The good faith of a procurement participant under 44-FZ is one of the anti-dumping measures in contract system. The participant shows information from the register of contracts about previously fulfilled obligations in order not to increase the security. We will figure out how to confirm good faith, as well as provide a sample confirmation of good faith for download.
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 the contract security in 1.5 times the amount or the usual security plus documents showing his business reputation in the contract system.
From 01/01/2019 with an initial maximum contract price of up to 15 million rubles. the interpretation of Article 37 of the 44-FZ has ceased to be ambiguous. According to the new rules, such measures are applied as follows: it is either the enforcement of the contract in one and a half times, or the enforcement of its execution in the “standard” one-time amount, together with information about good faith.
Only "good faith" without money or a bank guarantee, as a guarantee for the execution of a government contract, is no longer enough!
On July 1, 2018, amendments to 44-FZ came into force. In this regard, it is specified that anti-dumping measures will be effective when:
- open competition, competition with limited participation;
They also apply to new e-procurements:
- open competition in electronic form;
- competition with limited participation in electronic form;
- two-stage competition in electronic form.
At the same time, the procedure for providing will be similar to an electronic auction under the current legislation. That is, information about good faith will be provided by the winner when sending the signed draft contract to the customer.
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):
- Three or more completed contracts within one year prior to the application date. No penalties.
- Four or more completed contracts within two years prior to the application date. 75% of which without penalties.
- 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.
The concept of dumping
Dumping (from English dumping- reset) - in economic theory sale of goods at artificially low prices.
Dumping prices are significantly lower market prices, are not economically justified, and sometimes even lower than the cost of goods or services.
Dumping in public procurement aims to include the supplier in the procurement market for public needs and oust competitors, and is expressed in the conclusion of a contract by the supplier with the customer by significantly lowering the price when participating in the auction.
The problem of dumping spread in the process of holding open auctions in electronic form within the framework of Law No. 94-FZ. Any suppliers from all regions of Russia could participate in the auction and submit proposals for below-market prices. There were cases when participants reduced the NMC to zero, and then bidding was held to increase the price.
The negative effects of dumping
- Failure to fulfill obligations on concluded contacts. Often, after an unjustified reduction in the NMC and the conclusion of a contract, suppliers realized that they could not deliver goods, provide services or perform work at the proposed price.
- Supply of goods, performance of work, provision of services of inadequate quality. First of all, this concerned bidding for the supply of food products: the winners of the bidding supplied low-quality or expired goods in order to meet the price they offered.
- Termination of the contract in court.
- Time spent on repeated procurement procedures.
The reform of legislation in the field of state and municipal procurement was intended, among other things, to solve the problem of dumping. In this regard, the 44-FZ introduced a rule providing for anti-dumping measures during competition and auction. The norm is enshrined in Article 37 of the Law on the contract system. The use of anti-dumping measures when making purchases by other means is a violation of Law No. 44-FZ, and suppliers have the right to appeal against such actions of the customer.
Options for applying anti-dumping measures in public procurement
1. If the NMC of the contract is 15 million rubles or less, and the procurement participant has offered a price lower by 25% or more, then he is obliged to provide:
- Information confirming the good faith of the participant
2. If the NMC of the contract is more than 15 million rubles, and the procurement participant offered a price lower by 25% or more, then he is obliged to provide only
Enforcement of the contract, 1.5 times the amount specified in the documentation
Information confirming the good faith of the procurement participant
It is often difficult for procurement participants to provide security in an amount exceeding 1.5 times specified in the documentation, because it can be quite large amounts. Therefore, the legislator provided for the possibility of confirming the good faith of the participant. Information confirming the good faith of the procurement participant includes information contained in the register of contracts concluded by customers , and confirming the fulfillment by such a participant of obligations under contracts:
- within one year prior to the date of submission of the application for participation in the competition or auction three or more contracts (in this case, all contracts must be executed without the application of penalties (fines, penalties) to such a participant;
- if the supplier did not participate in government and municipal procurement within one year prior to the date of filing an application for participation in a tender or auction, then he can provide information confirming the fulfillment of his obligations four or more contracts during two years (at the same time, at least seventy-five percent of the contracts must be executed without the application of penalties (fines, penalties) to such a participant;
- or within three years before the date of filing an application for participation in a tender or auction of three or more contracts (in this case, all contracts must be executed without the application of penalties (fines, penalties) to such a participant.
Attention!
In these cases the price of one of the contractsmust be at least twenty percent of the price for which the procurement participant is invited to conclude a contract. For example, if the price of the contract is 100 million rubles, then the procurement participant must provide information on the execution of contracts for the previous period, the price of one of which was at least 20 million rubles.
