The court representation on disputes related to corporate procurements according to 223-FZ
Conflict situations in the conduct of corporate procurement arise quite often. The customer may face unfair behavior of the supplier (contractor, performer) at the stage of conclusion, execution or termination of the contract. Or the antimonopoly authority can recognize the customer’s Procurement regulations is not in accordance with the law and make a decision that the customer will have to challenge in court. There are also serious claims to customers. For example, a procurement participant may encounter improper actions by the customer that prevent the conduct of trades in accordance with the requirements of 223-FZ. Or there are cases of unreasonable rejection of the participant's application by the tender / auction commission, because of which he is deprived of the opportunity to participate in corporate procurement.
The current legislation provides for pre-judicial and judicial procedures for appealing. Examination of the case in pre-trial procedure takes less time and is more effective. On the other hand, the court decision is mandatory for execution by all participants of corporate procurement.
A participant in procurement under 223-FZ has the right to appeal to both the antimonopoly authority and the court. The right to defend in a judicial procedure the parties whose rights and legitimate interests are violated by the actions (inaction) of the other party is enshrined in the Civil Code of Russian Federation and in Article 3 of Law 223-FZ.
At the same time part 10 of Article 3 of Law 223-FZ establishes that the antimonopoly authority considers complaints filed only for the following reasons:
- non-placement of procurement information in the Unified information system (UIS);
- requirements for the submission of documents not provided for in the procurement documentation;
- the purchase by the corporate customer in the absence of the Procurement regulations and without applying the provisions of the 44-FZ;
- non-placement or placement in the EIS of unreliable information on the annual volume of procurement from small and medium-sized businesses;
- violation by the operator of the electronic platform when purchasing goods, works, services, requirements established by this Federal Law (from July 1, 2018);
Such complaints are subject to review by the antimonopoly authority in the manner and within the terms established by Article 18.1 of the Law of 26.07.2006 No. 135-FZ "On protection of competition". At the same time, the applicant can apply to the court either during the examination of the complaint in the antimonopoly authority or on the basis of the decision or order issued by the antimonopoly authority. The decision and / or order of the antimonopoly authority may be appealed to the court within three months from the date of adoption.
Other actions of customers are appealed immediately in court, as indicated in part 9 of Article 3 of Law 223-FZ.
Disputes related to corporate procurement are considered by the arbitration court, as well as by the arbitral tribunal in case the arbitration clause is included in the draft contract and is stipulated in the Procurement regulations.
More often than not in the field of procurement for 223-FZ, there are disputes about:
- declaring decisions, orders or actions (inaction) of controlling bodies as illegal (OFAS Russia, etc.);
- conclusion or termination of contracts within the framework of 223-FZ;
- collection of penalties and losses from customers, suppliers (contractors, executors);
- acceptance and payment of delivered goods (works performed, services rendered);
- compelling the customer to conclude a contract;
- challenging the decisions of the supervisory authority on the inclusion of the supplier (contractor, executor) in the Register of unfair suppliers;
- challenging decisions of the supervisory authority on refusal to include a supplier (contractor, performer) in the RNP.
Formed during the period of validity of 223-FZ, judicial practice (including decisions of higher courts) on various aspects of corporate procurement is gradually forming trends that must be taken into account in judicial review. In preparation for the appeal to the court, it is necessary to study not only the procurement documentation and customer’s Procurement regulations, but also the administrative and arbitration practice of the region in which the procurement is being conducted. Sometimes this practice is unpredictable. It is also expedient for the participant of procurement to study the cases that have already arisen in relation to the procurements of the customer, whose actions he intends to appeal. It takes a considerable amount of time, but it helps to assess the prospects for the resolution of the case in court. At the same time, there is still the risk of a diametrically opposed decision being made even by the same court.
BRACE Law Firm has extensive practical experience in the field of procurement and provides legal support for trades, including at the stage of judicial settlement of conflicts.
We offer the following services to participants of corporate procurements:
- analysis of prospects for applying to the court and formation of a legal position, as well as identification of risks and possible adverse consequences;
- offer options to resolve the disputed situation;
- preparation of documents for applying to the court (applications, petitions, lawsuits, reviews, appeals, cassation, supervisory complaints);
- representing your interests in court, arbitration court at any stage of the proceedings;
- representation of your interests in proceedings on administrative offenses;
- appealing decisions, orders and orders of various state bodies, including decisions of the FAS on inclusion in the RNP / refusal to include in the RNP;
- participation in enforcement proceedings in disputes related to corporate procurements.
- Lodging a complaint on actions (inactions) of a governmental customer and other persons in the controlling body according to the Law No 44-FZ
- 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