Elena Gladysheva, Managing Partner of RI-Consulting, Advocate of the Moscow City Bar..
In a market economy and free competition, the Federal Antimonopoly Service of the Russian Federation closely monitors any violations and restrictions of the free market. Such violations occur regularly, particularly in the area of tenders and auctions.
The most frequent violations on the part of the customer on the state contract in the field of procurement are related to the tender (procurement) documentation and requirements for bidders. One of the typical requirements is that participants must have experience in performing such state contracts previously, as well as state contracts with a similar subject matter to a certain extent.
Indeed, the legislation does not prohibit imposing additional requirements on participants in the procurement of goods, works and services. Thus, Resolution No. 2604 dd. December 31, 2021 of the Government of the Russian Federation 'On Evaluation of Applications for Participation in Procurement of Goods, Works and Services for State and Municipal Needs, Amending Clause 4 of Resolution No. 2369 dd. December 20, 2021 of the RF Government and Repealing Certain Acts and Individual Provisions of Certain Acts of the RF Government' (Resolution No. 2604) is now in force. In essence, it does not differ significantly from the previously issued one (Resolution No. 1085 dd. November 28, 2013, No. 1085).
In particular, Clause 2 of Resolution No. 2604 contains the concept of evaluation criteria. These are "criteria for evaluation of bids stipulated by Part 1, Article 32 of the Federal Law, in accordance with which bids are evaluated in relation to the price of the contract, the sum of the prices of units of goods, works and services, the costs of operation and repair of goods, use of the results of works (hereinafter - "the costs"), quality, functional and environmental characteristics of the procurement item (hereinafter - "the characteristics of the procurement item"), qualifications of participants of procurement, including the availability of their financial resources, equipment and other material resources on the right to own)”.
That is, a bidder for a state contract may be presented with both financial requirements (the price of the contract, the cost of units of goods, works or services, the availability of financial and material resources for the contract) and non-financial - work experience, the availability of qualified professionals, positive business reputation.
The latter, by the way, is most rarely used - the selection of participants on the basis of business reputation, although moved from Decree № 1085, but in practice usually does not occur - perhaps because the level of "positive" business reputation of several legal entities that are approximately at the same level, it is almost impossible to compare.
A case related to the criteria for the selection of participants on business reputation was considered in 2019 by the Supreme Court of the Russian Federation, detailing the position in Decision of the Econollegium dated November 18, 2019, No. 307-ES19-12629 in case No. A56-115357/2018.
YOU CAN READ MORE ABOUT THE CASE AND THE LAWYER'S OPINION IN THE ARTICLE BELOW
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