What can be cooked from squid: fast and tasty

The situation when the customer plays out the procurement procedure, but after opening the envelopes, finds out that his need for the purchase has changed somewhat, or this need has basically disappeared - is not uncommon. However, if the customer refuses to conduct the procurement procedure, refuses to conclude a contract, he is at great risk. Details are in our article.

Based on the results of the request for proposals, OAO "Corporation" Kometa "chosen the winner of the purchase, but refused to conclude an agreement with him. The Moscow OFAS issued a decision according to which the customer was found to have violated part 1 of article 3 of Law 223-FZ. The customer was issued an order to complete the procedure. The completion of the procedure means the conclusion of a contract with the winner who is selected in the framework of the competition. The position of the Moscow OFAS is confirmed by court decisions and the Moscow Arbitration Court recognized the opinion of the Moscow OFAS as absolutely justified. In this case, the situation ended with the customer being forced to conclude a contract with the winner of the purchase, but sometimes the consequences can be more sad. For example, materials in relation to this customer can be transferred to law enforcement agencies to detect collusion and concerted actions between procurement participants, or between the customer himself and a participant in the procurement procedure.

In order to avoid such situations, the customer is obliged to competently and correctly write the procedure for refusing to conduct the procurement procedure after opening the envelopes in order to minimize the risks of being held liable in terms of violating the procurement procedure. In any case, the risks regarding suspicions of corruption will remain, but at least the procedure will be as clean and transparent as possible.

Oksana Shipunova, ex-head of the department for controlling trading in individual legal entities of the FAS Russia, host of the webinar " »:

An interesting example from practice, which surprises with the position of the controlling body. One of the customers works under the state defense order. During the procurement period, before the winner was determined, but after the opening and consideration of applications, changes were made to the defense order legislation related to the introduction of separate accounts. The draft contract of the customer did not contain the obligation to apply a separate account. The customer decided to abandon the procurement procedure due to the need to bring its documentation and the draft contract into line with the new legal requirements. The actions of the customer were appealed to the central office of the FAS Russia.

The antimonopoly body ruled that the customer's actions were unreasonable, since the refusal of the procurement procedure was made in violation of the procurement regulations, after the envelopes were opened and the applications were considered. The customer was forced to return the procurement procedure to the stage where it was decided to refuse to conclude an agreement with the winner.

In this situation, the customer was saved by a minor mistake of the supervisory authority, which in its prescription did not describe in detail and fully the actions that the customer is obliged to perform. The regulatory authorities did not oblige the contracting authority to give the participants the right to submit new bid security. While the complaint was being considered, while the customer slowly but surely began to fulfill the instructions that he received, the security of the applications expired. The purchase was revived, but at the time of summing up the results, there was not a single bid in respect of which there was a valid security. The customer closed this procurement procedure due to the fact that none of the participants met the requirements of the procurement documentation. If the antimonopoly body prescribed in detail all the actions that the customer is obliged to perform, an absurd situation would result. On the one hand, the customer complies with the instructions of the antimonopoly authority, on the other hand, the contract that would have been concluded as a result of this procurement violated the requirements of Law 275-FZ on defense orders.

The grounds and terms of refusal should be clearly stated in the procurement regulations, and in the notice, documentation, each time indicate the right to refuse to conduct a procurement or conclude an agreement, after determining the winner of the procurement procedures. In this case, the customer has much more chances to defend his position in the event of a disputable situation.

But the government agencies in a situation where the customer refuses to conclude an agreement with the winner of the purchase, as many as 4 positions:

Position 1. Refusal to conclude an agreement with the winner of the procurement is lawful if the procurement was not carried out by bidding and the possibility of refusal is provided for by the regulation and (or) procurement documentation (Letter of the Ministry of Economic Development of Russia dated April 25, 2016 No. D28i-1013).
Position 2. Refusal to conclude an agreement with the winner of the procurement is unlawful if the procedure for conducting the procurement procedure meets the criteria for bidding (Decision of the Moscow OFAS Russia dated April 18, 2016 No. 1-00-665 / 77-16).
Position 3. Refusal to conclude an agreement with the winner of the purchase is lawful if the transaction is major for the customer and the consent of the owner to complete it has not been received (Decision of the Moscow OFAS of Russia dated 05.11.2015 No. 1-00-1848 / 77-15).
Position 4. Refusal to conclude an agreement with the winner of the purchase is illegal (Decision of the Moscow OFAS Russia dated 08.07.2015 No. 1-00-1072 / 77-15).

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Refusal (avoidance) of concluding a contract and imposition of unfavorable conditions by an economic entity occupying a dominant position

The considered form of abuse of dominant position belongs to the sphere of conclusion of contracts and pre-contractual disputes.

