Anti-dumping measures in public procurement: the definition of dumping. Information on the good faith of the bidder is a Letter confirming the good faith of the bidder

The register includes those who refused to conclude a won contract or grossly violated the terms of its execution. We wrote in detail about . In this article, we will highlight the important nuances:

• Previously, it was possible to independently declare the absence in the RNP, and there was a chance that the customer would not check this information. Now ETPs automatically check the information and simply do not miss an application from a participant from the RNP.
• The EIS maintains a separate registries according to 44-FZ, according to 223-FZ, according to 615 government decree. Once in one Register, you can still participate in procurement under another law or in commercial bidding.
• If you submitted an application without being in the RNP, but got into it during the execution of the contract, this is not a reason to terminate the contract (decision of the Ninth Arbitration Court of Appeal dated April 21, 2015 No. 09AP-11847 / 2015-GK in case No. A40-178922 / fourteen).

Securing a contract

The customer establishes contract security in almost all competitive procurements:

• from 5 to 30% of the NMTs, if the purchase is for 50 mln rub. or less,
• from 10 to 30% of the NMTs, if the purchase is more than 50 million rubles,
• not less than the amount advance payment, if it is established in the purchase (part 6 of article 96 44-FZ).

From this amount, fines are withheld for poor-quality non-fulfillment of the contract and penalties for failure to meet deadlines. After the contract is successfully executed, the security is returned.

Anti-dumping measures

44-FZ allows you to reduce the price as much as you like, but if you cross the threshold of 25% of the initial price, you will have to additionally confirm your good faith ( Art. 37 No. 44-FZ ). This is called anti-dumping measures. In any purchases, except for purchases of essential goods, there are two ways to confirm good faith:

1. In purchases for any amount, you can provide security increased by 1.5 times.
2. In purchases cheaper than 15 million, there is another option - to provide the usual security plus successfully executed government contracts. What to consider:

• The customer will accept information strictly from the register of contracts under 44-FZ.
• There must be at least three such contracts, and they must be concluded no later than three years before the conclusion of the current contract.
• All of them must be executed without fines and penalties.
• The amount of at least one of the contracts must be at least 20% of the purchase amount, in which it is necessary to confirm good faith (part 3 of article 37 44-FZ).
• The object of the purchase is not important. For example, you can win a purchase for repairs, and confirm good faith with contracts for cargo transportation.
• It will not be possible to confirm good faith with “small purchases” from a single supplier (purchases up to 300 or 600 thousand rubles), since customers are not required to include them in the register of contracts ( Part 1 Art. 103 44-FZ).

How to find out that the executed state contract is in the Register? On the public procurement website in the tabContracts and agreements you can find any contract by customer name, contract ID and other filters.

If you did not find the contract is not in the Register, first of all contact the customer. He is obliged to upload information to the Register within 7 days after signing the acceptance certificate. If he fails to meet deadlines, he will be fined.

In the procurement of goods necessary for normal life support (food, medicine, fuel, etc.), a different rule applies. If the winner of the purchase lowered the purchase price by 25% below the NMC, he provides the customer with a justification for this price. For example, a letter of guarantee from the manufacturer, receipt documents confirming the availability of goods in the warehouse and other documents ( Part 9 of Art. 37 44-FZ).

Qualitative criteria when evaluating an application

Emphasis on quality

In the competition and request for proposals, the customer can use non-monetary evaluation criteria in choosing a supplier - experience, recommendations, qualified employees, etc.

1. A formula that takes into account the largest or smallest number of documents in the application. In this, the one who provided the maximum contracts earns more points, and the rest receive proportionately less.
2. Maximum required (minimum or maximum) number qualification characteristics. For example, an entrant must provide at least five completed contracts to receive points for this criterion. And the maximum you can provide is 10. Anything above 10 will still count as 10.
3. Scale. This is the easiest way to evaluate. In it, each indicator falls into the range and receives a certain number of points. For example, zero contracts - 0 points, 1-3 contracts - 5 points, 5-10 contracts - 10 points.

How to prove good faith?

It is not necessary to show successfully completed contracts only from the Register according to 44-FZ. These can be documents on 44-FZ, 223-FZ and commercial transactions:

• Copies of contracts that reflect the subject of the contract and the time when it was executed.
• Copies of acceptance certificates and payment documents that reflect the scope of work.
• Other documents that confirm the success of the work.

