Anna Zanina’s column about concessions for public procurement participants

Until recently, one of the serious fears for business in public procurement was the threat of being included in the register of unscrupulous suppliers, which entails a two-year ban on participation in tenders. Bidding under 223-FZ, where companies with a state share of 50% or more, can be submitted by both Russian and foreign entrepreneurs. But now the number of the latter has seriously fallen, and foreign agents have been excluded from the circle of domestic agents. As a result, there appears to be increased confidence in the remaining bidders and a relaxed approach to compliance.

The decision on inclusion in the RNP is taken by the Federal Antimonopoly Service based on the customer’s complaint. There are two reasons: the person violated the terms of the contract or did not sign it on time (10–20 days). The supplier will not be punished if the reasons for missing the deadline are recognized as valid. Usually, these include force majeure, for example, the impossibility of importing products due to a pandemic. But it seems that the criteria are gradually expanding. Indirectly, statistics hint at this: the number of people included in the RNP in 2022 decreased by 12%, and complaints – by 30%. The Federal Antimonopoly Service explains the situation by “growth of professionalism of procurement participants”. But my sources suspect that it’s also about the “trend to support domestic suppliers who will be forgiven for small mistakes.”

An illustration is the attention of the Supreme Court (SC) to a small dispute with Nika LLC. The company won the tender of the state sanatorium for the supply of disposable ECG electrodes, reducing the price from 30.7 thousand rubles. up to 11.8 thousand rubles. Nika did not sign the contract on time, and she was blacklisted, which the company appealed, citing the absence of malicious intent and the illness of the responsible employee.

The cassation did not see a “force majeure situation”, considering it “negligence” of the LLC in the “organization of work and proper control over the conclusion of contracts.” Nika’s argument that she had already produced the necessary electrodes and was not going to evade the supply did not convince the court. The position of the court fits into practice, but following Nika’s complaint, the case was recently transferred to the Economic Collegium of the Armed Forces. Among the arguments were the “socially oriented nature of the activities” of the LLC, as well as the fact that being blacklisted because of such a small contract is a “clearly disparate punishment.”

Lawyers agree that the desire of the Supreme Court to speak out on this case is not accidental. Aleksey Kostovarov from Liniya Prava believes that the situation “can be seen as a signal to include less in the RNP.” Antimonopoly lawyer Natalya Pantyukhina even admits that this is “the beginning of a new trend of forgiveness only on the fact of the supplier’s “domesticity”, at least for small purchases. But then, perhaps, it is worth making life easier for the courts and directly in the law to establish a minimum contract price and a list of especially important customers, violations of which will be taken into account?