FAS did not allow the Ministry of Internal Affairs to spend 1 billion rubles only on Russian servers

2022: The FAS requirement to exclude the ban on the admission of foreign products from the terms of the tender

On September 5, 2022, it became known that the Ministry of Internal Affairs of the Russian Federation would have to exclude from the conditions of the tender for the supply of IT equipment a ban on the admission of foreign products. The corresponding order was issued by the Federal Antimonopoly Service (FAS).

As he writes CNews with reference to materials from the public procurement website, the Ministry of Internal Affairs Russia in August 2022 announced the purchase of 962.5 million servers rubles for the federal data processing center (FDPC). A few days later, the determination of the supplier was suspended because Santross filed a complaint. It says that the Ministry of Internal Affairs unlawfully established a ban on the admission of foreign equipment, in accordance with the provisions of Resolution Governments of Russia No. 616 "On the establishment of a ban on the admission of industrial goods originating from foreign countries for the needs of defense and security." states

According to sub-clauses "e, e," clause 3 of this decree of the government, the Ministry of Internal Affairs, the FSB, the FSO and a number of other law enforcement agencies cannot, with some exceptions, establish a ban on the admission of imported goods on procurement, included in the relevant^[1]. The latter includes servers.

FAS did not allow the Ministry of Internal Affairs to spend 1 billion rubles on Russian servers

The customer explained the ban on the admission of foreign products by protecting the foundations of the constitutional order, ensuring the country's defense and state security, as well as supporting Russian producers and members of the Eurasian Economic Union of the GIAC.

The state customer considers it inappropriate to apply the right granted to him, which allows the exclusion of a mandatory ban, - says the customer's response to the clarification of the procurement provisions, which is provided by CNews.

The FAS explained to the Ministry of Internal Affairs that the provisions of paragraph 3 of Resolution No. 616 are an imperative rule of law, which necessarily prescribes state customers not to establish a ban on the admission of industrial goods originating from foreign countries. As a result of this, the FAS recognized the Santross complaint as justified and ordered the department to bring the notification to purchase in accordance with the requirements of the law. ^[2]

The Ministry of Industry and Trade told TAdviser that exceptions for law enforcement agencies and other special facilities in resolution No. 616 were made "taking into account the specifics of the functionality and tasks that these bodies perform."

At the same time, the construction of Resolution No. 616 is imperative. The ban is established according to the list of goods, while clause 3 establishes cases of non-application of such a ban. This includes the procurement of law enforcement agencies and other special facilities, while there are no exceptions for some goods even for such entities.

With regard to servers, indeed, law enforcement agencies should not restrict participants by country of origin. As the FAS correctly noted, this is not the right of the customer, - say the Ministry of Industry and Trade.

In cases where the prohibition does not apply, applications with foreign goods are not rejected and the auction takes place on the general basis of evaluating applications based on the best offer. There is no such requirement that the customer must buy imported goods. The Customer shall evaluate, based on the requirements established by RF Government Decree No. 2604 dated 31.12.2021 , in this case, at the proposed price.

The issue of revision has not yet been raised, the department added. At the same time, the Ministry of Industry and Trade of Russia is ready to consider proposals from such proposals specified in sub-paragraphs "e, e," paragraph 3 of Resolution No. 616 of the subjects.

Notes

Шаблон:Remarks