Preparation and filing of a complaint under 44-FZ

In what cases can you complain to the FAS about a customer?

Disputes between the customer and the procurement participant can be varied.

For example, filing a complaint with the FAS under 44-FZ is possible in the following cases:

the provisions of the public procurement law regarding contract security have been violated - the customer may make unreasonable demands on the type of security;
the customer has illegally denied the company or entrepreneur access to trading or is preventing the execution of the contract;
the customer “artificially” limited the number of procurement participants by forming requirements reflected in the procurement documentation;
The procurement documentation includes provisions according to which participants must provide information or documents the provision of which is not required by law.

This is not a complete list of violations that can be committed by the customer and appealed to the FAS. A professional lawyer under 44-FZ will help you understand how to act in a particular controversial situation with a customer. Contacting a legal specialist in public procurement from our company will help you achieve justice and defend the good name of your company.

The law allows any procurement participant to appeal against actions/inactions not only of the customer himself, but also of the following persons:

specialized organization;
procurement commissions;
members of the procurement commission;
contract service officials;
contract manager;
operator of the electronic platform.

Note! Your complaint to the FAS cannot be a basis for refusing a judicial appeal against the customer’s actions. This means that if you are not satisfied with the decision of the antimonopoly service on your issue, you can go to court with the same issue.

How to file a complaint with the FAS

Before contacting the FAS Russia, you need to collect as much evidence as possible to substantiate your position. The evidence collected must support the applicant's arguments and indicate the presence of offenses.

Submitting an anonymous complaint or complaint without supporting documentary evidence is unacceptable. Such an application will be rejected without consideration on its merits. When preparing documents, you should be careful and take your time. The applicant's inattention may play into the hands of his opponents. The latter, as a rule, prepare in advance to protect their own interests and build their own evidentiary line.

To file a complaint with the FAS, you must prepare a written statement. The text should be as detailed as possible, and the facts presented in it cannot contradict each other. If an application is prepared by an organization or an individual entrepreneur, then the company letterhead is used as its basis. The text must contain not only the signature of the manager, but also the seal of the individual entrepreneur or enterprise.

When writing a text, it is important to adhere to the chronological sequence of events, referring to legal norms and available evidence. The applicant must also provide comprehensive information about himself, since an application sent anonymously will remain without consideration.

Deadlines for appealing procurement results under 44-FZ to the FAS

You can appeal to the FAS the actions/inactions of the customer that violate your rights and interests at any time immediately after the procurement plan is posted in the UIS. But there are also time limits. So, you need to have time to file a complaint no later than 10 days from the date of placement in the UIS:

for a competition - a protocol for the consideration and evaluation of applications;
for requesting quotations - a protocol for the consideration and evaluation of applications;
for a request for proposals – the request for proposals protocol;
when determining the supplier in a closed way, the countdown is from the date of signing the relevant protocol.

You can appeal the provisions of the procurement documentation before the deadline for submitting applications.

When conducting an electronic auction, violations can be appealed at any time during the selection of the supplier and during the period of accreditation on the electronic platform. The deadline is no later than 10 days from the date of posting the protocol for such an auction on the electronic platform.

If you need to appeal the provisions of the auction documentation, then you must do so before the deadline for submitting applications for participation in this auction.

If violations in the actions of the customer are related to the conclusion of the contract , then a complaint must be filed with the FAS before the date of its conclusion.

Where to send a complaint against the customer under 44-FZ?

A complaint can be submitted to the territorial body of the FAS RF. You can find information about it on the official website of the antimonopoly authority.

On the FAS RF website (https://fas.gov.ru/) select the tab – Territorial Bodies.

Next, select the OFAS Russia for your subject, for example Arkhangelsk OFAS Russia.

Deadlines for filing and consideration of a complaint

The Federal Antimonopoly Service considers procurement and other issues according to a standard algorithm. A complaint can be filed within ten days from the date of entry of the final tender protocol into the Unified Information System. Within two working days, the application is registered, and all participants in the conflict situation receive official notifications about the receipt of the application, its essence, time and place of consideration.

Legislative norms oblige department representatives to complete consideration of the issue on its merits within five working days. Within three days from the date of the final decision, all parties to the conflict will receive appropriate notifications with a reasoned response.

