What is the procedure for filing an objection to a complaint to the FAS and how should the parties draft it correctly?

Who and in what cases can write an objection to a complaint to the FAS

The Federal Antimonopoly Service acts as a supervisory authority in the field of public procurement. Its scope of competence includes consideration of complaints about violations of procurement legislation by participants, as well as actions or inactions of government authorities.

Sending objections to a received complaint to the antimonopoly service is regulated by the provisions of Art. 105, 106 FZ-44. This document is submitted in order to resolve controversial issues that have arisen between procurement participants.

According to the provisions of Part 2 of Art. 106 44-FZ, a person whose interests were affected in the text of the complaint has the right to file an objection.

FAS

About FAS

The Federal Antimonopoly Service or FAS fights monopoly, unfair tenders and corrupt customers. It is to the FAS that all complaints and identified violations in tenders must be sent. Since only the tender participants themselves can help the FAS in the fight against violations and monopoly by filing complaints in a timely manner.

When to file a complaint?

Fig. 1 Stages of filing complaints to the FAS

If you find shortcomings in the documentation, you can file a complaint before the deadline for filing applications.

When holding a competition or auction, you can file a complaint at any time after the tender is placed, but no later than 10 days from the date of publication of the protocol for considering applications.

It is worth remembering that after the start of consideration of applications for participation in the tender, only the tender participant can file a complaint, and it is necessary to appeal any actions during the conclusion of the contract before its conclusion.

Resolution of any disputes after the expiration of the above deadlines may only be in court.

How to write a complaint?

First you need complaints.

Then we go to the procurement portal website in the “Complaints” section, select from the register of complaints considered and with a decision made.

Fig. 2 Register of complaints on the procurement portal

We find a suitable complaint for ourselves and fill it out according to the example. Considering that this complaint has already been accepted and reviewed, you will be able to avoid many mistakes and fill it out correctly the first time.

How to file a complaint?

The complaint must be submitted in writing or electronically if you have an electronic signature. You can submit it both to the FAS Russia and its territorial bodies. You can write to the OFAS and find a complete list of territorial bodies with their contacts on the official website of the FAS.

Let's file a complaint using an example

Next, we will look at some situations and examples of filing complaints using an example. The stories are based on real events, but the company name and names are fictitious.

The company has been engaged in security activities for five years. Its General Director Ivan Ivanovich Enotov decided to find a new sales channel and start participating in tenders. He received an electronic digital signature, prepared and filled out the necessary documents for accreditation of the company on electronic platforms. And I was ready to start searching for my first tender.

Complaint about auction documentation

Ivan Ivanovich found an electronic auction suitable for his company, downloaded the documentation and began studying it.

“A careful study of the documentation and especially the provisions of the Contract at the initial stage is necessary. And if you do not agree with something, and the Customer does not give you an explanation of the provisions of the documentation, you should always write a complaint to the FAS.”

Ivan Ivanovich discovered clauses in the documentation that could limit the number of participants, since they indicate specific requirements, including that he will not be able to take part in this auction. Should I find another auction that does not have these items? In no case.

Instead, we draw up a complaint indicating all points that contradict Article 8 of Federal Law No. 44 “principles of restricting competition.”

After considering the complaint, the FAS issued a decision and order:

• Cancel the protocols drawn up during the electronic auction, the subject of which is the protection of objects
• Taking into account the decision made to consider the complaint of Sentinel LLC: make changes to the electronic auction documentation and bring the electronic auction documentation into compliance with the requirements of the Law on the Contract System;
• extend the deadline for submitting applications for participation in the tender so that from the date of posting changes in the electronic auction documentation to the deadline for submitting applications, this period is at least seven days;
• post information about canceling protocols and making changes to the electronic auction documentation on the Internet on the official website of the procurement portal and the website of the operator of the electronic platform.

And I was able to apply to participate in this auction.

Complaint against the operator of the electronic platform

On the appointed day, Ivan Ivanovich, General Director of Sentinel LLC, tries to enter the electronic platform using his digital signature, but the platform denies access. I also cannot log in using my username and password. The server only responds: “An error occurred while sending a request to the server.” The situation does not change and the auction took place, the winner was announced, but he could not even take part in it. Do you think that nothing can be fixed and time is lost? This is wrong.