Under normal conditions, the subjects of civil circulation are free to choose both contractors and the conditions under which they are ready to conclude an agreement. Usually, an economic entity may refuse to conclude an agreement with another person for no reason, but only at its own request.

At the same time, such rights of an economic entity occupying a dominant position are significantly limited. The Federal Law on Protection of Competition prohibits, as an abuse of a dominant position, refusal or evasion from concluding an agreement with individual buyers (customers) if it is possible to produce or supply the relevant goods, and also if such refusal or evasion is not expressly provided for by the regulations of the Russian Federation or judicial acts.

When qualifying such actions of an economic entity as refusal or evasion from concluding an agreement, it is necessary to take into account the provisions of Art. 445 of the Civil Code of the Russian Federation. According to this rule, if the conclusion of the contract is mandatory for the party to which the offer (draft contract) is sent, this party must send the other party a notice of acceptance, or a refusal to accept, or acceptance of the offer on other conditions (minutes of disagreement to the draft contract) within 30 days from the date of receipt of the offer.

Thus, the refusal to conclude an agreement is understood as the direction by the economic entity occupying a dominant position of a notice of refusal of the received acceptance. At the same time, the offer itself must meet the requirements established by Art. 435 of the Civil Code of the Russian Federation.

If an economic entity occupying a dominant position does not send a notice of acceptance, refusal of acceptance or acceptance of an offer on other terms, then its actions may be qualified as evasion from concluding a contract. In addition, other actions of an economic entity may indicate avoidance of concluding an agreement, for example, an unreasonable requirement for a counterparty to submit documents and information, postponement of the conclusion of an agreement without an objective reason, and other actions indicating that an economic entity has no real intention to conclude an agreement.

At the same time, it must be taken into account that the refusal or evasion of concluding an agreement cannot be considered an abuse of a dominant position if such actions are justified by economic or technological circumstances.

As an economic justification for the legitimacy of the refusal, the offer by the counterparty of conditions that do not correspond to the market situation and are unfavorable for the economic entity occupying a dominant position (for example, an offer to conclude a contract below a market reasonable price) can be considered.

Technological grounds for refusing to conclude a contract can only be circumstances that objectively impede the possibility of its execution, for example, the potential seller does not have the goods in the right quantity, the impossibility of producing the right goods in the time required by the counterparty.

If the actions of an economic entity are qualified as the imposition of unfavorable or not related to the subject of the contract conditions, then it is necessary to determine, firstly, what actions of the economic entity can be qualified as imposition, and secondly, what conditions can be considered unfavorable or not related to the subject of the contract.

Let's go back to Art. 445 of the Civil Code of the Russian Federation. It follows from this rule that an economic entity that occupies a dominant position may notify the person who sent the offer of its consent to conclude an agreement on other conditions. However, not any notice of acceptance of an offer on other conditions is automatically recognized as the imposition of the relevant conditions.

We can talk about imposition, first of all, if the notice of acceptance on other conditions itself indicates a categorical refusal to discuss other conditions. If there is no such refusal in the notification, then the person who received it must declare his disagreement with the conditions offered by the economic entity occupying a dominant position. And even in the case when the economic entity that occupies a dominant position insists on its proposal, its actions can be considered as imposition. In other words, the imposition of certain conditions may be indicated by the unwillingness or refusal of an economic entity occupying a dominant position to change the conditions proposed by it, and not by any proposal to change the offer made by the counterparty.

In itself, the offer to the counterparty of the terms of the contract can be considered as imposing them only if, based on the specific situation, such a counterparty is forced to agree to them due to the impossibility or difficulty of discussing the proposed terms, for example, if discussing the terms of the contract threatens to stop production.

The Federal Law “On Protection of Competition” includes conditions that may be classified as unfavorable for the counterparty if they are economically or technologically unjustified or not directly provided for by regulatory legal acts of the Russian Federation or judicial acts of the requirement to transfer financial resources, other property, including property rights , as well as consent to conclude an agreement on the condition that the counterparty is not interested, and other requirements.

At the same time, the terms of the contract cannot be considered unfavorable just because the counterparty himself considered them to be such. The disadvantage must be of an objective nature, different from the conditions accepted in the sector under consideration and from the conditions under which similar goods are supplied by other economic entities.

When evaluating the terms of the contract offered by the dominant economic entity regarding its unfavorability for the counterparty, it is important to establish that it represents unreasonable burdens for him and, under conditions of normal competition, he would not have entered into a contract with such a condition.

