Anti-dumping measures under 223. You can log in using one of the social network accounts. Dumping scheme "Taran"

1. If, during a tender or auction, the initial (maximum) contract price is more than fifteen million rubles and the procurement participant with whom the contract is concluded, the contract price is proposed, which is twenty-five percent or more lower than the initial (maximum) contract price, or the sum of the prices of units of goods, work, services, which is twenty-five percent or more lower than the initial sum of the prices of the indicated units, the contract is concluded only after such a participant provides a security for the performance of the contract in an amount exceeding one and a half times the size of the security for the performance of the contract specified in the documentation on the holding competition or auction, but not less than in the amount of the advance payment (if the contract provides for the payment of an advance payment).

2. If, during a tender or auction, the initial (maximum) contract price is fifteen million rubles or less, and the procurement participant with whom the contract is concluded, the contract price is proposed, which is twenty-five percent or more lower than the initial (maximum) contract price, or the sum of the prices of units of goods, work, services, which is twenty-five percent or more lower than the initial sum of the prices of the indicated units, the contract is concluded only after such a participant provides security for the performance of the contract in the amount specified in part 1 of this article, or information confirming the good faith of such a participant in accordance with paragraph 3 of this article, with the simultaneous provision by such a participant of the contract performance security in the amount of the contract performance security specified in the procurement documentation.

(see text in previous edition)

3. Information confirming the good faith of a procurement participant includes information contained in the register of contracts concluded by customers and confirming the execution by such participant within three years prior to the date of filing an application for participation in the procurement of three contracts (taking into account succession) executed without applying to to such participant of forfeits (fines, penalties). At the same time, the price of one of such contracts must be at least twenty percent of the initial (maximum) contract price specified in the notice of procurement and procurement documentation.

(see text in previous edition)

4. In the event of an open tender, a tender with limited participation, a two-stage tender, a closed tender, a closed tender with limited participation, a closed two-stage tender, the information provided for by Part 3 of this Article shall be provided by the procurement participant as part of an application for participation in an open tender, a tender with limited participation, two-stage competition, closed competition, closed competition with limited participation, closed two-stage competition. 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, is brought to the attention of the procurement participant who sent the application no later than the working day following the day of signing the specified protocol. If the procurement participant, in the case provided for in paragraph 2 of this article, does not provide information confirming his good faith in accordance with with paragraph 3 of this article, a contract with this participant is concluded after they provide a contract performance security in the amount of one and a half times the amount of the contract performance security specified in the procurement documentation.

(see text in previous edition)

5. In the event of an open tender in electronic form, a tender with limited participation in electronic form, a two-stage tender in electronic form, an auction, the information provided for in paragraph 3 of this article shall be provided by the procurement participant when sending the signed draft contract to the customer. If such a participant, recognized as the winner of a tender or auction, fails to comply with this requirement or if the commission for the procurement of information provided for in paragraph 3 of this article is recognized as unreliable, the contract with such 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 drawn up in a protocol, which is posted by the customer in a single information system no later than the working day following the day of signing the specified protocol.

(see text in previous edition)

6. The security specified in parts 1 and this article shall be 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 having evaded the conclusion of the 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.

7. When holding tenders for the purpose of concluding contracts for the performance of research, development or technological work, the provision of consulting services, the customer has the right to establish in the tender documentation different values of the significance of the criteria for evaluating applications for cases where a tender participant submits an application containing a proposal for the contract price, which:

1) up to twenty-five percent below the initial (maximum) contract price;

2) twenty-five percent or more below the initial (maximum) contract price.

8. In the cases provided for by clause 2 of part 7 of this article, the value of the significance of such a criterion as the contract price is set equal to ten percent of the sum of the significance values of all criteria for evaluating bids.

