Precedent: The court explained on the example of Ministry of Construction as it is possible to buy foreign software bypassing the Russian alternatives

In August, 2016 the Ministry of Construction and Housing and Communal Services (Ministry of Construction) summed up the results^[1] on providing (prolongation) licenses for products of Microsoft and antivirus software. The maximum price of the contract was 15.2 million rubles.

According to the technical project of purchase, department licenses OS Windows Server, SQL Server and Exchange Server, prolongation for three years of technical support and a possibility of use of new versions of a product for 400 available licenses Microsoft Remote Desktop Services for remote connection of users, the same number of client licenses of CoreCAL for access to server programs and the licenses WINENT SA for OS were required Windows 10.

Prolongation of technical support and possibility of use of new versions of a product for a period of 3 years was bought also for 400 licenses Microsoft Office and licenses softwares which are available for Ministry of Construction for protection of 600 users of mail.

2 companies - Geokepital and Softeks Group were allowed to participation in purchase. And both companies submitted applications with the identical price of the contract - 15,105,963.96 rubles. But since the request "Geokepital" arrived earlier, this company also was recognized the winner.

History of purchase

The court explained on the example of Ministry of Construction as it is possible to buy foreign software bypassing the Russian alternatives

At the end of March, 2017 the Arbitration court of Moscow explained the solution to dismiss claim requirements of New cloud technologies to Ministry of Construction which took out earlier. In the claim the company required to nullify an electronic auction and the government contract of Ministry of Construction with Geokepital on delivery of the office software of Microsoft. Trial has precedential character: the court for the first time estimated legality of failure from the Russian software.

According to New cloud technologies, the auction was held with abuse of regulations, established by the law. The Ministry of Construction set requirements excessive and inappropriate to the objective requirements to the purchased office software to limit number of bidders. In total only one product - Microsoft Office Standard meets all requirements, noted in the company.

Among excess requirements - a possibility of programming of macroes in the Visual Basic language and data acquisition through PowerPivot (means of expanded analytical data processing of spreadsheets). New cloud technologies noted in court that on 400 jobs the possibility of programming of macroes on Visual Basic is not necessary.

Subject to purchase was including "prolongation of technical support and a possibility of use of new versions of a product of the available license for a period of 3 years". Taking into account frequency of release of Microsoft of new versions of Office which usually makes about 3 years the Ministry of Construction can not receive the new version of software at all if she is not let out in time or to receive the new version only to the termination of this term.

Thus, the Ministry of Construction could have no objective need for obtaining so seldom appearing new versions of software. For the same amount the customer could purchase a domestic analog with a possibility of obtaining new versions and technical support within 3 years. It is one more argument of New cloud technologies which is adduced in court's decision.

New cloud technologies also pointed to court that the customer already has a termless right to use set at it to Microsoft Office Standard, and actually the Ministry of Construction bought not prolongation of licenses to use, and a possibility of use of new versions of this software.

Because the defendant set requirements excessive and inappropriate to objective requirements to the purchased software, the claimant could not be allowed to participation in an electronic auction as for participation it would need to purchase software of other producer - Microsoft foreign corporation, - it was said in a position of New cloud technologies. - Taking into account that the claimant and Microsoft are competitors, the duty to purchase for participation in the software electronic auction of the rival producer instead of an opportunity to perform sale of own software would put the claimant in position, economically unprofitable and dependent on the competitor.

Also New cloud technologies specified that the Ministry of Construction when running an electronic auction broke 44-FZ about a contract system and government decree regulations on prohibition on the admission of foreign software at state procurements. In justification of impossibility to observe prohibition on the admission of foreign software functional, technical, utilization properties of "MyOffice", the Russian software included in the register on which this product does not conform to the requirements to software set by Ministry of Construction were not specified. The Ministry of Construction actually conducted unmotivated procurement of foreign software bypassing direct legislative prohibition, consider in the company.

FAS recognized violation by Ministry of Construction 44-FZ about a contract system earlier, but because at the time of conducting check the government contract between Ministry of Construction and Geokepital was already concluded, the instruction about elimination of violations of the law was not issued.

Under the law the court can nullify the auction held with violation of legal rules in the claim of the interested person. At the same time, recognition of biddings by invalid attracts also invalidity of the agreement signed with the person who won them. However the case with New cloud technologies - not where it can be applied, was counted in court.

As it is set by court, the claimant the participant of an auction was not, did not submit the auction participation application, therefore, its right, or legitimate interests were not violated, said in court's decision.

The court refers to one of information letters of the Presidium of the Supreme Arbitration Court of the Russian Federation in which it is said that the person addressing with the requirement about recognition of biddings invalid, should prove existence of the protected right or interest. Violation of an order of tendering cannot be the basis for recognition of biddings invalid in the claim of the person whose property rights and interests are not infringed by these violations and cannot be recovered, notes court.

In addition, as effects of abuse of regulations of tendering the possibility of carrying out repeated biddings is not set, notes court. Recognition of biddings invalid and reduction of the parties of the government contract in initial provision with return received according to the transaction is impossible and, therefore, does not lead to recovery of the subjective rights of the claimant if the prisoner at the end of the contract is already performed.

