Appealing the FAS decision: step-by-step instructions 2021

From this article you will learn:

• General information about filing a complaint with the FAS under 44-FZ
• Who has the right to file a complaint with the FAS under 44-FZ
• Deadlines for filing and types of complaints to the FAS under 44-FZ
• What is the preparation of a complaint to the FAS under 44-FZ
• How to properly file a complaint with the FAS under 44-FZ: step-by-step instructions
• What is the time frame for considering a complaint to the FAS under 44-FZ?
• In what case can they refuse to consider a complaint to the FAS under 44-FZ?

The prospect of filing a complaint with the FAS under 44-FZ upsets and frightens many. This is a lot of documents that need to be reviewed and regulations studied so that everything is correct and the complaint is accepted. Most give up these attempts, leaving the illegal actions of bidders unpunished.

In fact, there is nothing complicated in the process of preparing and filing a complaint with the FAS. You only need to familiarize yourself with a few nuances: the rules for filing a complaint and the procedure for filing a complaint with the authorized body. You will find all the necessary information below.

General information about filing a complaint with the FAS under 44-FZ

Chapter 6 of the Federal Law dated 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” establishes the procedure for appealing the actions of the auction organizer, authorized body, institution, specialized organization, tender commission, contract service official, contract manager, ETP operator. Below, for brevity, we will call this document the Law on the Contract System.

Practice shows that sometimes the customer ignores the provisions of the Law during bidding. Then all their participants and persons responsible for checking public associations and associations of legal entities can send an application to the court or the body responsible for monitoring tenders. This is done in order to protect against any unauthorized actions that interfere with the rights and legitimate interests of the potential performer.

According to the law, it is possible to simultaneously submit a complaint to the procurement control body and to the court.

The procedure for considering complaints to the FAS is established not only by Article 105 of Law No. 44-FZ, but also by the administrative regulation of the FAS No. 727/14 of November 19, 2014.

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.

Who has the right to file a complaint with the FAS under 44-FZ

FAS is responsible for the following questions:

• on the content of the documentation and the legality of the requirements established therein;
• relating to actions/inactions of the commission;
• related to the actions of the ETP operator, including those related to obtaining accreditation.

In the first case, the application can come from any legal or natural person, even if it does not participate in the tender. The second and third situations apply only directly to bidders affected by the actions of the organizers. For example, applications were rejected without legal grounds, applicants were deprived of the opportunity to submit price proposals during the auction due to failures in the operation of the ETP, etc.

Before sending a complaint to the FAS under 44-FZ, you must understand what exactly you are going to appeal. That is, select certain actions of the customer, a documentation item.

When you have a clear idea, turn to practice on this issue - you will find all the necessary information on the website www.zakupki.gov.ru.

There is always a possibility that the antimonopoly service has repeatedly considered similar problems under 44-FZ, making a decision in favor of the tender organizer. If you find confirmation of this, your chances of winning will be very low. Therefore, it is worth considering whether it is necessary to waste time filing such an appeal.

When you have read all the available information and remain confident that your rights have been violated, proceed to preparing a complaint to the FAS under 44-FZ. At this stage, it is important to fulfill the requirements for drawing up this document, otherwise the paper may be returned.

Deadlines for filing and types of complaints to the FAS under 44-FZ

According to 44-FZ, the following deadlines are established for filing various types of complaints to the FAS:

• for auction documents - until the end of acceptance of applications for participation in procurement;
• for the actions of the organizer - up to 10 days from the date of publication of the trading results;
• if the law was violated during the consideration of the second parts of applications/signing of the contract - before signing the government contract;
• for actions related to the conclusion of an agreement with the winner of the tender - no later than the signing of the government contract;
• for the ETP operator – 30 calendar days from the date of illegal, in the opinion of the participant, actions.