Form and content of a complaint to the FAS under 44-FZ

A complaint to the FAS must be made in writing. The following information must be included in this document:

in relation to the person whose actions are being appealed – the name and trade name (if any) of the company, as well as the address of its location; if the actions of an individual are appealed, then the full name and address of residence are indicated. For individuals and companies, additionally indicate the postal address, telephone number (if such information is available);
name and trade name (if any) of the company, as well as its address; if the complainant is an individual, then the full name and address of residence are indicated. For individuals and companies, additionally indicate the postal address, telephone and fax number (if any);
information about the purchase;
description of actions/inactions of the customer (or other persons), as well as the arguments of the complaint;
list of attached documents;
signature of the representative of the person filing the complaint, seal (if any) and date of filing the complaint.

If you do not have the opportunity to turn to a government procurement lawyer for help, and you need to familiarize yourself with an example of a complaint under 44-FZ to the FAS, then you can go to the EIS website. All complaints filed with the antimonopoly authority are published on this resource.

So, go to the section Register of Complaints in the EIS (https://www.zakupki.gov.ru/epz/complaint/quicksearch/search_eis.html?searchString=&morphology=on). You will see a list of all complaints filed.

First of all, we will be interested in those that have been reviewed and found to be justified. A note about this is made in the upper left corner. The fact that the complaint was considered means that it was drawn up without violations, and the requirements of the law were taken into account in its form and content.

To read the text of the complaint, just click on the complaint number and, among other information, you will find the section Contents of the complaint..

There are three ways to file a complaint:

hand over in person to the supervisory authority;
send by Russian post;
send by email (if you have a digital signature).

It is worth remembering that the FAS may return your complaint without considering the merits if the following errors are made:

the complaint does not meet the requirements of Art. 105 FZ-44;
the complaint was forgotten to be signed or it was signed by a person whose authority was not documented (for example, a power of attorney was not attached to the complaint);
were late in filing a complaint;
the complained actions or inactions have already been the subject of consideration by a court or regulatory body and a decision has been made on them.

The FAS must make a decision to return the complaint within 2 working days, and also inform the submitter about this in writing.

Register of complaints under Law No. 44

Federal Law No. 44 provides for the need to include the following information in the register of complaints: about complaints submitted to regulatory authorities and decisions made based on the results of their consideration, about unscheduled and scheduled inspections and decisions made based on their results, as well as about orders issued.

The register of complaints will be placed in the Unified Information System. The procedure for maintaining the register, which includes, in particular, the list of posted information and the timing of its placement, will be approved by the Government of Russia.

The control body in the field of procurement, within 2 days (working days) from the date on which the complaint was received, is obliged to post in the information system information regarding the receipt of the complaint, as well as its content, and then send relevant notifications to interested parties. Information about the decision that was made regarding the complaint must be sent to interested parties within 3 days and posted on the UIS in the register of complaints.

A subscription to the Electronic Trading School provides access to webinars on bidding: according to Laws No. 44 and No. 223, here are all types of procurement, as well as recommendations from expert practitioners.

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May 16, 2016

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Judicial practice on complaints to the FAS under 44-FZ

Example 1. FAS returned the complaint to the applicant on the grounds that the complaint did not indicate the applicant’s postal address. The company appealed the antimonopoly authority's refusal to consider the complaint in court. The latter sided with the complainant and declared the FAS refusal illegal. The court indicated that the company's complaint indicated its location and postal address corresponding to the registration address of this legal entity in the Unified State Register of Legal Entities, and also contains information about the email address, contact telephone and fax numbers (Resolution of the Arbitration West Siberian District dated July 23, 2015 . in case No. A45-24942/2014).

Example 2. The company did not indicate its email address in the complaint and for this reason the FAS refused to consider the complaint. The court sided with the company and indicated that the FAS refusal was not justified. Since the complaint also indicated other contact details of the company that allowed us to establish contact with it - postal address, telephone number and fax number (Resolution of the Arbitration Court of the North Caucasus District of August 5, 2015 in case No. A53-29447/2014).

Example 3. If the complaint is signed directly by the sole executive body of the company, then additional documents confirming his authority to sign the document are not required (Resolution of the Volga District Arbitration Court dated October 19, 2021 N F06-13179/2016).

If you have any difficulties in drawing up a complaint against the actions of the customer, you can seek help from a lawyer under 44-FZ. Call and get professional support:

detailed consultation on the preparation of a complaint under 44-FZ;
drawing up a complaint in strict accordance with the requirements of the law;
sending a complaint to the FAS;
control over the consideration of the complaint and appeal against illegal refusal to consider (if necessary).

Why you shouldn’t be afraid to file a complaint with the FAS