Instructions for objecting to a FAS complaint under 44-FZ

Time limits and procedure for filing an objection to a complaint to the OFAS

In accordance with Part 2 of Article 106 of 44-FZ, persons whose interests and rights are affected when the FAS considers a complaint have the right to submit their objection.

OFAS publishes information on the progress of the complaint on the public procurement website.

- her admission.

- setting a date for the OFAS meeting.

— adoption of the commission’s decision.

According to the regulations of the Federal Antimonopoly Service, it is obliged, within two days from the date of receipt, to determine the date for consideration of the complaint on the merits.

The person whose actions are being appealed and the applicant are notified of the date of consideration of the complaint.

Other procurement participants themselves monitor information about the complaint and, if necessary, send objections.

Objections to a complaint to the OFAS are submitted no later than two days before the date of consideration of the complaint, which creates inconvenience for the objecting party.

Since the time limit for filing an objection to a complaint to the OFAS is tight, if the deadline is missed, the objector will have to appeal to the Arbitration Court within three months from the date of the OFAS decision. (OBJECTION TO COMPLAINT 44 FZ)

Procedure for considering an objection

The party sending the objection has the right to be present in person or through representatives during its consideration.

An objection, like a complaint, is considered collectively

— 5 working days are given to consider the objection to the FAS complaint.

— The commission considering a complaint or objection thereto may request documents from any participants in public procurement; the latter are accordingly obliged to provide them.

— When considering a complaint (objection), trading or other activities are suspended.

The consideration of the objection follows the same algorithm as the consideration of the complaint, and the results of such consideration are sent to the applicant by mail or electronically.

According to Part 2 of Article 106 of Law 44-FZ, the objection to the complaint contains:

— Full name, full name, address, place of residence of the applicant.

— Name of the organization, person whose actions are being appealed.

— Description of the actions that are being appealed.

— Purchasing instructions.

The content of the objection coincides with the content of the complaint, but it has one more point - the arguments of the objection.

The law requires that documents related to the procurement be attached to the complaint, including bids from auction participants, video and audio recordings, and protocols drawn up when selecting a supplier or contractor. In addition, the OFAS has the authority to request from him the necessary documents and request information in addition to those already available to state bodies (Parts 3 and 4 of Article 106 of Law 44-FZ).

An objection to a complaint to the FAS can be filed by persons whose interests were directly affected. (OBJECTION TO COMPLAINT 44 FZ)

Possible reasons for refusal to consider

An objection may not be considered if the procedure for filing it (deadlines, form, etc.) was violated. It is always necessary to prepare a document in writing indicating all details and telephone numbers. There is no need to state your objections in handwritten form; it is better to type the text on a computer.

The FAS will also not consider applications that contain insults or swear words.

Another reason why the complaint remains unanswered is that the applicant has repeatedly raised this issue in the past and received a response from the antimonopoly service.

In this case, a decision is made that the appeal is groundless.

It is also impossible to consider a document if the author of the complaint or objection to it requires the provision of information that contains state secrets.

Our lawyers are ready to help you prepare an objection to the complaint and protect your interests in the FAS.

Article 106. Consideration of the complaint on the merits

1. After filing a complaint and accepting it for consideration, the procurement control body, within two working days from the date of receipt of the complaint, places in the unified information system information about the receipt of the complaint and its content, and also sends it to the procurement participant who filed the complaint, the customer, the operator of the electronic platform, to the operator of a specialized electronic platform, to the authorized body, authorized institution, specialized organization, procurement commission, the actions (inactions) of which are being appealed, notifications of the receipt of the complaint, its content, the place and time of consideration of the complaint. If a supplier (contractor, performer) is determined using closed methods, the specified information is not placed in the unified information system.

(as amended by Federal Laws dated December 28, 2013 N 396-FZ, dated December 31, 2017 N 504-FZ) (OBJECTION TO COMPLAINT 44 FZ)

(see text in the previous edition)

1. Persons whose rights and legitimate interests are directly affected by the consideration of a complaint have the right to send objections to the complaint to the control body in the field of procurement and participate in its consideration personally or through their representatives. The objection to the complaint must contain the information provided for in Part 8 of Article 105 of this Federal Law. An objection to the complaint is sent to the procurement control body no later than two working days before the date of consideration of the complaint.
2. The control body in the field of procurement is obliged to consider the complaint on the merits and the objection to the complaint within five working days from the date of receipt of the complaint and notify the person who filed the complaint, the persons who sent objections to the complaint, about the results of such consideration.

At the same time, the control body in the field of procurement has the right to send requests for information and documents necessary to consider the complaint, including requesting from the customer, authorized body, authorized institution, specialized organization, procurement commission, its members, officials of the contract service, contract manager, operator of an electronic platform, operator of a specialized electronic platform, the specified information and documents.

