The information confirming the good faith of the auction participant refers to. Anti-dumping measures in public procurement: definition of dumping

Tell me please! The purchase was carried out in accordance with 44 - FZ, the participant threw off the contract price by more than 25%, can he confirm his good faith with contracts (executed without fines and penalties) concluded under 223-FZ?

Answer

Information confirming the good faith of the procurement participant isinformation on transactions made by a participant in procurement tenders earlier. The main points regarding the confirmation of the reliability of the person involved in the procurement, and we will consider in our article.

Information confirming the conscientiousness of the procurement participant, in accordance with Law No. 44-FZ

The Law "On the Contract System ..." dated 05.04.2013 No. 44-FZ introduced a new (in comparison with the previous version of the legislative act) norm, which includes a number of anti-dumping techniques for those participating in competitive and auction procedures. Dumping is a feigned decrease in the price of goods and services in comparison with the market ones. Accordingly, anti-dumping measures are measures aimed at combating such a decline.

In the understanding of Law No. 44-FZ, dumping can be considered a price reduction by 25% or more from the initial contract rate. At the same time, the following are defined as anti-dumping techniques:

1. With the initial cost of the contract over 15,000,000 rubles. - provision of interim measures in 1.5 times greater amount than the interim parameter determined by the auction or tender documentation (but not less amount advance payment, if it is expected).
2. At the initial cost of the contract 15,000,000 rubles. and less:
   • collateral in the amount of one and a half of the amount of collateral determined by the tender documents,
   • or the presence of information confirming the conscientiousness of the procurement participant (44-FZ, part 3 of article 37).

Conducting anti-dumping procedures in a different form is not envisaged by Law No. 44-FZ and may be appealed by participants in a tender or auction.

Thus, the transfer of data on the reliability of the procurement participant for consideration is an anti-dumping procedure used in the situation specified in the law and carried out in a normatively defined form. The concept of information that can be confirmed in good faith business reputation participant in the procurement, defined in Part 3 of Art. 37 of Law No. 44-FZ. According to its provisions, it is data from the register list of contracts concluded by the customer.

Register of contracts

The concept of a register of contracts is established by Art. 103 of Law No. 44-FZ, the procedure for its formation is the decree of the Government of the Russian Federation "On the procedure for maintaining the register ..." dated 28.11.2013 No. 1084. The same decree approved the rules for filling out the register.

According to these documents, the aforementioned list of contracts is a consolidated database consisting of information about all transactions concluded under the rules of Law No. 44-FZ, excluding those made with one supplier under paragraphs. 4, 5, 23, 42, 44 and 45, as well as clause 46 (in relation to contracts concluded with individuals) and clause 52, part 1 of Art. 93 of the specified law, and transactions containing state secrets. The last type of contracts is formed in a separate, closed for free access, register.

The register of contracts should be available for free familiarization by everyone. It is located on the portal www.zakupki.gov.ru in the section "Information on contracts and agreements."

The information that makes up the register list of contracts, among others, includes:

• customer data;
• information on the method of procurement (auction, competition, etc.);
• information about the completion of the contract.

What refers to information confirming the reliability of the procurement participant?

The data that can confirm the good faith of those participating in the competitive procurement are listed in Part 3 of Art. 37 of Law No. 44-FZ and represent information from the register list of contracts on the performance by the bidders of their obligations under previously concluded transactions in one of the options:

1. In the amount of 3 or more contracts completed within one year prior to the filing date of the tender in question. At the same time, under all contracts, the participant should not be charged with penalties or forfeits.
2. In the composition of 4 or more transactions executed within 24 months prior to the date of submission of the considered tender documents. In this case, 75% of the contracts must be fulfilled without penalties or similar penalties applied to the participant.
3. The set includes 3 or more contracts executed within 36 months prior to the consideration of the specified tender application. At the same time, under all contracts, the participant should not be subject to penalties or forfeits.

