How to draw up the substantive part of a complaint to the FAS about the actions (inaction) of the authorized body

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Applicant: LLC "Proizvodstvennaya"

Postal address: 232323, Moscow, st. Academician Koroleva, 15, building 1

Phone/fax: 8 (495) 2563377

Email address: [email protected]

Authorized body: Administration of the City District of Podolsk

Location, postal address: 142100, Moscow region, Podolsk, st. Kirova, 4

Phone/fax: 8 (4967) 555798

E-mail address

Ref. No. 1 From 03/11/2020

What will change in 2021 and 2022

On 07/02/2021, an optimization package of changes was adopted within the framework of 360-FZ on amendments to 44-FZ, including in terms of improving the procedure for appealing actions (inaction) of control subjects. The changes will take effect from 01/01/2022. We have collected the main amendments in a table.

Use free instructions from ConsultantPlus experts to correctly appeal the customer’s actions under 223-FZ.

To read, you will need access to the system: .

How FAS decisions are made

The Administrative Regulations contain a detailed algorithm of actions for considering and making decisions by the FAS on complaints.

The procedure consists of several stages:

• registration of appeal;
• checking for compliance with the requirements established by law;
• determination of jurisdiction;
• entering information about the application into the Unified Information System;
• notification of the time and place of consideration of the complaint;
• transfer of the application to a commission to consider the application on its merits;
• consideration of the complaint;
• making a decision;
• forwarding the decision to the applicant.

Important! You have 3 months to appeal the decision made by the commission in court.

Grounds for complaint

The classification of cases of unfair competition or its unlawful restriction is quite extensive, since dishonest businessmen have great ingenuity in trying to capture the product market and obtain maximum benefits.

All cases can be divided into 3 large groups, including:

• aggressive use of advantage;
• creating arrangements and concluding agreements;
• action of authorities.

Aggressive use of advantage:

• creation of discriminatory conditions;
• dictatorship in pricing policy;
• the formation of prohibiting conditions for the distribution of goods in the absence of such in regulatory documents;
• lack of justification for different valuations of equivalent goods;
• a ban on the production of a popular product;
• failure to fulfill contracts concluded with the consumer.
• blocking and hindering the emergence of new participants in the market.

Formatting a review

The requirements for the content and type of application are not regulated by law, but there is a general practice for its preparation.

To withdraw a complaint, you must indicate in the review document:

• name of the applicant and recipient company (division of the antimonopoly service);
• complaint number assigned by the Federal Antimonopoly Service;
• number of the tender against which the complaint was filed;
• a brief summary of the production;
• the reason for the intention to terminate the proceedings;
• signature and seal of the applicant.

Sample withdrawal of a complaint
The application can be issued in paper or electronic form. It should be sent to the email of the FAS department, or brought in person to the service. It is also possible to send an appeal through the government services portal.

It is best to use email, this way the message will be delivered much faster.

If the intention to withdraw the complaint was stated during the meeting of the dispute resolution commission, a corresponding protocol decision will be drawn up and signed.

In what cases can consideration be refused?

The application will not be considered if the applicant fails to comply with the following requirements:

• contained in Art. 105 of Law No. 44-FZ;
• absence of the applicant’s signature or non-confirmation of his authority;
• expiration of the deadline for filing a complaint;
• the presence of an already made decision on the same actions of the customer.

Attention! Our qualified lawyers will assist you free of charge and around the clock on any issues. Find out more here.

Main powers of the FAS

The main powers of the FAS Russia are specified in the Decree of the Government of the Russian Federation “On approval of the Regulations on the Federal Antimonopoly Service” and in the Federal Law “On the Protection of Competition”.

So, according to the current legislation, the Federal Antimonopoly Service exercises the following powers:

• Conducting inspections of compliance with antimonopoly legislation by individuals and legal entities, non-profit organizations, extra-budgetary funds, etc.;
• Exercising control over the activities of legal entities ensuring the organization of trade in the markets of certain goods;
• Monitoring the provision and use of state or municipal preferences;
• Initiation of cases of violations of antimonopoly legislation;
• Appeal to the authorities carrying out operational investigative activities with a request to carry out operational investigative activities;
• Appeal to the arbitration court with claims for violation of antimonopoly legislation;
• Participation in judicial review of cases related to the application and/or violation of antimonopoly legislation;
• Maintaining a register of persons brought to administrative responsibility for violating antimonopoly legislation;
• Posting on the Internet decisions and regulations affecting the interests of an indefinite number of persons.