“At the first problems and errors that arise, take a Print Screen (screenshot) from your computer screen and save it. Since, according to Part 22 of Article 68, the operator of the electronic platform is obliged to ensure the continuity of the electronic auction.”

Ivan Ivanovich is not to blame for the fact that he was unable to take part in the auction and he should write a complaint.

We file all complaints on our letterhead with the obligatory indication of the date, reference number, where and from whom it is submitted.

The FAS issued a decision and order:

• The Customer and the Unified Commission cancel the protocol for summing up the results of the Auction and set a new date for the Auction.
• The operator of the electronic site will continue the Auction from the last (minimum) offer and contract price.

And I managed to take part in this auction and become the winner.

Was the second part of your application rejected?

The auction was held and on December 21, 2015, the protocol of the electronic auction No. 00000000000000000011-2 was posted, according to which Ivan Ivanovich’s company became the winner by offering the lowest price. But after considering 2 parts of the applications, the application was rejected, citing clause 4 part 2. Article 62 according to 44-FZ, according to which a copy of the extract from the Unified State Register of Legal Entities must be received no earlier than six months before the date of application of the participant in such an auction with an application for accreditation. Knowing that all documents meet the requirements and rejection of the application is unlawful.

Ivan Ivanovich draws up a complaint against the actions of the Customer.

The FAS issued a decision and order:

• The customer and the auction commission should cancel the protocol for summing up the results of the electronic auction.
• The auction commission will reconsider the second parts of the applications, taking into account the identified violations.
• The operator of the electronic platform shall provide the customer with the opportunity to comply with this regulation.

They changed the contract without you?

After considering the second parts of the applications, a protocol was drawn up, and Ivan Ivanovich’s company was declared the winner. He is waiting for the contract to be signed. And the Customer sends him a contract for signing, only changes have been made to some provisions and even entire sections. It is fundamentally different from the Contract (project) presented in the electronic auction documentation. How to sign such a contract, in which changes have been made regarding payment, security and responsibility of the parties. Is it worth signing it? No.

Instead, Ivan Ivanovich writes a complaint in which he indicates in detail which points have been changed and that he does not intend to sign this contract.

The FAS decided to recognize the complaint of Strazh LLC as justified.

FAS decisions

You have successfully written and submitted a complaint to the FAS. All information about decisions and regulations can be found on the official website of the procurement portal in the “Complaints” section. Or on the official website of the FAS in the “Decisions Database” section.

You can also find information about complaints related to a specific organization on our website in the section Checking counterparties. Each complaint is accompanied by a link to the source information and the purchase associated with it, it is indicated to whom and by whom it was filed, the date of consideration and status.

Procedure for filing an objection: instructions

The objection is submitted to the division of the antimonopoly service that previously received complaints. It is obvious that participants can submit their objections only after a complaint has been received against their actions by the antimonopoly authority, and when it has been registered according to the rules specified in Art. 105 44-FZ.

The procedure for submitting an objection to a complaint to the FAS consists of the following steps:

1. The objection is submitted in writing to the FAS division that is authorized to consider it (to the one to which the complaint was previously submitted).
2. FAS officials transmit information about the received objection to the EIS.
3. A meeting of the working commission is scheduled within 3 days after the objection is received.
4. Persons filing a complaint may be present during the work of the commission . During the work of the collegial body, the applicant may be asked for additional documents.
5. A decision is made on the received objection within 5 days after its receipt . It is drawn up in writing and transmitted to the Unified Information System, as well as to the applicant himself. The results of the FAS commission meeting are transmitted to the applicant by mail: regular or electronic.

According to the general rules, during the period of consideration of the complaint itself and the objection to it, the procurement procedure is suspended, and the government contract cannot be signed, otherwise it will be declared invalid.

FAS must publish on the public procurement website all information regarding the movement of the complaint: the date of its receipt, the time of the commission meeting and the decision made. The applicant and the person whose actions are being appealed are additionally notified of these dates.

What are you allowed to complain about?

