How are the first parts of applications for participation in the electronic public procurement auction reviewed? Article 67 of the contract system law.

1. The auction commission checks the first parts of applications for participation in electronic auction, containing information provided for in Part 3 of Article 66 of this Federal Law, for compliance with the requirements established by the documentation of such an auction in relation to the purchased goods, works, and services.

2. The period for consideration of the first parts of applications for participation in an electronic auction cannot exceed seven days from the deadline for filing these applications, and if the initial (maximum) price of the contract does not exceed three million rubles, such period cannot exceed one working day from the deadline for filing these applications.

3. Based on the results of consideration of the first parts of applications for participation in an electronic auction, containing the information provided for in Part 3 of Article 66 of this Federal Law, the auction commission makes a decision on the admission of the procurement participant who submitted an application to participate in such an auction to participate in it and recognition of this procurement participant by a participant in such an auction or refusal of admission to participate in such an auction in the manner and on the grounds provided for in Part 4 of this article.

4. A participant in an electronic auction is not allowed to participate in it in the following cases:

1) failure to provide information provided for in Part 3 of Article 66 of this Federal Law, or provision of false information;

2) non-compliance of the information provided for in Part 3 of Article 66 of this Federal Law with the requirements of the documentation about such an auction.

5. Refusal of admission to participate in an electronic auction on grounds not provided for in Part 4 of this article is not permitted.

6. Based on the results of consideration of the first parts of applications for participation in an electronic auction, the auction commission draws up a protocol for considering applications for participation in such an auction, signed by all its members present at the meeting of the auction commission no later than the expiration date for consideration of these applications. The specified protocol must contain the following information:

1) about identification numbers of applications for participation in such an auction;

(as amended by Federal Law dated December 31, 2017 N 504-FZ)

2) on the admission of a procurement participant who has submitted an application to participate in such an auction, which is assigned the corresponding identificational number to participate in such an auction and to recognize this procurement participant as a participant in such an auction or to refuse admission to participate in such an auction with the justification for this decision, including indicating the provisions of the documentation about such an auction that the application for participation in it does not comply with, provisions of the application for participation in such an auction that do not meet the requirements established by the documentation about it;

(as amended by Federal Law dated December 31, 2017 N 504-FZ)

3) on the decision of each member of the auction commission in relation to each participant in such an auction on admission to participation in it and on recognition of him as a participant or on refusal of admission to participation in such an auction;

4) on the presence, among the proposals of procurement participants recognized as participants in the electronic auction, proposals for the supply of goods originating from a foreign state or a group of foreign states, works, services, respectively performed, provided by foreign persons, if the conditions, prohibitions, restrictions on the admission of goods , works, services are established by the customer in the electronic auction documentation in accordance with Article 14 of this Federal Law.

(Clause 4 introduced by Federal Law dated December 31, 2017 N 504-FZ)

7. The protocol specified in part 6 of this article is sent by the customer to the operator no later than the expiration date for consideration of applications for participation in the electronic auction electronic platform and is located in a unified information system.

8. If, based on the results of consideration of the first parts of applications for participation in an electronic auction, the auction commission decided to refuse admission to participation in such an auction to all procurement participants who submitted applications to participate in it, or to recognize only one procurement participant who submitted application for participation in such an auction by its participant, such auction is declared invalid. The protocol specified in Part 6 of this article shall contain information about the recognition of such an auction as invalid.

9. Within one hour from the moment the operator of the electronic site receives the protocol specified in Part 6 of this article, the operator of the electronic site is obliged to send a notification to each participant in the electronic auction who submitted an application to participate in it, or to the participant in such an auction who submitted a single application to participate in it. about the decision taken in relation to the applications submitted by them, information about the presence among the proposals of procurement participants recognized as participants in the electronic auction, proposals for the supply of goods of Russian origin if the documentation on the electronic auction establishes conditions, prohibitions, restrictions on the admission of goods originating from a foreign state or a group of foreign states, works, services, respectively performed, provided by foreign persons, in accordance with Article 14 of this Federal Law. If the auction commission makes a decision to refuse admission to participation in such an auction of its participant, the notification of this decision must contain the rationale for its adoption, including indicating the provisions of the documentation about such an auction, which this application does not comply with, the proposals contained in this application, which do not comply with the requirements of the documentation for such an auction, as well as the provisions of federal laws and other regulatory legal acts of the Russian Federation, the violation of which served as the basis for this decision to refuse.

(as amended by Federal Law dated December 31, 2017 N 504-FZ)

Art. 67,

Video commentary on changes in electronic auction procurement

Law enforcement practice:

Responsibility for violations of Art. 67

Violation	Type of responsibility	Norm	Grounds for prosecution
	Administrative	Part 4.2 Art. 7.30 Code of Administrative Offenses of the Russian Federation	Establishment in the electronic auction documentation of the period for consideration of the first parts of applications for participation in the electronic auction in violation of the requirements of the legislation on the contract system
	Disciplinary	Art. 192 Labor Code of the Russian Federation
	Administrative	Part 2 Art. 7.30 Code of Administrative Offenses of the Russian Federation	Recognition of an application for participation in an auction as proper, corresponding to the requirements of the auction documentation, in the event that the participant who submitted such an application should be denied admission to participate in the procurement
	Disciplinary	Art. 192 Labor Code of the Russian Federation
	Administrative	Part 2 Art. 7.30 Code of Administrative Offenses of the Russian Federation	Refusal of admission to participate in the auction on grounds not provided for by the legislation on the contract system
	Disciplinary	Art. 192 Labor Code of the Russian Federation
	Administrative	Part 2.1 Art. 7.30 Code of Administrative Offenses of the Russian Federation	Violation of the requirements for the content of the protocol for considering applications for participation in an electronic auction
	Disciplinary	Art. 192 Labor Code of the Russian Federation
	Administrative	Part 13 Art. 7.30 Code of Administrative Offenses of the Russian Federation	Violation of the deadlines provided for by the legislation on the contract system in the field of procurement for signing the protocol for considering applications for participation in an electronic auction by no more than two working days
	Disciplinary	Art. 192 Labor Code of the Russian Federation
	Administrative	Part 14 Art. 7.30 Code of Administrative Offenses of the Russian Federation	Violation of the deadlines provided for by the legislation on the contract system in the field of procurement for signing the protocol for considering applications for participation in an electronic auction by more than two working days
	Disciplinary	Art. 192 Labor Code of the Russian Federation
	Administrative	Part 1.4 Art. 7.30 Code of Administrative Offenses of the Russian Federation	Sending to the operator of the electronic platform a protocol for considering applications for participation in an electronic auction in violation of the requirements stipulated by the legislation on the contract system
	Disciplinary	Art. 192 Labor Code of the Russian Federation

