Lodging a complaint on actions (inactions) of a customer and other persons in the controlling body according to the Law No 223-FZ
Subjects who are entitled to file a complaint and the object of appeal
A complaint under the Law No 223-FZ can be filed by any person, corresponding to the requirements set by the customer in internal act on commercial procurements.
If the violations were committed after the expiration of the period for filing applications for participation in the procurement, only the participant who applied for participation in the procurement are entitled complain. If the complaint is submitted by a person who has not submitted an application for participation, the controlling body will leave it without consideration.
The Corporation for the Development of Small and Medium-Sized Enterprises, executive bodies of the constituent entities of the Russian Federation, or organizations created by them have the right to appeal in court to the actions (inactions) of a customer against small and medium-sized businesses.
A complaint might be filed against actions or inactions of:
- a customer;
- a commission for the implementation of procurement;
- an operator of the electronic platform.
Which authorities consider complaints
Complaints on 223-FZ are considered by the FAS Russia and its territorial bodies.
Grounds for filing a complaint
They can serve as the following violations:
- the implementation of procurement with violation of the requirements of the Law No 223-FZ;
- procurement for violation of the requirements of the Procurement Regulations approved and placed in United information system (UIS); not placement in the SIS or placement in violation of the deadlines: Procurement regulations; changes in the Procurement Regulation; other information and documents on procurement, which must be placed in the UIS;
- presentation to the participant of procurement of requirements not provided for by the documentation on competitive procurement;
- the procurement without the approved and placed in the UIS Regulations on procurement and without the application of the provisions of 44-FZ;
- non-placement of information on the annual volume of procurements from SME or the placement of inaccurate information.
On July 1, 2018 to complete the list another ground entitling on filing a complaint with respect to the operator of the electronic site, which violates the requirements of 223-FZ during the procurement process.
The list of violations is closed; appeal to other violations of the party is entitled only through the court. If during the verification of the complaint the FAS Russia and its territorial branches will identify others, not related to 223-FZ of violations, to impose sanctions competition authority would not have the right (of the Supreme Court of the Russian Federation dated 11.04.2017 No. 304-KG16-17592, dated 02.10.2017 No. 309-KG17-750).
Content, form, way of filing a complaint
The procedure for appeal on 223-FZ is regulated by Article 18.1 of the Law of July 26, 2006 No. 135-FZ "On Protection of Competition". The requirements for the content of the complaint under Article 223-FZ are similar to those for the complaint under the 44-FZ.
It must contain: information about the applicant and the person whose actions are being appealed; an indication of the tendered bidding and the website address if the bidding is posted on the Internet; arguments of the complainant with references to the norms of the law, which were violated; the list of documents attached to the complaint.
There are no restrictions on how to file a complaint in 223-FZ. It can be sent by regular or e-mail, fax, or other means. If the complaint is signed by the applicant, that it should be accompanied by a power of attorney or other proof of authorization to his signing of the document.
Deadlines for filing a complaint, preparation for consideration
The complaint can be submitted no later than 10 (ten) calendar days from the date of summarizing the bidding or from the date of placement of the results of trading on the Internet, if any. If results of trading was not concluded or the bidding was declared invalid, then it’s possible file a complaint within three months from the day of summing up the results of the purchase (bidding).
FAS Russia or its territorial branches check the received complaint for compliance with the requirements of the law within three working days and makes a decision on acceptance of the complaint for consideration or on its return to the applicant.
The complaint is returned to the applicant in the event that it does not meet the requirements for its execution, or if there are already against the customer or other persons whose actions are being appealed: 1) the judicial act entered into force with conclusions about the presence or absence of a violation in the actions complained of, or 2) the decision of the FAS Russia or its territorial branches regarding the complained actions (inactions).
Having received complaints from to consideration, FAS Russia or its territorial branches:
- place information about the fact of receipt and Its content on official site or on the FAS Russia or its territorial branches’ website;
- send the applicant and the person whose actions or inactions are appealed, notification of the receipt of the complaint and about the suspension of the procurement to consideration of substance.
Important: from the date of sending such notice, trades are suspended until the complaint is considered. The organizer of the tender to whom the notice was sent is not entitled to conclude the contract until the antimonopoly body passes a decision on the complaint. A contract concluded in violation of this requirement is void.
A person whose actions are appealed, within one working day informs other applicants on the part of persons of a complaint, its content, the time and place of its consideration.
The applicant, a person whose actions are appealed, other participants bidding for the right to be entitled to an objection to the complaint or additions to it not later than two days prior to the date of the complaint. Objections are formalized as well as complaints.
The applicant can withdraw the complaint at any time prior to the decision on the merits. After that, he is deprived of the right to file a complaint again for the same actions (inaction) against the same persons.
In preparing for consideration of a complaint, FAS Russia or its territorial branches may request from the applicant, the auction organizer, the operator of the electronic site, the tender or auction commission the information necessary for the consideration of the complaint.
Persons involved in its consideration shall be entitled to be present themselves or through their representatives.
Consideration of the complaint and decision
Term of consideration of the complaint - 7 (seven) working days from the date of receipt. If for a decision to receive additional information, FAS Russia or its territorial branches may once extend the deadline for another seven days.
The complaint is considered by the commission. The appearance of persons duly notified of the time and place of consideration of the complaint is not an obstacle to its examination on the merits.
On consideration of an appeal, the person whose actions are appealed, must submit all of the documentation for the procurement of the changes, protocol, the request to audio- and video recordings and other documents and information produced in the course of its implementation.
FAS Russia or its territorial branches in the consideration of the complaint is limited only to the arguments that it contains (the letter of the Federal Antimonopoly Service on January 23, 2018 No. IA/3655/18 "On consideration of complaints against the actions (inaction) of the customer in the procurement of goods, works and services"). The applicant pending or after the supplement cannot already contained in the complaint arguments. FAS
As a result of consideration of the complaint on the FAS commission can take one of the following decisions:
- the recognition of the complaint as fully or partially justified;
- the recognition of the complaint as unjustified in whole or in part.
The decision may be accompanied by the issuance of a precept:
- about the implementation of actions aimed at eliminating breaches of the order of organization, procurement, the procedure for concluding contracts based on the results of procurement or at if the procurement is not completed successfully;
- about the abolition of the protocols drawn up during the procurement process;
- about making changes to the documentation on procurement, notification of purchasing;
- about cancellation of procurement.
The decision or order of the FAS commission may be appealed in court within three months. On the judicial appeal on 223-FZ you can read in our other articles.
One of the key activities of the BRACE Law Firm is the provision of legal services in the field of public and commercial procurement.
We provide the following legal assistance in appealing under the Law 223-FZ:
- analysis of the prospects for appealing against the actions (inaction) of the customer and other persons, as well as risks and possible adverse consequences;
- proposing solutions to the contentious situation;
- preparation of a complaint and a package of documents substantiating it;
- representation of interests in the bodies of FAS Russia.
- Lodging a complaint on actions (inactions) of a governmental customer and other persons in the controlling body according to the Law No 44-FZ
- Preparation of requests for clarification of the provisions of the procurement documentation
- Preparing and legal examination of procurement documentation
- Preparing and legal expertise of procurement regulations
- Preparation of pre-trial claims for procurement disputes according to 44-FZ and 223-FZ
- Legal examination of contracts and agreements according to the Laws No 44-FZ and No 223-FZ
- Legal advice on procurement issues under 44-FZ and 223-FZ
- Representation of interests in a court on disputes related to public procurements according to the Law No 44-FZ
- The court representation on disputes related to corporate procurements according to 223-FZ