As an example of the imposition of unfavorable terms of the contract, we can cite the case considered by the Krasnodar OFAS Russia in relation to OOO Krasnodarregiongaz, which is related to the inclusion in the gas supply contract of OAO Tribal Poultry Plant Labinsky of penalties for the total volume of gas selected by the buyer in excess of the daily contractual volume. As noted by the Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 325/10 dated June 15, 2010, the inclusion in the contract of additional coefficients in relation to those specified in the Rules for the supply of gas in the Russian Federation, approved by Decree of the Government of the Russian Federation dated February 5, 1998 No. 162, coefficients , named in the contract as a fine for gas consumption in excess of the contractual volume, is a violation of regulated pricing in the field of gas supply and abuse of a dominant position by imposing unfavorable terms of the contract for the counterparty.

It should also be mentioned that in relation to the abuse of dominant position under consideration, the Federal Law “On Protection of Competition” provides for a special operational procedure for responding by sending a warning to a person whose actions contain signs of a violation of the antimonopoly law, a warning about the termination of the relevant offense (Article 39 "). The procedure for applying this measure will be described in more detail in the chapter on state control over compliance with antimonopoly legislation.

If the supplier refuses to conclude a contract after summing up the results of the procurement procedure

The register of unscrupulous suppliers is referred to in Art. 5 of the Federal Law of July 18, 2011 No. 223-FZ "On the procurement of goods, works, services by certain types of legal entities" (hereinafter - 223-FZ, Law No. 223-FZ, the Law on Procurement). On November 22, 2012, the Government of the Russian Federation adopted Decree No. 1211 “On the introduction of a register of unscrupulous suppliers, provided for by the Federal Law “On the procurement of goods, works, services by certain types of legal entities”.

The said regulation states:

rules for customers to send information about unscrupulous procurement participants and suppliers to the federal executive body authorized to maintain a register of unscrupulous suppliers;
rules for maintaining a register of unscrupulous suppliers;
a list of information that is included in the register of unscrupulous suppliers;
requirements for technological, software, linguistic, legal and organizational means to ensure the maintenance of a register of unscrupulous suppliers.

In accordance with the Procurement Law, a supplier may be included in the TPR on such grounds as:

termination of the contract with the counterparty by a court decision in connection with a material violation by him of the terms of the concluded contract.

When sending information about unscrupulous suppliers to include them in the register, when contracts with them were terminated by the court, the customer must take into account some features. For example:

If the customer refused to conclude and sign the contract for such reasons as, for example, in connection with the financial situation of the enterprise, then information about suppliers is not sent for their inclusion in the register of unscrupulous suppliers.

Before going to court, the customer must apply the pre-trial procedure for resolving the current situation, dispute (Article 452 of the Civil Code of the Russian Federation).

evasion of the person who is the winner in the procurement procedure from concluding a contract.

When carrying out procurement activities under 223-FZ, the customer may encounter a situation where the winner of the procurement evades signing the contract and fulfilling all its conditions. Persons who, in bad faith, fulfill the requirements of the procurement documentation related to the conclusion and execution of the contract are subject to inclusion in the TRP (for example, after summing up the results of the purchase and determining the winner, the participant refuses to deliver the goods at the previously declared price indicated by him in the application for participation, which is the winner's evasion purchases from the conclusion of the contract). This circumstance may significantly impede the access of such suppliers to the market for goods, works and services in the next two years, since the customer has the right to establish in the procurement documentation the requirement that there is no information about the procurement participants in the RNP (Article 3 of Law No. 223-FZ). In this case, the possibility of participating in procurement procedures and, accordingly, concluding contracts with such a supplier is significantly reduced. Thus, the financial and economic position of the organization is undermined, the profit from the sale of goods (works or services) on the market decreases.

The inclusion of unscrupulous suppliers who avoided concluding a contract in the RNP under 223-FZ is possible in cases where the signing of the contract after summarizing the results is mandatory in accordance with the current procurement regulation and the customer's procurement documentation. In this regard, before applying to the antimonopoly authority, the customer must carefully study its own position and the procurement documentation, in accordance with which a specific procurement procedure was carried out.