Other consequences of violation of Art. 67

Violation	Reasons for the occurrence of adverse consequences	Consequences	Rule establishing adverse consequences
Establishing a deadline for consideration of the first parts of applications for participation in an electronic auction in violation of the requirements of the legislation on the contract system	Filing a complaint against the customer’s actions or receiving information about a violation to the FAS of Russia or other control bodies	Carrying out unscheduled inspection FAS Russia	Part 3, 4 Art. 99 of Federal Law No. 44-FZ
Illegal admission of an auction participant to participate in it
Illegal refusal to allow an auction participant to participate in it
Failure to comply with the requirements for the protocol for considering applications for participation in an electronic auction
Violation of the deadline for signing the protocol for considering applications for participation in the electronic auction
Violation of the deadline for sending to the operator of the electronic platform the protocol for considering applications for participation in the electronic auction

Article 67. Procedure for considering the first parts of applications for participation in an electronic auction

1. The auction commission checks the first parts of applications for participation in an electronic auction, containing the information provided for in Part 3 of Article 66 of this Federal Law, for compliance with the requirements established by the documentation for such an auction in relation to the purchased goods, works, and services.

2. The period for consideration of the first parts of applications for participation in an electronic auction cannot exceed seven days from the deadline for filing these applications, and if the initial (maximum) price of the contract does not exceed three million rubles, such period cannot exceed one working day from the deadline for filing these applications.

3. Based on the results of consideration of the first parts of applications for participation in an electronic auction, containing the information provided for in Part 3 of Article 66 of this Federal Law, the auction commission makes a decision on the admission of the procurement participant who submitted an application to participate in such an auction to participate in it and recognition of this procurement participant by a participant in such an auction or refusal of admission to participate in such an auction in the manner and on the grounds provided for in Part 4 of this article.

4. A participant in an electronic auction is not allowed to participate in it in the following cases:

1) failure to provide information provided for in Part 3 of Article 66 of this Federal Law, or provision of false information;

2) non-compliance of the information provided for in Part 3 of Article 66 of this Federal Law with the requirements of the documentation about such an auction.

5. Refusal of admission to participate in an electronic auction on grounds not provided for in Part 4 of this article is not permitted.

6. Based on the results of consideration of the first parts of applications for participation in an electronic auction, the auction commission draws up a protocol for considering applications for participation in such an auction, signed by all its members present at the meeting of the auction commission no later than the expiration date for consideration of these applications. The specified protocol must contain the following information:

1) about the identification numbers of applications for participation in such an auction;

2) on the admission of a procurement participant who has submitted an application to participate in such an auction, which has been assigned the appropriate identification number, to participate in such an auction and recognition of this procurement participant as a participant in such an auction or on refusal of admission to participate in such an auction with justification for this decision, in including indicating the provisions of the documentation about such an auction, which the application for participation in it does not meet, the provisions of the application for participation in such an auction, which do not meet the requirements established by the documentation about it;

3) on the decision of each member of the auction commission in relation to each participant in such an auction on admission to participation in it and on recognition of him as a participant or on refusal of admission to participation in such an auction;

4) on the presence, among the proposals of procurement participants recognized as participants in the electronic auction, proposals for the supply of goods originating from a foreign state or a group of foreign states, works, services, respectively performed, provided by foreign persons, if the conditions, prohibitions, restrictions on the admission of goods , works, services are established by the customer in the electronic auction documentation in accordance with Article 14 of this Federal Law.

7. The protocol specified in Part 6 of this article, no later than the expiration date for consideration of applications for participation in the electronic auction, is sent by the customer to the operator of the electronic site and is posted in the unified information system.

8. If, based on the results of consideration of the first parts of applications for participation in an electronic auction, the auction commission decided to refuse admission to participation in such an auction to all procurement participants who submitted applications to participate in it, or to recognize only one procurement participant who submitted application for participation in such an auction by its participant, such auction is declared invalid. The protocol specified in Part 6 of this article shall contain information about the recognition of such an auction as invalid.

9. Within one hour from the moment the operator of the electronic site receives the protocol specified in Part 6 of this article, the operator of the electronic site is obliged to send a notification to each participant in the electronic auction who submitted an application to participate in it, or to the participant in such an auction who submitted a single application to participate in it. about the decision made in relation to the applications submitted by them, information about the presence among the proposals of procurement participants recognized as participants in the electronic auction, proposals for the supply of goods of Russian origin if the documentation on the electronic auction establishes conditions, prohibitions, restrictions on the admission of goods originating from a foreign state or a group of foreign states, works, services, respectively, performed or provided by foreign persons, in accordance with Article 14 of this Federal Law. If the auction commission makes a decision to refuse admission to participation in such an auction of its participant, the notification of this decision must contain the rationale for its adoption, including indicating the provisions of the documentation about such an auction, which this application does not comply with, the proposals contained in this application, which do not comply with the requirements of the documentation for such an auction, as well as the provisions of federal laws and other regulatory legal acts of the Russian Federation, the violation of which served as the basis for this decision to refuse.

This Federal Law, for compliance with the requirements established by the documentation of such an auction in relation to the purchased goods, works, and services.

2. The period for consideration of the first parts of applications for participation in an electronic auction cannot exceed seven days from the deadline for filing these applications, and if the initial (maximum) price of the contract does not exceed three million rubles, such period cannot exceed one working day from the deadline for filing these applications.

3. Based on the results of consideration of the first parts of applications for participation in an electronic auction, containing the information provided for in Part 3 of Article 66 of this Federal Law, the auction commission makes a decision on the admission of the procurement participant who submitted an application to participate in such an auction to participate in it and recognition of this procurement participant by a participant in such an auction or refusal of admission to participate in such an auction in the manner and on the grounds provided for in Part 4 of this article.

