B2G risks associated with reckless behavior

In times of crisis, for developers of IT-technologies B2G, the direction becomes the most relevant. As in accordance with Federal Law No. 44- “On the contract system”, there is a “real right” to conclude a large contract.
The procedure for participation in public procurement is regulated in detail and the slightest deviation from the order will lead to failure. I would like to demonstrate the potential risks on the example of the supply of anti-virus programs.

Citiprint LLC in January 2016 participated in the purchase No. 0373100045315000165 for the right to conclude a contract for the acquisition of non-exclusive (licensed) rights to the Kaspersky Anti-Virus software and the extension of technical support for existing Veritas Backup System licenses. CITYPRINT LLC sent the Customer a protocol of disagreements to the contract, in which it demanded to exclude part of the work from the contract, namely, the extension of technical support for existing Veritas Backup System licenses.
According to the explanations of Cityprint, it could only carry out the acquisition of non-exclusive (licensed) rights to the Kaspersky Anti-Virus software and agreed to only apply for this part of the work.

However, such a position is directly contrary to the requirements of Article 66 of the Law on the Contractual System, according to which the first part of the participant’s application must include the participant’s consent to deliver the goods under the conditions provided by the auction documentation.
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Since the auction was held not only for the purchase of Kaspersky Anti-Virus software (part of the work that Cityprint LLC was prepared to perform), but also on extending technical support for the existing Veritas Backup System licenses (part of the work that Cityprint LLC did not was ready to perform), then in the application for participation in this procurement the participant was obliged to express full consent to complete the entire scope of work that is the subject of the procurement.

In the decision on the case No. 2-57-959 / 77-16, the Commission of the supervisory authority noted that partial consent or consent to perform part of the work, the provision of services on the subject of procurement by the Law No. 44-FZ is not allowed.

Therefore, the consent of CityPirint LLC to perform part of the work on the subject of procurement was unlawful and could lead to the recognition of this participant evading the conclusion of the contract and, as a consequence, the inclusion of such a participant in the Register of unscrupulous suppliers, resulting in the inability to take part in ongoing procurement for 2 years old. In addition, the security of the application, which CityPairint transferred to participate in the procurement, could also be retained in favor of the Customer.

Having the need to obtain the full scope of work under the contract (which obviously determined the formation of the subject matter of the procurement), the Customer, on the basis of paragraph 5 of Article 70 of the Law on the Contract System No. 44-FZ, rejected the discrepancy protocol submitted to CityPirt, posted the draft agreement in the original version and re offered to conclude a contract for the entire scope of work that was planned. LLC CityPirint, sent a complaint to the FAS - FAS Office for the city of Moscow (Moscow OFAS Russia). It turns out that the procurement participant who intends to violate the law himself appeals to the anti-monopoly body with demands to protect his rights, which he wanted to abuse (as they say, the best defense is attack). Unfortunately, Citiprint LLC, but fortunately the Customer, when considering the complaint of Moscow OFAS Russia (case No. 2-57-959 / 77-16), justice prevailed, and the antimonopoly service decided to recognize the complaint of Cityprint LLC unjustified.

Thus, the realization of IT business opportunities in the sphere of regulated purchases has its own characteristics, positive features and difficulties, due to the specifics of the order placement procedure. Deviation from the order will lead to failure, entailing the impossibility of concluding a contract, and even inclusion in the Registry of unscrupulous suppliers.

To achieve a positive result, it is necessary to know the exact requirements of the legislation on the contract system and to strictly follow the procedure and rules for participation in the procurement.
This should be taken into account when submitting an application for participation in procurement and defining a strategy for one’s own behavior in the process of determining the winner and concluding a contract with the Customer.