This is not clearly stated in the law, but arbitration courts decide that the customer may require:

• Compliance with the subject of the purchase. If the purchase is for construction, then the executed contracts must be for construction.
• Successful delivery or work. The customer has the right to demand contracts without violations due to the fault of the contractor.

Also, by decision of arbitration, the customer cannot demand:

• The presence of contracts in the territory of a certain region.
• A narrower qualification than the subject of the ongoing procurement.
• Executed contracts in the amount of more than 20% of the volume of the current purchase. For example, if the purchase for the construction of a school is for 74 million, it is enough to have one executed contract for about 20 million.

Different weight for “fair” and “dumping” prices

44-FZ gives the customer the opportunity to reduce the "weight" of the price, which is 25% below the maximum. If the supplier decreases by more than 25%, then the significance of the price will be equal to only 10% of the sum of the significance values ​​of the other criteria for evaluating bids. True, this rule is applied only in competitions for research, development or technological work, as well as the provision of consulting services ( h. 7-8 art. 37 44-FZ).

What do they want to add?

The concept of increasing the efficiency of budget spending in 2019-2024 states that only qualified participants with experience in contract execution will be allowed into public procurement (Decree of the Government of the Russian Federation dated January 31, 2019 No. 117-r).

• The organization of children's leisure is proposed to be purchased only by a competition with limited participation. Now the purchase of such services is carried out in the form of auctions, requests for quotations or requests for proposals, where the main criterion for selecting the winner is the price of the ticket. As a result, the quality of service delivery suffers.
• They also want to automate the verification of suppliers in register of legal entities brought to administrative responsibility for illegal remuneration.

Text and illustrations are prohibited copy without an active link to the Kontur.Procurement website.

In the comments to the articles you can get answers from other suppliers, and experts will answer

The desire to “give away” a contract to acquaintances is far from always necessarily due to corruption - often there is an element of personal trust here. I trust the supplier - I conclude an agreement with him: "this one will not let you down." There is no such confidence in suppliers emerging from the competition: they will disrupt the deal, deliver low-quality goods, violate the deadlines ... In a situation where most contracts are concluded “at the last moment”, the failure of the contract will deal a blow not only to the reputation, but also to the financing of the budget recipient in the future .

In the law "On contract system in the field of procurement of goods, works, services to meet state and municipal needs, special attention was paid to strengthening measures that stimulate the integrity of both parties.

Let's take a closer look at a few of them.

1. Inclusion in the register of unscrupulous suppliers (contractors, performers)

Inclusion in the register unscrupulous suppliers not only (and not so much) an image loss, but a very real legal responsibility (in the form of a limitation of eligibility), the essence of which is “protective”. A person included in such a register may not be allowed to participate in the procurement of goods, works, services to meet state and municipal needs for two years.

This is one of the most tangible sanctions for suppliers.

Despite the absence of differences in names, there are currently three registries of unscrupulous suppliers. Register formed in accordance with the procedure established by Law No. 94-FZ (which, as of January 31, 2014, includes 4455 entities), Register formed in accordance with the procedure established by Law No. 44-FZ, and Register formed in accordance with the procedure established by Law No. 223 -FZ.

Within two years from the date of entry into force of the new law (that is, until the end of 2015), the customer will have the right to establish a requirement that there is no information about the procurement participant and in the register of unscrupulous suppliers formed under Law No. 94-FZ. At the beginning of 2016, this registry will be archived and removed from public access as outdated. As mentioned above, after two years, a person included in the register must be removed from it.

Grounds for inclusion in the register of unscrupulous suppliers

The conditions under which a supplier can be included in the RNP, in 94-FZ () and in 44-FZ () are almost identical. Recall this:

• evasion from concluding a contract (including failure to provide timely security for the performance of the contract);
• termination of the contract by a court decision (in 94-FZ there was a clause: “in case of a material violation of the terms of the contract”);
• adoption by the customer of a decision on unilateral termination of the contract in connection with a material violation of its terms by the second party.

The customer has the right to decide on a unilateral refusal to perform the contract on the grounds provided for by the Civil Code of the Russian Federation for a unilateral refusal to perform certain types obligations, provided that this was provided for in the contract ().