4. A participant in an electronic auction is not allowed to participate in it in the following cases:

1) failure to provide information provided for in Part 3 of Article 66 of this Federal Law, or provision of false information;

2) non-compliance of the information provided for in Part 3 of Article 66 of this Federal Law with the requirements of the documentation about such an auction.

5. Refusal of admission to participate in an electronic auction on grounds not provided for in Part 4 of this article is not permitted.

6. Based on the results of consideration of the first parts of applications for participation in an electronic auction, the auction commission draws up a protocol for considering applications for participation in such an auction, signed by all its members present at the meeting of the auction commission no later than the expiration date for consideration of these applications. The specified protocol must contain the following information:

1) about the identification numbers of applications for participation in such an auction;

(see text in previous edition)

2) on the admission of a procurement participant who has submitted an application to participate in such an auction, which has been assigned the appropriate identification number, to participate in such an auction and recognition of this procurement participant as a participant in such an auction or on refusal of admission to participate in such an auction with justification for this decision, in including indicating the provisions of the documentation about such an auction, which the application for participation in it does not meet, the provisions of the application for participation in such an auction, which do not meet the requirements established by the documentation about it;

(see text in the previous edition)

3) on the decision of each member of the auction commission in relation to each participant in such an auction on admission to participation in it and on recognition of him as a participant or on refusal of admission to participation in such an auction;

4) on the presence, among the proposals of procurement participants recognized as participants in the electronic auction, proposals for the supply of goods originating from a foreign state or a group of foreign states, works, services, respectively performed, provided by foreign persons, if the conditions, prohibitions, restrictions on the admission of goods , works, services are established by the customer in the electronic auction documentation in accordance with Article 14 of this Federal Law.

7. The protocol specified in Part 6 of this article, no later than the expiration date for consideration of applications for participation in the electronic auction, is sent by the customer to the operator of the electronic site and is posted in the unified information system.

8. If, based on the results of consideration of the first parts of applications for participation in an electronic auction, the auction commission decided to refuse admission to participation in such an auction to all procurement participants who submitted applications to participate in it, or to recognize only one procurement participant who submitted application for participation in such an auction by its participant, such auction is declared invalid. The protocol specified in Part 6 of this article shall contain information about the recognition of such an auction as invalid.

9. Within one hour from the moment the operator of the electronic site receives the protocol specified in Part 6 of this article, the operator of the electronic site is obliged to send a notification to each participant in the electronic auction who submitted an application to participate in it, or to the participant in such an auction who submitted a single application to participate in it. about the decision made in relation to the applications submitted by them, information about the presence among the proposals of procurement participants recognized as participants in the electronic auction, proposals for the supply of goods of Russian origin if the documentation on the electronic auction establishes conditions, prohibitions, restrictions on the admission of goods originating from a foreign state or a group of foreign states, works, services, respectively, performed or provided by foreign persons, in accordance with Article 14 of this Federal Law. If the auction commission makes a decision to refuse admission to participation in such an auction of its participant, the notification of this decision must contain the rationale for its adoption, including indicating the provisions of the documentation about such an auction, which this application does not comply with, the proposals contained in this application, which do not comply with the requirements of the documentation for such an auction, as well as the provisions of federal laws and other regulatory legal acts of the Russian Federation, the violation of which served as the basis for this decision to refuse.

(see text in the previous edition)

Electronic auction

Subject of purchase

Construction and overhaul

Authority considering the complaint

St. Petersburg OFAS

denial of admission

Result of complaints consideration

justified or partially justified

an order to make changes was issued

SOLUTION

in case No. 44-2510/15 on violation of the legislation on the contract system

Commission of the St. Petersburg OFAS Russia for procurement control (hereinafter referred to as the OFAS Commission) consisting of:

in the presence of representatives:

St. Petersburg State Public Institution "Housing Agency of the Kalininsky District of St. Petersburg" (hereinafter referred to as the Customer);

having considered the applicant’s complaint (entry No. 16724 dated 08/03/2015) against the customer’s actions in determining the supplier through an electronic auction for the implementation of complex landscaping work for the courtyards of the Kalininsky district of St. Petersburg in accordance with the targeted program for the state needs of St. Petersburg in 2015 (hereinafter referred to as auction), as well as as a result of an unscheduled inspection on the basis of paragraph 1 of Part 15 of Art. 99 of the Federal Law of 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (hereinafter referred to as the Law on the Contract System), Administrative Regulations of the Federal Antimonopoly Service for the performance of the state function of review complaints about the actions (inaction) of a customer, an authorized body, a specialized organization, a tender, auction or quotation commission, an operator of an electronic platform when placing an order for the supply of goods, performance of work, provision of services, including when placing orders for energy services, for state, municipal needs, wants budgetary institutions, approved by order of the FAS Russia dated November 19, 2014 No. 727/14 (hereinafter referred to as the Administrative Regulations),

INSTALLED:

Changes to the notice of an open auction were posted on July 17, 2015 on the official website www.zakupki.gov.ru, notice number 0172200004315000060.

The initial (maximum) contract price is 37,171,708.14 rubles.

In the complaint, RusEst LLC points out the unlawful actions of the Customer, in terms of the unreasonable refusal to allow the Applicant’s application to participate in the auction based on the results of consideration of the first parts of the applications.

The customer considers the complaint to be unfounded.

Having considered the complaint, the FAS Commission came to the following conclusions.

The information contained in the complaint, the parties’ explanations, and available documents confirm the following circumstances.

According to Part 4 of Art. 67 of the Law on the Contract System, a participant in an electronic auction is not allowed to participate in it if:

failure to provide information provided for in Part 3 of Art. 66 of the Law on the Contract System, or providing false information;

inconsistency of the information provided for in Part 3 of Art. 66 of the Law on the Contract System, documentation requirements for such an auction.

Refusal of admission to participate in the electronic auction on other grounds in accordance with Part 5 of Art. 67 of the Contract System Law is not allowed.

According to the protocol of consideration of the first parts of applications for participation in the electronic auction dated July 31, 2015, the procurement participant who submitted the application with serial number 4 was denied admission to participate in the electronic auction:

“The application does not comply with clause 3.1. Section 3 Part I " General terms holding an auction in electronic form": the participant's application does not provide specific indicators corresponding to the values ​​​​established by the auction documentation in electronic form in Appendix No. 3 to Part III "Technical Specifications", namely:

Point 8 (Side stone type 2)– The chamfer width indicator does not comply with GOST 6665-91 Concrete and reinforced concrete side stones.