(see text in previous edition)

9. If the subject of the contract, for the conclusion of which a tender or auction is held, is the supply of goods necessary for normal life support (food, means for providing ambulance, including emergency specialized, medical care in an emergency or urgent form, medicines, fuel), the procurement participant who offered the price of the contract, the amount of unit prices of goods twenty-five percent or more lower than the initial (maximum) price of the contract, the initial amount of unit prices, along with the requirements provided for in this article, is obliged to provide the customer with a rationale for the proposed contract price, the amount of unit prices goods, which may include a letter of guarantee from the manufacturer indicating the price and quantity of the goods supplied (except for the case when the number of goods supplied cannot be determined), documents confirming the availability of goods from the procurement participant, other documents and calculations confirming the participant’s ability to purchases to deliver the goods at the offered price, the sum of the prices of the goods units.

(see text in previous edition)

1) by the procurement participant who offered the price of the contract, the sum of unit prices of goods is twenty-five percent or more lower than the initial (maximum) price of the contract, the initial sum of unit prices of goods, as part of an application for participation in an open tender, a tender with limited participation, a two-stage tender, closed competition, closed competition with limited participation, closed two-stage competition. If such a participant fails to comply with this requirement or if the procurement commission recognizes the proposed contract prices, the sum of the unit prices of goods as unreasonable, the application of such a participant is rejected. The said decision of the procurement commission shall be 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;

(see text in previous edition)

2) by the procurement participant with whom the contract is concluded, when sending a signed draft contract to the customer during an open tender in electronic form, a tender with limited participation in electronic form, a two-stage tender in electronic form, an auction. If such a participant fails to comply with this requirement, he is recognized as having evaded the conclusion of the contract. If the procurement commission recognizes the proposed contract price, the sum of unit prices of goods as unreasonable, the contract with such a participant is not concluded and the right to conclude a contract passes to the procurement participant who offered the same as the winner of this tender or auction, the contract price, the sum of unit prices of goods or whose contract price offer contains the best conditions for the price of the contract, following the conditions offered by the winner of this tender or auction. In these cases, the decision of the procurement commission is drawn up in a protocol, which is placed 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.

Suppliers dumped, dumped,

yes not dumped 1

Unlike the legislation on the contract system 2 , the law on public-corporate procurement 3 does not provide for any special measures aimed at protecting the interests of customers and procurement participants from .

Dumping refers to cases where products are offered at prices below their normal cost (this is how dumping is defined in the General Agreement on Tariffs and Trade (GATT), which underlies the activities of the World Trade Organization (WTO).

The reasons for taking anti-dumping measures are obvious: the customer tries to protect himself as much as possible from the risks of failure to fulfill obligations by the supplier 4 (in terms of terms and quality, as well as the need to re-purchase).

Of course, there are situations when some individuals can really provide a significant price reduction compared to most competitors due to innovative high-tech solutions, labor mechanization, efficient production, the acquisition of bulk batches of materials on exclusive terms, the availability of their own resource base, logistics, the availability of full-fledged "equivalents" goods of a different price category, etc.

But, unfortunately, they are rather an exception to the rule, and such opportunities are usually identified and taken into account by the customer even during the purchase.

1 Purchasing tongue twister.
2 Federal Law of 05.04.2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs", hereinafter - the Law on the contract system, Law No. 44-FZ.
3 Federal Law No. 223-FZ of July 18, 2011 "On Procurement of Goods, Works, Services by Certain Types of Legal Entities".
4 In what follows, by supplier we also mean (depending on the subject of the contract) the performer and the contractor.

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There is no smoke without fire…

It should be noted that participants may have many reasons for dumping, and not all of them cause damage to the customer. These include, for example:

the initial (maximum) price noticeably exceeds the current market price (a consequence of the customer's mistake);

partial compensation for downtime of the resources available to the supplier (personnel, machinery, equipment, premises, etc.);

urgent need for financial resources, the need to obtain funds for the payment of loans (salary, etc.) in the absence of other orders;

implementation of marketing activities (“sales”) and winning “contracts of prestige” (for further use of information about the execution of the contract of a status customer for marketing purposes);

development of formal qualifications in order to access in the future to participate in the struggle for more profitable orders (when choosing a supplier for the fulfillment of which requirements for work experience are established or such experience is one of the criteria for evaluating applications);

the need to eliminate residues (seasonal products);

the need to quickly reduce inventory, etc.

