In accordance with paragraph 3 of the article. Approval of the summary electronic statement

excerpt from table 3

State and municipal customers,

To the authorized bodies of the Irkutsk region

In order to monitor compliance with the legislation on the contract system, the Irkutsk OFAS Russia conducted a study of the issue of the validity of the actions of customers (authorized bodies) when preparing auction documentation. In accordance with established requirements procurement participants must indicate in their applications the specific values ​​of the materials used during the execution of the work. Thus, currently, the generally accepted practice among customers (authorized bodies) is the following description of the characteristics of the requirements of materials, in particular, the asphalt concrete mixture: it is necessary to indicate the grain size in percent by weight for the asphalt concrete mixture in accordance with the requirements specified in Table 3 of GOST 9128-2009 “Asphalt concrete mixtures for road, airfield and asphalt concrete. Specifications"(hereinafter GOST),

excerpt from table 3

In addition, in addition to the requirements for the granulometric composition of the asphalt concrete mixture, customers also set the following requirements: residual porosity, compressive strength, water resistance, crack resistance, etc. In accordance with the specified GOST (section 4), the classification of the asphalt concrete mixture has been determined, namely: depending on the type of mineral component (clause 4.1), the viscosity of the bitumen used and the temperature during installation (clause 4.2), the largest size of mineral grains (clause 4.3) , the value of residual porosity (clause 4.4), the content of crushed stone (gravel) in them (clause 4.5), indicators of physical and mechanical properties and materials used (clause 4.6).

According to expert opinions received by the Irkutsk OFAS Russia, it has been established that “the quality of the asphalt concrete mixture produced at the plant is characterized by a number of indicators: the degree of compliance of the actual contents of the components with their design values, heating temperature, uniformity of mixing of the components (crushed stone, sand, mineral powder, bitumen, various additives) . They are determined by testing mixture samples taken from individual batches. According to clause 1.6 “ Methodological recommendations according to the 1980 assessment of the homogeneity of road asphalt concrete, the quality indicators of the asphalt concrete mixture are statistical values. Influenced large quantity production factors There are fluctuations in the composition of temperature and the homogeneity of asphalt concrete mixtures, so it is impossible to obtain an asphalt concrete mixture with absolutely identical indicators.”

Thus, when preparing an application for participation in the procurement, potential participants are deprived of the opportunity to reliably indicate the specific characteristics of the asphalt concrete mixture.

In this regard, the Irkutsk OFAS Russia believes that it is acceptable from the point of view Federal Law dated 04/05/2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (Law on the contract system) and GOST, there will be a description by the customer of the characteristics of the asphalt concrete mixture that corresponds to the classification established by the standard material, with requirements for specifying specific values components mixtures, in view of the above, can be considered as an unreasonable restriction on the number of participants and constitute a violation of Article 33 of the Law on the Contract System.

We suggest taking this conclusion into account when making purchases.

The Irkutsk OFAS Russia will be guided by this position when carrying out control functions.

