How to draw up and submit a complaint to the FAS against the organizer of public procurement under Law 223-FZ and what is the time frame for consideration?

Home / Government procurement / Federal Law 223

Back

Published: 09.23.2018

Reading time: 8 min

0

552

The procedure for selecting executors of government orders under 223-FZ provides that applicants for concluding a contract with the customer are selected in conditions of healthy competition.

• Grounds for filing a complaint
• Algorithm of actions
• Complaint procedure

If the contractor was selected by the customer in violation of the procedures established by law, then the procurement participants have the right to file a complaint with the Antimonopoly Service (FAS).

Who can file a complaint during procurement under 223-FZ

Law No. 223-FZ establishes that all interested parties have the right to appeal someone’s actions before the deadline for filing applications. After the deadline for filing applications, only those who submitted an application can appeal against unlawful actions.

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

The position of the courts is that only organizations that have submitted applications can file a complaint with the FAS about posted procurement documentation. Other firms or individuals may appeal against violations in the publication of procurement information and the procedure for submitting applications for participation.

However, inaccuracies in the documentation will make it impossible to prepare your application properly, so we recommend that you first submit a request for clarification .
If the response provided by the customer does not help clarify all the information, a complaint should be sent to the FAS. It should be noted that the answer given by the customer’s representative did not suit you.

Grounds for filing a complaint

The Antimonopoly Service considers complaints received from direct participants in the procurement and from persons whose legitimate interests were affected by the actions (or inaction) of the customer. The FAS accepts for consideration all appeals describing violations of competitive procedures, collusion of individual procurement participants, as well as violations of procurement legislation.

A complaint against a customer to the FAS is filed in the following cases:

• if the procurement documentation was not posted in the Unified Information System;
• if the customer entered into a contract with the contractor without competitive procedures;
• when inaccurate procurement information is posted in the public domain;
• in the absence of proper justification for the purchase from a single contractor;
• when the customer requires documents from a procurement participant that are not provided for by the Regulations on this procurement or the norms of procurement legislation.

Placing unreliable or incomplete information about procurement, especially when describing the requirements for necessary goods or services, puts performers with experience in supplies and newcomers to the procurement market at an unequal conditions.

Incorrect justification for a purchase without a competition or auction may also be a sign of collusion with a specific contractor.

If the customer is a municipal authority or a state-owned enterprise, then before filing a complaint with the FAS, it can be sent directly to the customer (according to the scheme specified in the procurement documentation) - often customers consider the appeal and take action quickly to prevent filing a complaint with the FAS.

What is subject to appeal

Law 223-FZ contains a clearly established list of grounds for filing a complaint. The following violations of federal legislation or local procurement regulations may serve as a reason for a complaint:

1. The absence of a procurement provision in the Unified Information System, as well as its presence in an outdated version. Failure to post procurement information, draft contracts or publication of documents later than the deadline.
2. Carrying out procurement without including it in the schedule.
3. Establishment of additional requirements for procurement participants that are not established in the procurement regulations.
4. Lack of a published report on the volume of purchases from small and medium-sized businesses.

The form of the complaint is not established by law. It requires the following information:

• information about the applicant and customer (name, contact details)
• purchase notice number
• basis for complaint
• list of applications (if available)

Note:

• It is necessary to check whether the grounds specified for filing a complaint by law apply to your case. Otherwise, the FAS will send it back without consideration.
• based on part 13 of Art. 3 223-FZ, the antimonopoly service will examine only the violations contained in the complaint. Therefore, indicate in it all the violations you notice.
• violations of antimonopoly legislation in accordance with Ch. 9 135-FZ “On Protection of Competition” will not be the basis for filing a complaint during the bidding process under 223-FZ

Consideration of complaints under 44-FZ and in all other cases.

The supervisory authority, after receiving and registering an application containing information about a violation, considers it and objections to it within a period of no more than five working days from the day it was registered. At the same time, after consideration, as already written above, all participants in the process must properly receive the result of the consideration.