Yet more often the goals of dumping participants are much more prosaic and sadder for the customer, including:

struggle for the market (for example, the displacement of the other 5 by the dealer);

disruption of the procurement procedure (including for the formal reason for the customer to switch to a less competitive procedure provided for in such a case in the procurement regulation, for example, procurement from a single supplier on the basis of a failed auction 6);

gaining experience by staff (customer - "guinea pig" and "polygon");

sale of obsolete, expired, remanufactured and counterfeit 7 products;

manipulation of the result of the competitive procedure, including by reducing the interest in further participation in it by bona fide bidders (for example, the "ramming" scheme for an electronic auction);

creating a reserve for non-competitive receipt of subsequent, larger orders (for example, winning an order for design in order to include requirements in the project documentation that ensure victory when choosing a contractor for a controlled company 8);

revision of the conditions during the execution of the contract, including changes in prices, specifications, terms, fictitious acceptance of non-delivered products 9 ;

ensuring super-economy due to violations of legal requirements (wages, mandatory payments and deductions, production safety, etc.);

poor-quality fulfillment of obligations under the contract (use of materials that do not match in quality, qualification of personnel, etc.).

In order to avoid similar embarrassments in the future (and not only in terms of dumping thresholds), customers can be advised in the procurement regulations to indicate that interest calculations are carried out with an accuracy of a percentage (or a fraction of a percent), and roundings are made up 18 .

For example: "fractional values are rounded to two decimal places according to the mathematical rounding rules."

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How to deal with dumping or “if you want peace, prepare for war!” 19

Many customers, when regulating their procurement activities, do not think about protection against abnormal price reductions or are limited only to anti-dumping measures provided for by the rules of the contract system. There are only three of them, and the scope of such instruments in the Law is very limited:

provision of security increased by one and a half times (but not less than the size of the advance payment 20);

different significance of price criteria when evaluating bids with dumping;

justification of the proposed price of the contract and the ability to fulfill it on the stated terms.

For example, Aeroflot PJSC allows the customer to use all these options as anti-dumping measures, and if, when performing work (rendering services), it is necessary to have a certificate of admission issued by SRO 21, the participant must also provide an SRO opinion on the possibility of performing work ( provision of services) at the price offered in the application.

Also, the provision on the purchase of the airline specifically stipulates that price reductions are not allowed due to the reduction of taxes and fees, including taxes provided for by special tax regimes, to the budgets of the budget system of the Russian Federation.

The State Space Corporation Roskosmos 22 and the State Corporation Rostec 23 use only the first tool in order to combat dumping, requiring, when the price is reduced by 25 percent or more, that the procurement participant provide a security for the performance of the contract in an amount exceeding one and a half times the size of the security for the performance of the contract specified in the purchase documentation. It is curious that they do not require such a thing if the dumping price reduction occurred in the course of pre-contractual negotiations between the customer and the procurement participant.

In general, the arsenal for protection against dumping is much richer. These mechanisms include:

rejection of the application with dumping or cancellation of the purchase;

the obligation to substantiate the possibility of executing the contract at the stated price (this is one of the most effective methods, but requires significant costs for implementation);

additional requirements for the execution of the contract (for acceptance, examination, on-site inspections of the supplier, etc.);

confirmation of good faith (usually - successful execution of similar contracts in the past, which, however, does not guarantee against problems in the future);

setting the maximum allowable value for the assessment (“dumping cut-off”: “if a price reduction of more than 25% is proposed, the application is assigned 100 points according to the “price” criterion” - i.e. a further price reduction does not bring additional points to the procurement participant );

the use of range intervals to reduce the significance of criterion 24 (for example, participants are ranked as the offered price increases, and then divided, depending on the places, into 4 groups, the first group gets 100 points, the second - 65, the third - 25 ...) ;

increased security for the performance of the contract (for example, if the price is reduced by more than 20%, the participant must provide security for the performance of the contract at the conclusion of the contract in one and a half times, but not less than the advance payment);

different significance of the criteria in the assessment (without dumping, the significance of the price is 80%, with dumping - 20%);

corrective (reducing and increasing) coefficients when assessing according to price criteria.