Federal Antimonopoly Service conducts RNP in accordance with clause 5.3.4 of the Regulations on the Federal Antimonopoly Service, approved by Decree of the Government of the Russian Federation of June 30, 2004 No. 331. The register is maintained in electronic form using an information system that includes software tools in accordance with the requirements for technological, software, linguistic, legal and organizational means to ensure the maintenance of the register of unscrupulous suppliers. The antimonopoly body places information in the register of unscrupulous suppliers in accordance with the current legislation, taking into account the requirements for the protection of state secrets. All information that is sent by the customer to the regulatory authority for entry in the register of an unscrupulous supplier is checked. In the absence of the required information, the FAS sends a notification about the need to send the required data to the antimonopoly authority within 3 working days from the day the customer received a notification of the provision of information from the authorized body. After verifying the information, the information about the supplier is included in the RNP by the antimonopoly authority within 3 working days, forming a register entry (it must be signed by a representative of the authorized body using an EDS or other analogue of a handwritten signature in order to protect the information included in the register). Information about the supplier is excluded from the RNP after 2 years from the moment the information was included in the register. Also, a registry entry about an unscrupulous supplier can be removed from the RNR by the authorized body in the event that the court decision to terminate the contract, which became the basis for adding information about the supplier to the RNR, was canceled in the manner prescribed by law.

Information contained in the registry

Register entry number and date of inclusion of information in the register
The authorized body that carried out the inclusion of information in the register
Information about the unscrupulous supplier (executor, contractor) and its location (place of residence):
Purchase information:
Contract details:

Currently, the customer has the opportunity, when generating a notice on the official website of the procurement procedure, in the section "requirements for procurement participants" to make a note that the supplier is not included in the register of unscrupulous suppliers. In the future, when drawing up procurement protocols, the procurement participants will be checked in the register of unscrupulous suppliers.

If after the end of the procurement procedure the winner evades the conclusion of the contract (or the procurement participant with whom, according to the procurement documentation, the contract is concluded when the procurement winner evades the conclusion of the contract, provided that the documentation provides for the obligation of such a participant to conclude the contract), the customer must send an appeal to the Federal the antimonopoly service to include the supplier in the register of unscrupulous suppliers (this is not a right, but an obligation of the customer). In the application, the customer should indicate the name and other data (address, TIN, KPP, etc.) of the person who refuses to conclude the contract, the method of the procurement procedure, the goods (works or services) that were purchased. The customer should not forget that for failure to provide or untimely provision of information about unscrupulous suppliers (performers, contractors), or providing deliberately false information about unscrupulous suppliers, the Federal Antimonopoly Service of Russia in accordance with the Code of Administrative Offenses of the Russian Federation provides for administrative liability in the form of a fine.

Having received an appeal from the customer, the antimonopoly service accepts it for processing and subsequently sends a notification to the customer and the supplier about the consideration of the appeal on the inclusion (or non-inclusion) of information about the supplier in the register of unscrupulous suppliers. In the notification, the antimonopoly body asks the customer and the supplier to provide the necessary documents within the specified period for a more complete and comprehensive consideration of the application and making the right decision. Also in the notification, the FAS Russia sets the date and time (with the address indicated) when a meeting will be held on the issue of inclusion (or non-inclusion) of the procurement winner in the RNP. When considering the application by the commission of the antimonopoly authority, the parties must ensure the presence of their representative with a duly executed power of attorney.

Power of attorney example

(*on company letterhead*)

Power of Attorney No.

city, date of issue of the power of attorney

By this power of attorney (name of organization), registered (date of registration) at the address: (indicate address) PSRN ____, TIN ____, represented by ____________, acting on the basis of ________,

authorizes

(Name of the person who will represent the interests of the customer in the Federal Antimonopoly Service, indicating the position), passport series, number _______, date of issue, by whom I will issue, registered at the place of residence at the address: (registration address):

represent the interests of the enterprise in the OFAS for (specify the region) when considering the appeal (name of the customer organization) for inclusion in the register of unscrupulous suppliers (name of the organization) in connection with its evasion from concluding an agreement after summarizing the results (name of the purchase for the supply of goods, performance of work or provision services).

The power of attorney was issued without the right of substitution (specify the term).

I certify the signature of the authorized person ______________________________.

Director _____________ (full name)

As a rule, the antimonopoly authority requests the following documents and information:

From the organizer of the purchase:

Notification and documentation of the procurement procedure, notification of amendments to the documentation, clarifications of the procurement documentation (if any);

All bids submitted by procurement participants;

All protocols that were drawn up during the procedure for the procurement of goods (works, services);

Evidence of sending the draft contract to the supplier (contractor, performer) (if the winner evades signing), as well as other information that will indicate the refusal to conclude the contract.

The supervisory authority may also request:

Documents in accordance with which the procurement procedure was carried out (for example, the regulation on the procurement of goods, works, services, an order approving the procurement regulation);

An administrative document on the organization and conduct of this procurement (for example, an order of the director on the organization and conduct of a request for proposals for the supply of anti-icing reagent);

How to find a supplier in RNP?