However, if the NMC is more than 15 million rubles, and the procurement participant has offered prices lower by 25% or more, then he no longer has an alternative in the form of the possibility of documenting his good faith, but is obliged to provide increased security for the performance of the contract, one and a half times the amount specified in the documentation.
The procedure for providing information confirming the good faith of the procurement participant
Attention!
The Procurement Commission rejects the application if this information is recognized unreliable . The decision to reject such an application is recorded in the protocol for determining the supplier (contractor, contractor), indicating the reasons for rejecting the 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.
If a participant in the bid no information provided confirming his good faith, a contract with him is concluded after he provides a security for the performance of the contract in the amount one and a half times the amount of the security for the performance of the contract specified in the tender documentation, but not less than the amount of the advance payment (if the contract provides for the payment of an advance payment).
Competition
In case of participation in the competition, the information is provided by the participant as part of the application for participation in the competition. In practice, this means that the supplier, having familiarized himself with the tender documentation and calculating that he can offer a price lower than the initial one, for example, by 30%, as part of the tender, provides documents confirming his good faith, in accordance with the gradation established in Art. 37 of the Law on the contract system. The customer, having received such an application, checks the accuracy of information about the good faith of the participant in the register of contracts by number registry entry: the existence of such a contract; compliance of the price with the specified size; the absence of forfeits, fines, penalties associated with improper performance of obligations under this contract.
Auction
Attention!
If such a participant, recognized as the winner of the auction, fails to comply with this requirement or the procurement commission recognizes the information provided as unreliable, a contract with such a participant is not concluded, and he recognized.
In this case, the decision of the procurement commission is documented in a protocol, which is placed in a single information system and is brought to the attention of all auction participants no later than the working day following the day of signing the said protocol.
With participation in auction the participant provides information confirming his good faith when sending the signed draft contract to the customer.
Enforcement of the contract provided by the procurement participant with whom the contract is concluded, before its conclusion . A procurement participant who has not fulfilled this requirement is recognized as avoiding a contract. In this case, the evasion of the procurement participant from concluding a contract is documented in a protocol that is posted in a single information system and brought to the attention of all procurement participants no later than the working day following the day of signing the specified protocol.
Case Studies
1. Inclusion in the RNP of information about the participant who took second place is legal
Example 1
The winner avoided concluding a contract and the customer offered to conclude it to the auction participant, whose application was assigned the second number, with which the participant agreed. However, the contract price he offered was 25% lower than the initial (maximum) contract price. Therefore, anti-dumping measures should be applied to this participant: the provision of increased security for the performance of the contract or information confirming good faith.
The Arbitration Court upheld the decision of the antimonopoly authority. If the participant, whose application was assigned the second number, agreed to conclude a contract, he is considered the winner. In the event that the requirements of Art. 37 of the Law are not fulfilled, such a winner is recognized avoiding a contract.
Decision of the Arbitration Court of Khanty-Mansiysk autonomous region- Yugra dated 04/02/2015 in case N A75-2002 / 2015
Example 2
The winner avoided concluding a contract and the customer offered to conclude it to the auction participant, whose application was assigned the second number, with which the participant agreed. However, the contract price he offered was 25% lower than the initial (maximum) contract price. Therefore, anti-dumping measures should be applied to this participant: the provision of increased security for the performance of the contract or information confirming good faith.
These requirements were not fulfilled by the participant. On this basis, the antimonopoly authority included information about him in the register of unscrupulous suppliers (RNP).
The Arbitration Court upheld the decision of the antimonopoly authority. If the participant, whose application was assigned the second number, agreed to conclude a contract, he is considered the winner. In the event that the requirements of Art. 37 of the Law are not fulfilled, such a winner is recognized as having evaded the conclusion of the contract.
(Decision of the Arbitration Court of the Khanty-Mansiysk Autonomous Okrug - Yugra dated 04/02/2015 in case N A75-2002 / 2015)
2. The good faith of the participant is confirmed not only by information from the register of contracts
Example 3
The winner of the auction, who reduced the price of the contract by more than 25%, at the conclusion of the contract, provided the customer with information from the register of contracts confirming good faith. The customer, considering that the participant did not properly confirm his good faith, refused to conclude a contract and sent information about the winner to the antimonopoly authority. This information was included in the register of unscrupulous suppliers.
The courts of first and appeal instances recognized the decision of the antimonopoly body as invalid.
As it was established by the courts, the winner, in order to confirm his good faith, presented, among other things, acts of work performed under several contracts. However, according to the antimonopoly authority, in relation to the winner of the auction in the register of contracts, the number of entries with the status "execution completed" does not meet the requirements of Art. 37 of Law 44-FZ.
