What should the complaint contain?
The process of drawing up, filing and considering a complaint is covered in several regulations. This is Article 105 and 106 of Law 44-FZ, FAS order No. 727/14 dated November 19, 2014 and a document dated April 10, 2014, posted on the service’s website, which is called “Requirements for the content and timing of filing a complaint about violation of the legislation of the Russian Federation on contractual procurement system."
What must be included in the complaint is stated in paragraph 8 of Article 105 of Law 44-FZ. In addition to the name, addresses, telephone numbers and other contacts of the applicant and the violator, an indication of the purchase is required. The letter of the Ministry of Economic Development dated July 29, 2015 No. D28i-2221 explains that a complaint can be filed against a specific purchase. This means that you should not include in it an indication of several purchases by one customer, otherwise the FAS may return it without consideration.
Registration in the ERUZ UIS
From January 1 2020 , in order to participate in bidding under 44-FZ, 223-FZ and 615-PP, registration in the ERUZ register (Unified Register of Procurement Participants) on the EIS (Unified Information System) portal in the field of procurement zakupki.gov is .ru.We provide a service for registration in the ERUZ in the EIS:
Order registration in the EIS
In addition, it is imperative to indicate which specific actions or inactions of the customer are being appealed. The antimonopoly service believes that it is necessary to directly indicate the legal norms that the customer violated. As practice shows, otherwise the FAS may not accept the complaint for consideration. And although in court practice there are contrary decisions, in order to avoid resorting to arbitrators, it is safer to state in the complaint which norms of procurement legislation the customer’s actions do not comply with.
For example, a participant’s complaint may contain an indication that in a certain procurement the customer committed the following violations in the preparation of documentation:
- Imposed on the winner of the electronic auction the obligation to demand in writing the return of funds paid by him as security for the contract. Thus, the customer violated Article 34 of Law 44-FZ, by virtue of which he is obliged to return the contract security after the expiration of the period specified in it without any requirement from the contractor.
- Established additional requirements for the provision of information on the supplier’s revenue, the size and value of assets, the income of the founders and others not provided for in Part 5 of Article 66 of Law 44-FZ.
As the practice of the FAS shows, such arguments are recognized as justified, and complaints from suppliers containing them are satisfied (for example, decision of the Krasnoyarsk OFAS Russia dated 06.06.2016 No. 796).
In what cases do you contact the antimonopoly service?
Antimonopoly legislation is a set of legal norms regulating the legal relations of organizations in the field of advertising, the contract system, the procurement of goods, works and services by individual legal entities, and urban planning activities. The legal status of the FAS clarifications is characterized as the legal position of a government body, which is not a normative legal act. Among the grounds for appeal, we highlight the following:
- clarification of legal norms (with the entry into force of new legal norms, legal entities and individuals have questions regarding their application. The FAS RF, as a government body, carries out explanatory work regarding the correct application of the new federal legislation. For example, in connection with changes in the Law on Advertising, the FAS Russia sets out its position in letter dated January 14, 2021 No. AK/1262/21 based on the request received);
- a sharp change in the economic situation (subjects of legal relations seek clarification in connection with a sharp change in economic relations. The beginning of coronavirus infection (COVID-19) served as such an example. Based on numerous requests, the FAS RF prepared a Letter dated March 18, 2020 No. IA/21684/20 on clarification for purchases from a single supplier);
- clarification of the legal position (uniform application of practice and formation of correct behavior when participating in economic legal relations - letter of the FAS Russia dated January 19, 2021 No. ME/2540/21).
The obligation to consider requests is established by Art. 9 of the Federal Law of May 2, 2006 No. 59-FZ. This also applies to the antimonopoly authority. The responses of the FAS and the departments included in the structure of the body are of an informational and explanatory nature.
What to demand?
Article 106 of Law 44-FZ establishes what rights the antimonopoly authorities have in relation to the customer against whom the complaint has been filed. Based on this, it is appropriate for the supplier to require that FAS:
- suspended the procedure for identifying a supplier or canceled its results;
- conducted an unscheduled audit of the customer’s procurement activities;
- issued an order to the customer to eliminate the violations.
As for the last point, it can be eliminated, for example, by the customer canceling its decision to reject the participant’s application, making changes to the procurement documentation and other ways, depending on the type of violation committed.
Time limits for consideration and adoption of decisions by the court
From the moment an order is issued or a decision is made by the antimonopoly authority, a complaint can be filed against it within three months. A similar period for appealing the actions and inactions of the FAS in the arbitration court. The date of production of the court decision coincides with the date of its adoption. To compile the full text of the document, ten days are allotted from the moment of proclamation of the operative part. If an appeal of a FAS decision in an arbitration court is related to antimonopoly legislation, it is announced immediately. All parties to the process receive copies. The expiration of the limitation period begins from the moment the business entity learns about the violation of its interests. The presence of valid reasons for absence allows you to restore the application period, which is excluded out of court. One month is allotted for appealing to the appellate instance from the moment the decision was made by the court of first instance. On the official website of the FAS, filing a complaint and methods of challenging are described in as much detail as possible.