The customer is obliged to make a decision on unilateral refusal to perform the contract, if during the execution of the contract it is established that the supplier (contractor, performer) does not comply with established requirements to the procurement participants or provided false information about his compliance with such requirements, which allowed him to become the winner in determining the supplier (contractor, performer) ().

2. Contract enforcement and anti-dumping measures

Please note that from now on, the customer is obliged to establish a contract enforcement requirement in almost all cases of procurement (minor exceptions are indicated in).

The "fork" of the size of the enforcement of the contract is set at:

• from 5 to 30% of the initial (maximum) contract price, if the initial (maximum) contract price is equal to or less than 50 million rubles;
• from 10 to 30% of the initial (maximum) contract price, if the initial (maximum) contract price exceeds the specified amount. If the contract provides for the payment of an advance, then the amount of the security for the performance of the contract cannot be less than the advance, even if the amount of the advance exceeds 30 percent of the initial (maximum) price of the contract. In the latter case, the security is set in the amount of the advance payment.

Enforcement of the contract may increase following the results of competitive procedures. This rule is established in what is referred to as "anti-dumping measures". Strictly speaking, the measures described in it are not anti-dumping, but guaranteeing.

Anti-dumping measures are protection of a “fair price”. In 44-FZ, no one will dispute the price (however low, that is, "dumping", it may be), if the supplier confirms his good faith. This can be done in this case in three ways.

The first is the provision of security for the performance of the contract in an increased amount.

It is applied when during the competition or auction the initial (maximum) price of the contract is reduced by 25% or more:

• if the transaction amount is more than 15 million rubles, the supplier provides security for the performance of the contract in one and a half times the amount (but not less than the amount of the advance payment, if the contract provides for the payment of an advance payment) ();
• if the transaction amount is 15 million rubles. or less, then the supplier provides security for the performance of the contract in one and a half times the amount or confirms its good faith on the date of filing the application ().

The second is confirmation of the supplier's good faith documented at the time of application.

As can be seen from the previous paragraph, it is applied provided that the transaction amount is 15 million rubles. and less, in cases when during the competition or auction maximum price contract is reduced by 25% or more.

The good faith of the supplier can be confirmed by the information contained in the register of contracts. This information must indicate one of the following facts:

• The procurement participant has completed 3 or more contracts within 1 year before submitting the application without penalty;
• The participant executed 4 or more contracts within 2 years prior to the application, of which at least 75% of the contracts were executed without fines and penalties;
• The participant has fulfilled 3 or more contracts within 3 years before submitting the application without fines and penalties.

Moreover, in each of the described cases, the price of one of the contracts must be at least 20% of the initial (maximum) price ().

Information confirming the good faith of the supplier, who reduced the amount of the contract by the results of the tender by 25% or more, is provided by the supplier in advance. If the participant does not provide information about his good faith as part of the application for participation in the tender, then the contract with him is concluded after he provides security for the performance of the contract according to the model described in the first version ().

When conducting an electronic auction, information about the good faith of the supplier is transmitted when a signed draft contract is sent to the customer. If the supplier does not comply with this requirement, or if the information provided is found to be unreliable, the contract is not concluded with him, and the participant is recognized as having evaded the contract ().

The third is the rationale for the proposed price.

This method of confirming good faith is used when the subject of the contract is the supply of goods necessary for normal life support (food, means of providing medical care, drugs, fuel, etc.).

If a participant in such a tender or auction offered a contract price 25% below the maximum, he is obliged to provide the customer with a justification for the proposed price. This may be a letter of guarantee from the manufacturer or other documents and calculations ().

The only truly anti-dumping measure in Article 37 of Law No. 44-FZ is the right of the customer to establish different significance values ​​for the criteria for evaluating applications that offer a price less than 25% below the maximum and 25% or more below the maximum.

3. Elimination of conflict of interest and prevention of corruption

The fight against "interested persons" in Russian legislation while timid. But the main thing here is to start. There is progress compared to Law No. 94-FZ.

The first step is a new requirement for procurement participants: “there is no conflict of interest between the procurement participant and the customer”.