During the review, FAS employees can independently request additional information and protocols, audio and video recordings from the customer or ETP operator, since It is prohibited to ask this from the person submitting the application. At a FAS meeting, they may be required to log into your personal account and check all documents directly on the website, so falsification of documents is excluded. Participants in the procedure can attend the commission in person or send representatives, and the presence of the party to whom the complaint is directed is mandatory.

If there are no such representatives, then the meeting may be postponed, but it must still be considered within no more than 5 working days. Therefore, if the deadline for consideration has already approached, then even in the absence of the parties who must be present, the FAS considers and makes a decision without them.

Time limits for consideration of complaints in procurement under 223‑FZ

The complaint must be filed within ten days after the final protocol is posted. Until the complaint is resolved, all procurement procedures are not carried out, so the customer will not be able to sign the contract.

A detailed explanation of the time frame for processing a received complaint is contained in FAS Letter No. IA/4073/19 dated January 23, 2019:

• within 3 working days, the FAS makes a decision to return the complaint or accept it for consideration
• within 7 working days the complaint must be considered on its merits (part 14 of article 18.1 135-FZ).

The complaint may be forwarded within the jurisdiction to another territorial body. At the same time, the deadline for its consideration is not suspended. They continue to be counted from the date of receipt of the complaint by the first instance, which forwarded it further.

Complaints regarding violations of antimonopoly legislation that are not related to violations of 223-FZ are considered within 1 month (Part 4 of Article 44 135-FZ).

What will help you protect your rights?

Before appealing the activities of the customer or the procurement commission, it is necessary to carefully study the procurement documents and regulations governing the customer’s procurement. It is likely that the customer’s actions are explained by the rules that he himself established on the basis of the provisions of 223-FZ.

Supervisory authorities handling complaints

A complaint to the Federal Law under 44-FZ about a customer’s violation of the procurement law is not a prohibition for filing a claim with the courts, as well as with the Federal Supervisory Authority (which is the FAS) that supervises violations of articles of the law on the procurement activities of the customer, commission and its members and other officials (Article 105 of Part 17 N 44-FZ). The same applies to ETP operators, including violations related to accreditation. Complaints are filed in relation to federal procurement and defense procurement, a participant, in relation to customer purchases on the territory of a foreign state in accordance with the fundamental acts of the contract system, unless additional jurisdiction of the complaint is determined, in accordance with Regulation 727/14 of November 19, 2014, clause 3.11( Order dated November 19, 2014 N 727/14).

Additional jurisdiction can be determined by legal acts of the subject or municipal entity, which vest the functions of supervision in the field of procurement represented by an executive authority (for example, the regional control committee in the Tula region, defined by Decree of the Government of the Tula Region of December 2, 2013 N695), exercising control in the territory subject or local government body (for example, the Control and Audit Department of the Glazov City Duma, decision of the Glazov City Duma dated January 29, 2014 N 403). The FAS also considers appeals from Rosatom, Roscosmos and the governing body of the state extra-budgetary fund. The same powers are imposed on territorial bodies of antimonopoly services (Resolution of the Government of the Russian Federation dated August 26, 2013 No. 728), but only in the territory where the activities of this body are carried out. Their contact details can be found on the website of the Federal Antimonopoly Service

If a participant sends a complaint to the FAS under 44-FZ subordinate to a territorial control body, the FAS Russia may transfer this complaint to the appropriate territorial body there or consider this complaint, subject to consideration by the control body to which the complaint is subordinate. And vice versa, if a complaint to the FAS was sent to the wrong territorial body, or its consideration is within the jurisdiction of the FAS Russia, then it is duly sent for consideration to the FAS Russia or the corresponding territorial body, with the obligatory sending of a copy by fax or e-mail to the same or the next day.

What if a participant in the procurement procedure submits an application to the Federal Antimonopoly Service containing an appeal against violations during the procurement, which was or was carried out through joint competitions, auctions, requests for proposals, while the customers who organized the procedure are in different regions and have different jurisdictions? Such a complaint to the FAS will be considered by the antimonopoly authority in whose territory the place of opening of applications in envelopes, in the case of electronic applications, is located. In this case, the actual address of the organizer will be taken into account. That is, its location, as is the case with an open auction. The antimonopoly authority that accepted the complaint for consideration notifies all territorial OFAS offices, which include all customers who organized this procedure, of the acceptance of such an application within 2 business days after the day the complaint was received. In this case, FAS Russia sends a notification to the territorial authorities within two working days after the day of registration of the application at the location of the customers of procurement procedures about accepting the complaint for consideration, containing the arguments of the complaint.

