compliance of the order executor with the requirements of the tender documentation. The results of this rejection of an application are similar - such a company is not taken into account when determining the winner.

HEALTHY: watch the video and learn how to participate in tenders correctly, ask your question in the comments of the video and get free advice from a government procurement lawyer today

Based on the results of challenging the considered rejections of applications, it is possible to demand a re-tender for the same procurement. This situation provides a second opportunity to participate in controversial tenders. Therefore, you should not miss your chance.

Write your question in the comments, or even better, call, because time in this situation is not in your favor - we will begin to professionally solve the problem on time. Read also about the issue, and our help on this issue at the link.

The most important step at the stage of participation in an electronic auction is preparing an application. To avoid rejection, you must correctly reflect all the necessary information. But if this does happen, check whether there are any violations in the actions of the customer himself.

What should be in the application

The application must indicate the details of the organization - name, TIN, actual and postal addresses, telephone number, information about the founders. In addition, it must contain the following information:

• name of the proposed product, work or service, trademark (if any) and quantity;
• precise product parameters in accordance with customer requirements;
• agreement to supply products on the terms and conditions that are reflected in the electronic auction documentation;
• if the customer puts forward additional requirements - documentary evidence of compliance with these requirements.

Rejection of the application

The customer may reject the application on the grounds that it contains false data or does not comply with legal requirements. Sometimes disputes arise over what information is considered unreliable.

Registration in ERUZ EIS

From January 1, 2019 to participate in tenders under 44-FZ, 223-FZ and 615-PP registration is required in the ERUZ register (Unified Register of Procurement Participants) on the EIS (Unified Information System) portal in the field of procurement zakupki.gov.ru.

We provide a service for registration in the ERUZ in the EIS:

Sometimes, for the reasons stated above, several bids are rejected, and this leads to the failure of the auction. The reason for this is the inattention of the participants themselves, and the excessive complexity of the documentation, sometimes deliberately conceived by the customers.

If only one bid is accepted for the auction, the purchase must be made from a single supplier. The regulatory authorities are notified of this, but they may doubt the legitimacy of evaluating the participants’ applications. And if the FAS considers that the applications were rejected unlawfully, the customer will be fined.

The application contains conflicting information

Some founders appear in the charter of a participant, while in the extract from the register of legal entities - completely or partially different ones. Does this always indicate unreliable information? No, because this is caused by completely objective reasons. The composition of the founders (shareholders) of the company may have changed since its founding, which was reflected in the Unified State Register of Legal Entities. In addition, sometimes errors occur when entering data into the registry, resulting in incorrect information being reflected in it. Note that when dealing with such disputes in courts, arbitrators often support suppliers.

Of course, the customer is obliged to reject an application that contains false information. But before that, he should make sure that they really are. In this case, you should make sure that different information in the charter and register is not reflected for objective reasons. Otherwise, rejecting an application solely on the basis of unreliable data is quite risky.

Technical errors

The participant's application contains a technical error. For this rather formal reason, customers often reject applications. However, is this legal?

When considering this issue, consideration must be given to where the technical error occurred and whether it could have prevented the identification of the participant. For example, an error in the TIN is unlikely to become a detailed obstacle, and therefore it is unlawful to reject an application on its basis. This is confirmed by the practice of the FAS and arbitration courts - in such cases they support the participants.

The extract from the register contains incomplete information

The participant has a license, which he attached to the application. However, there is no information about this license in the extract from the Unified State Register of Legal Entities. The customer sees that the information in the two documents does not match and rejects the application. Are his actions legal?

If the object of procurement is a product, work or service that requires the participant to have a license, then in accordance with the law on the contract system, he must include a copy of it in the application. It is this document, and not an extract from the Unified State Register of Legal Entities, that confirms that the company has the right to supply the item being purchased. As for the extract, it only confirms the fact of state registration of the participant as a legal entity.

Thus, if an extract from the register does not contain information about a participant’s license, this does not indicate the unreliability of the data provided and is not a reason to reject an application for an electronic auction. Practice shows that a participant whose application is rejected in such a situation has a high chance (approximately 85%) of recognizing the customer’s actions as unlawful. To do this, you need to file a complaint with the FAS or court.

conclusions

Careful work with auction documentation on the part of the supplier, and more careful work with received applications on the part of the customer, will help to avoid the situations discussed in the article. It is worth remembering that confrontation is not beneficial to anyone. For both the supplier and the customer, complaints and litigation are an additional expense of time and money. A constructive dialogue between the customer and the supplier on all issues that arise will help make procurement more efficient for both parties.

2. Rejection of an application for participation in a competition, refusal of admission to participate in an auction, recognition of an application for participation in the procurement of goods, work or services that does not meet the requirements of competition documentation, auction documentation, exclusion of a procurement participant from participation in a competition, auction (hereinafter in this part - refusal of admission to participate in the procurement) on grounds not provided for by the legislation of the Russian Federation on the contract system in the field of procurement, recognition of the application for participation in the competition as proper, meeting the requirements of the tender documentation, recognition of the application for participation in the auction as proper, meeting the requirements documentation about the auction, in the event that the participant who submitted such an application should be denied admission to participate in the procurement in accordance with the requirements of the legislation of the Russian Federation on the contract system in the field of procurement, or violation of the procedure for opening envelopes with applications for participation in a closed competition auction and (or) opening access to such applications submitted in the form of electronic documents, violation of the procedure for consideration and evaluation of such applications, final proposals of procurement participants established by the tender documentation - entails the imposition of an administrative fine on officials in the amount of 1 percent of the initial (maximum) contract prices, but not less than five thousand rubles and not more than thirty thousand rubles.

This information is contained in documents from the Information Banks:

“Decisions of government agencies on controversial situations”