Invalidity of tenders, tenders, auctions, documentation. Challenging tenders, contract, documentation. 94-fz, 44-fz, 223-fz.
This topic has always been and is of interest to us. That is why during the period of the 94th Federal Law, we posted material on the correctness of actions when contesting tenders, abuse of law under the 94th Federal Law in the form of circumvention of the law.
Understanding the relevance of these publications at the present time, we decided to expand some of its provisions.
It is necessary to clearly and unequivocally formulate the goals and objectives that each participant in placing orders places.
These goals and objectives are always associated with contesting the tender documentation, invalidating the results of tenders and, as a result, the concluded civil law contract.
However, the wrong time chosen to initiate the challenging process, the incorrect determination of the way to protect rights (the wording of the claims in the claim / complaints), the lack of understanding of the consequences of their actions in the medium or long term, can lead to different consequences.
Sometimes unpleasant. However, we will analyze the regulatory acts and appropriate arbitration practice.
1. If the plaintiff declared only the requirement to invalidate the tender, then it is highly likely that there will be a refusal.
For example, as in this, in the Decision of the FAS VVO of March 19, 2013 in case No. A31-3911 / 2012, when the court additionally noted the following: “contestation in court of placing an order may occur by contesting the decisions of the auction commission and the agreement (contract) contained in the protocol, concluded on the basis of such decisions of the auction commission. The result of auctions are contracts. However, the Company did not state the requirements to declare the concluded state contracts invalid or to declare illegal contained in the minutes of the decisions of the auction commission. Violations of the bidding procedure cannot be grounds for declaring a bid void at the suit of a person whose property rights and interests cannot be restored. ”
2. If the plaintiff does not declare a claim for securing a claim in the form of a ban on the execution of a contract, then it is highly likely that he will also be denied the claim.
As, for example, in this case - the Decision of the FAS PO dated April 9, 2013 in case No. A55-18021 / 2012, when the court indicated: “Recognition of the auction and the contract concluded as a result of it should be aimed at real restoration of the rights of the person concerned, filed a lawsuit. Currently, the contract has been executed by the parties, therefore, the chosen method of protection does not entail the restoration of the applicant’s rights. ”
3. If the petition for securing the claim is submitted correctly, then there are chances of its satisfaction.
Acceptable or successful formulations of such a procedural document can be found in this judicial act - Resolution 18 of the AAC of 08/14/2013 in case No. A47-4490 / 2013.
4. If the plaintiff wants to go to court, then by virtue of Article 4 of the APC of the Russian Federation, he needs the right to claim.
This wording sometimes has a clear and unambiguous interpretation related to the confirmation of not only the procedural right to claim, but also material. Here, Resolution 3 of the AAS of 08/28/2013 may come in handy. in case No. A33-20722 / 2012, in which the court recognized the plaintiff as a proper person, so he could win the competition or had the intention to conclude an appropriate contract with the customer.
5. If you have an understanding of the limits of competence of the tendering customer, then you have an additional reason to challenge the bidding documents.
Resolution of the FAS SZO of June 18, 2014 in case No. A56-54795 / 2013 - The provisions of Law No. 44-FZ do not contain rules that would provide the customer (authorized body) with the right to establish additional requirements for a bank guarantee, including with regard to banks, issuing appropriate warranties. The establishment of such requirements for banks is an additional requirement for the requirements for a bank guarantee by the provisions of Law No. 44-FZ. In the case under consideration in the present case, the executive authorities of St. Petersburg, performing the functions of the state customer, are normatively prescribed the rules on the inclusion in the draft state contract (and as a result - in the documentation on the procurement) requirements for a bank guarantee, not provided for by the provisions of Law No. 44 -FZ.
The material will be updated periodically.
August 12, 2014. The author of the material is Vitaliy Vetrov.
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