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Legal briefing notes

When and how is it possible to appeal against the decisions of the customer in procurement

Laws № 223-FL and № 44-FL that regulate the process of state and municipal procurement, as well as procurement of certain types of legal entities, provide the opportunity to appeal by the procurement participant against certain aspects of the process. These may be decisions, acts or omissions of the customer that may lead to violations of the rights and legitimate interests.

Therefore, there is a whole list of grounds for appealing against the customer's manipulations in antitrust authority in Law №223-FL.

These legal grounds include:

  • Violations and inconsistencies in the procedure of procurement;
  • Making unfounded claims that are not specifically outlined in the procurement documentation;
  • The lack in the Unified Information System of specified information on procurement and the lack of relevant documents.

Among the violations of the rights of participants that involved in procurement, there are some of the most prevalent of them:

  • the inclusion in the procurement documentation of provisions that are not according to legislation (among them there are unrealistic requirements for participants in procurement; surplus list of documents that are required to submit; the intricate wording of the requirements of the statement of work, chaotic and unsystematic placement in the documentation of the evaluation criteria for bidders);
  • violating the procedures for unsealing of envelopes with bids during the tender (for example it may be unsealing of envelopes with bids at the address that is not identified in the documents of procurement, and it makes it impossible for the participant to attend in the procedure of procurement);
  • declaration as the winner a participant whose bid is made not according to the requirements for the successful bidder (including inadequate valuation of the bids during the bidding, neglection of the preferences offered under the law or, instead of this is the use of such preferences when it is impossible);
  • The unjustified refusal of the bid for participation in the procurement or the lack of specified grounds on which the bid is unsuccessful.

Certainly, among these violations, the most important are those that deal with access to procurement and determination of the winners. Bidding may be cancelled by the Office of the Federal Antimonopoly Service in case the appeal against the violations is found to be valid. The controlling antitrust authority may take the following actions:

  • Cancellation of the protocols formulated while selecting the supplier;
  • The adjustment of procurement notice as well as the procurement-related files concerning the extension of the bid deadline.

By participating in the purchase, it is important to keep an ear to the ground and respond quickly to any violations of your rights. In case you miss the legally established terms for appealing against the actions of the customer, you will be able to protect your interests only in court, it would substantially increase the time spent on the entire process.

Moreover, during this time a contract can be concluded with the successful bidder. In this case, it is possible to obtain redress of your rights only by recognizing the successful bidder as invalid, which will further make it harder.

The procedure of appealing: process and nuances

Both administrative (addressing the office of the Federal Antimonopoly Service) and judicial procedure for appealing against actions are possible if the actions violate the rights of the procurement participants.

It should be noted that the terms for appealing against the actions are strictly regulated by statutory rules; their duration depends on the type of the challenged act. The period for consideration of appeal in the office of the Federal Antimonopoly Service is 5 working days, in court, this term is calculated in months.

The lawyers of the Tsentralny Okrug Law Firm have good experiences in the area of appealing against unlawful acts of the customer. They help protect your rights in the area of procurement and accompany the process from the stage of identification of violations to the required results, including the cancellation of bidding results.

Author is Anna Kononova

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