Background: On the official website on February 22, 2014, notice No. 0372200029214000001 was posted about the auction in electronic form with N (M) Central Committee RUB 3,756,000.00, Customer - St. Petersburg State Budgetary Institution “Resort Coast”. Five applications were submitted, only two were admitted to the auction by the Customer's commission. One application was rejected for failure to provide specific indicators, two for providing false information. 02/28/2014 The Commission of the St. Petersburg OFAS Russia considered the complaint of Bioecology LLC against the actions of the Customer’s auction commission.
Applicant's opinion: Bioecology LLC submitted an application to participate in the auction for the supply of toilet modules-pavilions. The Customer's auction commission recognized the application as not meeting the requirements of the auction documentation; Bioecology LLC was denied admission to participate in the auction on the basis of: “The application does not comply with clause 3.1.3 of part 1 of the auction documentation: the participant’s application provided inaccurate information.” The applicant claims that his application contains all information about specific indicators of materials in full compliance with the requirements of the Law and auction documentation.
According to clause 2, part 1 of Art. 64 of the Law on the Contract System documentation on electronic auction must contain requirements for the content and composition of the application and instructions for filling it out. The customer does not include in the documentation the recommendations necessary to formulate the application. Uncertainty regarding the application requirements and lack of instructions violates the Law.
Customer's opinion: Requirements to technical specifications materials are established in Appendix No. 1 to the Terms of Reference of Part III of the auction documentation. In accordance with the provisions of clause 3, part 3, art. 66 of the Law on the Contract System and clause 3.1.3 of Section 3 of the auction documentation, the first part of the application must contain specific indicators corresponding to the values ​​​​established by the Customer. The Participant’s application states: “Material: steel grade st3ps according to GOST 380-2005. Mass fraction of carbon 1.22%, mass fraction of manganese 10.30%, mass fraction of silicon 0.81%.” However according to GOST 380-2005, the st3ps brand has other characteristics: “Mass fraction of carbon 0.14-0.22%, mass fraction of manganese 0.40-0.65%, mass fraction of silicon 0.05-0.15%.” Thus, the application contains false information.
The commission established:
According to clause 1 “Toilet module-pavilion” of Appendix No. 1 to the Technical Specifications, the Customer established the requirement: “The material must be steel grade st3ps in accordance with GOST 380-2005. The mass fraction of carbon should be no more than 1.22%, the mass fraction of manganese should be less than 10.40%, the mass fraction of silicon should be less than 0.85%.” The application of LLC “Bioecology” according to clause 1 states: “Material: steel grade st3ps according to GOST 380-2005. Mass fraction of carbon 1.22%, mass fraction of manganese 10.30%, mass fraction of silicon 0.81%.” However, in accordance with GOST 380-2005, steel grade st3ps meets the following characteristics: “Mass fraction of carbon 0.14-0.22%, mass fraction of manganese 0.40-0.65%, mass fraction of silicon 0.05-0.15 %", therefore, the application of Bioecology LLC contains inaccurate information.
Thus, the auction commission, on the basis of clause 2, part 4, art. 67 of the Law on the Contract System to the procurement participant was rightfully denied admission to participate in the auction. The complaint is unfounded.
According to the Contract System Law, the description of the procurement object must be objective.
In accordance with clause 2, part 1, art. 33 of the Law on the Contract System when drawing up a description of the procurement object, if possible, it is necessary to use standard indicators, requirements, symbols and terminology relating to the technical and qualitative characteristics of the procurement object, established in accordance with technical regulations, standards and other requirements provided for by law Russian Federation on technical regulation.
The OFAS Commission sees violations of clauses 1 and 2 of Part 1 of Art. in the Customer’s actions. 33 of the Law on the contract system: 1) in the auction documentation when describing the material, non-standard indicators are established; 2) in Appendix No. 1 to technical specifications when describing the procurement object Obviously excessive requirements have been established for a given material (for example: the mass fraction of carbon in the material should be less than 3.05%, the mass fraction of manganese should not be more than 0.5%, the mass fraction of silicon should be less than 6.05%, the mass fraction of phosphorus should not be more than 0 .04%).
Commission decision:
1. Recognize the complaint of Bioecology LLC as unfounded.
2. Admit violations of paragraph 1 and paragraph 2 of Part 1 of Art. in the actions of the customer’s auction commission. 33 of the Law on the contract system.
3. Issue an order to eliminate violations of the legislation on placing orders.
4. Transfer the case materials to the authorized official of the St. Petersburg OFAS Russia to consider the issue of initiating a case of administrative offenses against the customer’s official and members of his auction commission.
From the prescription:
- cancel all actions taken and decisions made during procurement No. 0372200029214000001;
- return to the order placement participants their submitted applications for participation in auction No. 0372200029214000001.

In accordance with paragraph 3 of Article 503 of the Civil Code of the Russian Federation, upon termination of a purchase and sale agreement, the buyer, at the request of the seller and at his expense, must return the goods received without of proper quality.

If the seller makes a request to return the goods, the entire product must be returned, i.e. the main product, its components and accessories, with the exception of packaging and wear-out accessories that can be used (become unusable) during operation. In each specific situation, the seller can check in what completeness and in which set the product was originally sold.

According to paragraph 3 of Article 503 of the Civil Code of the Russian Federation, when returning to the buyer the amount of money paid for the goods, the seller does not have the right to withhold from it the amount by which the value of the goods has decreased due to full or partial use of the goods, loss of their marketable appearance or other similar circumstances.

Responsibility of the seller (manufacturer) for delay in fulfilling consumer requirements (Article 23 of the Law “On Protection of Consumer Rights”).