The first group includes appeals related to non-compliance with the provisions of the law and the provisions of the procurement documentation. So, this may be the addition of requirements or a list of documents with items not provided for by 44-FZ. Or this includes the absence in the text of the government contract of specific deadlines for the transfer of funds for the completion of work, etc.

The second type usually refers to appeals to the FAS under 44-FZ related to illegal actions during the printing of envelopes with applications and quotation bids. And also complaints may be related to the results of the tender, when the winner is a person whose application should not be accepted, according to the norms of the procurement documentation. Or we can talk about refusal of admission to trading, recognition of an application that does not meet the established standards. You need to understand that the listed types can be included in the third group of requests.

In the fourth group there are complaints about refusal to consider the protocol of disagreements to the agreement, about signing the agreement for reasons that have no basis, etc.

Who can file an objection

The right to file objections to a complaint to the FAS is reserved for persons whose rights and interests are affected during its consideration by the antimonopoly service. Also, these persons have the right to take part in the consideration of the complaint personally or through authorized representatives.

Thus, only a limited circle of persons whose rights have been violated can file an objection. For example, the supplier filed a complaint against the customer because he saw signs of restricting competition in the purchase. In this case, the customer can send an objection and outline his vision of the current situation.

Preparation of a complaint to the FAS under 44-FZ

Part 8 art. 105 44-FZ establishes what information should be available to the FAS. This information:

• about the organization whose actions are considered illegal - name, contact details;
• about the organization/individual submitting an appeal under 44-FZ - name, contact information;
• about procurement: registration number on the website www.zakupki.dov.ru or information about the ETP, if the law is violated in matters related to obtaining accreditation;
• about actions/inactions subject to appeal - it is necessary to list in detail the points, details of the protocol and other nuances depending on the issue.

Do not forget that the application to the FAS under 44-FZ must contain information only on one auction. If you need to appeal the actions of customers in several tenders, documents are prepared separately for each case of violations.

The complaint must be signed by an authorized person, and documents confirming his rights must also be attached as an attachment. The role of such documents can be played by the organization’s charter and an order for the appointment of a director/general director.

In the process of proving his case, the tender participant has the right to refer to both the provisions of 44-FZ and other documents. In this case, complete data must be provided.

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.

How to properly file a complaint with the FAS under 44-FZ: step-by-step instructions

In short, to contact the antimonopoly service, you need to:

• choose grounds for appeal;
• collect evidence of violations of the law;
• prepare an appeal;
• submit the papers to the FAS.

Step 1: Determine your grounds for appeal.

First of all you need to understand:

• what rights are violated during the bidding process;
• what actions of the customer or site operator were unlawful;
• whether the period established for appealing such actions has expired.

The grounds and deadlines for filing appeals related to the illegal actions of the tender organizer can be clarified in Part 4 of Art. 105 44-FZ. If you believe that your rights have been violated by the ETP operator, study the provisions of Part 5 of Art. 105 44-FZ.

Step 2. Collect evidence.

When preparing a complaint to the FAS under 44-FZ, remember that the appeal must describe in detail the actions or decisions of the government customer/operator that are not legal. All conclusions must be supported by documents. Information from:

• the law on the contract system, Law 135-FZ and other Federal Laws;
• by-laws: government regulations, orders, instructions;
• explanatory letters from the Ministry of Finance, Ministry of Economic Development, FAS;
• judicial practice: decisions and regulations;
• published decisions of the OFAS - the decisions made by their colleagues in the same OFAS are especially convincing for the commission.

Innovations in appeals in 2021

In the database of draft normative legal acts, a bill on amendments to 44-FZ has been posted, which will improve the rules for appealing against actions or inactions of regulatory authorities. According to the plan, the changes will come into force on 04/01/2020. The table shows the essence of the main amendments.

The Antimonopoly Service shared plans for changes.

What is the time frame for considering a complaint to the FAS under 44-FZ?

An appeal submitted to the Federal Antimonopoly Service under 44-FZ is accepted or rejected within two working days from the date of its receipt.