The customer can easily find the necessary information, check the supplier, using the search parameters, using the functionality of the official website. To do this, in the "registries" tab, select "register of unscrupulous suppliers" and then search after entering the required information about the person (TIN, name).

Also, the antimonopoly body ensures the creation and formation of a certificate on whether participants in the procurement procedure, suppliers (executors, contractors) are in the register of unscrupulous suppliers upon request received from a visitor to the official website.

In order to avoid including information in the TRP, the supplier (contractor, performer) must provide explanations and evidence for consideration of the customer’s request, which could refute the fact of evading the conclusion of the contract for the needs of the customer: for example, if there were technical problems when signing the contract in electronic form (see. the decision of the Kurgan OFAS Russia in case No. 05-02/4-12 to refuse to be included in the Register of Unscrupulous Suppliers of CJSC Glinki).

The FAS Commission, having compared the arguments and justifications of the parties, will decide to include the supplier in the RNP (for example, the Decision of the Kirov OFAS Russia, the decision to include BULAT LLC in the register of unscrupulous suppliers, case No. RNP-43-02) or refuse to do so (for example , The decision of the Penza OFAS following the consideration of the application for inclusion of Kamenko-myaso LLC in the register of unscrupulous suppliers, case No. 5-09 / RNP-58-02).

In any case, the decision of the supervisory authority may be appealed by the parties in court within three months from the date of its adoption.

After consideration of the appeal, the decision is sent to the parties, and also posted on the Internet on the website of the regional antimonopoly authority (this decision can also be found in the FAS decision database on its official website by setting the necessary search parameters).

Thus, at present, such a method of protecting the interests of the customer as including information about unscrupulous suppliers in the RNP is quite effective, since access to orders for such persons will be closed for 2 years, which practically deprives suppliers of normal functioning and closes access to the sales market. The customer has the right to prescribe in the procurement documentation as a condition for participation in the procurement the absence of a supplier both in the register of unscrupulous suppliers provided for by Federal Law No. 223, and in the register for public procurement.

Recently, the number of applications for inclusion in the register of unscrupulous suppliers has been increasing, since customers, understanding the responsibility provided for by the Code of Administrative Offenses of the Russian Federation for failure to submit to the regulatory authority information about suppliers evading the conclusion of a contract in the form of a fine, are not ready to incur extra costs due to their own lack of initiative . Also, this practice of including information in the register of unscrupulous suppliers allows other customers in the future not to run into an unreliable partner and not create problems for themselves in the supply of goods, performance of work or provision of services. And suppliers, knowing about the possible two-year isolation of participation in procurement procedures, will take a more serious and responsible approach to the issue of signing and executing the contract. Once on the “black list” called RNP, suppliers risk losing the trust of customers as a reliable business partner capable of meeting their needs in full and in a timely manner.

Searching for suitable tenders to participate in is a daily routine for companies involved in public procurement. However, government customers also spend a lot of time searching for new suppliers, whom they invite to take part in competitions and auctions organized by them.

Such an invitation can be received even by a company that does not participate in public procurement at all and does not plan to start. Or usually participates, but now there are reasons to skip the auction: too many competitors have already submitted applications, the invitation came too late, production capacity is loaded. Then there is a need to make a correct refusal.

The supplier has the full right to refuse the invitation to participate in the tender. The law does not even regulate a clear template for a letter of refusal - it can be drawn up in free form. However, there are wishes for its content that have developed in tender practice:

1. Use letterhead.

2. Attach the invitation sent by the customer to the letter.

3. In the refusal to participate in the tender, indicate the following information:

the name of the tender organizing company and the full name of the person to whom you are applying;
your details;
number and date of the invitation;
date of holding, number and name of the procurement;
Full name, position, signature of the author of the letter, date of compilation.

4. In the body of the letter, thank for the invitation, state the reasons for the refusal and end the letter with a phrase expressing the intention (or lack thereof) to participate in the customer's tenders in the future.

Sample letter of refusal to participate in the tender

fig.1 Sample rejection letter 1

fig.2 Sample rejection letter 2

fig.3 Refusal letter sample 3

What is the reason for refusal?

The most polite and non-binding wording of refusal to participate in the tender is considered to be the temporary workload of the company: there are a lot of current orders, we cannot take on additional obligations. But this is now, and next time we will definitely participate.

If you don’t plan next time, use the standard argument “it’s not about you”: explain the refusal by the inability to fulfill the difficult conditions of the contract due to a mismatch in the level of the company, lack of resources, capacity, experience. For specific examples of wording, see the samples.

Refusal to participate in the tender after the application has been submitted

Different bidding procedures provide for different conditions for exiting the bidding race. But in any case, you need to do this before the deadline for accepting proposals.