Requirement terms of reference: The height from the base to the bottom edge of the chamfer is at least 185 mm. The width of the stone along the base is at least 80 mm. The total height of the stone is no more than 200 mm. The width of the upper plane of the stone is at least 65 mm. The chamfer width is no more than 15 mm.

In the application: The height from the base to the bottom edge of the chamfer is 185 mm. The width of the stone at the base is 80 mm. The total height of the stone is 200 mm. The width of the upper plane of the stone is 65 mm. Stone length - 1000 mm. Chamfer width - 10 mm.

Comment: Based on the indicators in the application, with: The width of the stone at the base is 80 mm. The total height of the stone is 200 mm. The width of the upper plane of the stone is 65 mm. The height from the base to the bottom edge of the chamfer is 185 mm. The chamfer width cannot be 10 mm in accordance with GOST 6665-91.

Grounds for rejection – clause 2) part 4 of Art. 67 of the Law on the Contract System.”

According to the posted protocol and as a result of the analysis of the application of RusEst LLC, it was established that for position 8 (Bead stone type 2), the participant set the indicator “10 mm” for the characteristic “Chamfer width”.

or chamfers up to 10 mm wide».

Consequently, the indicator “Chamfer width” established in the application with serial number 4 (RusEst LLC) fully complies with the requirements of GOST 6665-91 "Concrete and reinforced concrete side stones", and also corresponds limit value indicator established by the procurement documentation.

Thus, the Customer’s auction commission committed a violation of Part 5 of Art. 67 of the Law on the Contract System, which resulted in an unjustified refusal to admit the application of RusEst LLC to participate in the electronic auction. The violations identified in the Customer’s actions are significant, which provides grounds for issuing an order to eliminate them.

During the unscheduled inspection, the following was established.

Documentation about the electronic auction in accordance with clause 1, part 1, art. 64 of the Law on the Contract System must contain the name and description of the procurement object and the terms of the contract in accordance with Art. 33 of the Law on the Contract System.

In accordance with clause 1, part 1, art. 33 of the Law on the Contract System, the description of the procurement object must be objective. The description of the procurement object shall indicate the functional, technical and quality characteristics, operational characteristics of the procurement object (if necessary). The description of the procurement object should not include requirements or instructions regarding trademarks, service marks, trade names, patents, utility models, industrial designs, the name of the place of origin of the goods or the name of the manufacturer, as well as requirements for goods, information, works, services, provided that such requirements entail a limitation on the number of procurement participants.

According to clause 2, part 1, art. 33 of the Law on the Contract System, the Customer, when describing the procurement object in the procurement documentation, must use, if possible, standard indicators, requirements, symbols and terminology relating to the technical and quality characteristics of the procurement object, established in accordance with technical regulations, standards and other requirements, provided for by law Russian Federation on technical regulation. If the customer does not use such standard indicators, requirements, symbols and terminology when describing the procurement object, the procurement documentation must contain a justification for the need to use other indicators, requirements, symbols and terminology.

The customer, in Appendix No. 2 to the Technical Specifications of the auction documentation, sets the requirement for the product under item 8 “Side stone type 2”: “Chamfer width - no more than 15 mm.”

At the same time, clause 1.2.3. GOST 6665-91 "Concrete and reinforced concrete side stones" says the following: “It is allowed to produce stones with a technological slope of the non-facial vertical edges up to 5%, rounding of the front edges with a radius of up to 5 mm and non-facial ones - up to 15 mm or chamfers up to 10 mm wide».

According to the explanations of the Customer’s representative, in accordance with GOST 6665-91 the upper, lower and vertical edges of the stones must be mutually perpendicular, and when adding up all the indicators established in the application (the width of the stone at the base is 80 mm, the total height of the stone is 200 mm, the width of the upper plane of the stone is 65 mm, the height from the base to the bottom chamfer edges - 185 mm), chamfer width cannot be 10 mm.

However, the OFAS Commission believes that the Customer, when describing the procurement object and considering applications, did not take into account a number of characteristics established by clause 1.2.3 of GOST 6665-91 "Concrete and reinforced concrete side stones", which can influence the parameters and are taken into account when describing the dimensions of the specified product:

“technological slope of non-facial vertical edges up to 5%”;

“rounding of front edges with a radius of up to 5 mm”;

“rounding of non-facial edges - up to 15 mm.”

These parameters are provided for during measurements along with the “chamfer width” indicator, including those provided for by the same paragraph of GOST 6665-91 “Concrete and reinforced concrete side stones”, however, they are not considered by the Customer as values ​​affecting the purchased goods, the procedure for filling out and the content of the first parts of applications for participation in the auction.

Thus, the establishment of such technical requirements for a product is biased, which is confirmed by existing state technical standards.

Consequently, the customer violated clause 1, part 1, art. 64 (clause 2, part 1, article 33) of the Law on the Contract System, establishing requirements for goods not in accordance with the rules for describing the procurement object.

The OFAS Commission, guided by Art. 33, 64, 67, 99, 106 of the Law on the Contract System, Administrative Regulations,

1. Recognize the complaint of RusEst LLC as justified.

2. Admit violations of Part 5 of Art. in the Customer’s actions. 67, clause 1, part 1, art. 64 (clause 2, part 1, article 33) of the Law on the contract system.

3. Issue to the Customer, the auction commission, and the operator of the electronic site a binding order to eliminate the identified violations.

4. Transfer the case materials to an authorized official to consider the issue of initiating an administrative violation case against official Customer.