According to determination of the Constitutional Court of the Russian Federation if agreements are partially performed, recognition of biddings by invalid will not lead to recovery of the claimant in the bidder's rights, said in the judgment. Taking into account all this the court did not find reasons for the satisfaction of claim requirements of New cloud technologies.

Lawyers of New cloud technologies, having studied court's decision, noted that the judge most in detail stated in the solution all arguments of the company (4/5 from the text of the solution - a position of New cloud technologies on case). At the same time, at the end of the text of the solution the court drew in details not a motivated conclusion that the rights of the company are not violated since New cloud technologies was not a participant of an auction, and the claim cannot be satisfied.

However, we consider that our rights were violated also the fact of participation or not participation of New cloud technologies in an auction cannot play the defining role for the purposes of decision-making on case. We consider violation of our rights obvious as New cloud technologies or partners had no opportunity to participate in an auction because it was bought by software Microsoft, - told TAdviser in the company.

New cloud technologies added that are going to file the petition for appeal.

New cloud technologies lost the suit with Ministry of Construction in the first instance

On March 3, 2017 court session in the claim of New cloud technologies to Ministry of Construction according to the results of which the court took out failure to meet requirements of the company took place.

New cloud technologies required to priznanat invalid an electronic auction of department on purchase of software of Microsoft which took place in 2016. In it department proved why alternative Russian software does not approach it (the history of purchase and claims Ministry of Construction - in blocks below).

Motivation part of court's decision is not published yet. In New cloud technologies and in Ministry of Construction at the time of the publication of substantive provisions of the solution could not explain, than the court motivated the failure.

New cloud technologies told TAdviser that the company stated all arguments in defense of the legal position in court and pointed to violations of the specific provisions of the law by Ministry of Construction, however the court did not find good causes for the satisfaction of its requirements.

Perhaps, it is connected with the fact that there is no past practice of consideration of such disputes connected with import substitution of software yet, - assumed in the company. - In more detail the position of court will be stated to them later at production of the solution in full. According to the results of studying of this judicial act we will make the decision on expediency of submission of the petition for appeal.

New cloud technologies filed a lawsuit against Ministry of Construction

In September, 2016 New cloud technologies took arbitration court of Moscow with the claim to Ministry of Construction and the supplier with whom according to the results of purchase the government contract on delivery of software of Microsoft - Geokepital was concluded. The Russian developer of the office software demands that the court nullified the electronic auction held by department and the concluded government contract.

The submitted statement of claim was left without the movement till October 27 as the court considered that New cloud technologies not completely paid the state fee for its consideration. The company reported to TAdviser that as of October 20 already filed documents on payment.

The lawyer and the expert of the Temporary commission of the Federation Council in development of information society Denis Abdrakhmanov considers that perspectives of canceling of results of the tender, in this case, depend on the level of judicial authority which will consider case.

The essence of a dispute is that from court in this specific case question assessment not only and not just from the legallistic party how many he should understand justice of justification of impossibility of purchase of domestic software will be required. And it will demand from court to penetrate into especially technical issues. Therefore in court of first instance of perspective perhaps not especially high, however case can be subjected to closer look in courts of higher instances, - Abdrakhmanov shared the opinion with TAdviser.

He added that, it is possible that substantive prosecution will require involvement of special experts in information technology field.

The lawyer Yulia Lyalyutskaya, the deputy managing partner of Lawyer Bureau of Moscow "Goldfinches and Partners", the head of practice of maintenance of participation in state procurements, notes that the specifics of this dispute consist first of all in that evidential base which the parties should provide to prove the position in court.

If from New cloud technologies I do not see special technical and professional difficulties for preparation of such material, then it is necessary to Ministry of Construction hardly. The justifications of impossibility of use of domestic software published by them sound enough damp and not really competently. It is obvious that they prepared not the technical specialist, but the administrative worker, - Lyalyutskaya noted in a conversation with TAdviser. - Certainly, the outcome of the case will depend on competence of agents of the parties and all volume of the evidence produced by them.

Igor Slabykh, the founder and the managing partner of "Igor Slabykh and Partners" law company, notes what put, certainly, interesting.

As far as I know, there is no practice on such affairs and therefore it is difficult to predict the outcome of the case. Everything will depend on whether will consider court sufficient justification why it is impossible to purchase the Russian product. The fact that the antimonopoly service decided that there is a violation of requirements of the law gives the grounds to believe that chances of the satisfaction of the claim rather big, - he considers.

Igor Slabykh added that at any court's decision case will become precedential: according to him, the solution or will give "green light" to the fact that it is possible to prove acquisition of foreign software very easily, or will set state agencies thinking whether it is worth buying foreign software if then purchase can be cancelled.

FAS for the first time revealed violation of justification of purchase of foreign software

As TAdviser knew, on September 2 to FAS Russia, having considered the appeal of New cloud technologies company, recognized in actions of the Ministry of the construction which bought products of Microsoft, violation of the law about a contract system under two articles^[2].