What should I include with my complaint?
Let us return to Article 105 of Law 44-FZ, part 9 of which talks about the documents attached to the complaint. True, little is said: it is necessary to attach documents that would substantiate the complaint, as well as a list of these documents. Experts recommend that suppliers attach to the complaint all the documents they refer to.
For example, if the customer committed a violation when preparing procurement documentation, this documentation must be attached. If the customer's decision is disputed, attach a copy of this decision. In addition, it is advisable to attach any documents that, in the customer's opinion, may indicate that his complaint is justified.
If the complaint is signed personally by the director of the supplier, then a solution and an order for his appointment should also be proposed. If it is signed by an authorized person, it is a power of attorney with which he is endowed with these powers.
It should be noted that, in accordance with the position of the FAS and the Ministry of Economic Development, the lack of supporting documents cannot be grounds for returning a complaint without consideration (letter of the Ministry of Economic Development and Trade dated December 19, 2014 No. D28i-2779, letter of the FAS dated October 13, 2014 No. IA/41224/14). And in some cases such documents cannot be presented at all. For example, if the supplier complains about the customer’s incomplete placement of design and estimate documentation.
Judicial appeal procedure
Practice shows that appealing FAS decisions in court is more effective than other options. But this method has its drawbacks, and one of them is the time it takes. In this case, pre-trial settlement is not necessary. Actions, inactions, decisions, orders are appealed. The latter are always suspended for the duration of the proceedings. The general rule of territorial jurisdiction applies. The application is submitted to the arbitration court at the location of the defendant. The rules for considering claims proceedings apply, but with their own specifics. Thus, if an appeal against a FAS decision occurs in an arbitration court, the burden of proving legality rests with the authority. Payment of state duty is required. Not only individuals, but also collegial bodies can act as defendants. The active position of the applicant and competent drafting of procedural documents play a key role. The process is carried out taking into account the general principles of competition and equality of parties. Objections and petitions may be submitted. Legal will help you build an optimal defense strategy.
When to file a complaint?
If a supplier complains about the provisions of the procurement documentation, an appeal to the FAS must be sent before the deadline for submitting applications. A complaint about the action or inaction of the customer or authorized bodies and institutions is submitted no later than 10 days after the protocol for the consideration and evaluation of applications for participation in a competition, request for quotation or protocol for a request for proposals is posted in the Unified Information System. If the procurement is carried out in the form of an electronic auction, then the complaint is submitted no later than 10 days from the date of posting the protocol of summing up its results on the electronic platform.
When the supplier complains about violations that the customer committed when considering the second parts of the applications, the complaint must be filed before the contract is concluded. And if a complaint is filed against a decision of the ETP related to the accreditation of a participant, then no more than 30 days should pass from the moment of the appealed actions to the filing of the complaint.
If the specified deadlines have passed, the supplier can only go to court.
How to send an appeal to the FAS on the government services website
Here are instructions on how to submit a complaint to the FAS under 44 Federal Laws electronically.
1. Go to your personal account.
2. Select from .
3. Follow the link “Eliminating violations of antitrust laws.” This describes how to obtain the service.
4. Click on “Get service”.
5. Enter information in the empty fields.
6. Submit your request.
An unscheduled inspection is carried out simultaneously with the consideration of the complaint.
At the same time, the compliance of all actions (inactions) of the Customer, the operator of the electronic site, including those not specified in the complaint, as well as all documents on the organization and conduct of tenders or request for quotations related to placing the order that is the subject of the complaint, with the requirements of the legislation of the Russian Federation and other regulatory legal acts of the Russian Federation on placing orders.
3.33. When considering a complaint and during an unscheduled inspection, the Commission hears explanations from the parties, interested and involved persons, and also transmits copies of explanations and objections to the complaint, submitted in writing, to representatives of the parties and interested parties present at the meeting of the Commission, and requests the necessary documents for review . The commission has the right to receive explanations from the parties, interested and involved persons on the facts set out in the complaint, as well as other issues related to the placement of the order, and take other actions aimed at comprehensively considering the complaint and conducting an unscheduled inspection.
3.34. The Commission, at the request of persons involved in considering the complaint and conducting an unscheduled inspection, or on its own initiative, may announce a break in the meeting of the Commission. It must be taken into account that the complaint must be considered within a period not exceeding five working days from the date of its receipt by the supervisory authority. Announcing a break for a period that would result in the total period for consideration of the complaint exceeding five working days is not permitted.
When a break is announced, persons present at a meeting of the Commission are informed of the date, time and place of the continuation of the meeting of the Commission. After the end of the break, the meeting of the Commission continues from the moment at which the meeting was interrupted.
If, after the end of the break, the composition of the Commission has changed or one of the parties (the Customer, the operator of the electronic platform, the applicant) who were absent from the meeting before the break was announced, appears at the meeting of the Commission, then the consideration of the complaint and the unscheduled inspection begins anew.