This argument was not accepted, since the discrepancy between the data of the register and the information provided by the winner on the number of executed contracts may have arisen due to incomplete or untimely entry of information into the register by customers.
(Resolution of the Seventeenth Arbitration Court of Appeal dated March 13, 2015 N 17AP-980/2015-AK in case N A60-39881/2014).
Law No. 44-FZ provides for the right of the supplier, when participating in the auction, to provide information confirming good faith, or to enforce the contract using dispute protocols (in order to increase the time for signing the contract and providing information). It must be remembered that in accordance with part 13 of Art. 70 of Law No. 44-FZ, if the winner of the electronic auction does not send the customer a signed draft contract or a protocol of disagreements after thirteen days from the date of placement in the EIS of the protocol for summing up the results of the auction, then he is recognized as having evaded the conclusion of the contract.
Features of the application of anti-dumping measures
1. Law 44-FZ provides for the application of a special procedure for anti-dumping measures when conducting special purchases. For example, such purchases include holding tenders for the performance of research, development or technological work, as well as for the provision of advisory services.
In such purchases, the customer has the right to establish in tender documentation different values of the importance of the criteria for evaluating bids for cases when a tender participant submits an bid containing a proposal for a contract price that is up to 25% lower than the NMC of the contract.
If the contract price offer for these purchases is 25% or more lower than the NMTs of the contract, the value of the significance of such a criterion as the contract price is set equal to 10% of the sum of the significance values of all criteria for evaluating bids, which is carried out in accordance with the Rules approved by the Decree of the Government of the Russian Federation of November 28 .2013 N 1085 for the specified types of work (services) are established, ranging from 20 to 80%.
2. If the subject of the contract for the conclusion of which a competition or auction is held is the supply of goods, necessary for normal life support(food, funds for the provision of an ambulance, including specialized ambulance, medical care in an emergency or emergency form, medicines, fuel), a procurement participant who offered a contract price that is twenty-five percent or more lower than the initial (maximum) contract price, is obliged to provide the customer with a rationale for the proposed contract price . It may include:
letter of guarantee from the manufacturer indicating the price and quantity of the supplied goods,
documents confirming the availability of goods from the procurement participant (agreement, consignment note, etc.),
other documents and calculations confirming the ability of the procurement participant to supply the goods at the proposed price.
With participation in competition the participant provides a justification as part of the application for participation in the competition.
If the procurement commission, when evaluating the application, recognizes that this document should be, but not provided, then the commission has the right to reject such an application. Such a decision of the commission is recorded in the minutes of consideration and evaluation of applications for participation in the competition or consideration of a single application for participation in the competition.
If carried out auction, then a letter of guarantee or documents confirming the availability of goods are submitted by the participant to the customer when sending a signed draft contract.
If the participant does not comply with this requirement, does not send Required documents, he is recognized as having evaded the conclusion of the contract.
A draft amendment to 44-FZ has been submitted to the State Duma for consideration, proposing to exclude from the law the provisions on anti-dumping measures that are applied in the supply of goods necessary for normal life support.
New in anti-dumping measures
In June 2014 in Art. 37 of Law 44-FZ, part 12 was included, which provides for the possibility non-application anti-dumping measures subject to two conditions:
- procurement is in progress medicines, which are included in the approved by the Government Russian Federation a list of vital and essential medicines;
- the procurement participant with whom the contract is concluded offered the price of all purchased medicinal products, reduced by no more than 25% relative to their registered in accordance with the legislation on circulation medicines marginal selling price.
Answers on questions
Is it necessary to state in the auction documentation that if the supplier reduces the price of food by more than 25%, then he must provide a justification for such a price?Answer: The supplier has such an obligation by virtue of 44-FZ, and if the customer did not indicate the corresponding requirement in the documentation, he still has the right to demand the justification and calculation of such a price, as well as the necessary documents, or to reject the application for failure to provide them. However, in order to avoid disputes, it is better to provide in the documentation the condition and cases for providing justification.
If the price during the auction decreases by more than 25 percent, the participant who has become the winner is obliged to confirm his good faith. This is called anti-dumping measures. In the article, read about how to prove good faith under 44-FZ.
Now the competition in the market is very strong, and in the state order market even more. Bidders fight at the auction to the last. And sometimes they lower the price to a minimum. At the same time, customers begin to doubt that the product or service they purchase can even receive.
Therefore, in 44-FZ there is a requirement for such tenderers. If during the auction the price decreases by more than 25% of the NMTsK, anti-dumping measures are applied to such participants. Or in a simple way - the participant must prove his good faith in the tender. Moreover, not only is the participant absent from the RNP.