• Encyclopedia of judicial practice. The procedure for considering the first parts of applications for participation in an electronic auction (Article 67 of the Law “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”)
• 1. General questions regarding the evaluation of the first parts of applications
• 1.1. The list of information that the first part of an application for participation in an electronic auction must contain is closed
• 1.2. Rejection of applications containing false information about the product is possible only when considering the first parts of applications
• 1.3. Additional checks of the first parts of applications beyond the seven-day period provided for by law do not comply with the law
• 1.4. The absence of consent in the application to perform part of the work specified in the auction documentation is grounds for rejection of such an application in accordance with paragraph 2 of part 4 of Article 67 of Law No. 44-FZ
• 1.5. A proposal in an application for a product with better qualities than those specified by the customer in the documentation is legal if it fully meets the customer’s goals
• 1.6. Failure of a participant to indicate a trademark in an application, if available, indicates that such an application does not comply with the requirements of Law No. 44-FZ
• 1.7. The participant’s obligation to indicate in the application that the product being purchased does not have a trademark is not provided for by law.
• 1.8. Indication in the first part of the application of an indicator in the form of the exact value of N, with the indicator “not less than N” established in the documentation, complies with the requirements of the law and cannot serve as a basis for refusal of admission to participate in the auction
• 1.9. The auction commission does not evaluate the significance of technical errors made by the participant in the application.
• 1.10. Evaluation of the procurement participant’s application for compliance with the auction documentation is the prerogative of the auction commission and cannot be replaced by the issuance of an expert’s opinion
• 1.11. The auction commission does not have the right to determine the sufficiency of the quantity of goods for the needs of the customer and the possibility of admitting a participant who offered a larger number of goods
• 2. Particular questions regarding the evaluation of the first parts of applications
• 2.1. The assessment by the auction commission of the reliability of the information presented in applications for participation in the competition by comparing it with information on the Internet without taking into account its relevance cannot be recognized as legal and justified
• 2.2. The assessment by the auction commission of the reliability of the information presented in applications for participation in the competition by comparing it with information provided by third parties on their websites on the Internet is unlawful
• 2.3. Rejection by the auction commission of an application due to the non-compliance of the packaging of goods proposed by the participant with the requirements of the auction documentation is lawful
• 2.4. If the customer specified the requirements for the product by referring to GOST without defining the maximum and minimum values ​​of the indicators, the rejection of the application due to the absence of specific indicators of the product in it is unlawful
• 2.5. Recognition by the auction commission of an application as not corresponding to the auction documentation only on the basis of indicating the material not in the line with the goods is unlawful
• 2.6. The auction commission’s recognition of an application as not corresponding to the auction documentation only because it indicates the wording “the goods must comply with the documentation” instead of “will comply with the documentation” (“complies”) is unlawful
• 2.7. If there are no product indicators in the application, the application review protocol does not require justification as to which specific product indicators are not indicated.
• 2.8. The mere indication by a participant of several countries of origin of the goods that are the object of procurement does not provide grounds for rejection of its application
• 2.9. In relation to goods produced in Russia, the indication of the word “Domestic” in the application is acceptable and does not interfere with the identification of the country of origin
• 2.10. Supplementing the application with a non-obligatory document indicating a product other than the auction documentation for the provision of the purchased service is not a basis for rejecting the application
• 2.11. The absence of a proposal on guarantee obligations in the first part of the participant’s application cannot serve as a basis for refusal of admission to participate in the auction
• 2.12. Rejection of a participant's application completed in accordance with the instructions for filling out the application, in the event that such instructions are drawn up improperly, indicates a violation of Law No. 44-FZ by the auction commission and the customer
• 2.13. The expiration of the term of office of the sole executive body of an electronic auction participant, if a new one is not elected and the powers are not terminated, does not provide grounds for rejecting his application

Encyclopedia judicial practice
The procedure for considering the first parts of applications for participation in an electronic auction
(Article 67 of the Law “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”)

1. General issues evaluations of the first parts of applications

1.1. The list of information that the first part of an application for participation in an electronic auction must contain is closed

The courts of the first and appellate instances rightfully considered that the rejection of applications containing false information about the product is possible only when considering the first parts of the applications. At other stages of procurement procedures, rejection is possible only if false information is provided regarding the auction participant. In this regard, the courts came to the correct conclusion that the auction commission had no legal basis for recognizing the LLC’s application at the stage of considering the second parts of the applications as non-conforming electronic auction documentation due to the provision of false information about the goods being supplied.

1.3. Additional checks of the first parts of applications beyond the seven-day period provided for by law do not comply with the law

The courts rightly considered that additional verification of the first part of the plaintiff’s application outside the established seven-day period during the court’s consideration of the request to declare illegal the actions of refusing to allow a procurement participant to participate in the electronic auction does not comply with the specified provisions regulating the bidding procedure. The defendant did not provide provisions of the Law on the Contract System that would allow him to carry out additional checks under the specified conditions.

1.4. The absence of consent in the application to perform part of the work specified in the auction documentation is grounds for rejection of such an application in accordance with paragraph 2 of part 4 of Article 67 of Law No. 44-FZ

The company’s application did not contain information about giving consent to carry out the work specified in the section “General construction work” of the technical part of the auction documentation, namely for the installation of concrete underlying layers in the amount of 22.5 sq.m., and the installation of coatings using dry mixture mortar with the preparation of mortar under construction conditions from smooth unglazed ceramic tiles for single-color floors in the amount of 200.3944 sq.m.

The failure to indicate in the application for consent to carry out the specified civil works was correctly assessed by the Unified Commission of the customer as a violation of the requirements of the documentation and the provisions of paragraph 2 of part 4 of Article 67 of the Law, which was reflected in the protocol of consideration of the first parts of applications for participation in the auction.

1.5. Offer in a product request with best qualities compared to those specified by the customer in the documentation, it is legal if it fully meets the customer’s goals

Actions of the customer who indicated the quality requirements in the auction documentation, technical specifications and the properties of the goods that he needs to carry out his activities, due to their needs, do not contradict the provisions of Part 3 of Article 34 of Law No. 44-FZ. In this case, indicating such characteristics in the documentation does not prevent participants in placing an order from offering in the application another product that has similar or improved technical and functional characteristics and meets the customer’s needs. In this case, a product with improved characteristics is offered.

Thus, the courts rightly indicated that the entrepreneur’s application for a controversial position fully complies with the requirements of the Law

The courts examined the technical part of the auction documentation, the LLC’s application and found that the LLC’s application for controversial items fully complies with the requirements of Law No. 44-FZ and the auction documentation.

The courts indicated that a participant’s offer to place an order for goods with best characteristics meets objectives effective use budget funds, if it fully meets the customer’s goals. At the same time, the courts reasonably assumed that the institution did not provide evidence to the contrary.

Under these circumstances, the conclusions of the courts that the contested decision and order of the department comply with the current legislation are correct, and when they are issued legal rights and the interests of the applicant are not violated.