The easiest way is if you apply for electronic auction. In this case, it is enough to go to your personal account on the ETP and click the “Revoke” button. Application security tools are unlocked within 1 day.
A little harder with request for quotations. The procedure assumes the possibility of refusal to participate in the tender only if the customer has made changes to the notice. Nevertheless, you can withdraw the application in any case: by law, the customer is obliged to reject the participant who sent more than one. Send a second one and your candidacy will not be considered.
If you refuse to participate in open competition notification should be sent to the customer. This must be done before the end of the acceptance of applications, in the same form in which you received the tender documentation: paper or electronic. In the first case, it is logical to use the services of a courier, and not send papers by mail, since there is a high probability of not meeting the deadlines. Also, the courier will be able to immediately pick up the registration of refusal to participate in the tender. The customer is obliged to return the application security within 5 days.

The letter of notification is written in the same way as the refusal to participate in the tender discussed above, but instead of the number and date of the invitation, indicate information about the notification and application:

fig.4 Sample notification letter

Refusal to sign the contract

You have won the tender. Excellent, but in the process of negotiating the contract with the customer, some details were revealed that were not originally reflected in the specification. For example, the customer clarified that not only the supply of equipment is required, but also its assembly in full. As a result, the cost of fulfilling the contract increased, and it became unprofitable for you. What to do?

Strictly speaking, the winner of the tender has no right to refuse to sign the contract with the customer. Even the described increase in costs is not a reason for this. It is believed that the participant should send all clarifying questions to the customer at the stage of submitting proposals. And if the application is submitted, it means that the participant has assessed all the risks and agrees with the terms of the contract.

Refusal to participate in the tender at this stage is considered evasion - information about the legal entity and founders will be included in the RNP. This will deprive the company of the opportunity to participate in public procurement for 2 years, and in principle will cause serious damage to its business reputation. How not to get into the "black list" - read our article.

There are 3 unofficial ways to still refuse to sign a contract. Nevertheless, each of them is associated with the risk of being included in the list of unscrupulous suppliers.

The best option is to agree with the customer to terminate the contract by mutual agreement immediately after signing it. In this case, it is likely that the customer will refuse to cooperate. Although, as a rule, he is also not interested in bringing the situation to the attention of the FAS.
Find the documentation inconsistency in your own application submitted for a successful tender. You can file a complaint with the FAS against the actions of the customer, accusing him of not having to consider your application at all. The deadline for filing a complaint is 10 days from the date of publication of the minutes of consideration of applications.
Skip the deadline for signing the contract, having previously collected evidence of your innocence in this. For example, documents confirming that the contract was not signed due to the illness of the director, DDoS attacks on the corporate network. In this case, you will have a chance to prove to the FAS commission that the evasion was unintentional, and you will not be included in the RNP. However, it should be remembered that this is a falsification, and the opinion of the commission is more often on the side of the customer.

We wish you not to get into the situations considered, and not to put your reputation at risk. And if you need a bidding professional's toolkit or expert advice, welcome to

Date: 08/28/2018

In the practice of procurement for state (municipal) and corporate needs, situations may arise when the customer, for one reason or another, needs to abandon his plans for a specific purchase after the completion of the procurement procedure and the identification of the supplier (contractor, performer). This situation applies to competitive procurement, it is irrelevant for non-competitive procurement - the customer reserves the natural right to "change his mind" up to the moment of signing the contract with a single supplier (contractor, performer).

In the legislation on the contract system, the cases, conditions and procedure for such a refusal are spelled out quite clearly - for example, it is established that the customer’s refusal to conclude a contract with the winner of the competitive procurement is carried out at any time before the conclusion of the contract, if the customer or the procurement commission finds that the procurement participant does not meet the requirements established in the procurement documentation, or has provided false information regarding its compliance with these requirements 1 .

But in 223-FZ, which, as you know, in comparison with 44-FZ is more of a framework nature (although over time the law becomes more and more detailed), there are no similar specific rules. Rather, there are no rules at all that would be somehow related to the refusal of customers to purchase. Thus, the definition of the “rules of the game” associated with the refusal to conclude a contract is in fact entirely left to the customers themselves - it is assumed (although nowhere formally required) that they will establish such rules in their procurement regulations. Therefore, say, suppliers who want to know these rules or want to understand whether the customer's refusal to purchase was legitimate, need to get acquainted with the content of these documents of specific customers. Customers themselves need to be very careful about the presentation of these rules in their procurement regulations in order to take into account as much as possible all possible situations in their interests.