In order not to waste time filing a complaint with the FAS and accurately send it to the same territorial body, it is recommended to study the relevant acts. For example, when filing a complaint against the actions or documentation of courts (arbitration courts) and the system of the Judicial Department, it is necessary to study the orders of the FAS dated August 12, 2008 N 304 “On approval of the composition of territorial bodies and the central apparatus of the Fas of Russia that carry out inspections of the activities of courts (arbitration courts ) and the system of the judicial department for compliance with legislation on placing orders" and order dated 02/24/09 N 112 "On approval of the procedure for considering complaints against the actions (inaction) of courts (arbitration courts) and the system of the Judicial Department (conducting unscheduled inspections) when placing an order for the supply of goods, performance of work, provision of services for government needs.”

Judicial practice of complaints under 223-FZ

It would be useful to study what verdicts the regional FAS makes regarding the cases that you plan to present in the complaint. By keywords, details of legal acts and region, they can be found on the website br.fas.gov.ru.

If you encounter a similar situation, you can:

1. Use the text of the complaint as a sample if decisions are made in favor of the supplier.
2. Save time on filing a complaint if decisions are made in favor of the customer.

The likelihood of a complaint being satisfied will increase if it is:

• be concise and clear
• contain references to regulations, without citing large quotations from laws

Documents justifying it should be attached to the complaint:

• customer procurement regulations
• screenshots of the EIS and ETP
• responses given by the customer regarding clarifications

Register of FAS complaints

All applications sent to the antimonopoly authority are registered and recorded in the register of complaints. The decisions made after their consideration and the results of the inspections can be found in the public domain on the FAS website https://solutions.fas.gov.ru/. Data on received complaints is posted within two working days, data on decisions on them within three, with the same information sent to all participants and interested parties. The decision to return the complaint is also made and sent to the applicant within two working days; this decision can be appealed in court. The procedure for maintaining a register of complaints is approved by the Government of the Russian Federation. In addition, you can find information on complaints in the Unified Information System. To do this, go to the “Monitoring...” section, then “Register of complaints...”, “Complaints”.

Using an advanced search in the register of complaints, it is possible to filter records by status (under review, reviewed, returned, withdrawn), content of the complaint, organization that filed the complaint with the FAS (subject of the complaint), control body, result of consideration of the complaint (recognized as justified, recognized as partially justified, found to be unfounded), according to the order (issued, not issued) and according to the dates the complaint was received and the record was updated.

In addition, you can analyze the face-to-face complaints filed by other companies and take them as a model. In any case, when preparing to file a complaint with the FAS, it is recommended to analyze previously filed complaints and, based on the results of consideration of similar complaints, formulate your position and arguments for the supervisory authority; this approach will significantly increase the chances of success.

Returning a complaint to the FAS A complaint can be returned: • if it does not contain the data specified in the requirements for its content or is not signed, including if signed by a person, without attaching documents confirming the authority, if false data is provided, even the absence of an e-mail; • the submission deadline has expired; • either this complaint on this subject has already been accepted by another supervisory authority or even a decision has been made by the supervisory authority regarding the violations complained of; • There is already a court decision on the appealed actions and/or procurement, which has entered into force; • The complained of violations have already been appealed in accordance with 210-FZ of July 27, 2010.

How to file a complaint with the OFAS / FAS Antimonopoly Service

• By email to the FAS office (by signing the complaint graphically (with an image) and with an electronic digital signature (electronic signature)
• On purpose. In person or by courier
• Russian Post

You can also withdraw your complaint in the same way.

After sending a letter with a Complaint and documents, we must call the FAS office and find out (please tell us) what number you registered under.