A penalty (fine) in the amount established by Article 23 of the Law “On the Protection of Consumer Rights” is collected for each day of delay established by Articles 20, 21, 22 of the Law “On the Protection of Consumer Rights” for fulfilling the consumer’s demands to eliminate defects in goods, replace goods with defects , on a proportionate reduction in the purchase price of the goods, reimbursement of expenses for correcting defects of the goods by the consumer or a third party, on compensation for losses caused to the consumer by termination of the purchase and sale agreement (return of goods of inadequate quality to the manufacturer), as well as for each day of delay in fulfilling the consumer’s request for provision of period of repair (replacement) of similar durable goods until completion

corresponding to the consumer's requirements without limitation to any amount.

If the seller (manufacturer) or the organization performing the functions of the seller (manufacturer) on the basis of an agreement with him, simultaneously violated the terms for eliminating defects (replacement) and did not provide, at the request of the consumer, a similar product during the elimination of defects (replacement) or delayed its provision , then a penalty (fine) is collected for each violation committed by these persons.

If the consumer, in connection with the violation of the deadlines by the seller (manufacturer) or the organization performing the functions of the seller (manufacturer) on the basis of an agreement with him, provided for in Articles 20, 21 and 22 of the Law “On Protection of Consumer Rights”, has presented another demand arising from the sale of goods with deficiencies, a penalty (fine) for violating these terms is collected before the consumer submits a new demand from among those provided for in Article 18 of the Law “On the Protection of Rights

consumers."

If the consumer has presented new demands from among those provided for in Articles 18, 20, 21 and 22 of the Law “On the Protection of Consumer Rights”, then for the delay in fulfilling this new requirement the penalty provided for in paragraph 1 of Article 23 of the Law “On the Protection of Consumer Rights” is also collected. .

When replacing a product of poor quality with a product of a similar brand or model, the price of the product is not recalculated.

When replacing a product of poor quality with a product of a different brand or model, the price is recalculated, depending on its increase or decrease.

Prices can also be recalculated upon termination of the purchase and sale agreement (increasingly).

The consumer’s right to exchange goods of proper quality (Article 25 of the Law “On Protection of Consumer Rights”).

According to Article 502 of the Civil Code of the Russian Federation and Article 25 of the Law “On Protection of Consumer Rights,” the consumer is given the right to exchange, within fourteen days from the date of transfer, a non-food product of proper quality for a similar product from the seller from whom this product was purchased. At the same time, Article 25 of the Law “On Protection of Consumer Rights” provides for the possibility of limiting such consumer rights legal act The Government of the Russian Federation, approving the list of goods that are not subject to exchange. Currently, such a list is approved by Decree of the Government of the Russian Federation dated January 19, 1998 N 55 “On approval of the Sales Rules individual species goods, a list of durable goods that are not subject to the buyer’s requirement to provide him free of charge for the period of repair or replacement of a similar product, and a list of non-food products of good quality that cannot be returned or exchanged for a similar product of a different size, shape, size, style, color or configuration" The list of goods is exhaustive and cannot be expanded by the seller at its discretion.

In accordance with Article 502 of the Civil Code of the Russian Federation and Article 25 of the Law "On Protection of Consumer Rights", the buyer's request for an exchange or return of goods must be satisfied if the goods have not been used, their consumer properties are preserved and there is evidence of their purchase from this seller ( commodity or cash receipt, another document confirming payment for the goods). If a product does not meet these requirements of the Law "On Protection of Consumer Rights", then it cannot be exchanged as a product of proper quality. The Civil Code of the Russian Federation and the Law “On Protection of Consumer Rights” do not provide for reimbursement of any costs to the seller of goods in connection with the buyer’s exercise of this right. In accordance with paragraph 1 of Article 502 of the Civil Code of the Russian Federation (clause 2 of Article 25 of the Law “On Protection of Consumer Rights”), in the absence of goods of proper quality necessary for exchange, the consumer has the right to return the purchased product to the seller and receive the amount of money paid for it.

CHAPTER THREE.

STATE AND PUBLIC PROTECTION OF CONSUMER RIGHTS.

(Note: In my work I will often use the name of the State Committee of the Russian Federation for Antimonopoly Policy and Support of New Economic Structures - GCAP of Russia and the State Antimonopoly Committee of the Russian Federation - GAK of Russia, this is the name of the same body, but in different periods of time .

