Appealing of the provisions of auction documentation in state and corporate procurements
Appealing of auction documentation in public and corporate procurements is one of the important areas of public and corporate procurement practice services of BRACE Law Firm.
Lawyers of BRACE Law Firm specialize in legal support of public and corporate procurements, and also have many years of experience in protecting rights of procurement participants in appealing against procurement documents, including provisions of auction documentation.
Appealing of the provisions of auction documentation
Auction documentation is subject to appeal if it is contrary to the provisions of applicable law and / or restricts competition.
According to the Federal Law dated April 05, 2013, N 44-FZ “On the Contract System in the Sphere of Procurement of Goods, Work, and Services for State and Municipal Needs,” the electronic documentation must contain mandatory information. The absence of this information or their inconsistency with the law is the basis for appealing the documentation of the electronic auction.
Under the Federal Law of July 18, 2011, N 223-FZ “On Procurement of Goods, Work, Services by Certain Types of Legal Entities”, unified qualification requirements established by the competitive procurement documentation are presented to all bidders in electronic form. Non-compliance with this requirement may also serve as a basis for the appeal of auction documentation.
Quite common are cases of appealing of the provisions of auction documentation due to incomplete indication of the information required for inclusion in the documentation, as well as due to enlargement of lots, presentation of excessive unlawful requirements to bidders and other violations restricting competition.
Procedure of appealing auction documentation
Procedure for appealing against actions (inaction) of a customer, an authorized body, an authorized institution, a specialized organization, a procurement commission, its members, a contract service official, a contract manager, an electronic platform operator is established in Chapter 6 of the Federal Law dated April 05, 2013, N 44-FZ “On the contract system in the field of procurement of goods, work, services to meet state and municipal needs”.
Regarding procurement of certain types of legal entities, the procedure for consideration by the antimonopoly body of complaints about violation of the bidding procedure and the procedure for concluding contracts, the procedure for implementing the procedures included in the exhaustive lists of procedures in the construction industry is carried out following Federal Law dated July 26, 2006, N 135-FZ “On Protection of Competition”.
The right to file a complaint about the provisions of the auction documentation is available to both persons who have submitted applications for participation in the procurement, as well as potential participants in the procurement.
An appeal may be made both in court and administrative procedure. In an out-of-court appeal procedure, it is important to consider that the complaint is submitted before the deadline for submitting applications for participation in the procurement.
Also, the current legislation in case of violations committed by the procurement organizers (customers) provides for a judicial procedure for protecting the rights of potential procurement participants by submitting applications to the arbitration court. The availability of rights to judicial appeal does not depend on whether there is an appeal against the provisions of the auction documentation out of court.
Both before filing a complaint with the supervisory authority and before applying with the court, it is important to give a correct legal assessment of the provisions of the procurement documentation that are doubtful, to minimize the risks of the recognition by the supervisory authority of the complaint as unreasonable or the risks of refusal by the court to satisfy the stated requirements. Besides, it is often difficult for a procurement participant, without legal support, to identify possible violations by the customer of the requirements of the legislation established about auction documentation.
In this regard, the timely application for legal support on issues related to appealing against the provisions of the procurement documentation, based on which state and corporate procurements are carried out, significantly increases the chances of a successful appeal and reduces the potential risks of declaring the complaint unfounded.
- Legal due diligence of auction documentation for a possible appeal
- Advising on the possibility and prospects of appealing against the provisions of auction documentation prepared as part of public and corporate procurement
- Preparation and filing of a complaint about the provisions of auction documentation to the Federal Antimonopoly Service of Russia or its territorial departments
- Representation of interests when considering a complaint at the Federal Antimonopoly Service of Russia or its territorial departments
- Representation of interests in court by BRACE lawyers and attorneys during the judicial appeal
- Other legal assistance in appealing against the provisions of the procurement documentation