OREANDA-NEWS. On July 16, 2008 the Federal Arbitration Court of the Moscow District confirmed validity of the decision and determination issued by the Federal Antimonopoly Service (FAS Russia) to the Federal Agency of Communications (Rossvyaz) by dismissing the cassation appeal of "Summa Telecom" и Rossvyaz, reported the press-centre of FAS Russia.

On 15th August 2008, FAS Russia established that the Bids Evaluating Criteria proposed by Rossvyaz included some provisions that gave absolute preferences to the bidders who possessed licenses for offering communication services in the tender territory. FAS Russia recognized that such actions violated Article 17 of the Federal Law "On Protection of Competition" because they limited possibilities of the operators, that did not have licenses for the territory of the tender lot, for entering the market of mobile radiotelephone communication in the lot territory and resulted in restricting competition on the market of the services of mobile radiotelephone communication.

The case was initiated upon a petition of "VympelCom" OJSC. Investigating he case, the FAS Russia's Commission summoned the Federal Service for Supervision in the Sphere of Mass Communication, Communications and the Protection of Cultural Heritage (Rossvyazokhrankultura) that possessed information regarding the case circumstances.

Rossvyaz violated the law by approving conditions of competitive tenders for the licenses for offering services of mobile radiotelephone communication in Siberia and Russian Far East.

According to the information published on the Agency's official site, Rossvyaz notified about the open biddings for the licenses on mobile radiotelephone communication in the following constituent territories of the Russian Federation: the Republic of Buryatia and the Sakha (Yakutia) Republic, Primorsky, Kamchatsky and Khabarovsk Krais [Territories], Irkutsk, Chita, Magadan, Sakhalin and Amur regions, the Jewish Autonomous Region, Ust-Ordynsky Buryatsky, Agisnky Buryatsky, Koruaksky and Chukotksky Autonomous Areas [Okrugs]; the services of mobile radiotelephone communication must commence no later than 2 year after the decision on granting the radio-frequency band license was made.

According to the published tender documentation, the bids should have been evaluated under the score system based on certain bid evaluation criteria. The criteria gave obvious advantages to the operators that had licenses for the tender territories and unreasonably restricted the access of other operators, who did not possess licenses for the tender territories, to the bidding.

The above conclusion was based on the fact that the main criterion for evaluating the bids was whether the bidders (had licenses for offering communication services in the lot territory (at the time the decision on bidding was made).

Under the bid evaluation conditions the highest scores and, therefore, tender licenses would be granted to those operators that had already possessed the licenses for the ender territories.

Having considered the case, FAS Russia recognized that Rossvyaz violated the antimonopoly legislation and filed a lawsuit to the Arbitration Court on invalidating the bidding.

The proceedings on the FAS Russia lawsuit were suspended until the Court would pass the ruling on the claim of Rossvyaz.

Moreover, FAS Russia forwarded recommendations to Rossvyazokhrankultura on conditions of tender documentation under the results of the case consideration.

Rossvyaz disagreed with the FAS Russia's decision and appealed.

On 16th January 2008, the Moscow Arbitration Court declared the FAS Russia's decision of 15th August 2007 void, explaining that FAS Russia had given faulty interpretation of the tender documentation and that FAS Russia had not established the bidders for who Rossvyaz had created preferential conditions.

FAS Russia appealed against the judgment of the Moscow Arbitration Court to the 9th Arbitration Appeal Court. The Court of the Appeal Instance allowed the FAS Russia's appeal. The Court of the Cassation Instance also confirmed validity of the decision and determination issued by the antimonopoly authority to Rossvyaz.

In the near future FAS Russia will petition the Arbitration Court on reopening the case to recognize the bidding invalid.