Currently in effect regulations, of this body, passing under both the first and second names.

did not contradict the interests of justice. In the light of its findings regarding the violation of the applicants’ right to legal representation (see paragraph 106 above), the Court does not consider it necessary to consider the applicants’ alternative argument that the interests of justice required that they be provided with free legal assistance at the hearings in prison.”

Quality of legal representation
Artico v. Italy, judgment of 30 April 1980
"33. Paragraph (c), as the Commission noted in its report, guarantees the right to adequate defense during legal proceedings, whether in person or through legal counsel; this right is strengthened by the obligation on the part of the state to provide free legal assistance in certain cases. Mr Artico believes that he has been the victim of a breach of this duty. The Government, for its part, considered this duty fulfilled, arguing that if a lawyer was appointed to provide legal assistance, then what happened subsequently in no way concerned the Italian Republic. According to the Government, although Mr Della Roca refused to carry out the task entrusted to him on 8 August 1972 by the President of the Chamber of the Court of Cassation, he continued to remain until the very end and “in every sense” the applicant’s lawyer. According to the Government, Mr Artico had already complained that he had not been assigned a deputy lawyer, but this was already tantamount to a claim of a right that was not guaranteed.
The Court recalled that the Convention is intended to guarantee not theoretical or illusory rights, but their practical and effective implementation; This is especially true of the right to a defence, which occupies a prominent place in a democratic society, as does the right to
fair trial from which it arises (see Airey judgment of 9 October 1979, Series A no. 32, pp. 12-13, paragraph 24 and paragraph 32 above).
As the representatives of the Commission rightly emphasized, paragraph 3 (c) of Article 6 refers to “assistance” and not to “appointment of counsel”. The appointment itself does not provide effective assistance, since the appointed lawyer may die, become seriously ill, be unable to act for a long period, or shirk the performance of his duties. The authorities, if notified of the situation, must either replace him or force him to fulfill his duties. The Government's restrictive interpretation of this sub-clause leads to results that are unreasonable and inconsistent with both the meaning of clause (c) and Article 6 as a whole, since in many cases free legal assistance may be of no use. At no time in the present case did Mr. Artico have the opportunity to engage the services of Mr. Della Roca. From the very beginning, the lawyer refused to act, citing, firstly, the presence of other obligations, and then the state of health (...). The court is not obliged to go into these explanations. He finds, like the Commission (...), that the applicant did not receive effective legal assistance before the Court of Cassation (...). Sub-clause (c) of clause 3 of Article 6 makes the exercise of the right established by it subject to two conditions. The Government did not object to the first of these conditions: the person charged with a criminal offense does not have sufficient funds, but disputed the existence of the second condition: in its view, the “interests of justice” did not require Mr Artico to be provided with free legal assistance. According to the Government, the subject of consideration before the Court of Cassation was the question of repealing the previous court decisions, and the corresponding argument was contained in an application filed in December 1971 with the assistance of Mr. Ferri, a lawyer of the applicant's own choosing. Moreover, the issues that formed the content of the complaint - the regularity of summonses to appear in court - were so elementary that the Attorney General in July 1973 concluded that the complaint was moot. grounds. Therefore, the role of a lawyer would be more than “modest” and
was limited to receiving notification that the Court of Cassation would make a decision in closed session (...). According to the Commission, this view contrasts with the position of the President of the Second Criminal Chamber of the Court of Cassation, who, on 8 August 1972, granted the request of 10 March for legal assistance. This came several months after Mr. Artico filed complaints to have previous court decisions overturned. Moreover, on March 14-15, Mr. Artico sent additional complaints, which he drafted himself, which set out his additional arguments (...). However, the President of the Chamber concluded that there was a real need to appoint a lawyer for the purpose of providing legal assistance. Representatives of the Commission expressed doubts as to whether this time the Government could prove the opposite point of view. The Court recalled that, with certain exceptions not relevant to the present case, anyone who does not have sufficient means has, under Italian law, the right to free legal aid in criminal matters (Article 15 of Royal Decree No. 3282 of 30 December 1923; see also Article 125 of the Code of Criminal Procedure). In any event, in this case the interests of justice did require the provision of effective assistance. according to Mr. Della Roca, this would be a very difficult and burdensome task (...). The written procedure, which plays a very important role in the Italian Court of Cassation, was not completed by August 8, 1972. A qualified lawyer could have clarified the argument further presented by Mr. Artico and, in particular, placed the necessary emphasis on the key issue of established by law statute of limitations. This issue was poorly addressed in the “loose and verbose” complaints dated 1415 March 1972 (see paragraph 10 above and the transcript of the hearing dated 31 January 1980). In addition, only a lawyer could object to the state prosecution by convincing the Court of Cassation to hold a public hearing where, along with other issues, the problem of limitation would be thoroughly discussed (...). The Government objected that this was mere speculation, whereas for there to be a violation of Article 6 § 3 (c) there must be no