A conflict of interest in the contract system refers to cases in which the head of the customer, a member of the procurement commission, the head contract service of the customer, the contract manager are married to individuals who hold the positions of directors, presidents or other management bodies legal entities- participants in the procurement, with individuals - participants in the procurement or are close relatives of the specified individuals ().

The third step is to disclose information about all co-executors and subcontractors.

If the initial (maximum) price of the contract when making a purchase exceeds 1 billion rubles (when making a purchase for federal needs) or 100 million rubles (when making a purchase for regional and municipal needs), the contract must indicate the obligation of the supplier to provide information about all co-executors, subcontractors who have concluded subcontract(s) with a supplier (contractor, performer), the price of which or the total price of which is more than 10% of the contract price ().

This information is provided to the customer by the contractor within ten days from the date of conclusion of the contract with the co-executor (subcontractor). At the same time, the contract must provide for liability for failure to provide this information by collecting from the contractor a penalty for each day of delay in fulfilling such an obligation in the amount of one three hundredth of the refinancing rate of the Central Bank of the Russian Federation.

True, all liability is limited only to financial sanctions. Failure to provide this information by the contractor does not entail the invalidity of the concluded contract on this basis.

Nadezhda Abakumova, expert CEPM "Consultant"

Here we give a sample, in accordance with which you can fill out a letter with information confirming the good faith of the procurement participant in accordance with Federal Law 44. This letter may be needed by the supplier to reduce the amount of security if the initial maximum contract price is reduced during an electronic auction by more than 25% . Information about the fulfilled obligations for filling out the letter should be taken from the register of contracts.

(Information contained in the Unified Register of State and municipal contracts)

According to Art. 37 h.3 federal law dated 05.04.2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”.

In accordance with the data provided on good faith, Romashka LLC asks to reduce the contract performance security from 45% to 30% of the initial (maximum) contract price, which is 30,251.18 (thirty thousand, two hundred and fifty-one) rubles, 18 kopecks.

We provide information confirming the good faith of Romashka LLC in Table No. 1.

No. p / p	Contract Detail Number	Contract status	Order number	Customer name	Contract amount
1.
2.
3.

CEO Romashka LLC ____________________ Ivanov I.I.

You can download a sample in .doc format for self-filling by clicking on the link.

As one of the anti-dumping measures, a participant may be required to prove good faith. The article will help to understand what is hidden behind this concept and how to confirm good faith.

What is good faith according to 44-FZ

When the offer of the winner of an auction or competition is 25% or more cheaper than the NMTsK, 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 result, end consumers from poor-quality purchase 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 a contract security in 1.5 times the amount, or the usual security plus documents showing his business reputation in the contract system.

The good faith of a procurement participant under 44-FZ is information from the register of contracts on previously fulfilled obligations.

How to confirm the integrity of the supplier according to 44-FZ

The necessary information is contained in the EIS, namely in the register of contracts that were previously concluded with government customers. Moreover, all transactions must be completely closed, that is, be in the status of "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 application date.

   Documents confirming the good faith of the participant of the tender 44-FZ

   No penalties.

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

It is important to note 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 law, that is, it can be anything, the participant is not required to confirm the fact of execution of similar government contracts.

To participate in the competition, documents evidencing the honesty of the winner are attached to the competition application. In case of their absence, the customer can conclude a deal only after he receives a security increased by 1.5 times compared to that specified in the documentation. Moreover, this amount should not be less than the amount of the advance payment, if it is provided for by the documentation.

When dumping prices for electronic auction the supplier is obliged to provide information confirming good faith, simultaneously with the signed contract for the current purchase.

The tender commission or directly the customer, depending on the type of procedure, compares the information provided with the register of contracts. If false or inaccurate information is found, the application is rejected (in the competition), or the participant is recognized as having evaded the transaction (in the auction). In the latter case, the results are published in the EIS in the form of a protocol, and the right to execute a transaction passes to the second participant in terms of price. If the offer of the latter is also reduced by 25% or more from the NMTsK, then all anti-dumping measures are applied to it.

Sample confirmation of good faith according to 44-FZ

The law does not establish clear requirements for the form of providing the information in question. Therefore, such documents can be drawn up in any form. But in order to make it easier for the participant to accurately collect all the necessary papers, and for the customer to check them faster, it is convenient to use a table that contains all the information that is required to be provided by law. You can download a sample letter confirming the honesty of the supplier below.