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19 Si vis pacem, para bellum (lat.) - Cornelius Nepos, biography of the Theban commander.

20 And in the case of relatively small purchases - confirmation of good faith by indicating previously successfully executed contracts.

21 SRO is a self-regulatory organization.

22 Regulations on the Procurement of Goods, Works, and Services of the State Space Corporation Roscosmos (as amended by the decision of the Supervisory Board of the State Corporation Roscosmos dated June 29, 2016 No. 6-NS).

23 Unified Procurement Regulations of the Rostec State Corporation (Approved by the Supervisory Board of the Rostec State Corporation by Minutes No. 2 dated March 18, 2015).

24 This technique is also often used to control the outcome of a competitive procedure when the desired bidder wins slightly on one criterion but lags far behind on another.

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Let's consider the last tool in more detail using an example. 25

When evaluating applications by the criterion "price" (its significance is 30%), the following formula is used:

Rai = ((Amax - Ai) / Amax) x 100 x L

Amax – initial (maximum) contract price;

Ai - proposal of the i-th participant;

L - price deviation coefficient.

Price deviation factor (L)
The participant of the request for proposals proposed a price reduction from 0% to 5%
A participant in the request for proposals proposed a price reduction of more than 5% to 15%
The participant of the request for proposals proposed a price reduction of more than 15% to 25%
The participant of the request for proposals proposed a price reduction of more than 25% to 33%
The participant of the request for proposals proposed a price reduction of more than 33%

Thus, in the case of using the approach described above, both insufficient price reduction and its understatement are taken into account:

	Suggestion 1	Suggestion 2	Suggestion 3



without L

As for the possibility of rejecting an application with dumping, such a solution is not common in practice, but it does occur. For example, according to Procurement Regulation 26, the customer reserves the right to reject the bid if the price offered in it, in combination with other information specified in the bid, is abnormally underestimated (by 25% 27 or more of the initial maximum price of the contract) and there are reasonable doubts about the ability of the participant to perform the contract on the proposed terms.

However, in its pure form, the use of such a solution is not recommended, since it has signs of limiting competition. Therefore, it is more correct to reject such an application only if the procurement participant cannot justify the price. Or, as a kind of "stop tap", in such situations - to cancel the purchase (but in this case, its other participants may rightly consider that their rights have been violated).

Of course, the use of all the above dumping protection tools in practice generates a lot for both the customer and the procurement participant.

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25 Resolution of the Arbitration Court of the North-Western District of February 12, 2016 in case No. А56-28921/2015.
26 Regulations on the Procurement of Goods, Works, Services of OJSC RTComm.RU (approved by the decision of the Board of Directors of OJSC RTComm.RU, Minutes No. 237 dated December 22, 2014. Similarly, in the Regulations on the Procurement of Goods, Works, Services of PJSC " Bashinformsvyaz (version 2) (approved by the decision of the Board of Directors of PJSC Bashinformsvyaz, Minutes No. 10 dated September 21, 2015.
27 Or another percentage specified in the procurement documentation.

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Bad advice to a procurement participant or how not to justify a price reduction

The rationale for lowering the offer price often confuses the procurement participant. Let us consider one such example 28 in which the winner of an electronic auction sent a signed draft contract to the customer at once with two justifications for the dumping reduction 29 .

The first option was an estimate compiled on the basis of the estimate and regulatory framework of OSNBZH-2001 for the initial (maximum) price and a table from which it followed that the price reduction would be obtained by reducing such budget items as “overhead costs” and “estimated profit » (by applying reduction factors). At the same time, no specific explanations were provided due to which measures or sources the reduction in costs for these items will be achieved.

The analysis carried out by the customer clearly showed that the practical implementation of such a reduction in ways that do not contradict Russian law (for example, in compliance with the minimum wage requirements with all mandatory ones) is simply not possible.

The second option partially duplicated the first one - an estimate was presented, compiled on the basis of the estimate and normative base of OSNBZH-2001 for the initial (maximum) price, in which it was indicated that a reduction factor should be applied to the final amount.