In all these cases, the value of each of the contracts must be at least 20% of the price offered by the bidder to conclude the contract in question.

The procedure for preparing information on the business reputation of the procurement participant

In order to confirm the good faith, acting as a participant in the competitive procurement, it is necessary to perform a number of sequential actions:

1. Find information about contracts entered into by the customer in the register of contracts. To do this, go to the above address and select the line "Completed" in the contract status, then enter your TIN in the appropriate column at the bottom of the page and generate a list of contracts for the specified participant completed by the time of the request.
2. From the list, select contracts that meet the requirements of Part 3 of Art. 37 of Law No. 44-FZ regarding the method of confirming the business reputation of a procurement participant, according to one of the options proposed by the legislator.
3. Generate documentation for the tender package. Defining in detail the content of the data confirming the reliability of the bidder, Law No. 44-FZ does not specify the form in which this information can be submitted for consideration.

Documents that confirm the conscientiousness of the procurement participant (example of registration, sample of filling out the table)

The best way to confirm the conscientiousness of the procurement participant is to create a text file that will contain the required data:

1. Links to contracts selected in accordance with the statutory requirement, indicating for each of them:
   • purchase number according to the register;
   • customer data;
   • registration data of the contract (number and date);
   • contract value;
   • due date.
2. A link to the page with information about the penalties imposed on the participant during the execution of the contract, which can be found in the contract card (for each of the selected transactions) on the tab “Information on the execution (termination) of the contract”. In this case, it is also necessary to take screenshots of the pages with information about the absence or presence of penalties or forfeits to the competitor for past transactions.

An example of the formatting of the information that should be included in the file may look like this:

As you can see, information confirming the good faith of the procurement participant is available for review. However, attention should be paid to their configuration and design in order to avoid rejection of the application for the competition.

The tenderer sooner or later comes across dumping in the state order. The very phenomenon of dumping has existed in the field of tenders for a very long time, practically from the moment of the establishment of the institution of public procurement in Russia. The concept of "anti-dumping measures" in the state order appeared not so long ago, namely after the adoption of 44-FZ. In the law No. 94-FZ, which was in force before 44-FZ, such a concept was absent. At the same time, in practice, of course, there was dumping in the state order, but the government did not try to combat this phenomenon in any way. What is “dumping” in the state order at the moment and what methods of combating this phenomenon are used? Let's try to figure it out!

What is dumping in government orders?

The word dumping is borrowed from the English dumping, in translation dumping (sale at artificially low prices). Most often, dumping prices are below market prices and even below cost. To understand the nature of this phenomenon, let's look at the reasons for using dumping in tenders:
1. The entry of the supplier to the market, which is already divided and there is no other way to get to it.
2. Receiving an order from a specific customer in order to start cooperation with this customer for the purpose of upselling related services, works, as well as reaching larger contracts.
3. Obtaining new contracts and obtaining the necessary qualifications to participate in large competitions, requests for proposals.
4. Game according to the rules established by the state, where the price indicator is the most important in public procurement and in most cases decisive.

What all these reasons have in common is that the supplier, working at a negative or zero, plans to make a profit or some preferences in the future. In addition, one should not forget about the Russian reality. At the moment, the state has created a public procurement system, in which the supplier who offers the lowest price has more chances to win. This is true both for auctions and for tenders and other methods of procurement. In the overwhelming majority of purchases, the significance coefficient is higher for the criterion "Price" than for other evaluation criteria.
Despite the fact that the state has created conditions for the development of dumping in the state order, it has also created anti-dumping measures to combat this phenomenon. Let's take a closer look at this tool.

Antidumping measures under Federal Law 44: what are they?

Dumping in 44-FZ means a decrease in the participant's price offer by 25% or more of the initial (maximum) contract price. That is, if the purchase limit is 1,000,000 rubles and the participant's price offer is 750,000 rubles or more, then such an offer is recognized as dumping, if the supplier offers 750,001 rubles, then by law it is not dumping. Got a fine line? One ruble or even one kopeck may affect whether the proposed price is recognized as dumping or not. Of course, this approach is formal and has an indirect relationship to the market. The government order market has its own rules and these rules 44-FZ. Let's take a closer look at anti-dumping measures for 44 FZ.