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:

1. 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.
2. 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).

How to file a complaint with the FAS

Tender participants can submit an application to the antimonopoly service in several ways:

• personally or through a representative;
• by mail;
• electronic.

IMPORTANT!

In 2021, step-by-step instructions for filing a complaint with the FAS through State Services are irrelevant. Only these three methods are available for appeal.

From 07/05/2021, filing complaints with the FAS online using the EIS functionality became available. Required conditions:

1. The participant is registered in ERUZ.
2. The purchase is carried out electronically.

You can also submit a complaint to the FAS via the email address of the antimonopoly service, which is listed on the official website of the agency in the section “Contact the FAS”, subsection “Write to the FAS of Russia”. The status of the application is checked in the individual’s personal account at the FAS on the service’s website after authorization.

IMPORTANT!

From 01/01/2022, an appeal to the Federal Antimonopoly Service of electronic procurement will become available only using the UIS functionality.

Instructions on how to properly submit a complaint to the FAS about an auction via the department's mail:

1. Prepare an application and cover letter. Indicate in it the name of the government agency (FAS or territorial administration), contacts of the applicant, postal or email address for response, reason and essence of the appeal.
2. Sign it with the electronic signature of the person who is authorized to appeal. If necessary, attach documents that confirm your authority.
3. Send it to the email address or mail of the regional office of the Federal Antimonopoly Service.

Submission jurisdiction is determined [P=14859; T=p. 3.9-3.14 of the FAS Administrative Regulations], which was approved by Order No. [P=45583; T=727/14] dated 11/19/2014. For example, an appeal against the actions of an operator of an electronic platform is carried out by the Central Office of the FAS, and the consideration of complaints regarding procurement to meet the needs of the subject is carried out by its territorial bodies. Information about complaints is included in the UIS register and is available to all participants in the process.

Step-by-step instructions on how to submit a complaint to the FAS under 44-FZ through the Unified Information System for a tender participant:

Step 1. Log into your personal account in the UIS.

Step 2. Select the “Submit a complaint” function.

Step 3. Select:

• grounds for appeal;
• subject of appeal;
• procurement procedure.

Step 4. Fill in the details of the complaint.

Step 5. Add attachments - evidence of evidence.

Step 6. Click on the “Save and check for violations” button and place it in the system.

Where to submit

Based on Part 1 of Art. 23 FZ-135 of 2006, the authorized body is vested with the right to consider appeals and applications from citizens and organizations on issues of unfair competition. Based on Government Decree No. 331 of 2004, FAS was appointed such body.

The application is submitted to the territorial body of the antimonopoly service at the location of the violator. The applicant can also contact the central division of the FAS.

Contact information for submitting an appeal to the FAS can be found on the official website.

on violation of antimonopoly legislation

The application is drawn up in any form; the descriptive part of the application must contain:

— information about the person in respect of whom the application was submitted (for legal entities: organizational and legal form, name, legal, postal addresses, full name of the head; for individuals: full name, address);

— description of the violation of antimonopoly legislation with reference to laws and (or) other regulatory legal acts;

Documents evidencing violations of antimonopoly legislation are attached to the application. If it is impossible to submit such documents, the reason for the impossibility of submitting them, as well as the intended person or body from whom these documents can be obtained, is indicated.

The attached documents must be originals or copies of originals (duly executed and certified). In the latter case, the applicant must confirm the accuracy and completeness of such copies.

Documents and information constituting a commercial, official or other secret protected by law must be marked as “DSP”, “confidential” or “trade secret”.

In the final part you must indicate:

- the essence of the requirements.

Procedure and terms of consideration

The procedure for considering citizens' appeals to the FAS is regulated by the Law on Citizens' Appeals, according to which a written complaint, regardless of the method of filing it, is considered within 30 days from the date of receipt.
In exceptional cases, this period may be extended by another 30 days with mandatory notification to the applicant. If necessary, based on the facts specified in the complaint, the FAS conducts an inspection, including unscheduled inspections, requesting documents, etc. If an administrative offense has taken place, an FAS employee draws up an administrative offense report and holds the violator accountable. The FAS may also issue an order to eliminate violations: to terminate contracts, confiscate products with an illegal trademark, etc.

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.