assistance must have actually harmed the person accused of committing the crime. The Court, like the representatives of the Commission, believes that the Government is demanding the impossible. Of course, it cannot be proven beyond doubt that the lawyer replacing Mr Della Roca would have invoked the statute of limitations and convinced the Court of Cassation, which the applicant was unable to do on his own. However, in these circumstances it is not impossible. The main point is that Article 6(3(c)) does not say that such evidence is required; any other interpretation would deprive subparagraph (c) of its essential content. In general, the presence of a violation is possible even in the absence of harm (see the decision in the Marx case of June 13, 1979, Series A, vol. 31, p. 13, paragraph 27); real harm only matters in the context of the article
50. The Government reproaches Mr Artico for not seeking the services of a colleague of whom Mr Della Roca spoke highly (...) and for not drawing the attention of the Court of Cassation to the issue of limitation, because he did not put forward this argument in a timely manner, that is, immediately after December 1971, and did not defend it with due conviction and persistence. The second reproach relates to the assertion that the interests of justice did not require the presence of a lawyer, on this issue the Court has already made its decision (...), in fact it confirmed that his presence was mandatory. Moreover, if the applicant had followed Mr Della Roca's advice, he would have lost the opportunity to obtain free legal assistance, so the first reproach also does not deserve consideration (...). In fact, Mr. Artico tried hard to rectify the situation: he repeatedly contacted his official lawyer, which eventually drove him crazy, and to the Court of Cassation (...). The State could not be held responsible for the omission of the officially appointed lawyer, but in the particular circumstances the competent Italian authorities should have taken steps to ensure that the applicant was effectively able to benefit from what they recognized as his right. Two options were open to the authorities: either to replace Mr. Della Roca or, if appropriate, to force him to carry out his duties. They took the third path - they remained passive, while compliance with the Convention required active action from them (see

the above-mentioned decision in the Airey case, p. 14, paragraph 25). The Court therefore concludes that there has been a violation of the requirements of Article 6 § 3(c).
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Kamasinski v Austria, judgment of 19 December 1989
"65. Mr Kamasinski was represented in the Austrian courts at all stages. Dr. Steidl, a lawyer who is also a registered English translator, was appointed as a legal aid lawyer when it became clear that the originally appointed lawyer was not proficient in English language to communicate with the client. After the trial, Dr. Steidl was replaced by Dr. Schwank, shortly after Dr. Steidl asked the Bar Association to be relieved of his duties as defense counsel. Of course, the mere appointment of a lawyer in the provision of legal assistance does not give rise to the need to consider the question of compliance with the requirements of paragraph 3 (c) of Article 6. In its judgment in the Artico case of 13 May 1980, the Court noted: “The Convention is intended to guarantee non-theoretical or illusory rights, and their practical and effective implementation... . The appointment itself does not provide effective assistance, since the appointed lawyer may die, become seriously ill, be unable to act for a long period, or shirk the performance of his duties. The authorities, if notified of the situation, must either replace him or force him to fulfill his duties.” However, “the state cannot be held responsible for the inaction of the officially appointed lawyer.” Given that the legal profession is independent of the State, the conduct of counsel is essentially a matter of the relationship between the accused and his counsel, regardless of whether counsel has been appointed as part of the scheme
providing free legal assistance or hired privately. The Court agrees with the Commission that, in accordance with Article 6 § 3 (c), the competent national authorities are required to intervene only if the failure of the legal aid lawyer to provide effective representation is obvious or if their attention is duly drawn to this fact in some other way."
Compiled by the International Center for Human Rights INTERIGHTS\ INTERIGHTS

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