The courts did not see the fragmentation of public procurement in several similar transactions with a single supplier
The prosecutor demanded to invalidate 3 contracts for the supply of tools that the college had concluded with a single supplier. In the behavior of the customer, they saw the fragmentation of the purchase in order to avoid competitive procedures.
Three instances disagreed with the prosecutor:
- by itself, the conclusion of several contracts with a single supplier cannot be considered a violation if the actions of the customer do not infringe on the public interests and (or) the rights of third parties, and are not the result of an anti-competitive agreement;
- Law No. 44-FL does not limit the number of purchases that can be made from a single supplier. The customer has the right to purchase the same goods (works, services) from the same person at any time. The main thing is to comply with the annual volume and price requirements of the contract;
- the subject of the disputed transactions were heterogeneous and non-identical goods. The tools had different characteristics, components and purpose;
- the customer has not exceeded the limit of the annual volume of purchases;
- the prosecutor did not confirm that the parties had reached an anti-competitive agreement in order to violate the public interests and (or) the rights of third parties. Procurement information was available to a wide range of organizations. Evidence that someone was denied participation was not presented to the court.
Practice on the issue of fragmentation is heterogeneous. According to the Ministry of Finance, Law No. 44-FL does not prohibit making several small purchases of the same name from a single supplier. However, some courts believe otherwise.
Document: Resolution of the AC of the North-Western District of 04/12/2024 in the case N A21-5955/2023.
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