Lodging a complaint on actions (inactions) of a governmental customer and other persons in the controlling body according to the Law No 44-FZ

Subjects who are entitled to file a complaint and the object of appeal

A participant of the procurement, a public association exercising public control, an association of legal entities, but before deadline for submission of applications - and other persons who believe that their rights have been violated when determining the winner of the bidding in the framework of the Federal Law dated 05.04.2013 No. 44-FZ "About contract system in the procurement of goods, works and services for state and municipal needs", has the right to file a complaint with the regulatory authorities.

Even those participants who did not file an application can file a complaint, except for the case when the violation was committed at the stage of opening envelopes in the tender or considering applications in the auction. In this case, only participants who have declared their participation in the bidding process are entitled to file a complaint.

The complaint may be filed against the actions or inactions of the authorized body, authorized agency, specialized organization, procurement commission, its members, contract service officials, contract manager, electronic platform operator.

Which authorities consider complaints

1. FAS Russia;
2. Branches of FAS Russia on the subject of the Russian Federation;
3. executive body of the subject of the Russian Federation, authorized to exercise control in the procurement;
4. a local government body authorized to exercise control in the field of procurement.

Grounds for filing a complaint

It may be the circumstances due to which the bidder or other persons rendered an unequal position compared to other participants:

1. breach or neglect by the customer or other persons the established procedure for the publication of protocols and documents;
2. ignoring by the customer or other persons of their obligations to sign the public contract or evasion from signing it;
3. violation by the customer or other persons of the requirements for compliance with procurement documentation current standards;
4. wrongful rejection of the application by the customer without specifying the reason;
5. violations by other participants in the procurement;
6. artificial overstatement of the price due to the collusion of bidders and the customer;
7. other issues related to the placement of state orders and tenders.

Controversial situations in the conduct of public procurement are not uncommon and require prompt action.

Content, form, way of filing a complaint

The order of filing a complaint and the requirements for its content are specified in Article 105 of Federal Law No. 44-FZ. So, it should contain information about the parties to the complaint, the procurement number and the name of the electronic trading platform (ETP), arguments of the complainant with references to the norms of the law, which were violated, as well as the transfer of documents attached to the complaint.

The success of considering a complaint case depends on how accurately and competently it is compiled.

The complaint is filed in writing. It must be written down, attached to it documents supporting the applicant's arguments, and sent to the supervisory authority in paper form or electronically using EDS. If the complaint is signed by the applicant's representative, then a power of attorney must be attached to it.

Deadlines for filing a complaint, preparation for consideration

Timing for filing a complaint is established in Article 105 of Law No. 44-FZ and depends on the nature of the violation.

The procedure for considering the complaint by the supervisory authority is described in Article 106 of Law 44-FZ and resembles judicial review.

Within two days after the receipt of the complaint the supervisory authority shall notify the complainant and the persons whose interests are affected, on receipt of a complaint, its content, the place and time of consideration. Information on the receipt of the complaint and its content is also published by the supervisory authority in a unified information system (EIS), except for the cases when the supplier is identified in a closed way. Either at the same time, the controlling body may decide to return the complaint in the event of its does not meet the requirements of Article 105 of Law № 44-FZ. The decision on the return of the complaint shall be communicated to the applicant in writing specifying the reasons for the return. If the complainant does not agree with the decision on its return, he has the right to appeal such a decision to the court.

The persons whose interests are affected by the complaint submitted have the right to file objections to it no later than two days before the date of consideration of the complaint by the supervisory authority, while the requirements for registration and content of the objections are similar to the requirements for the complaint.

The parties to the case on the complaint have the right to participate in its consideration personally or through representatives, and are also obliged to provide the supervising authority, at its request, with the information and documents necessary for the consideration of the complaint.

The person who lodged the complaint has the right to withdraw it at any time before the decision on the merits is taken. However, it will not be able to file a complaint again for the same actions (inaction) against the same persons.

Consideration of the complaint and decision

The supervisory authority considers the complaint on the merits collectively, within five days after its receipt. The applicant, as well as the persons who filed objections, shall be notified of the results of the consideration of the complaint.

On the basis of consideration of the complaint, the supervisory authority shall make one of the following decisions:

1. the recognition of the complaint as fully or partially justified;
2. the recognition of the complaint as unjustified in whole or in part.

The decision can be accompanied by a decision to issue a prescription:

1. on the elimination of violations, including on the cancellation of the definition of suppliers;
2. on the commission of other actions: drawing up a protocol on administrative violation, going to court with a claim to declare invalid procurements.

Within three days from the date of the decision, the supervisory authority shall forward the decision to the applicant, to the person who filed the objection, and to the person whose actions (inaction) were appealed, and to post information on the results of the complaint consideration to the EIS.

In case of disagreement with the adopted decision, it may be appealed in court within three months. On the judicial appeal on 44-FZ can be read in our other articles.

Legal services

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 No 44-FZ:

1. analysis of the prospects for appealing against the actions (inactions) of the customer and other persons, as well as risks and possible adverse consequences;
2. offer options to resolve the disputed situation;
3. preparation of a complaint and a package of supporting documents;
4. representation of interests in the supervisory authority (FAS Russia, other bodies).

Related services

• Lodging a complaint on actions (inactions) of a customer and other persons in the controlling body according to the Law No 223-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