1.6. Failure of a participant to indicate a trademark in an application, if available, indicates that such an application does not comply with the requirements of subparagraph “b” of paragraph 1 of part 3 of Article 66 of Law No. 44-FZ

Based on the results of the study and assessment in the manner prescribed by Chapter 7 of the Arbitration Procedural Code of the Russian Federation, the evidence presented and the parties’ arguments, the courts found that the auction documentation does not indicate trademark, therefore, taking into account the above regulations a participant in an open auction in the first part of the application must indicate the trademark (its verbal designation) (if any) in relation to the offered product; Auction participants No. 1 and 2, admitted to participate in the open auction, in the first parts of the applications in relation to the medical gloves produced by Ansell (UK) Ltd and Ansell Healthcare Europe N V proposed for supply, indicated in the column about the name of the offered product that “there is no trademark.” Meanwhile, according to a letter from the Moscow representative office of the manufacturer Ansell Healthcare Europe from<дата>all medical gloves manufactured by Ansell (UK) Ltd. and Ansell Healthcare Europe N.V., have individual trademarks; The case materials confirm that medical gloves manufactured by Ansell (UK) Ltd. and Ansell Healthcare Europe N.V., have individual trademarks and are not released into free circulation without these designations.

Thus, the courts came to the correct conclusion that the applications of participants No. 1, 2 did not comply with the requirements of subparagraph “b” of paragraph 1 of part 3 of Article 66 of the Law on the Contract System and Auction Documentation.

The argument of the applicant of the cassation appeal that in subparagraph "b" of paragraph 1 of part 3 of Article 66 of the Law on the Contract System, procurement participants are given the right to choose the indication of information - either a trademark or the name of the manufacturer, cannot be taken into account as based on an incorrect interpretation, contrary to the literal content of this norm.

1.7. The participant’s obligation to indicate in the application that the product being purchased does not have a trademark is not provided for by law.

An application for participation in an auction, the subject of which is the supply of goods, must contain an indication of the trademark if such goods have a trademark. The obligation to indicate in the application that the supplied goods do not have a trademark is not provided for by law.

The conclusion of the courts that an application for participation in an auction, the subject of which is the supply of goods, must contain an indication of a trademark if such goods have a trademark, is correct. The obligation to indicate in the application that the supplied goods do not have a trademark is not provided for by law.

1.8. Indication in the first part of the application of an indicator in the form of the exact value of N, with the indicator “not less than N” established in the documentation, complies with the requirements of the law and cannot serve as a basis for refusal of admission to participate in the auction

Having analyzed and assessed the content of the auction documentation, in particular the technical requirements for the materials used, the LLC’s application, taking into account the above provisions of the Law on the Contract System, the appellate court came to a reasonable conclusion that the indication of the LLC in the first part of the application was an indicator in the form exact value "0.14" when set [in technical requirements] the indicator “not less than 0.14” complies with the requirements of paragraph 2.4 of the Interstate Standard GOST 10503-71 “Oil paints, ready for use. Specifications", approved by Decree of the USSR State Standard dated 08/05/1971 N 1358, and paragraph 2.4.2 of GOST 5233-89 (ST SEV 6229-88). Paint and varnish materials. Method for determining the hardness of coatings using a pendulum device, approved by resolution of the USSR State Standard dated 03/27/1989 N 746, and does not contradict the requirements of the Law on the Contract System and Auction Documentation in Electronic Form, since it is a value of no less than 0.14.

Thus, the company complied with the requirements stipulated by Part 3 of Article 66 of the Law on the Contract System, and, therefore, the conclusions of the appellate court that the auction commission had no grounds for refusing the LLC permission to participate in the auction and, as a consequence, the legality of the said decisions and orders of the antimonopoly authority.

1.9. The auction commission does not evaluate the significance of technical errors made by the participant in the application.

The powers of the auction commission include only checking the compliance of the participant’s application with the requirements of the law and auction documentation, which does not imply any assessment of the significance of errors made in the application. As the courts correctly noted, incorrect execution of an application is entrepreneurial risk procurement participant and entails adverse consequences in the form of rejection of his application.

1.10. Evaluation of the procurement participant’s application for compliance with the auction documentation is the prerogative of the auction commission and cannot be replaced by the issuance of an expert’s opinion

The cassation court recognizes as correct the position of the court of first instance, which established that the first part of the application for participation in the auction submitted by the above participant complied with both the requirements of the auction documentation and the requirements of Part 3 of Article 66 of Law No. 44-FZ, and therefore came to the correct conclusion that there is a violation of the requirements of parts 4 and 5 of Article 67 of Law No. 44-FZ in the actions of the institution.

The regional arbitration court correctly noted that, according to the expert’s conclusion, the latter did not examine the consumer properties of the goods, but assessed the procurement participant’s application for compliance with the auction documentation, which contradicts the goals and objectives of conducting a commodity examination, and inherently replaces the functions of the auction commission, which is unacceptable.

1.11. The auction commission does not have the right to determine the sufficiency of the quantity of goods for the needs of the customer and the possibility of admitting a participant who offered a larger number of goods

The auction commission has no relation to the preparation of auction documentation and, when deciding on the admission of a participant to participate in the auction, is guided only by the terms of the approved auction documentation.

When considering the dispute, the courts established that the company was denied admission to participate in the auction due to the company's provision of false information about the products offered for delivery and their actual non-compliance with the conditions of the tender documentation.

These conclusions were made by the auction commission based on information about technical parameters for the synthetic dialyzer "Bseries" model B-14P (article BML0314), model B-18P (article BML0318), obtained on the official website of the manufacturer for the supply of products in Chinese on the Internet: http://www.bainmedical.net/toxicansu /class, as well as from the English-language product catalog presented by the company with limited liability"Pilot-Group" (hereinafter referred to as the "Pilot-Group" company) - official distributor company "BeinMedical Equipment (Guangzhou) Co., Ltd.", different from those declared by the auction participant (by comparing the product article with the given technical parameters).

The courts, having analyzed the case materials, correctly concluded that assessing the reliability of the information presented in applications for participation in the competition by comparing it with information on the Internet cannot be considered legal and justified, since the auction commission used information from the Internet site of the company "BaneMedical Equipment ( Guangzhou) Co., Ltd.": http://www.bainmedical.net/toxicansu/class, not updated since 2010; from the product catalog presented by the Pilot-Group company (on English language), it is also impossible to determine the relevance of the information contained in this catalog (the year is not specified).