In accordance with Part.1,2 Article. 37 44-FZ, anti-dumping measures are established, which apply to participation in tenders and auctions.
If a procurement participant has proposed a price reduction of 25% or more, anti-dumping measures are established, which depend on the initial maximum contract price (IMCC), the limit of which is set at 15 million rubles.
If the NMTsK is less than or equal to 15 million rubles, the contract will be concluded only after the winner provides a contract performance security that is 1.5 times the size of the contract performance security specified in the documentation, or information confirming the good faith of such a participant as of the date of application.

Sample Supplier Integrity Letter
ON THE FORM

ref no. from ______

Information mail

Society with limited liability"Romashka" (hereinafter referred to as the Company), represented by General Director Ivanov Ivan Ivanovich, acting on the basis of the Charter, confirms the good faith of the Company in accordance with the requirements of Parts 1, 2, 3 of Art. 37 of the Federal Law No. 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs", and provides information on executed contracts:

	Registry number of the contract entry	Customer (name, TIN)	Subject of contract	Date of conclusion	Period of execution	Contract price	Application of fines, penalties, forfeits
	2011
	year 2012
	year 2013

All information is presented from the Unified Register of State and Municipal Contracts on the website www.zakupki.gov.ru.

Confirmation of the good faith of the supplier from the customer according to fz 44 sample

I confirm the accuracy of the information.

Sincerely,
General Director ________________ Ivanov I.I.
(based on the Charter)

Download Sample Supplier Integrity Letter

LLC SB "Aspect" does not guarantee full compliance of the materials with legal norms at the time of their viewing by the user. The materials are presented for informational purposes only.

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Not always the lowest proposed contract value is the main parameter in choosing the winner when participating in public procurement. 44-FZ also provides for such a criterion as the qualification of the participant. Let's figure out what this requirement for suppliers is and how to confirm your compliance.

The essence of the criterion "experience and business reputation"

The choice of a counterparty capable of efficiently and promptly fulfilling the terms of the contract always implies a certain risk for the customer. Level of confidence in certain organization consists of a set of specific criteria, such as:

• history of the organization: the duration of the presence of a business entity in the market according to its profile economic activity, experience and volume of delivered goods, performed works, services;
• media: vendor security material resources necessary for the production and supply of products, performance of work, provision of services;
• personnel: availability of qualified specialists and managers at the bidder;
• image: perception of the organization by customers and society as a whole;
• reliability: the completeness and reliability of the information provided by the organization.

A high probability of fruitful cooperation is possible with a company that has the largest number the above positives.

In this regard, the legislator has provided such a tool for predicting successful relationships as an assessment of experience and reputational potential.

Criteria for evaluation

Decree No. 1085 dated November 28, 2013 discloses indicators of non-monetary assessment criteria, but does not define the concept of " business reputation».

Securing the application and letter of good faith supplier

The customer needs to ensure a unified and objective approach when ranking and choosing a supplier during the various kinds procurement.

As documents confirming the presence of a positive reputation, there may be, for example, Thanksgiving letters, certificates, diplomas of both the organization itself and its employees.

A Certificate of Evaluation of Experience and Business Reputation is also distributed.

How to correctly set the requirement for certificates

This question causes the greatest difficulty. To date, a number of national standards have been developed and approved for assessing the experience and business reputation of persons engaged in entrepreneurial activity in different areas:

• general provisions, GOST R 66.0.01-2015;
• architectural and construction design, GOST R 66.1.01-2015;
• engineering surveys, GOST R 66.1.02-2015;
• assessment of experience and business reputation of construction organizations and design institutions, GOST R 66.1.03-2016;
• production and sale of fire-technical products, GOST R 66.9.01-2015;
• provision of services that ensure fire safety of facilities, GOST R 66.9.02-2015;
• services for the transportation of oversized heavy cargo, GOST R 66.9.03-2016.

The requirement for the presence of certificates in the application has two points of view. For example, the Resolution of the Thirteenth Arbitration Court of Appeal dated 03.03.2016 No. 13AP-31280/15 recognized the requirement for certificates to be lawful. And, for example, the Ministry of Economic Development explained that the state customer is not entitled to require participants to have a business reputation index calculated by an organization accredited in the voluntary certification system. The agency notes that according to 44-FZ, an assessment of experience and business reputation does not oblige to receive a certificate. Obtaining a document requires significant time and financial costs and is an administrative barrier to participation in the procurement (letter of the Ministry of Economic Development of Russia dated January 19, 2017 No. OG-D28-761).