Not all customer actions are subject to appeal. Contractors have the right to submit a request for proceedings in case of specific violations of the customer (Part 10 of Article 3 223-FZ):

1. Violation of current legislation, the basic requirements of Law No. 223 and the procurement regulations.
2. Failure to post or publish in violation of the terms of the procurement regulations, order information, information and accompanying documentation on concluded contracts and other mandatory registers that are subject to timely publication in the Unified Information System.
3. Presentation of excessive requirements to potential suppliers that are not covered by the procurement documents.
4. Conducting tenders within the framework of Law No. 223 instead of the Federal Contract System. The rule applies in case of violation of the deadline for publication of procurement regulations or standards for mandatory tenders from SMEs (Part 8.1 Article 3, Part 5.1 Article 8 223-FZ).
5. Lack of information in the UIS (or unreliable information) about the annual volume of orders from SMEs.

To appeal agreements concluded with a single supplier, refer to violations of legal requirements and procurement regulations. Send your request before the conclusion of such an agreement. If the customer carried out the procedure without violations, it will not be possible to challenge the agreement, and the FAS will not establish a violation, and, therefore, will not issue an order to the customer (decision of the Kaluga OFAS Russia No. 02-47t/2018 dated September 25.

2018, Federal Antimonopoly Service of Russia No. 223 FZ-857/17 dated 09/01/2017). Is it possible to withdraw a complaint to the FAS under Federal Law 223? Yes, you can. Do this before making a decision on the appeal (Part 24, Article 18.1 of Law No. 135). But in case of revocation, repeated appeal of the same actions and inactions of the customer, commission or operator of the electronic platform is not allowed.

Compilation rules

The list of mandatory information that must be contained in objections to a complaint to the FAS is given in Part 8 of Art. 105 44-FZ. In particular, it must contain the following information:

1. Name of the legal entity or full name of the individual , postal address and telephone number for the applicant (anonymous complaints will not be considered).
2. Information about the person who filed the objections.
3. Details of the customer institution : full name, legal and actual addresses.
4. Information about the government procurement that became the subject of a dispute : name of the order, individual code, method of procurement and object of bidding.
5. Information about which arguments from the complaint the applicant does not agree with.
6. Arguments that confirm the customer is right.

The specified requirements for the content of the objection are given in Part 2 of Art. 106 44-FZ.

A sample objection to a complaint to the FAS can be downloaded here. The document is drawn up in writing on company letterhead.

The specified list of information in the objection is not exhaustive and can be expanded.

The document is certified by the signature of an individual and the seal of a legal entity (if any).

Where to send

You can send an appeal both to the central branch of the FAS and to its regional departments. Moreover, the central office accepts absolutely all disputes, and then, at its discretion, can forward them for consideration to the regional department. More information about how an appeal under the procurement law proceeds was written in the article “FAS explained how it will consider complaints under 223 Federal Law.”

Cases on procedures with NMCC more than 1 billion rubles. Complaints are reviewed only by the center.

Required documents

The following documents are attached to the application to the antimonopoly service:

1. Procurement documentation.
2. Received applications from procurement participants.
3. Compiled protocols for consideration of applications and final protocols.
4. Audio and video recordings (if available).
5. Other documents required by authorized authorities.

The specified information is provided by the applicants on the basis of parts 3, 4 of Art. 106 44-FZ.

When filing an objection through an authorized representative, a power of attorney granting similar powers is additionally attached to it.

Additionally, the document may be accompanied by evidence that the arguments presented in the objection are justified.

Where and how to send

https://www.youtube.com/watch?v=ytaboutru

The appeal is sent to the territorial department of the Federal Antimonopoly Service (take into account the location of the customer) or to the Central Office of the FAS Russia. The central office accepts any complaints and, after considering them, forwards FAS decisions on complaints under Federal Law 223 to regional offices. But there are also those appeals that should be sent only to the central authority (letters of the Federal Antimonopoly Service of Russia No. IA/6011 dated 03/01/2012 No. IA/57470/19 dated 07/05/2019):

• for orders over 1 billion rubles. and higher;
• at auctions from 100 million rubles. for purchases specified in the attachment to letter No. IA/57470/19 dated 07/05/2019.

Suppliers from the Far Eastern Federal District have the opportunity to participate in the proceedings via video conference. Communication is provided to the regional office of the Antimonopoly Service upon a special request (the form is available on the official website of the department). A video conference must be requested the day before the hearing - before 16.00 Moscow time (letters No. ME/99936/19 and No. ME/99938/19 dated 11/14/2019).