Source The antimonopolists ordered to cancel the auction for the maintenance of bridges in the Kurgan region in 2023–2024. The Kurgan OFAS ordered Kurganavtodor to cancel the auction for the maintenance of bridge structures in the region in 2023-2024 worth 346.1 million rubles. The department recognized the complaint of Mostdorstroy as partially substantiated, which indicated that the customer had introduced a controversial requirement into the conditions of the auction and combined unrelated types of work in one lot – the maintenance of bridges and transport security. Experts note that in order to successfully appeal against the FAS order, the customer needs to prove the interconnectedness of the types of work specified in the terms of the contract.
The Office of the Federal Antimonopoly Service of Russia for the Kurgan Region recognized as partially substantiated the complaint against the provisions of the notice of the auction for the maintenance of bridge structures on the roads of the region in the period 2023–2024. The customer of the purchase with an initial price of 346.1 million rubles – the state treasury institution (GKU) “Kurganavtodor” – was issued an order to cancel the auction. This is reported in the antimonopoly department of the region.
The terms of the disputed contract provide for the maintenance and maintenance of bridges on the roads of the Kurgan region from January 1, 2023 to December 31, 2024. The contractor's duties include inspecting objects for defects, eliminating damage to the roadway, controlling the movement of trucks on bridges and preventing the transportation of oversized and heavy cargo. The list of works also includes cleaning and painting structures after the winter, preparing them for the spring flood. In December, Skala LLC (Kurgan) was recognized as the winner of the auction, which offered to perform the work for 253.1 million rubles.
A complaint about the terms of the tender documentation was filed by Mostdorstroy LLC (Chelyabinsk). The company indicated that it is the employer's responsibility to verify that the contractor is accredited as a transport security unit, while the contractor's responsibility is not to have such accreditation. The applicant considered disputable the absence in the statement of volumes and costs of transport security services necessary for the performance of work, as well as the absence in the list of bridge structures necessary for inspection of objects.
“The customer combined in one lot both the provision of transport security, which requires special accreditation, and the maintenance of bridge structures, which contradicts the requirements of the legislation on the contract system,” the Kurgan OFAS believes.
According to SPARK-Interfax, GKU Kurganavtodor (the founder is the Department of Construction, State Expertise and Housing and Communal Services of the Kurgan Region) was registered in March 2016. The organization deals with the repair, maintenance, construction and reconstruction of regional and inter-municipal roads and bridges. The director is Pavel Ganin.
At the time of publication, Kurganavtodor's response to Kommersant-South Ural's request was not received.
Filatov & Partners lawyer Denis Sozinov considers the complaint justified on the terms of the auction, noting that the combination of several types of works into one lot at once limits the number of participants in the auction.
“Such a combination of several purchases in one can be “sharpened” for a certain “own” participant. If the purchase were divided into several auctions, more participants would be able to submit applications,” notes Denis Sozinov. for the state of the road sector.
“Roads are the most important object of urban infrastructure. Failure to ensure security during the execution of such targeted contracts can lead not only to losses, but also to other negative consequences for those who will then use these roads – for ordinary citizens. The OFAS has the authority to issue an order to take actions aimed at amending the procurement regulation. It is difficult to say for what reason the state body decided to act differently,” comments Nikolai Popov. He emphasizes that the customer has a chance to successfully appeal against the FAS order.
Iskander Binashev, Senior Associate at Stonebridge Legal's PPP and Infrastructure Practice, notes that it is impossible to conclude from the documentation that there is a technological and functional relationship between the various services included in one lot. According to him, the need to present a requirement for accreditation as a transport security unit for a bridge maintenance contractor is also not obvious.
“These violations have a significant impact on the range of potential procurement participants and may lead to restriction of competition. In this regard, the FAS order can be considered justified, and the FAS requirement to cancel the electronic auction as commensurate with the violations committed,” explains Iskander Binashev. According to him, in order to successfully appeal against the FAS order, the customer will need to prove that the services included in the procurement are technologically and functionally interconnected and that combining them into one lot is appropriate.
Dmitry Uvarov, a member of the Russian Bar Association, also considers the complaint filed and the OFAS orders justified. “The customer combined into one lot purchases that are neither technologically nor functionally interconnected, which is unacceptable, as it may mislead some auction participants and limit their number. The customer is unlikely to be able to appeal the decision of the OFAS. It was made in accordance with the law, is justified. The courts most often agree with the position of the FAS,” emphasizes Dmitry Uvarov.
Earlier, the Kurgan OFAS had claims to another road auction. In September of this year, the antimonopoly agency confirmed violations when concluding a contract for the repair of a road in the Tselinny district worth 707 million rubles. In the actions of the tender commission, signs of violation were revealed, but the complaint of the applicant, the Chelyabinsk company Stroytekh, was left without consideration, since the auction was held in the form of an open tender. The customer of the auction then also acted as “Kurganavtodor”.
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