Thus, for example, NPO Rosneft 2 has established for itself the opportunity to “refuse to conclude a contract based on the results of the procurement procedure without obligations to compensate for losses to procurement participants, except for cases expressly established by the current legislation of the Russian Federation for bidding”. It should be noted that no such cases have yet been established in 223-FZ, and nothing is said about such cases in the federal legislation on the protection of competition 3 .

But such cases are prescribed in civil law, and we recall that customers under 223-FZ are required to be guided by this legislation 4 . In particular, it contains a rule that “unless otherwise provided by law, the person who won the auction and the organizer of the auction sign on the day of the auction or competition the protocol on the results of the auction, which has the force of the contract”, and “if, in accordance with By law, the conclusion of an agreement is possible only by holding an auction, if the organizer of the auction evades signing the protocol, the winner of the auction has the right to apply to the court with a demand to compel the conclusion of an agreement, as well as to compensate for losses caused by evasion of its conclusion” 5 .

The law (that is, in 223-FZ) does not establish anything “other”, therefore, the requirement to sign a protocol that has the force of a contract on the day of the auction or competition should be applied. And in general, if the customer conducts an auction, then, as they say, he cannot get away from concluding an agreement. But what methods of purchase are considered bidding?

In accordance with the civil legislation, auctions (including electronic ones) are held in the form of an auction, competition or in another form provided for by law 6 . Until recently, legislation on procurement under 223-FZ did not provide for other forms of bidding, therefore, if it was not a tender or auction, then customers could quite freely refuse to conclude an agreement with the winner of the procurement (see the above example with OAO NKO Rosneft) ). At the same time, the courts considered that the customer’s refusal to conclude a contract was unlawful only if it was about the results of the auction or at least the use of procurement methods, the procedure for which corresponded to the characteristics of the auction 7, and also if the possibility of refusing to conclude the contract was not provided for in the procurement regulation.

However, according to the latest amendments to Federal Law 223-FZ, not only a tender and an auction, but also a request for quotations and a request for proposals are considered to be bidding 9 . Moreover, now 223-FZ has introduced a rule according to which the contract based on the results of any competitive procurement must be concluded no earlier than 10 and no later than 20 days from the date of placement in the EIS of the final protocol drawn up on the basis of the results of competitive procurement (in the case of the need for approval by the customer's management body in accordance with the legislation of the Russian Federation of the conclusion of the contract or in the event of an appeal to the Federal Antimonopoly Service of the actions (inaction) of the customer, the commission for the implementation of competitive procurement, the operator of the electronic site, the contract must be concluded no later than 5 days from the date of the specified approval or from the date issuance of a decision by the antimonopoly body based on the results of an appeal against the actions (inaction) of the customer, the commission for the implementation of competitive procurement, the operator of the electronic site) 10 . At the same time, the provisions of the customers must be brought into line with these changes by 01/01/2019 11 . Thus, after the specified period, the possibility of customers to refuse to conclude an agreement with a supplier (contractor, performer), determined on the basis of the results of any competitive procurement, will be very limited - only competitive procurements that are not are bidding (for example, request for prices). Recall that in accordance with the innovations of 223-FZ, competitive procurement has the following "competitive" features 12:

Purchase information is communicated by the customer in one of the following ways:
- by posting in the EIS a notice on the implementation of a competitive procurement, available to an unlimited number of persons, with the application of documentation on competitive procurement;
- by sending invitations to take part in a closed competitive procurement (carried out in cases where information about the procurement is a state secret, etc.);
Competition between procurement participants for the right to conclude an agreement with the customer on the terms proposed by the participants is ensured.

At the same time, in the 223-FZ itself, it is now established that after the deadline for filing applications and before the conclusion of the contract, the customer has the right to cancel the definition of the supplier (executor, contractor) only in the event of force majeure circumstances in accordance with civil law. 13

It is noteworthy that in the relatively new editions of the procurement regulations of some customers, you can find rules that allow them to refuse to conclude a contract in a variety of cases. For example, in the version of the standard (regulation) on the purchase of Rosatom State Corporation dated June 23, 2018, we see the rule that the customer is not entitled to refuse to conclude a contract based on the results of a competitive purchase, except for the cases provided for by the standard and the legislation of the Russian Federation, but at the same time The standard also states that the customer has the right to decide to refuse to conclude an agreement in accordance with the legislation of the Russian Federation in the following cases:

Changes in financial, investment, production and other programs that have influenced the need for this purchase;
Change in the need for products, including changes in product characteristics, if such changes are approved by the head of the customer;
In the event of force majeure circumstances, confirmed by the relevant document and affecting the expediency of the purchase;
The need to comply with the instructions of the antimonopoly body and / or recommendations of the arbitration committee of the customer and / or other authorized regulatory body;
Changes in the legislation of the Russian Federation, regulatory legal acts, the issuance of acts of federal executive authorities that affect the possibility and / or expediency of the procurement.