The procedure for filing complaints on various topics is also prescribed on the website of the Federal Antimonopoly Service.

https://fas.gov.ru/pages/contacts/requests/poryadok-obrashheniya.html

Who can complain

According to 223-FZ, anyone can complain before the deadline for filing applications. After the deadline for submitting applications has expired, only procurement participants can complain.

In some regions, judges believe that only those suppliers who submitted applications can appeal the contents of procurement documents to the FAS. Other organizations or individuals can appeal only those violations that are related to the posting of procurement information and the procedure for submitting applications.

We believe that this is not very logical, since errors or irregularities in the documents prevent the application from being submitted correctly. We recommend that you first submit a request for clarification, and if the customer’s response does not clarify the situation, then complain to the FAS, mentioning in the document that the customer’s response did not satisfy you.

Nuances

• The actions/inactions you complained about must violate your rights or interests.
• If the purchase consisted of lots, then the participant can appeal violations only for the lot in which he participated.

When they can refuse

There are several reasons why an application may be refused.

1. The complaint is from a person who did not participate in the procurement procedures. In fact, his rights were not violated, so they will not consider the appeal.
2. Deadlines missed. In this case, you can appeal the decision, action or inaction only in court.
3. One statement contains indications of violations in several different procedures. Consideration of such a case will be refused, since one application must contain illegal facts only during one procurement.
4. There has already been an appeal on the same facts, and a decision has been made on it.

Let us add that everyone has the right to defense in court. The claim must be filed before the expiration of three months from the day the participant learned of the violation of his rights and interests.

The process of filing a complaint with the antimonopoly service, clearly

It is more convenient to file a complaint by email.

Consider the size of the attached files - it should not exceed 10-15 MB.

Because Mail services of all government agencies and large companies, as a rule, do not accept large volumes of investments.

How to find emails of departments of the antimonopoly service of the Federal Antimonopoly Service / Federal Antimonopoly Service

Emails of territorial branches of the FAS (antimonopoly service) can be found on the central FAS website https://fas.gov.ru in the section “Territorial bodies -> Contacts”

And you will find there in the table: names of departments, email. mail, telephones and websites of branches.

If there is no email in the table, go to the branch’s website – contacts (or email is written at the bottom of the page).

Examples:

Adyghe OFAS Russia

Altai Regional OFAS Russia

Moscow OFAS Russia

Moscow Regional OFAS Russia

Email mail of the Central Office of the Federal Antimonopoly Service of Russia: [email protected] (125993, Moscow, Sadovaya-Kudrinskaya str., 11)

How to find the address of the office of the antimonopoly service of the Federal Antimonopoly Service / Federal Antimonopoly Service

The address of the territorial location of OFAS branches and postal addresses can be found there on the central FAS website https://fas.gov.ru in the section “Territorial bodies -> Contacts” (if not in the table, go to the branch website - there at the bottom of the page or in the contacts section).

How long will she be considered?

The procedure for considering applications consists of several stages: preliminary review, examination of the substantive materials, preparation and submission of the text of the decision. The first stage is given 2 working days. At this time, the applicant and persons whose actions are disputed are sent information about the date and place of consideration of the complaint. The entrepreneur can personally attend the meeting or send his representative there.

Antimonopoly officers are given 5 working days to study the materials. You will have to wait another 3 business days until a decision is prepared.

The same deadlines are provided for the publication of materials on the Internet. According to Decree of the Government of the Russian Federation dated October 27, 2015 N 1148, information about violations of Law 44-FZ must be recorded in the Unified Information System in the field of procurement. The FAS Moscow register of complaints duplicates. On the department’s special page you can find notifications about the acceptance of letters for consideration, and earlier decisions on similar situations.

What we ask in a complaint to the OFAS / FAS:

• Please stop signing the contract
• Cancel the protocol for consideration and evaluation of applications (Declare illegal / unreliable).
• Cancel purchase. (the procedure can and must be repeated from the stage of publication of the notice)
• Suspend the conclusion of the contract/agreement for the contested procurement.
• Issue an order to the Customer to eliminate violations
• Submit materials on the present case to the appropriate official of the antimonopoly authority for consideration of the issue of initiating a case of an administrative violation.