Legal Assistance in Challenging Acts and Omissions of Procuring Entities Under 223-FZ

A complaint under Federal Law No. 223-FZ may be filed by any person meeting the requirements established by the procuring entity in its commercial procurement regulations.

If the alleged violations occurred after the deadline for bid submission, a complaint may only be filed by a bidder that has actually submitted an application to participate in the procurement. If a complaint is filed by an entity that did not submit a bid, the regulatory authority will dismiss it without consideration.

The Federal Corporation for Small and Medium Enterprise Development, executive authorities of the constituent entities of the Russian Federation, or organizations established by them are entitled to challenge in court the acts (omissions) of the procuring entity concerning small and medium-sized enterprises (SMEs).

An appeal may be lodged against the acts or omissions of:

1. the procuring entity;
2. the procurement commission;
3. the electronic trading platform operator.

Complaints under Federal Law No. 223-FZ are reviewed by the Federal Antitrust Service of Russia (FAS Russia) and its territorial divisions.

Identifying Violations and Preparing a Legal Position for Filing a Complaint

The grounds for an appeal may include the following regulatory infractions:

1. Conducting procurement procedures in violation of Federal Law No. 223-FZ;
2. Executing procurement in breach of the Procurement Regulation approved and published in the Unified Information System (EIS);
3. Failing to publish or delaying the publication of the procurement regulation, its amendments, or other mandatory documentation in the EIS;
4. Imposing requirements on a bidder that are not specified in the competitive procurement documentation;
5. Administering procurement without an approved and published Procurement Regulation in the EIS and without applying the provisions of Federal Law No. 44-FZ;
6. Failing to disclose or disclosing inaccurate information regarding the annual volume of procurement from SMEs.

Effective July 1, 2018, this list was expanded to include an additional ground allowing for the submission of a complaint against an electronic trading platform operator that violates the requirements of Federal Law No. 223-FZ during the procurement process.

The list of statutory violations is exhaustive; a bidder is entitled to challenge other types of non-compliance exclusively through judicial proceedings. If, during the course of a complaint investigation, the FAS identifies other violations unrelated to Federal Law No. 223-FZ, the antitrust authority shall not be empowered to impose sanctions (see Rulings of the Supreme Court of the Russian Federation No. 304-KG16-17592 dated April 11, 2017, and No. 309-KG17-750 dated October 2, 2017).

Preparation and Management of Bid Protests with FAS Under 223-FZ

The appeals procedure under Federal Law No. 223-FZ is governed by Article 18.1 of Federal Law No. 135-FZ dated July 26, 2006, "On the Protection of Competition." The structural and content requirements for a complaint under Federal Law No. 223-FZ mirror those applicable under Federal Law No. 44-FZ.

The complaint must include: comprehensive information on the applicant and the party whose actions are being challenged; identification of the disputed tender and the website URL where it is hosted; the legal arguments of the petitioner with direct citations to the statutory provisions allegedly violated; and an exhaustive index of all supporting documentation attached to the petition.

Federal Law No. 223-FZ imposes no procedural restrictions on the method of filing a complaint. It may be transmitted via standard mail, electronic mail, fax, or other available communication methods. If the complaint is signed by a representative, it must be accompanied by a valid power of attorney or alternative documentation verifying the representative's authorization.

The complaint must be submitted no later than ten calendar days from the date the tender results are finalized or published online, if such publication is mandatory. If a contract was not successfully executed based on the tender outcomes, or if the bidding process was declared invalid, the complaint may be filed within three months from the date the procurement results were finalized.

FAS Russia reviews the submitted complaint within three business days to verify compliance with statutory requirements, subsequently issuing a decision either to accept the complaint for review or to return it to the applicant.

A complaint is returned to the applicant if it fails to conform to standard formatting requirements, or if the acts or omissions of the procuring entity have already been subject to: 1) an effective judicial act determining the presence or absence of a violation, or 2) an existing FAS decision regarding the matter in question.

Upon accepting a complaint for review, the divisions of FAS Russia will:

1. publish information regarding the receipt and substance of the complaint on the official procurement website or the official FAS Russia website;
2. issue a notification to the applicant and the target entity regarding the filing of the complaint and the suspension of the procurement process pending a decision on the merits.

Important: From the date such notification is dispatched, the bidding process is suspended until the complaint is reviewed on its merits. The procurement organizer that receives the notification is prohibited from concluding a contract until the antitrust authority issues a decision on the complaint. Any contract executed in violation of this requirement shall be deemed null and void.

Legal Support for Procurement Appeals Under 223-FZ

One of the core practice areas of BRACE Law Firm is providing sophisticated legal services within the public and commercial procurement sectors.

To protect your commercial interests, we offer the following comprehensive legal assistance in handling appeals under Federal Law No. 223-FZ:

1. Analyzing the prospects of challenging the acts or omissions of the procuring entity and other parties, as well as evaluating associated risks and potential adverse outcomes;
2. Designing comprehensive strategies and options to resolve the dispute effectively;
3. Drafting the formal complaint alongside a comprehensive package of supporting evidentiary documentation;
4. Representing clients' interests during hearings before FAS Russia and its territorial divisions.