2.2. The assessment by the auction commission of the reliability of the information presented in applications for participation in the competition by comparing it with information provided by third parties on their websites on the Internet is unlawful

The court of first instance, having examined and assessed the evidence presented in the case file according to the rules of Article 71 of the Arbitration Procedural Code of the Russian Federation, found that the conclusion about the unreliability of the information provided by the Company was made by the department commission not on the basis of the manufacturer’s information about the possible characteristics of coal, but on the basis of quality certificates, issued in relation to coal from the corresponding manufacturer and posted on the Internet on the websites of other organizations - coal suppliers.

Pointing out that the auction commission had no grounds for preventing the company from participating in the auction, the court [of first instance] noted that for the delivery in question important characteristics goods are original factory packaging, compliance temperature regime upon delivery, clear marking on the packaging, registration of products in the manner prescribed by law. In turn, the weight indicator (packaging/packing) of the goods is not a technical or qualitative property of the item being purchased, therefore, an offer to supply goods with other weight indicators, in the opinion of the court of first instance, cannot be considered as a non-compliance of the application with the requirements of the auction documentation.

It is correct that the appeal court concluded that, based on the powers of the auction commission, which checks the first parts of applications for their compliance with the requirements established by the auction documentation in relation to the purchased goods, the customer’s auction commission had sufficient grounds to recognize the first part of the company’s application as not meeting the requirements of the documentation .

Justifying the need to establish the parameters of the purchased goods, such as the number of packages and the weight of one package, the applicant pointed out the importance of the specified operational characteristics of the goods, established in order to optimize labor costs when accepting the delivered goods, carrying out examinations of the goods, for the rational placement of goods in the customer’s warehouse and at the specialist’s workplace . The packaging of goods proposed by the company, which significantly increases the number of individual packages of goods, will not allow the customer to comply with the conditions of its activities and may entail additional costs.

2.4. If the customer specified the requirements for the product by referring to GOST without defining the maximum and minimum values ​​of the indicators, the rejection of the application due to the absence of specific indicators of the product in it is unlawful

Based on the results of consideration of the first parts of the applications, the customer’s commission decided to reject the LLC’s application on the basis of paragraph 2 of part 4 of Article 67 of the Law on the Contract System due to the discrepancy between the information provided for in Part 3 of Article 66 of this Federal Law and the requirements of the documentation for such an auction, namely:

The section "Road Signs" does not indicate the specific indicators established by clause 5 of GOST R 52290-2004 (clause 5.5, photometric characteristics (retroreflectivity coefficient), clause 5.6 colorimetric characteristics (chromaticity coordinates (x, y) of the points of intersection of the boundary lines of color areas for elements of images of signs, which violates the requirements of clause 1.1.2, clause 1.1 of section 1 of the documentation on an open auction in electronic form in terms of indicating specific indicators of the materials used);

In the section "Road reflectors" the specific indicators established by clause 5.4 of GOST R 50971-2011 are not indicated (colorimetric characteristics (chromaticity coordinates of the corner points of color areas), which violates the requirements of clause 1.1.2, clause 1.1, section 1 of the open auction documentation in electronic form in terms of indicating specific indicators of the materials used.

The antimonopoly authority [rightfully] came to the conclusion that the customer did not indicate the indicators that allow determining the conformity of the purchased goods used in the production of work, including the maximum and (or) minimum values ​​of such indicators, as well as the values ​​of indicators that cannot be changed Therefore, the customer commission could check the application only for the presence of indicators (indicated or not).

2.5. Recognition by the auction commission of an application as not corresponding to the auction documentation only on the basis of indicating the material not in the line with the goods is unlawful

Rejecting the administration's argument that the first part of the LLC's application does not contain an indication of the material used in performing the work - concrete grade W4, from which the wall rings KS 10.9 and KS 10.3 should be made, the courts, having considered the company's application, came to the conclusion that there is a application for information about the material - concrete grade W4.

Without disputing this fact, the administration refers to the fact that the material is indicated on a separate line from the product for which it is installed as a characteristic.

As correctly established by the courts and follows from the case materials, the structure of the description of the names of these products in relation to the materials from which they should be made, in the table “Specification of materials for element DK-5, DK-9, DK-12” does not contain a clear indication of the order of presentation of information about the material. Therefore, the commission had no grounds for recognizing the company’s application as not corresponding to the auction documentation only on the basis of indicating the material not in the line with the goods.

Under such circumstances, the courts of the first and appellate instances rightfully refused to satisfy the stated demands of the administration, recognizing the contested decision of the antimonopoly authority as legal and justified.

2.6. The auction commission’s recognition of an application as not corresponding to the auction documentation only because it indicates the wording “the goods must comply with the documentation” instead of “will comply with the documentation” (“complies”) is unlawful

In the present case, the applicant insists on his own interpretation of the above provisions of Articles 66 and Law No. 44-FZ in connection with the following: since suppliers in their applications for participation in the electronic auction declare that the goods must comply with regulatory and technical documentation in accordance with the requirements of the customer’s technical specifications, then from this it is impossible to draw a direct and reliable conclusion that the supplied goods will comply or comply with this regulatory and technical documentation (in this case, the emphasis in the above argument is on the words “shall” and “will”).

With such reasoning, the administration and the courts rightly considered that the indication by auction participants in the table of information about the functional characteristics (consumer properties) and qualitative characteristics of the goods of the phrase “Normative and technical documentation to which the goods must comply (characteristics of goods)” is not a legal basis for refusal in admitting them (their applications) to participate in the auction, since these applications indicate specific indicators of the product used (supplied), and the basis for refusing admission of applications was the form of providing information about the specific indicators of the product.

In other words, the very form of submission of applications by the customer (his auction commission) is given greater importance than the content of applications (their essence); through the semantic interpretation by the customer of a separate phrase specified in the applications, the semantic load of the content of the applications as a whole (in the unity of all their parts) is distorted, the proper perception of the actual will of the auction participants, their readiness to supply the customer with products that fully satisfy his needs, in accordance with those specified by him, is lost same regulatory and technical requirements.

2.7. If there are no product indicators in the application, the application review protocol does not require justification as to which specific product indicators are not indicated.

The application was not allowed to participate in the auction, since the application completely lacked product indicators.