(as amended by Federal Law No. 504-FZ of December 31, 2017) (OBJECTION TO COMPLAINT 44 FZ)

(see text in the previous edition)

1. It is not allowed to request from the person who filed the complaint information and documents that are at the disposal of state bodies (including public authorities), local government bodies or bodies subordinate to state bodies (including public authorities) or local self-government bodies. In this case, the procurement control body requests such information and documents independently. Consideration of the complaint on its merits must be carried out on a collegial basis.
2. The customer, authorized body, authorized institution, specialized organization, procurement commission, its members, officials of the contract service, contract manager, operator of an electronic platform, operator of a specialized electronic platform, whose actions (inaction) are being appealed, are required to submit complaints on the merits for consideration procurement documentation, applications for participation in identifying a supplier (contractor, performer), protocols provided for by this Federal Law, audio, video recordings and other information and documents compiled during the determination of a supplier (contractor, performer) or accreditation of a procurement participant on the electronic platform , a specialized electronic platform.

(as amended by Federal Law No. 504-FZ of December 31, 2017) (OBJECTION TO COMPLAINT 44 FZ)

(see text in the previous edition)

1. Consideration of the complaint is not carried out in relation to the results of the evaluation of applications for participation in the competition, in the request for proposals, final proposals in accordance with the criteria for evaluating these applications, final proposals specified in paragraphs 3 and 4 of part 1 of Article 32 of this Federal Law.
2. The control body in the field of procurement has the right to suspend the determination of the supplier (contractor, performer) in terms of concluding a contract until the consideration of the complaint on the merits, by sending the customer, the operator of the electronic platform, the operator of a specialized electronic platform, to the authorized body, authorized institution, specialized organization, procurement commission requirement to suspend the determination of the supplier (contractor, performer) regarding the conclusion of the contract until the consideration of the complaint on the merits, which is mandatory for them. If a decision is made to suspend the determination of the supplier (contractor, performer), the contract cannot be concluded until the complaint is considered on the merits. In this case, the period established for concluding a contract is subject to extension for the period of consideration of the complaint on the merits. If, due to the suspension of the determination of the supplier (contractor, performer), the contract cannot be concluded within the time period stipulated by the procurement documentation, the decision to suspend the determination of the supplier (contractor, performer) establishes the possibility of extending the deadlines for fulfilling obligations under the contract provided for by the contract, indicating new deadlines fulfillment of these obligations.

(as amended by Federal Laws dated June 4, 2014 N 140-FZ, dated December 31, 2017 N 504-FZ) (OBJECTION TO COMPLAINT 44 FZ)

(see text in the previous edition)

1. Based on the results of consideration of the merits of the complaint, the control body in the field of procurement makes a decision to recognize the complaint as justified or unfounded and, if necessary, to issue an order to eliminate the violations committed, provided for in paragraph 2 of part 22 of Article 99 of this Federal Law, to perform other actions provided for in part 22 of Article 99 of this Federal Law. A copy of such a decision and in the case of issuing an order to eliminate violations, a copy of such an order within three working days from the date of the decision and issuance of the order is sent to the procurement participant who filed a complaint about the actions (inaction) of the customer, authorized body, authorized institution, specialized organization, operator electronic platform, operator of a specialized electronic platform, procurement commission, procurement participants who sent an objection to the complaint, as well as the customer, operator of an electronic platform, operator of a specialized electronic platform, to an authorized body, authorized institution, specialized organization, procurement commission, actions (inaction) which are being appealed. Information about the decision made and the order issued is posted in the unified information system within the specified period.

(as amended by Federal Laws dated December 28, 2013 N 396-FZ, dated December 31, 2017 N 504-FZ) (OBJECTION TO COMPLAINT 44 FZ)

(see text in the previous edition)

1. The decision made based on the results of consideration of the complaint on the merits may be appealed in court within three months from the date of its adoption.
2. If a federal executive body, an executive body of a constituent entity of the Russian Federation, a local government body of a municipal district or a local government body of a city district authorized to exercise control in the field of procurement considered complaints about the same actions (inaction) of the subjects of control, the decision made by the federal executive body authorized to exercise control in the field of procurement is implemented. If an executive body of a constituent entity of the Russian Federation, a local government body of a municipal district or a local government body of a city district authorized to exercise control in the field of procurement considered complaints about the same actions (inaction) of the subjects of control, the decision made by the body is carried out executive power of a constituent entity of the Russian Federation authorized to exercise control in the field of procurement.

Information from the site: //www.consultant.ru/document/cons_doc_LAW_144624/697831999176b3f4db3d69dfda47ac8af732c59b/

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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.

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