How to check the Certificate of Evaluation of Experience and Business Reputation

Taking into account that a much more significant criterion is the recognition of the supplier by the professional community, and letters of thanks are easily subject to falsification, the customer can establish a requirement for a certificate in the documentation.

In this case, the participant needs to apply to the certification body with a certain package of documents (constituent, information about employees, copies of contracts confirming the experience of similar work, feedback on activities, etc.). The Federal Agency for Technical Regulation and Metrology maintains a list of registered companies. Each organization has an internal regulation on the timing of the provision and cost of the service (on average, from 10 working days with a price of more than 100,000 rubles). Certification involves an on-site audit by the auditors of the certifying organization, an examination of the data for completeness and reliability, and the calculation of the final grade based on the data received.

What, besides the number of years, are the differences between paragraphs 1 and 3 of Art. 37 44-FZ?

The requirements in these paragraphs differ only in the number of years.
We believe that in this case, the law provides for the opportunity to confirm their good faith not only to those companies that have been participating in procurement for a long time and have, for example, 3 completed contracts without penalties over the past 3 years, but also to companies that have been on the market for only 1 year, but active, and managed to complete 3 contracts without penalties.

If a company is only 1 year old, and it has 3 completed contracts without penalties and 2 with penalties, can we confirm our good faith?

The good faith of a participant can be confirmed by information in the register of contracts on “execution by such a participant within 1 year before the date of filing an application for participation in a tender or auction of 3 or more contracts, while all contracts must be executed without applying penalties (fines, penalties) to such a participant ". Thus, to confirm good faith, it is necessary that all contracts be executed without the application of penalties.

What is Integrity Information?

This is the information contained in the register of completed contracts and confirming the execution by the participant:

• 3 or more contracts within 1 year prior to the date of filing the application, while all contracts must be executed without the application of penalties (fines, penalties) to the participant;
• or within 2 years prior to the date of filing of the application 4 or more contracts, while at least 75% of the contracts must be executed without applying penalties to the participant;
• or within 3 years prior to the date of application for 3 or more contracts, while all contracts must be executed without applying penalties to the participant.

At the same time, the price of one of the contracts must be at least 20% of the price at which the procurement participant is asked to conclude a contract.

Who decides on the sufficiency of information confirming the reasonableness of the proposed price?

This decision is made by the commission of the customer for the implementation of procurement.

Competition: the commission may recognize the justification of the proposed contract price as unreasonable, and the application for participation in the competition of such a participant is rejected. The specified decision of the procurement commission is recorded in the minutes of consideration and evaluation of applications for participation in the tender or consideration of a single application for participation in the tender.

Auction: the commission may recognize the justification of the proposed contract price as unreasonable, and the contract with such a participant is not concluded. In these cases, the decision of the procurement commission is drawn up in a protocol, which is posted in the EIS and brought to the attention of all participants in the auction.

Is it possible, when justifying the proposed price, to provide the customer with a letter of guarantee from the supplier, and not from the manufacturer?

The participant is obliged to provide the customer with a rationale for the proposed price of the contract, which may include a letter of guarantee from the manufacturer indicating the price and quantity of the goods supplied, documents confirming the availability of goods from the procurement participant, other documents and calculations confirming the possibility of the procurement participant to supply the goods at the proposed price .

Explain where information about the integrity of the organization is stored, by whom and how is it formed?

The information confirming the good faith of the procurement participant includes the information contained in the register of contracts placed in the unified information system(EIS).

If the price is reduced by 25% or more and if the supplier's good faith is confirmed, the amount of the performance security should still be 1.5 times more than the initial one?

If you take part in a tender or auction and the initial price of the contract is more than 15 million rubles, with a decrease of 25% or more, you must provide the customer with a contract performance security in the amount 1.5 times higher than specified in the documentation. If the initial purchase price in which you participate is 15 million rubles. and less, it is sufficient to provide confirmation of the supplier's good faith, in which case the amount of the security remains the same.

What documents are required to confirm the integrity of the supplier?

