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Resolution of the Constitutional Court of the Russian Federation No. 51-П of 20 July 2026 in the case concerning the review of the constitutionality of the third paragraph of subparagraph “d” of paragraph 3 of a resolution of the Government of the Russian Federation on requirements for participants in the procurement of goods, works and services to meet state and municipal needs, and of item 18 of the appendix to that resolution, following a complaint by Limited Liability Company “V.” The restriction under which an extract from a contracts register containing information constituting a state secret confirms experience only in defence and security procurements has been held consistent with the Constitution.
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Limited Liability Company “V.” challenged the constitutionality of the third paragraph of subparagraph “d” of paragraph 3 of Resolution No. 2571 of the Government of the Russian Federation dated 29 December 2021, “On Requirements for Participants in the Procurement of Goods, Works and Services to Meet State and Municipal Needs and on Declaring Certain Acts and Individual Provisions of Acts of the Government of the Russian Federation No Longer Effective,” as well as item 18, “Road repair and maintenance works,” of its appendix. That paragraph allows a procurement participant whose information on a completed contract is included in a contracts register containing information constituting a state secret to submit an extract from that register instead of the completed contract, the work-completion certificate and the goods acceptance certificate, but only for procurements covered by items 19–23 of the appendix. Item 18 establishes additional experience requirements for participants in roadworks procurements and an exhaustive list of documents confirming that experience.
The commercial court dismissed the company’s claims against the tender organiser seeking a declaration that its application to participate in an electronic auction for the right to perform works to repair a public road complied with the requirements of the tender notice, and a declaration that the organiser’s decision rejecting the application was invalid. The court found that, instead of the documents required by the appendix, the company had submitted only an extract from a contracts register containing information constituting a state secret, relating to a completed contract for the repair of non-public roads, whereas the use of such extracts was not provided for in relation to item 18; moreover, the extract lacked the signature of the person acting on behalf of the Federal Treasury body, and therefore did not comply with the requirements of the Procedure approved by Order No. 17n of the Federal Treasury dated 18 July 2022. The higher courts agreed with that decision, while the cassation court noted that the company could have obtained clarifications from the tender organiser in advance and challenged the provisions of the tender documentation and the customer’s actions. In the company’s view, the challenged provisions contravene Articles 8, 18, 34, 35, 45, 46 and 55 of the Constitution of the Russian Federation because they discriminate against procurement participants whose experience was acquired in performing contracts containing information constituting a state secret and can be confirmed exclusively by an extract from the register.
The Constitutional Court defined the subject matter of the review as the challenged provisions insofar as they serve as the basis for determining which documents confirm a procurement participant’s compliance with the additional requirements approved by Resolution No. 2571 where information about a contract previously completed by the participant is included in a contracts register containing information constituting a state secret. The Court proceeded on the basis that the Constitution of the Russian Federation assigns to the foundations of Russia’s constitutional order the sovereignty of Russia and the integrity and inviolability of its territory (Articles 1, 2 and 4; Article 15, Parts One and Two), imposes on public authorities duties to ensure the country’s defence and state security, including by defining in federal law the list of information constituting a state secret (Article 29, Part Four), and at the same time guarantees the unity of the economic space, support for competition, freedom of economic activity, the right to private property, and the right to protect one’s rights by any means not prohibited by law (Article 8, Part One; Article 34, Part One; Article 35, Parts One and Two; Article 45, Part Two).
Economic freedom is exercised subject to the conditions established by law and must not exceed the limits defined by the impermissibility of violating the rights and freedoms of others, the need to balance rights and obligations, and the prohibition of monopolization and unfair competition; it may be subject to restrictions for the purpose of protecting constitutionally protected values. The public interests listed in Article 55 (Part 3) of the Constitution of the Russian Federation justify restrictions on rights only if those restrictions are adequate to a socially necessary outcome and strictly dictated by those interests, whereas the mere objective of rationally organizing the activities of public authorities cannot constitute such a basis. With regard to the means and methods of protecting state and other secrets protected by law, only those that, in the specific law-enforcement situation, preclude a disproportionate restriction of rights and freedoms are permissible.
The Court recalled that the use of competitive procedures for selecting counterparties is driven by the objectives of protecting competition, preventing corruption, and satisfying the customer’s interest in concluding a contract on the best terms. Federal Law No. 44-ФЗ of 5 April 2013 permits open and closed competitive methods for determining a supplier (Article 24), requires an application to include information and documents confirming the participant’s compliance with the established requirements (Paragraph 1 of Part 1 of Article 43), and empowers the Government of the Russian Federation to establish additional requirements for participants in procurements of certain types of goods, works, or services, including requirements concerning work experience, and to determine the list of supporting documents (Parts 2, 2.1, and 3 of Article 31). Acting within the powers provided for by Articles 114 and 115 of the Constitution of the Russian Federation and the Federal Constitutional Law “On the Government of the Russian Federation,” the Government established, in Item 18 of the Annex, requirements concerning experience in road works and an exhaustive list of documents confirming that experience.