Two situations are possible:

Option # 1 Purchase price (NMC) of more than 15 million rubles.
In this case, according to Part 1 of Art. 37 44-FZ if the price of the winner of the purchase is dumping and is reduced by 25% or more, then the customer concludes a contract with such a participant only after the winner provides the contract with a coefficient of 1.5. But at the same time, the amount must be no less than the amount of the advance (if the advance is provided for in the procurement documentation and in the draft contract). That is, a procurement participant, offering a price of 25% and lower than the price from the NMC, should be ready, in case of victory, to provide a contract security at 1.5 times higher. The participant can choose to provide the contract, either in the form of a bank guarantee or by transferring cash to the customer's account. Of course, most often the supplier chooses collateral in the form of a bank guarantee.
Option # 2 Purchase price (NMC) less than 15 million rubles.
In this case, the procurement participant has a choice:
- provide security for the contract with a coefficient of 1.5 (as in the option above)
- provide as part of the application documents confirming the conscientiousness of the supplier on the date of application.

IMPORTANT: documents in good faith must be submitted as part of the application for the competition, that is, before the winner is determined. If you participate in an auction, then such documents are provided together with the signed contract.

Information confirming the good faith of the supplier.

Let's consider what is meant by "good faith" of the supplier "and supporting information.
The good faith of a supplier is understood as a confirmed fact of the successful execution of contracts with government customers. That is, such contracts must be completed and information about such contracts must be contained in the register of contracts.
In addition, the conditions for the limitation period of such contracts, the number and presence or absence of penalties must be met:
Option number 1: 3 or more contracts within 1 year prior to the date of application, no forfeit.
Option number 2: 4 or more contracts within 2 years prior to the date of application, 75% of contracts without forfeit.
Option number 3: 3 or more contracts within 3 years prior to the date of application, no forfeit.
At the same time, the price of one executed contract must be at least 20% of the participant's price offer in the procurement procedure.

IMPORTANT: Please note that contracts confirming good faith must be entered in the register of contracts. The fact of entering such a contract into the register must be verified independently. Contracts that are not included in the register of contracts cannot be used by participants as information confirming good faith. If the concluded contract is not in the register, then contact the customer to clarify the reasons. Entering contracts in the register is the responsibility of the customer, who also bears administrative responsibility.

In practice, information confirming good faith can be provided by the supplier in the form of a certificate with a list of contracts that meet the requirements of Option No. 1,2 or No. 3, which we have discussed above. In such a certificate, the procurement participant can also indicate a link to entries in the register of contracts. As a confirmation of the information, the supplier can attach printouts from the register of contracts, as well as copies of the executed contracts and acts themselves (the participant must submit a certificate, the rest is at his discretion).

In some cases, the customer may recognize information confirming good faith as unreliable if:
- the participant provided information on good faith on unfinished contracts
- the information provided on contracts confirming good faith is absent in the register of contracts
- the requirements for the number of confirming contracts, the term, the absence of a forfeit (in accordance with options 1,2,3 discussed above) have not been met

This situation can have far-reaching consequences for the supplier with the entry of the participant in the register of unscrupulous suppliers, in the event of participation in an electronic tender. If the customer reveals inaccurate information in open competition the participant will get off by rejecting the application.

Antidumping measures under Federal Law 44 and special cases.