The supplier must confirm his good faith by providing the information contained in the register of contracts (contracts, acts). To confirm good faith, a letter indicating all the information on the executed contracts will be sufficient.

Competition: information confirming good faith is provided by the procurement participant as part of the application for participation in the competition.

Auction: information confirming good faith is provided by the procurement participant when sending the signed draft contract to the customer.

How is the procurement participant notified about the recognition of information confirming its good faith as reliable?

Competition (part 4 of article 37 44-FZ)
In the event of a tender, information confirming good faith is provided by the procurement participant as part of the application for participation in the tender. The Procurement Commission rejects such an application if this information is found to be unreliable. The decision to reject such an application is recorded in the protocol for determining the supplier (contractor, performer) indicating the reasons for rejecting such an application and is brought to the attention of the procurement participant who sent the application no later than the business day following the day of signing the specified protocol.

Auction (part 5 of article 37 44-FZ)
In the event of an auction, information confirming good faith is provided by the procurement participant when sending a signed draft contract to the customer. If such participant, recognized as the winner of the auction, fails to this requirement, or recognition by the procurement commission of information confirming good faith as unreliable, the contract with such a participant is not concluded, and he is recognized as evading the conclusion of the contract. In this case, the decision of the procurement commission is documented in a protocol that is posted in the EIS and brought to the attention of all participants in the auction no later than the business day following the day the protocol was signed.

To confirm good faith, information on executed contracts is provided for the last 3 years prior to the purchase or for any 3 years of the company's activity?

Information is provided for 1 year, or 2 years, or 3 years before the date of filing an application for participation in the procurement.

Our company actively participated in purchases under 94-FZ. To confirm our good faith, can we provide information on executed contracts not only under 44-FZ, but also under 94-FZ?

To confirm good faith, you can provide the information contained in the register of contracts, that is, both under 94-FZ and 44-FZ.

If the customer does not establish a requirement to secure the performance of the contract, and the participant has set a dumping price, what requirements will be imposed on such a participant?

The requirement to provide security for the performance of the contract in tenders and auctions is the responsibility of the customer.

In accordance with Part 1 of Article 96 of 44-FZ, in the notice of procurement, procurement documentation, draft contract, invitation to take part in determining the supplier (contractor, performer) in a closed way, the customer must establish the requirement to secure the performance of the contract, except for cases that do not apply to competitions and auctions.

Algorithm for applying anti-dumping measures

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The tenderer sooner or later faces dumping in the state order. The very phenomenon of dumping has existed in the field of tenders for a very long time, almost from the moment the institution was founded. 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 that was in force before 44-FZ, there was no such concept. At the same time, in practice, of course, there was dumping in the state order, but the state did not try to fight this phenomenon legislatively. What is "dumping" in the state order at the moment and what methods of combating this phenomenon are used? Let's try to figure everything out!

What is dumping in the state order?

The word dumping is borrowed from the English dumping, in translation dumping (selling 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 take a look at the reasons for using dumping in tenders:
1. Entry of the supplier to the market, which is already divided and there is no other way to get into it.
2. Receiving an order from a specific customer in order to start cooperation with this customer in order to upsell related services, works, as well as enter into larger contracts.
3. Obtaining new contracts and obtaining the necessary qualifications to participate in major tenders, requests for proposals.
4. Playing according to the rules established by the state, where the price indicator is the most important and decisive in most cases in public procurement.

All these reasons have in common that the supplier, working at a loss or at zero, plans to make a profit or some kind of preferences in the future. In addition, do 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 competitions and other procurement methods. In the vast majority of purchases, the coefficient of significance is higher for the "Price" criterion than for other evaluation criteria.
Despite the fact that the state created the conditions for the development of dumping in the state order, it also created anti-dumping measures to combat this phenomenon. Let's take a closer look at this tool.

Anti-dumping measures under 44 FZ: what is it?

Dumping in 44-FZ means a decrease price offer participant by 25% or more of the initial (maximum) contract price. That is, if the purchase limit is 1,000,000 rubles and the price offer of the participant is 750,000 rubles or more, then such an offer is recognized as dumping, if the supplier offers 750,001 rubles, then according to the law this is not dumping. Did you catch the fine line? One ruble or even one kopeck can affect whether the proposed price is recognized as dumping or not. Of course, this approach is formal and has an indirect relation to the market. The state order market has its own rules and these rules are 44-FZ. Let us analyze the anti-dumping measures under 44 fz in more detail.