The phrase “in accordance with the legislation of the Russian Federation” in this example can probably be interpreted as “if the purchase was not a tender”, although this is not clearly indicated as in Rosneft.

So it can be assumed that in practice, customers, when modifying their procurement provisions, one way or another will try to retain their right, for various reasons, to refuse to conclude a contract with the winner of the competitive procurement, and this, in the light of the new legal context, will become the subject of disputes between them, the participants in the procurement and regulatory authorities.

We also point out that, in practice, the customer's refusal to conclude a contract may mean his desire to change the results of the procurement in this way. And here one should not confuse the refusal to conclude a contract (that is, the complete termination of the procurement procedure) with a review of the results of the procurement (changes in protocols, “re-elections” of the winner, etc.). Such a review of the results would be contrary to the legislation in terms of the principles of procurement, and most likely, the regulation on the procurement of the customer himself - thereby violating the requirement of federal competition law, which prohibits violating the established procedure for determining the winner or winners of the tender, request for quotations, request for proposals 14. After such a refusal (if it is still valid), the customer may, by making changes to the procurement plan, start the procedure for a new purchase (or several new purchases) from the very beginning, or may no longer carry it out at all.

In conclusion, I would like to note that all of the above applies, of course, only to those cases where the customer has nothing to reproach the winner of the purchase. Often, the procurement regulations also provide for cases where the customer's refusal to conclude a contract may occur due to the "jambs" of the winner. For example, the procurement regulations of the Far Eastern Federal University establish that after determining the participant with whom the contract should be concluded, the customer, within the time period provided for concluding the contract, has the right to refuse to conclude a contract with such a participant in the following cases: 1) establishing the fact of liquidation procurement participants - legal entities or the adoption by the arbitration court of a decision to declare the procurement participant - a legal entity, an individual entrepreneur bankrupt and to open bankruptcy proceedings; 2) suspension of the activities of procurement participants in the manner prescribed by the Code of the Russian Federation on Administrative Offenses; 3) provision by procurement participants of deliberately false information contained in the documents submitted by them. Also, an obvious reason for such a refusal may be the case when the winner of the procurement did not provide the required security for the performance of the contract (if it is provided for under the terms of the procurement) or provided it in violation of the established requirements. This approach, of course, is quite reasonable and can hardly be vulnerable from a legal point of view - we recall that the same approach is used in the legislation on the contract system (see above).

1 Ch. 9 Art. 31 of the Federal Law "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" dated April 5, 2013 No. 44-FZ.

2 Hereinafter, information about the content of the procurement regulations for specific customers is taken from the procurement regulations posted in the EIS (www.zakupki.gov.ru).

3 Federal Law No. 135-FZ of July 26, 2006 “On Protection of Competition”.

4 Ch. 1 Art. 2 of the Federal Law of July 18, 2011 No. 223-FZ “On the Procurement of Goods, Works, Services by Certain Types of Legal Entities”.

5 Ch. 6 Art. 448 of the Civil Code of the Russian Federation.

6 Ch. 4 Art. 447 of the Civil Code of the Russian Federation.

7 See, for example, Ruling of the Arbitration Court of the Moscow District dated July 7, 2016 No. F05-8512/2016 in case No. A40-163328/15.

8 See, for example, Ruling of the Arbitration Court of the Urals District dated 12.12.2014 No. F09-8172/14 in case No. A34-1410/2014; Resolution of the Eleventh Arbitration Court of Appeal dated September 22, 2016 No. 11AP-11218/2016 in case No. A7

9 P. 1 h. 3.1 Art. 3 of the Federal Law of July 18, 2011 No. 223-FZ “On the Procurement of Goods, Works, Services by Certain Types of Legal Entities”.

10 Ch. 15 Art. 3.2 of the Federal Law of July 18, 2011 No. 223-FZ “On the Procurement of Goods, Works, Services by Certain Types of Legal Entities”.

11 Ch. 3 Art. 4 of the Federal Law of December 31, 2017 No. 505-FZ "On Amendments to Certain Legislative Acts of the Russian Federation".

12 Ch. 3 Art. 3 of the Federal Law of July 18, 2011 No. 223-FZ “On the Procurement of Goods, Works, Services by Certain Types of Legal Entities”.

13 See Part 3 of Art. 401 of the Civil Code of the Russian Federation and clause 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2016 No. 7 “On the application by the courts of certain provisions of the Civil Code of the Russian Federation on liability for breach of obligations”.