Option number 1: If the Customer holds a tender for the performance of research, development or technological work, then the tender documentation may provide for various criteria for evaluating applications with a reduction price of 25% or more from the NMC and less than 25% from the NMC. For example, a participant in such a competition reduces the price by 25% or more, in this case the Customer lowers the coefficient of significance for the price offer and sets it equal not to 60%, but to 30%; for qualification assessment, the coefficient will become, for example, not 40%, but 70% ... Thus, the application of the "dumping" participant will be evaluated in such a way that it is not profitable to offer a lower price, since the participant in this case is guaranteed to score fewer points. These figures are indicated for example and it is natural that the customer must write down the coefficients of significance and the conditions under which they will be applied in the procurement documentation.

Option number 2: If the customer purchases goods for life support (food, first aid equipment, fuel, etc.), then the participant, in addition to 1.5 times the security of the contract (or information confirming good faith), must justify the reduction in the price offer by submitting:
- letter of guarantee from the manufacturer (with the price and quantity of goods)
- documents that confirm the fact that the participant of the procedure has the goods
- other documents

Option number 3. In some cases, anti-dumping measures cannot be applied at all, for example, in the case of purchasing drugs that are included in the list of essential and essential drugs (such a list is approved by the Government of the Russian Federation). But the price of drugs should be reduced by no more than 25% relative to the maximum selling price registered in accordance with the legislation of the Russian Federation.

Option number 4: Anti-dumping measures are also not applied if the customer has not established a requirement to enforce the contract. Establishment of the requirement to secure the contract is the responsibility of the customer and in some cases the customer has the right not to establish the security of the contract. In this case, the supplier does not need to provide a security for the contract, provide information confirming good faith as part of the application or provide security for the contract with a coefficient of 1.5.

Was there a dumping?

We have analyzed in detail the anti-dumping measures for 44 FZ, considered in all the nuances the supplier's conscientiousness, methods of confirming the conscientiousness. Now let's ask ourselves how effective are these measures proposed by the authors of 44-FZ? The point is that the initial maximum contract price (NMC) was proposed as the starting point in determining the dumping price or not the dumping price. But, as the practice of the NMC shows, the customer can form and justify absolutely any, that is, it is not a market price. If the NMC is 1,000,000, this does not mean at all that the real cost of goods, works, services is the same, that is, 1,000,000 rubles. Naturally, the customer is interested in the procurement procedure taking place. Therefore, it is beneficial for the customer to form an NMC above the real cost. This situation with the formation of the NMC is also beneficial for the supplier, who, when participating in the purchase, has the opportunity to "drop" the price and compete for the order. Thus, we can conclude that the supplier's price reduced by 25% or more from the NMC may not always be really dumping. The mechanism, which is laid down in 44-FZ to combat dumping, cannot be called effective and well thought-out.

But it should be noted that the customer himself can create conditions for combating dumping, for example, choosing a procurement procedure, in which it is possible to set a significance coefficient at a price of 30%. As practice shows, the customer himself is not always interested in fighting dumping, since in today's unstable realities the lowest contract price is the most important factor when choosing a supplier.

It should also be understood that too low a cost can cause poor quality of the supplied goods, works, services. Customers and suppliers should try to search and find the golden mean in this difficult question.

Dumping is a deliberate indication of a lower price below the market price in order to drive out competitors. This is one of the main problems that one has to deal with in public procurement. This cannot but affect the quality of the supplied products or services. In addition, dumping is a tool that violates the openness and accessibility of the auction, when a supplier interested in this purchase can win a tender by agreement with the customer.

In this article, we will discuss what criteria exist as an assessment of bona fide procurement by a supplier.

Adoption of anti-dumping measures in the field of public procurement under Federal Law 44-FZ

In order to prevent dumping (artificially lowering the price of goods), the law provides for a number of anti-dumping measures:

Supplier advance payment - provision,

Provision of documentation confirming the conscientiousness of the supplier - information from the EIS (extract from unified register contracts).

The application of anti-dumping measures at the auction (auction or tender) takes place when it is reduced by 25 percent or more.