Two situations are possible:

Option No. 1 Price (NMC) purchases of more than 15 million rubles.
In this case, according to part 1 of Art. 37 44-FZ, if the price of the purchase winner is dumped and reduced by 25% or more, then the customer concludes a contract with such a participant only after the winner provides the contract security with a coefficient of 1.5. But at the same time, the amount should not be less than the amount of the advance payment (if the advance payment is provided for in the procurement documentation and in the draft contract). That is, the procurement participant, offering a price of 25% or less from the NMC, must be ready to provide contract security 1.5 times higher in case of victory. The participant can choose to provide security for the contract, both in the form of a bank guarantee, and by transferring cash at the expense of the customer. Of course, most often the supplier chooses security in the form of a bank guarantee.
Option No. 2 Price (NMC) of the purchase is less than 15 million rubles.
In this case, the procurement participant has a choice:
- provide contract security with a coefficient of 1.5 (as in the option above)
- provide as part of the application documents confirming the good faith of the supplier as of the date of application.

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

Information confirming the integrity of the supplier.

Consider what is meant by the "good faith" of the supplier" and supporting information.
The good faith of the 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 contract register.
In addition, the conditions for the limitation period of such contracts, the number and the 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 penalties.
Option #2: 4 or more contracts within 2 years prior to the date of application, 75% of contracts without penalties.
Option number 3: 3 or more contracts within 3 years prior to the date of application, no penalties.
At the same time, the price of one executed contract must be at least 20% of the price offer of the participant in the procurement procedure.

IMPORTANT: Please note that contracts confirming good faith must be entered in the register of contracts. The fact that such a contract has been entered 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 into 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 3, which we discussed above. In such a certificate, the procurement participant may also indicate a link to entries in the register of contracts. As confirmation of 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 pending contracts
- the submitted information on contracts confirming good faith is not in the register of contracts
- the requirements for the number of confirming contracts, the term, the absence of a penalty have not been met (in accordance with options 1,2,3 discussed above)

Such a situation can have far-reaching consequences for the supplier with the entry of the participant into the register of unscrupulous suppliers, in case of participation in the electronic tender. In the event that the customer discovers inaccurate information in open competition the participant will get off with the rejection of the application.

Anti-dumping measures under 44 Federal Laws and special cases.

Option number 1: In the event that the Customer holds a tender for the implementation of research, development or technological works, 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 tender reduces the price by 25% or more, in this case the Customer lowers the significance factor for the price offer and sets it to 30% instead of 60%, 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 becomes unprofitable to offer a lower price, since the participant in this case is guaranteed to score fewer points. These figures are given as an example, and it is natural that the customer must specify in the procurement documentation the significance factors and the conditions under which they will be applied.

Option #2: If the customer purchases life support goods (food, first aid supplies, fuel, etc.), then the participant, in addition to 1.5 times the contract security (or information confirming good faith), must justify the reduction in the price offer by submitting:
- a 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 the purchase of medicines that are included in the list of essential and essential medicines (such a list is approved by the Government of the Russian Federation). But the price of medicines 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 does not establish a requirement to secure the performance of the contract. Establishing a contract security requirement is the responsibility of the customer, and in some cases the customer has the right not to establish contract security. In this case, the supplier does not need to provide a contract security, provide information confirming good faith as part of the application, or provide a contract security with a factor of 1.5.

Was there dumping?

We have analyzed in detail the anti-dumping measures under 44 fz, considered in all nuances the good faith of the supplier, ways to confirm good faith. And now let's ask ourselves how effective are these measures proposed by the authors of 44-FZ? The fact is that the starting point in determining the dumping price or non-dumping price is the initial maximum contract price (IMC). But, as the practice of the NMC shows, the customer can form and justify absolutely any price, that is, this 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 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 “throw off” 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 that is laid down in the 44-FZ to combat dumping cannot be called effective and thoughtful.

But it should also be noted that the customer himself can create conditions for combating dumping, for example, by choosing a procurement procedure in which it is possible to set a significance factor 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 look for and find a middle ground in this difficult issue.