How to specify the characteristics of equipment for the state auction (for example, data transfer speed)?
Case: "auction for the supply of equipment."
The establishment of the Leningrad region "Operator of the" Electronic Government "has decided to hold an electronic auction №0145200000416000287 for the supply of equipment. The list of goods that must be put to the auction winner 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:
“The discrepancy between the information provided for by sub-clause 9.1 of clause 9 of the electronic auction documentation and the requirements of the auction documentation: according to the instructions for completing the first part of the application, the variable values of the indicators are the values of the indicators, followed by the words" no less "and" no more ". In all other cases, the requirements for the indicators of goods are set as values that can not be changed; 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 rate by facsimile, Kb / s” is set to “not less than 33.6”. The procurement participant indicated a “maximum fax data transfer rate of 33.6 Kb / s”.
Grounds for rejection: subparagraph 2, clause 13.1.1 of the auction documentation, clause 2, part 4, article 67 of the Federal Law of 05.04.2013 ”.
The customer considered that the participant had not complied with the requirement of documentation for the provision of non-specific values. In the documentation, the Customer established the requirement "not less than 33.6", and considered that this characteristic is unchangeable and the participant also had to indicate in the application also - "not less than 33.6". But the participant indicated in the application: “The maximum data transfer rate by fax is 33.6 Kb / s”, that is, it indicated a specific value, and not a range one.
The question arises : Is it possible not to specify in the bid for the specific values of the goods, such as software delivery, and write a range of values or values with the maximum value (not specific)?
Analysis of the legislation on the contractual system and clarifications of regulatory bodies
As provided
Part 3 of Article 66 of the Federal Law "On the Contractual 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 sub-paragraphs:
1) at the conclusion of the contract for the supply of goods:
a) the consent of the participant of such an auction for the supply of goods in the event that the participant offers for delivery a product in relation to which the documentation on such an auction contains an indication of the trademark (its verbal designation) (if any), service mark (if any), company name (if available), patents (if available), utility models (if available), industrial designs (if available), name of the country of origin of the goods, and (or) such participant offers for delivery a product that is equivalent to the goods, specified 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 any), service mark (if any), brand name (if any), patents (if any), useful models (if available), industrial designs (if available), the name of the country of origin of goods.
1) at the conclusion of the contract for the supply of goods:
a) the consent of the participant of such an auction for the supply of goods in the event that the participant offers for delivery a product in relation to which the documentation on such an auction contains an indication of the trademark (its verbal designation) (if any), service mark (if any), company name (if available), patents (if available), utility models (if available), industrial designs (if available), name of the country of origin of the goods, and (or) such participant offers for delivery a product that is equivalent to the goods, specified 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 any), service mark (if any), brand name (if any), patents (if any), useful models (if available), industrial designs (if available), the 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 precisely specific indicators for the required materials.
Clarifications on the application of this rule are also contained
the letter of the Ministry of Economic Development of Russia of 08.04.2015 No. D28i-984
In accordance with sub-clause b of clause 1 of part 3 of Article 66 of Law N 44-, the first part of an application for participation in an electronic auction when concluding a contract for the supply of goods must contain specific indicators corresponding to the values established by the documentation of such an auction.
According to part 4 of article 67 of Law No. 44-FZ, an electronic auction participant is not allowed to participate in it in the following cases:
failure to provide the information provided for by paragraph 3 of Article 66 of Law N 44-, or the provision of false information;
inconsistencies between the information provided for in paragraph 3 of Article 66 of Law No. 44-FZ and the requirements of documentation for such an auction.
Thus, if the first part of an application for participation in an electronic auction does not contain specific indicators of the goods expected to be delivered, or contains specific indicators of the goods that do not correspond to the values specified 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 the Law N 44-.
Based on the foregoing, in the opinion of the Department for Development of the Contracting System of the Ministry of Economic Development of Russia, if the customer in the auction documentation establishes a requirement for the product as a range of values, the customer does not have the right to reject the first part of the application based on clause 2 of part 4 of article 67 of the Law for participation in an electronic auction that contains a specific numerical indicator of the goods, which is within the range of values of the indicator of goods, set in the auction documentation.
If the auction documentation establishes a requirement for the product in the form of a specific indicator value or a range of values, the customer has the right to reject the first part of the application for participation in an electronic auction, which contains the range of values of the product indicator or an indication of GOST and there are no specific indicators of the product to delivery, on the basis of paragraph 4 of article 66 of Law N 44-.
According to part 4 of article 67 of Law No. 44-FZ, an electronic auction participant is not allowed to participate in it in the following cases:
failure to provide the information provided for by paragraph 3 of Article 66 of Law N 44-, or the provision of false information;
inconsistencies between the information provided for in paragraph 3 of Article 66 of Law No. 44-FZ and the requirements of documentation for such an auction.
Thus, if the first part of an application for participation in an electronic auction does not contain specific indicators of the goods expected to be delivered, or contains specific indicators of the goods that do not correspond to the values specified 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 the Law N 44-.
Based on the foregoing, in the opinion of the Department for Development of the Contracting System of the Ministry of Economic Development of Russia, if the customer in the auction documentation establishes a requirement for the product as a range of values, the customer does not have the right to reject the first part of the application based on clause 2 of part 4 of article 67 of the Law for participation in an electronic auction that contains a specific numerical indicator of the goods, which is within the range of values of the indicator of goods, set in the auction documentation.
If the auction documentation establishes a requirement for the product in the form of a specific indicator value or a range of values, the customer has the right to reject the first part of the application for participation in an electronic auction, which contains the range of values of the product indicator or an indication of GOST and there are no specific indicators of the product to delivery, on the basis of paragraph 4 of article 66 of Law N 44-.
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 party to the delivery of goods.
The auction participant is obliged to indicate in the first part of the application specific indicators corresponding to the values established by the documentation of 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 grounds for refusing admission to participate in the auction by the relevant participant. ”
Thus, the above provisions of the Law No. 44- and the explanations of the Ministry of Economic Development of Russia contained in the letter dated April 8, 2015 N D28i-984 explicitly state that the participant’s application must contain specific values, not range, even if the customer’s requirements are expressed in range values. In this case, the failure to provide specific values is grounds for rejecting the application of the participant.
The participant in his application indicated a specific value for the disputed position - “the maximum data transfer rate by facsimile connection is 33.6 Kb / s”, which fully complies with the requirements of current legislation.
Moreover, this particular proposal was made by the company with regard to the information received from the manufacturer, who informed this characteristic of the equipment purchased by the Customer.
Conclusion:
Based on the above, the actions of the Customer’s auction commission for refusing admission of the company's application for participation in the auction are illegal, directly contradicting the requirements of the law and the legal position formed by the regulatory authorities on this issue.
The article was prepared on the materials of the anti-monopoly practice expert D.V. Sviridov
')
Source: https://habr.com/ru/post/299960/
All Articles