On challenging the protocol on the results of the public procurement tender

No. 6001-24-00-6ap/3108 dated March 04, 2025

Plaintiff: LLP "Zh"

The defendants:  State Institution "Department of Economics and Finance", State Institution "Department

Passenger Transport and Highways, RSU "Department of Internal State Audit"

The subject of the dispute: on challenging the protocol on the results of the public procurement tender

Review of the plaintiff's cassation complaint PLOT:

The Department of Economics and Finance (Organizer) held an open competition "Maintenance of the inner-city driveways of the city of S. (left bank)".

According to the protocol on the results of March 11, 2024, LLP "V" was recognized as the winner of the competition, the plaintiff took the second place.

The actions of the competition commission regarding the application of a conditional discount based on the experience criterion of LLP "B" were appealed by the plaintiff to the Department, which was refused on April 4, 2024.

In a pre-trial appeal, the plaintiff appealed to the Committee, where the complaint was also denied.

The potential supplier of LLP "A", who took the third place, appealed the results of the competition to the Department regarding the correctness of the application of a conditional discount based on the criterion of work experience.

According to the complaint of LLP "A", the Department issued a notification on the elimination of violations identified by the results of desk control on April 4, 2024 on the fact of the unlawful assignment of a conditional discount on the criterion of work in the amount of 2%, whereas 4% should have been applied.

As part of the execution of the specified notification, the Organizer of the competition issued a protocol of the results of the public procurement tender dated April 19, 2024, according to which the LLP was again determined the winner.

"B", the potential supplier who took the second place, is the plaintiff.

Having disagreed with the results of the competition, LLP "Zh" appealed to the court with the above requirements.

Judicial acts:

1st instance: the claim was denied.

Appeal: the decision of the court of first instance remains unchanged.

Cassation: judicial acts in this case have been annulled. The case has been sent for new consideration to the court of appeal in a different composition of the court.

Conclusions: when considering the case and deciding on the merits of the dispute, local courts violated the norms of procedural law, which led to the issuance of an illegal judicial act.

It follows from the case file that a potential supplier of "V" LLP participated in the competition, which was recognized as the winner of the competition.

Since the plaintiff is challenging the results of the competition, the resolution of the dispute by the courts directly affects the rights and legally protected interests of V LLP.

However, the courts, not having shown an active role of the court, did not involve LLP "V" in the case and did not resolve the issue of his rights and obligations as an interested party.

In such circumstances, judicial acts are subject to unconditional cancellation with the referral of the case for a new hearing to the court of appeal.

The judicial board was also instructed to take measures to comprehensively clarify all the circumstances regarding the subject of public procurement, since the essence of the dispute follows from the name of the type of work being procured and, depending on what was obtained in accordance with the norms of substantive and procedural law, to decide a lawful and reasonable judicial act.

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