The size of the NMCC determines the choice of one or another antidumping measure. According to article 37 (part 2) 44-FZ, if the contract price is less than fifteen million rubles, then it is necessary to secure the contract by the supplier or provide an extract from the register of past contracts. If more than this amount, then it is mandatory to secure the performance of the contract - a bank guarantee (BG) or an advance payment to the customer's account.

Information proving the good faith of the supplier

As proof of the supplier's good faith, provideextract from the unified register of contracts... In this case, the criteria for assessing the integrity are as follows:

No penalties for at least three completed contracts in the last 12 months.

Over the past 24 months, more than three contracts have been executed, of which no more than 25% outstanding contracts.

Over the past three years until the submission of documents for participation in the tender, 3 or more contracts have been completed, and no penalties have been applied to them.

As a confirmation of the supplier's good faith, only those contracts are used for an amount not less than 20% of the contract for which the bidder is submitting an application.

Information confirming the good faith of the supplier is attached to the second part of the application for participation in the tender, or is attached to the draft contract, after the auction has already been won.

Customer's decision to enter into a contract with a bona fide supplier

Winning the auction does not mean that the customer will sign the draft contract with the winner of the tender. After the past trades, the customer has access to the second parts of the orders. During established by law the validity of the information provided by the winner is underway. The members of the customer's commission, in the course of studying the supplier's documentation, check the compliance of the provided data with reality. Based on this, a decision is made to sign a contract with the winner of the state tender. If the data turns out to be contradictory and inaccurate, the customer has the right to refuse to sign the contract, which he officially notifies with the indication of objective reasons, and enters the winner of the tender in the register of unscrupulous suppliers.

The conscientiousness of a procurement participant under 44-FZ is one of the anti-dumping measures in the contract system. The participant shows information from the register of contracts on previously fulfilled obligations in order not to increase the collateral. We will figure out how to confirm good faith, and also provide a sample confirmation of good faith for download.

What is conscientiousness under 44-FZ

When the proposal of the winner of the auction or tender is 25% or more cheaper than the NMCK, anti-dumping measures are used. This is done in order to prevent the restriction of competition due to excessive underestimation of the cost of products, as well as to protect customers and, as a consequence, end consumers from poor quality procurement results.

If at the same time the initial tender price is less than 15 million rubles. (inclusive), then the supplier has a choice. He can provide the customer with 1.5 times the contract security or the usual security plus documents showing his business reputation in the contract system.

From 01.01.2019 with the initial maximum contract price up to 15 million rubles. the interpretation of Article 37 44-FZ has ceased to be ambiguous. Under the new rules, such measures are applied as follows: this is either securing the performance of a contract in the one and a half size, or securing its execution in the "standard" one-time amount, together with information about good faith.

Only "good faith" without money or a bank guarantee as security for the execution of a state contract is now not enough!

From 01.07.2018, amendments to 44-FZ entered into force. In this regard, it is specified that anti-dumping measures will operate when:

• open competition, competition with limited participation;

And they also apply to new e-procurement:

• open competition in electronic form;
• limited participation competition in electronic form;
• two-stage competition in electronic form.

In this case, the procedure for providing itself will be similar electronic auction on current legislation... That is, information on good faith will be provided by the winner when sending the signed draft contract to the customer.

How to confirm the good faith of a supplier under 44-FZ

The necessary information is contained in the EIS, namely in the register of contracts that were previously concluded with state customers. Moreover, all transactions must be completely closed, that is, be in the status “Execution completed” or “Execution terminated”.

Information confirming the good faith of the procurement participant 44-FZ may be as follows (optional):

1. Three or more completed contracts within one year prior to the date of application. No penalties.
2. Four or more completed contracts within two years prior to the date of application. 75% of which are without penalties.
3. Three or more completed contracts within three years prior to the date of application. No penalties.

It is important to take into account that in the above options, the amount for at least one of the documents should not be lower than 20% of the price offered by the participant in the current auction. Moreover, the subject of completed transactions is not specified by the law, that is, it can be anything, the participant is not required to confirm the fact of execution of similar government contracts.