After this, the applicant and the person whose actions led to the drawing up of an appeal under 44-FZ receive notifications of the place and time of the meeting. They may also be required to submit additional documents if the inspectors deem it necessary. The complaint is considered a maximum of 5 days after its acceptance in the presence of the parties to the conflict or authorized persons. At the meeting, the parties can present arguments and agree or disagree with the opponent’s opinion.

After the meeting, the commission is given three working days to make a decision on the issue. The latter will then be sent to representatives of both parties by email or regular mail. All FAS decisions on complaints under 44-FZ can only be appealed through an arbitration court.

A meeting of the commission is considered valid if more than half of the members of the commission are present.

Consideration of a complaint by the Commission at a closed meeting is permitted in cases where an open meeting may lead to the disclosure of state secrets, in other cases provided for by federal law.

An audio recording is made of the Commission meeting, which must be kept for at least three years. Any person present at a meeting of the Commission has the right to make audio and video recordings of the meeting of the Commission, having previously notified the Commission.

Immediately before considering the complaint, the Commission checks the credentials of the applicant, the Customer, the operator of the electronic platform, and interested parties present at the consideration of the complaint. If the powers of these persons are not properly confirmed, such persons have the right to attend the meeting of the Commission without the right to give explanations on the merits of the complaint.

In what cases can they refuse to consider a complaint to the FAS under 44-FZ?

The application will not be considered if:

• it does not comply with the requirements established by law;
• there is no signature under the documents or there is a signature of a person whose authority has not been confirmed;
• the time allotted for filing an appeal has expired;
• FAS or the court has already made a decision on these actions.

The decision to return the complaint to the antimonopoly service is given two working days after receipt of the paper. FAS informs the applicant in writing about its decision on the day it is made. The reasons for this action must also be indicated. The FAS decision can be appealed in court.

The applicant has the right to withdraw the complaint before the FAS makes a decision, but then he is deprived of the opportunity to re-file an appeal regarding the same actions. Within two working days after the revocation, FAS notifies all interested parties and places the relevant information in the Unified Information System.

Pre-trial (departmental) appeal procedure

The advantages of this method of protecting rights include a simplified procedure and time savings. However, in terms of efficiency it is inferior to the judicial one.

If a departmental procedure is chosen for protecting the interests of the organization, the complaint is submitted to the territorial body of the FAS. In this case, the implementation of the requirements of the order is not suspended.

In a departmental manner, you can challenge:

1. Failure to comply with the deadline for publishing in the Unified Information System information about the accepted complaint, or the date and place of its resolution.
2. Failure to comply with deadlines established for registration and consideration of complaints.
3. Refusal to resolve a complaint in violation of contract law.

It will not be possible to challenge administratively:

1. Violations of contracts already concluded by the parties.
2. Violation of the procedure for evaluating and comparing applications by the commission.
3. Violations that have already been the subject of consideration by the court with a decision.
4. Cases where the complaint has already been considered by the supervisory authority and a decision has been made on it.

How to contact

A written application must be submitted to the territorial authority that made the decision.

There are different ways to convey an appeal:

• through the department's reception;
• postal services;
• MFC;
• on the FAS website (via electronic reception);
• Government services.

The complaint should write:

• the name of the FAS body or the name and position of the person who made the decision;
• name of the applicant;
• his address, contact details (telephone, email);
• reasons for appeal;
• sign and date.

It is imperative to point out violations of the Regulations, which will help to recognize the appeal as justified.

If the application is signed by a representative of the organization, you must attach a copy of the power of attorney. The inclusion of other documents is at the discretion of the applicant.

The antimonopoly authority must resolve the case and make a decision within thirty days. If an inspection is required, the manager has the right to extend the consideration of the contested act up to thirty days, notifying the applicant of the extension of the period.

If a decision of a civil servant of a territorial body is appealed, the decision is made by the head of the relevant body.

A copy of the decision must be sent to the applicant within three working days.