The special regime for protecting state secrets established by Law of the Russian Federation No. 5485-I of 21 July 1993 necessitated the use of paper-based document flow for the relevant procurements and the inclusion of information about such contracts in a separate register that is not subject to publication or placement on the Internet (Part 7 of Article 103 of Federal Law No. 44-ФЗ). Open methods for determining a supplier, by contrast, presuppose free access to information, including information about work experience, for any interested person and do not ensure the objective of protecting state secrets; this is why the use of an extract containing protected information is impermissible under such methods, which are unrelated to procurements in the defense and security sector. The rules for maintaining the register, approved by Government Resolution No. 1084 of 28 November 2013, regulate only the procedure for maintaining the register and issuing an extract—which, moreover, depends on the customer’s prior authorization—and cannot be understood as establishing a rule permitting an extract to confirm compliance with additional requirements in all cases.
The possibility of confirming compliance with additional requirements by means of extracts in procurements in the defense and security sector is an exception to the general rule and is due to the specific nature of the activities of business entities, for which obtaining experience outside that sector is often limited. The challenged differentiation has objective and reasonable grounds and does not indicate a violation of the principle of equality derived from Articles 17 (Part 3), 19, and 55 (Part 3) of the Constitution of the Russian Federation. Confirming experience by bidders engaged in other types of activity in open markets, including road activities, may present some difficulty, but it is not an insurmountable obstacle and depends on the chosen business model and the effectiveness of its management. Given the risky nature of business activity and the heightened standard of diligence in specially regulated areas, the challenged provisions do not display signs of legal uncertainty.
The Constitutional Court held the third paragraph of subparagraph “d” of Paragraph 3 of Resolution No. 2571 and Item 18 of its Annex consistent with the Constitution of the Russian Federation to the extent that they do not provide for the possibility of submitting an extract from a contracts register containing information constituting a state secret instead of the documents prescribed by the Annex in cases other than those specified in Items 19–23 of the Annex, and do not deprive such a person of the possibility of participating in procurements to meet state and municipal needs and confirming compliance with the additional requirements by documents relating to the performance of contracts whose information is not included in that register.
The reasoning relies on legal positions previously developed by the Constitutional Court, including Resolution of the Constitutional Court of the Russian Federation No. 11-П of 24 June 2009, Resolution of the Constitutional Court of the Russian Federation No. 21-П of 15 October 2012, Resolution of the Constitutional Court of the Russian Federation No. 27-П of 6 November 2014.
The Resolution confirms the constitutionality of the existing model for confirming additional requirements applicable to procurement participants: the list of documents determined by the Government of the Russian Federation in the Annex to Resolution No. 2571 is exhaustive, and replacing those documents with an extract from a contracts register containing information constituting a state secret is permissible only for the procurements listed in Items 19–23 of the Annex. Customers and electronic-platform operators retain grounds for rejecting applications in which experience under Item 18 and other items unrelated to the defense and security sector is confirmed by such an extract.
A criterion for distinguishing between cases has been formulated: the suitability of a method for confirming experience is determined not only by the content of the information but also by the nature of the procurement procedure. In open competitive procedures, which presuppose free access to information about participants and their experience, the use of documents containing protected information is excluded, providing guidance for assessing similar situations involving other additional requirements and other procurement objects.
It was confirmed that the exception for procurements in the defense and security sector constitutes justified differentiation rather than a privilege or discrimination: differences in legal regulation are permissible if objectively justified, pursue constitutionally significant objectives, and the means used are proportionate. At the same time, it was indicated that the rules on maintaining the register and issuing extracts, including Government Resolutions No. 1084 of 28 November 2013 and No. 919 of 17 June 2021, regulate different relationships and do not create an independent basis for confirming experience by an extract.
For business entities, a requirement of a heightened standard of diligence and care in specially regulated areas has been formulated: they are expected to study the applicable rules and practice in advance and consciously accept the restrictions arising from participation in closed tenders and the performance of contracts whose information is included in a closed register. The practical consequence is the need to diversify activities and build a portfolio of completed contracts unrelated to state secrets, as well as to use mechanisms for obtaining clarifications from the tender organizer and challenging the provisions of the procurement documentation before the results of the procurement are determined.
The Resolution contains no directions to the Government of the Russian Federation or the federal legislator to amend the regulation, nor any instruction to review the judicial acts in the applicant’s case: the challenged provisions were held consistent with the Constitution of the Russian Federation in the interpretation identified by the Court. The Resolution is final, is not subject to appeal, enters into force on the day of its official publication, has direct effect, and does not require confirmation by other bodies or officials.
This analysis was prepared on the basis of the CasusLegal database (case law of the highest courts of the Russian Federation). The titles of the cited decisions link to their full texts in CasusLegal.