April 7, 2016 at 17:01How to specify the characteristics of equipment for a state auction (using the example of data transfer speed)?
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Case: "auction for the supply of equipment."
The institution of the Leningrad Region “Operator of the Electronic Government” decided to hold an electronic auction No. 0145200000416000287 for the supply of equipment. The list of goods that must be delivered to the winner of the auction included goods with a total value of 14,129,918 rubles.
After consideration of the first applications by the Auction Commission of the Customer, it was decided to reject the application of one of the participants for the following reasons:
“Inconsistency of the information provided for in subparagraph 9.1 of paragraph 9 of the electronic auction documentation with the requirements of auction documentation: according to the instructions for filling out the first part of the application, the variable values of indicators are the values of indicators accompanied by the words“ no less ”and“ no more ”. In all other cases, the requirements for the indicators of goods are set in the form of values that cannot be changed; the procurement participant must provide information that exactly meets the requirements of the technical specifications. In clauses 1 and 5 of the technical specification, the value of the indicator “maximum data transfer speed by facsimile, Kb / s” is set to “not less than 33.6”. The procurement participant indicated “a maximum facsimile data rate of 33.6 Kb / s”.
Reason for rejection: Sub-Clause 2 Clause 13.1.1 of the auction documentation, Clause 2 Part 4 of Article 67 of the Federal Law dated 04/05/2013. ”
The customer considered that the participant did not comply with the documentation requirements for the provision of a non-specific value. In the documentation, the Customer established the requirement “not less than 33.6”, and considered that this characteristic is unchanged and the participant should also indicate “not less than 33.6” in the application. But the participant in the application indicated: “the maximum fax data rate is 33.6 Kb / s”, that is, indicated a specific value, not a range value.
The question arises : Is it possible not to indicate specific values of the goods as part of the auction application, for example, for the supply of software, but to write a range of values or values with a maximum value (not specific)?
Analysis of legislation on the contract system and clarifications of regulatory authorities
As provided
part 3 of article 66 of the Federal Law "On the contract system ..." No. 44-FZ:
the first part of the application for participation in an electronic auction must contain the information specified in one of the following subparagraphs:
1) upon conclusion of a contract for the supply of goods:
a) the consent of the participant in such an auction to supply goods if this participant offers goods for delivery, for which the documentation for such an auction contains a reference to the trademark (its verbal designation) (if any), service mark (if any), the company name (if any), patents (if any), utility models (if any), industrial designs (if any), the name of the country of origin of the goods, and (or) such a participant offers for delivery goods that are equivalent to the goods indicated referred to in this documentation, specific indicators of the goods corresponding to the equivalence values established by this documentation;
b) specific indicators corresponding to the values established by the documentation of such an auction, and an indication of the trademark (its verbal designation) (if available), service mark (if available), company name (if available), patents (if available), useful models (if available), industrial designs (if available), name of the country of origin of goods.
1) upon conclusion of a contract for the supply of goods:
a) the consent of the participant in such an auction to supply goods if this participant offers goods for delivery, for which the documentation for such an auction contains a reference to the trademark (its verbal designation) (if any), service mark (if any), the company name (if any), patents (if any), utility models (if any), industrial designs (if any), the name of the country of origin of the goods, and (or) such a participant offers for delivery goods that are equivalent to the goods indicated referred to in this documentation, specific indicators of the goods corresponding to the equivalence values established by this documentation;
b) specific indicators corresponding to the values established by the documentation of such an auction, and an indication of the trademark (its verbal designation) (if available), service mark (if available), company name (if available), patents (if available), useful models (if available), industrial designs (if available), name of the country of origin of goods.
Thus, the current legislation on the contract system establishes the requirements for the provision in the first part of the application of specific indicators for the required materials.
Clarifications on the application of this rule are also provided.
Letter of the Ministry of Economic Development of Russia dated 04.08.2015 No. D28i-984
In accordance with subparagraph “b” of paragraph 1 of part 3 of article 66 of Law No. 44-FZ, the first part of the application for participation in an electronic auction when concluding a contract for the supply of goods must contain specific indicators that correspond to the values established by the documentation for such an auction.