When to prove your good faith in a tender under 44-FZ
In tenders where participants reduce the price by more than 25%, they must prove their good faith. As soon as the auction is over, and the customer has determined the winner of the tender, the countdown of 10 days begins for the preparation and signing of the contract. Before signing the contract by the participant, he must provide the customer with proof of good faith.
All changes in procurement for bidders 2019-2020
During the webinar you will learn:
Which changes for tenderers have already entered into force by the end of 2019, and which will come into effect from 2020;
What are the changes for the participants in securing the application and the contract;
What is the provision of guarantee obligations;
How and why to register with the ERUZ;
What has changed in advance payments under government contracts;
What you need to know about the plans of customers for 2020.
Moreover, if the participant - the winner of the tender does not provide the customer with his good faith, he can be included in the RNP. Therefore, it is worthwhile to carefully approach this issue, monitor the deadlines and prepare a letter to the customer in time and send the contract security.
How to prove your integrity
In case of anti-dumping measures, the tenderer must send to the customer the contract security in 1.5 times more than it was originally indicated. And also provide documents that will confirm that the participant has previously executed contracts without fines and penalties. At what contracts should be for the last 3 years. And the total amount of contracts should be 20% more than the NMTsK of this tender.
But there is a small indulgence for the participants, in terms of the subject of contracts. Those contracts that the participant will provide may be for different subjects of contracts. The most important thing is that at the time of application they have already been executed and in the EIS they were in the status of “execution completed”.
It will be important that if the advance payment was indicated in the draft contract, then the security will be paid not 1.5 times more than the amount of the NMTsK, but will be the amount of the advance payment. At the same time, the advance payment itself will not be paid by the customer during anti-dumping. This condition should be written in the draft contract.
How to prove your integrity in order to keep more money on account
If a tender participant dumps, he is obliged to provide a contract security increased by one and a half times - this is a protective anti-dumping measure for customers. But if the contract price is below 15 million rubles. the applicant has the right to deposit standard security in the amount according to the notice and additionally confirm his good faith.
Read about how participants can prove good faith to save on collateral and keep more free money in their accounts, and what conditions must be met in the contract register for the customer to accept them.
How is a confirmation of good faith issued?
The form of confirmation of good faith is not established either by 44-ФЗ or by-laws. regulations. The tenderer can provide information in the form of a declaration, a letter of guarantee or a simple letter of notification. The main thing is that such a form be signed by the head of the organization with a seal.
All information that the tenderer provides to the customer is in public access in the EIS. The bidder just needs to collect everything on one sheet.
What to include in a letter of confirmation of good faith
It is not important how the tender participant will draw up this letter. It is important what data he will indicate in his letter. It is necessary to indicate in the letter of good faith registry numbers contracts completed within 3 years. Information about customers with whom contracts were concluded (their names and TIN). The prices of each of the contracts, and perhaps it is better to even sum them up and show by this that the total amount is 20% more than the NMTsK of this tender. It is also necessary to indicate the subjects of executed contracts and the terms of conclusion and execution.
Important
The information must match the information that is in the EIS contract register. If the customer sees a discrepancy in the information, then he recognizes the tenderer as having evaded the conclusion of the contract and sends it to the RNP.
All information is best provided in tabular form. It is not worth sending copies of the contracts of acts, consignment notes, and payments to the customer. The customer himself will check this information in the EIS.
What are the exceptions to the rules
An exception to the rules in anti-dumping measures will be tenders for the provision of emergency medical care, medicines, fuel and food. In such tenders, the participant with a decrease of more than 25% will need to provide a letter of guarantee from the manufacturer or some other documents that can confirm the performance of the contract at the price offered by the participant.
Also, anti-dumping is not applied when there is no security for the performance of the contract in the terms of the tender.
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 ensure public 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):
- 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.
- Four or more completed contracts within two years prior to the application date. 75% of which without penalties.
- 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, in comparison with 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 Ivan 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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Article. Application of anti-dumping measures under 44-FZ
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 of the above positive parameters.
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 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;
- transportation services for 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 implies field check auditors of the certifying organization, examination of the data for completeness and reliability and calculation of the final grade based on the data received.
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 for 50 million rubles. or less,
- from 10 to 30% of the NMTs, if the purchase is more than 50 million rubles,
- not less than the amount of the advance, if it is specified 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 starting price, then 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:
- In purchases for any amount, you can provide security increased by 1.5 times.
- 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 sole 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.
- 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.
- 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.
- 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 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.
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