So, the antimonopoly service considered that justification of impossibility of observance of prohibition on foreign is made by software with violations. In particular, in it characteristics of software products from the register of domestic software, similar to subject to purchase are not specified. Here it should be noted that FAS for the first time revealed violations of justification of purchase of foreign software after such justifications of department began to write according to the law on the register of the Russian software.

Besides, control department did not like the fact that the customer turned on in one purchase the Russian and foreign solutions, having specified about impossibility of observance of prohibition on purchase of foreign software products. It, according to FAS, misleads procurement participants.

Because based on an auction the contract is already signed, FAS made the decision not to issue the instruction about elimination of violations. At the same time department decided to transfer case papers to Management of control of placement of the state order for initiation of proceedings about administrative offenses.

According to Dmitry Komissarov, the CEO of New cloud technologies, the company studies a question of continuation of trial of a situation with Ministry of Construction in court and also is going to appeal FULL FACE against purchases of other departments where similar violations are observed.

The purpose, according to Komissarov, is in that departments carried out purchases without violation of statutory rules.

"MyOffice" does not approach since does not support macroes and expanded analytics in tables

From August 3 to August 12 three explanations of provisions of documentation on an electronic auction were published in purchasing documents. All questions concerned compliance of software solutions of a line of "MyOffice" to requirements of the customer.

In the explanation placed on August 3 the customer answered a request to explain need of establishment "obviously excessive and is narrow - specialized requirements to functional, technical and utilization properties of the software planned to purchase", namely to a possibility of programming of macroes in the Visual Basic language, to settings of flow with the text of images and data acquisition through PowerPivot (means of expanded analytical data processing of spreadsheets).

In particular, the head of information technology of Ministry of Construction Anton Troshenkov explained that requirements to functional, technical and utilization properties of software which is subject to purchase are set on the basis of need of prolongation of technical support and a possibility of transition to new versions of licenses, already available, set and completely compatible to infrastructure.

With respect thereto, according to Subparagraph 1 of Part 1 of Article 33 of the Federal law of April 5, 2013 No. 44-FZ "About a contract system in the field of purchases of goods, works, services for ensuring the state and municipal needs", the equivalent is not admissible, - the representative of the ministry noted in explanation

On August 5 the second explanation was published. In it the customer answered a request to specify specific requirements to which do not satisfy the products "MyOffice".

In the answer of the representative of Ministry of Construction it was told that the solutions "MyOffice" have no possibility of programming of macroes in the Visual Basic language and integration with the Active Directory. Besides, in domestic office product, according to the customer, there is no possibility of data acquisition through PowerPivot.

On August 12 there was the third explanation in which to the customer it was announced presence at the solutions "MyOffice" of integration with the Active Directory and also that the possibility of programming of macroes in the Visual Basic language and data acquisition through PowerPivot can be applied by only very limited number of employees. With respect thereto requirements of the customer about existence of the last two characteristics in all purchased software were called "obviously overestimated".

In response to it, the representative of Ministry of Construction Troshenkov explained that the possibility of programming of macroes in the Visual Basic language is necessary for the optimization of work of structural divisions of the ministry and reduction of time at data processing arriving from different sources in electronic form.

As for data acquisition through PowerPivot, this opportunity, according to Troshenkov, is necessary for all workstations of the ministry since according to the main directions of the activity, structural divisions of Ministry of Construction perform collecting and mailing of reports using means of expanded analytical data processing of spreadsheets.

In addition, the customer representative noted that within all organization office applications which have above-mentioned functionality are already installed and also are completely compatible to the software of the customer. At the same time, the software of "MyOffice" has no all functional characteristics which are specified in technical specifications and are used by the state customer, and use of office applications of different vendors will not provide 100% of compatibility of products for a full-fledged work of all infrastructure.

The Russian products do not approach since they based on Linux

Auction documentation contained extensive justification of impossibility to observe prohibition on the admission of foreign software for ensuring the state needs. On some positions, for example, department did not find in the register of domestic software of the products corresponding fully to technical and utilization properties of the purchased software.

On some positions of purchase explained impossibility to use presented in the register of software Ministry of Construction with the fact that it is not compatible to the software set in department as it is created based on Linux. Among software which could not be purchased for this reason also the products "MyOffice" developed by New cloud technologies company were specified.

This software package is not compatible to the software set at the state customer as it is created based on Linux and does not correspond to characteristics of the software which is subject to purchase, - it was said in justification of Ministry of Construction of impossibility of purchase of "MyOffice Standard" and other products from this line.

New cloud technologies told TAdviser that, most likely, in Ministry of Construction inattentively got acquainted with a product and the MyOffice platform and expressed readiness to help to eliminate this misunderstanding, having shown their work on other OS.

It would be desirable to believe that this purchase will not mislead other potential customers. "MyOffice" works at all platforms: Windows, OS X, Linux, Android, iOS and Tizen, - the CEO and the founder New cloud technologies Dmitry Komissarov noted.

Notes