According to Part 4 of Article 67 of Law No. 44-FZ, an electronic auction participant shall not be allowed to participate in it if:
failure to provide information provided for in paragraph 3 of Article 66 of Law No. 44-FZ or false information has been provided;
inconsistency of the information provided for in paragraph 3 of Article 66 of Law No. 44-FZ with the requirements of the documentation for such an auction.
Thus, if the first part of the application for participation in the electronic auction does not contain specific indicators of the goods intended for delivery, or contains specific indicators of the goods that do not correspond to the values established in the documentation, then such an application is not allowed to participate in the electronic auction on the basis of part 4 of article 67 of Law N 44-FZ.
Based on the foregoing, in the opinion of the Department for the Development of the Contract System of the Ministry of Economic Development of the Russian Federation, if the customer has specified a requirement for the product in the auction documentation in the form of a range of values, the customer is not entitled to reject the first part of the application based on clause 2 of part 4 of article 67 of Law No. 44-FZ to participate in an electronic auction containing a specific numerical indicator of the goods, which is included in the range of values of the indicator of goods established in the auction documentation.
In the event that the auction documentation establishes a requirement for a product in the form of a specific indicator value or range of values, the customer has the right to reject the first part of the application for participation in an electronic auction, which contains a range of values of the indicator of the goods or an indication of GOST and there are no specific indicators of the goods proposed for delivery, on the basis of part 4 of article 66 of Law N 44-FZ.
According to Part 4 of Article 67 of Law No. 44-FZ, an electronic auction participant shall not be allowed to participate in it if:
failure to provide information provided for in paragraph 3 of Article 66 of Law No. 44-FZ or false information has been provided;
inconsistency of the information provided for in paragraph 3 of Article 66 of Law No. 44-FZ with the requirements of the documentation for such an auction.
Thus, if the first part of the application for participation in the electronic auction does not contain specific indicators of the goods intended for delivery, or contains specific indicators of the goods that do not correspond to the values established in the documentation, then such an application is not allowed to participate in the electronic auction on the basis of part 4 of article 67 of Law N 44-FZ.
Based on the foregoing, in the opinion of the Department for the Development of the Contract System of the Ministry of Economic Development of the Russian Federation, if the customer has specified a requirement for the product in the auction documentation in the form of a range of values, the customer is not entitled to reject the first part of the application based on clause 2 of part 4 of article 67 of Law No. 44-FZ to participate in an electronic auction containing a specific numerical indicator of the goods, which is included in the range of values of the indicator of goods established in the auction documentation.
In the event that the auction documentation establishes a requirement for a product in the form of a specific indicator value or range of values, the customer has the right to reject the first part of the application for participation in an electronic auction, which contains a range of values of the indicator of the goods or an indication of GOST and there are no specific indicators of the goods proposed for delivery, on the basis of part 4 of article 66 of Law N 44-FZ.
The range of values of the indicator of the goods is not a specific indicator and does not allow to determine the real specific characteristics of the proposed participant to the delivery of goods.
The auction participant must in the first part of the application indicate specific indicators that correspond to the values established by the documentation for such an auction. The absence of specific indicators in the application, including in the form of duplication of norms of technical regulations, standards, etc., is the basis for refusal of admission to participation in the auction to the corresponding participant. ”
Thus, the above provisions of Law No. 44-FZ and the explanations of the Ministry of Economic Development of Russia contained in the letter dated 04/08/2015 N D28i-984 explicitly indicate that the participant’s application must contain precisely specific values, and not range values, even if customer requirements are expressed in range values. Moreover, the failure to provide specific values is the basis for rejection of the application of the participant.
The participant in his application indicated a specific value for the controversial position - “the maximum data transfer speed by facsimile is 33.6 Kb / s”, which fully complies with the requirements of the current legislation.
Moreover, this specific proposal was made by the company taking into account the information received from the manufacturer, who reported this characteristic of the equipment purchased by the Customer.
Conclusion:
Based on the foregoing, the actions of the Auction Commission of the Customer to refuse to admit the company's application for participation in the auction are unlawful, directly contradict the requirements of the law and the legal position formed by the regulatory authorities on this issue.
The article was prepared on the basis of the materials of the antitrust expert D.V. Sviridova