If you want to build a robust defense position for a hearing before the Federal Antimonopoly Service (FAS) commission, it is essential to retrospectively trace your interaction with the Customer. This means reconstructing the chain of events from the moment the Customer published the procurement to the moment they decided to unilaterally terminate the contract (or when you declined to sign the contract for any reason).
It makes sense to create a table correlating events and dates. Which events should you pay attention to first?
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Publication of the procurement;
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Submission of your bid;
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Publication of protocols (interim and final);
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Sending the draft contract for signing;
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Payment of contract performance security;
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Signing the contract or declining to do so;
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The Customer’s decision to unilaterally terminate the contract.
Sometimes, dates of events preceding the contract signing process are also significant. For example:
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A winning bidder or other participants declining to sign the contract (if the contract was then offered to you as the next-in‑line participant);
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A complaint filed by a potential or current participant with the FAS;
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Revising the procurement results per an FAS order, etc.
The Next Stage: Analysis
It is important to reflectively determine the true reason and a compelling justification for why you did not sign the contract — especially if this is what brings you before the FAS commission. Note that the reason and the justification differ significantly. If the reason relates to changes in your company’s internal structure or operating conditions, or to external circumstances (e.g., changes in agreements with your own suppliers or exchange rates), it will not be considered sufficiently weighty by the FAS to exempt the supplier from penalty.
The Commission’s Objective
The commission’s task is to establish whether there are signs of недобросовестность (bad faith) in the supplier’s intentions and actions. Before you attempt to argue your position before the commission, it makes sense to try to detect these signs yourself by asking:
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Was there an objective possibility to avoid the situation that arose?
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Did you incur any expenses in good faith to fulfill your obligations?
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What violations by the Customer can you point to?
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Can you prove attempts to remedy violations by the Parties (e.g., via official correspondence)?
Your answers to these questions will determine your next steps:
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If there was an objective possibility to avoid the situation: Add to your position your own explanation of why you could not avoid it.
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If no monetary expenses were incurred: Incur such expenses and keep records (acts, receipts, and payment orders).
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If Customer violations are detected: Document them in official correspondence, referencing relevant clauses in the contract or procurement notice.
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If there were attempts to remedy violations by the Parties: Document them in official correspondence and confirm with evidence.
Important Details
This algorithm is not complicated, but numerous legal and practical pitfalls await suppliers along the way. Every detail matters:
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The supplier’s business reputation;
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The sector in which they operate;
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The length of their business activity;
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The region where the case will be reviewed;
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Previous experience working with this Customer;
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The nature of the violations committed by the Parties;
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The specific circumstances of the case;
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And sometimes even the time of year!
It is impossible to list all the details in an article, nor to account for them without the experience and expertise of our specialists. That is why we are here: to spare you the need to conduct an in‑depth analysis of documents, prepare your position, and gather evidence of your case. And, of course, to help preserve your ability to participate in tenders for the next several years.