The protocol for this application correctly states that the application does not provide the information established by the documentation, namely the specific indicators of the product. In this case, there was no need to justify which specific indicators of the product were not indicated, since they were not indicated at all.

Thus, the decision of the single commission to not allow the participant with the registration number to participate in the auction is lawful, and in this fact there were no grounds for bringing the full name to administrative liability.

2.8. The mere indication by a participant of several countries of origin of the goods that are the object of procurement does not provide grounds for rejection of its application

The basis for denying the company permission to participate in the electronic auction was the fact that the LLC’s application contains the name of the material proposed for delivery, indicating three countries of origin of the goods: the USA, Puerto Rico, and the Dominican Republic. Moreover, such actions are regarded precisely as a failure to provide information provided for in Part 3 of Article 66.

As the courts correctly pointed out, the concept of “country of origin of goods” is defined in the Customs Code of the Customs Union, according to paragraph 1 of Article 58 of which the country of origin of goods is considered to be the country in which the goods were completely produced or subjected to sufficient processing (processing) in accordance with the criteria established by the customs legislation of the customs union.

In this case, documents confirming the country of origin of goods are a declaration of origin of goods or a certificate of origin of goods (Part 2 of Article 59). The courts correctly noted that the submission of these documents to confirm the country of origin of the goods is not provided for by Law No. 44-FZ.

The disputed auction documentation does not contain instructions on the order of presentation in the application of information about the name of the country of origin of the goods (one country or several). At the same time, the LLC’s application itself contains an indication of the name of the country of origin of the goods, and the customer’s auction commission did not establish the unreliability of the information provided by the company.

Considering that the actually necessary information was reflected in the LLC’s application, and the auction documentation did not contain any recommendations for the presentation of information for the purpose of a uniform and objective approach to the evaluation of applications, the courts came to a reasonable conclusion that the auction commission unlawfully refused the company access to participate in an electronic auction on the basis of Part 3 of Article 66 of Law No. 44-FZ.

Attention

There are court decisions that contradict the above approach.

2.8.1. Indication in the first part of the application of several countries of origin of goods is a failure to provide information about the country of origin

As follows from the case materials, the basis for the refusal of the authorized body to allow LLC "..." to participate in the auction with reference to clause 1, part 4 of art. 67 of Law No. 44-FZ, the participant indicated in the first part of the application the names of several countries of origin of the goods, which did not allow the auction commission to make an unambiguous conclusion about the specific country of origin of the goods.

The courts found that the company indicated several countries of origin of goods in its application. In the section of the application “specific indicators, trademark, name of the country of origin of the goods proposed for delivery,” the manufacturer “T...” (Japan, Belgium, USA) is indicated in relation to the goods; for [other] points of the application, the company also indicates the countries of origin of the supplied goods - Japan, Belgium, USA, Netherlands, Germany, Ireland, Japan, Mexico, UK, France.

The courts reasonably agreed with the conclusion of the antimonopoly authority that the auction commission had legal grounds for refusing LLC "..." admission to participate in the electronic auction on the grounds of violating the requirements of Part 3 of Art. 66 of Law No. 44-FZ due to failure to provide information about the country of origin.

2.9. In relation to goods produced in Russia, the indication of the word “Domestic” in the application is acceptable and does not interfere with the identification of the country of origin

The documents submitted by [the participant] as part of the application for participation in the electronic auction made it possible to identify the goods offered by the company for delivery as originating from Russia. Thus, the company indicates the product in the application as “Domestic, Stavropol region, city of Stavropol", "Domestic, Krasnodar region", indicates that the country of origin of the goods is Russian Federation, which complies with the requirements of the Contract System Law and auction documentation.

2.10. Supplementing the application with a non-obligatory document indicating a product other than the auction documentation for the provision of the purchased service is not a basis for rejecting the application

The participant was additionally attached electronic document, which indicated a different software product than in the documentation about the electronic auction. At the same time, the attachment of this additional document is not provided for either by Federal Law No. 44-FZ or clause 5.3 of the auction documentation, and therefore is not mandatory in this case.

The appellate court rightfully indicated that the attached file was additional information by virtue of the provisions of paragraph 2 of part 3 of Article 66 of Federal Law N 44-FZ, which was not subject to submission and, accordingly, evaluation by the auction commission, and its content in itself does not exclude what was expressed in the first part of the application the participant’s consent to provide services under the conditions provided for in the electronic auction documentation.

2.11. Absence of a proposal in the first part of the participant’s application warranty obligations cannot serve as a basis for refusal of admission to participate in the auction

According to the auction documentation, the warranty period is established in accordance with the participant’s application and is 12 months from the date of signing the acceptance certificate of goods. During the warranty period, the supplier provides the entire complex free services: By warranty repairs; elimination of defects; transport services; for the delivery of equipment to enterprises carrying out repairs and back. During the warranty period, the supplier undertakes to carry out warranty repairs at its own expense.

Having analyzed the provisions of the auction documentation in conjunction with [the provisions of Art. Art. 66, Law N 44-FZ], the courts rightly considered that the requirement established by the customer for the warranty period of the supplied equipment and the scope of the guarantees provided is not the indicator (characteristic) of the goods that the auction participant must indicate in the first part of the application, but only relates to the subject supplies.

In addition, the calculation of the warranty period is made by the customer dependent on the moment of execution of the goods acceptance certificate, which is not reliably known to the auction participants, which also confirms the illegality of the requirement to indicate a specific warranty period for the equipment at the stage of submitting the first part of the application for participation in the auction.

2.12. Rejection of a participant's application completed in accordance with the instructions for filling out the application, in the event that such instructions are drawn up improperly, indicates a violation of Law No. 44-FZ by the auction commission and the customer

As established by the courts, the instructions for filling out an application for participation in an auction contain contradictions when using the sign “;”, namely, from the provisions of the instructions it is impossible to determine whether it is permissible to present several possible values ​​of an indicator in an application for participation in an auction or whether it is necessary to submit a single exact value indicator.

Thus, the customer did not establish proper instructions for filling out an application for participation in the auction, which is a violation by the customer of paragraph 2 of part 1 of article 64 of the Law on the Contract System and led to a violation of the auction commission of part 5 of article 67 of the said Federal Law.

The conclusions of the Unified Commission of the Customer regarding the existence of grounds for recognizing the Company’s application as not meeting the requirements of Law No. 44-FZ are unfounded.

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