The reasons given for its use were as follows:

Payroll (labor costs) - through the use of new technologies in the production of work and the involvement of more qualified workers in the production of work;

materials - by purchasing materials at wholesale prices in the nearest settlements;

EMM (expenses for the operation of machines and mechanisms) - due to the rational lease of mechanisms.

At the same time, as in the first version, there was no specifics. It was not indicated what kind of "new technologies" will be applied, nor the types of work and the list of professions for which the participant planned to use workers of higher qualification.

At the same time, it was rightly noted that attracting workers with a higher wage, ceteris paribus, on the contrary, should increase costs, because their wages are paid at higher tariff rates. Here we can recall an aphorism from army humor: a company of soldiers with shovels can replace an excavator. But if you decide to argue the opposite, you should clearly sign it in the justification.

As for the materials, just a simple declaration is not enough. A list of prices for materials, a proposed list of organizations and localities from which materials will be purchased at “wholesale prices”, price lists from prospective suppliers and their comparison with average market prices for the range of materials used should be submitted.

A similar gap was observed in terms of the cost of operating machines and mechanisms - the concept of "rational lease of mechanisms" was not deciphered. It was necessary to provide a list of the mechanisms used (machines, equipment) and the expected volume of its use, the cost of rent, the alleged lessors of the mechanisms and their price lists.

The absence of such justification led to the conclusion of the court (and earlier - the customer and the commission of the FAS Russia) that the "rationalization" of the rental of mechanisms associated with a reduction in the time or volume of use of mechanization during work, ceteris paribus, should increase the use of labor, an increase in labor costs and, consequently, labor costs.

And already as a “control shot in the head” the court’s conclusion that the provision of two options for justifying the reduction in the price of the contract at once could mislead the customer due to the fact that it is impossible to draw unambiguous conclusions about what criteria and indicators will be used reduced cost of the contract.

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28 Decision of the Arbitration Court of the Novosibirsk Region dated December 19, 2016 in case No. А45-11853/2016.
29 As in a court joke, “Do you have an alibi? “Oh yes, three!”

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Don't ask anyone for anything... Will they offer it themselves?! thirty

If the customer uses the tool to justify the proposal for dumping, it is important to clearly define the obligation for the participant to provide relevant information and documents, their composition and other requirements.

Sometimes the customer seeks to provide flexibility in work, for example, by establishing that documents can be requested by the commission. This often causes problems both for the participants and for the customer himself.

For example, 31 in its procurement regulations, the customer has established that a dumping bid is rejected if the price of the contract (contracts) proposed in it, in combination with other information specified in the bid, is abnormally low and the customer has reasonable doubts about the ability of the participant to fulfill the contract on the proposed conditions.

At the same time, the procurement commission has the right to request from the participant the structure of the price of the contract proposed by him and the rationale for such a price of the contract. And the participant who submitted such an application is obliged to provide the structure of the proposed price of the contract and the rationale for such a price of the contract.

Such wording in the procurement regulations and documentation can lead to disorientation of the procurement participant: is it necessary to provide documents on an initiative basis (in applications or when signing a contract) or wait for the request of the customer's commission?

In the considered example, the bid of the participant recognized as the winner of the tender contained a dumping price. However, the request for the structure of the proposed price and its justification were not made by the commission.

As a result, the courts came to the conclusion that the procurement regulations and the procurement documentation do not contain indications of the mandatory submission by the participant of the application containing the dumping price, the structure of the contract price offered by him and the rationale for such contract price, and also they do not contain indications of the mandatory rejection of an application with a dumping price in case of failure to provide the information requested by the procurement commission.

“The aforementioned mislead procurement participants regarding the composition and content of an application for participation in an electronic auction and may lead to the creation of advantages for one of the procurement participants, which is contrary to the principles of equality, fairness, non-discrimination and unreasonable restrictions on competition in relation to procurement participants, established by paragraph 1 of this Article. 2 hours 1 tbsp. 3 of Federal Law No. 223-FZ and part 1 of Art. 17 of Federal Law No. 135-FZ,” the court pointed out.

This situation can be avoided by unequivocally defining in the procurement regulation and, accordingly, the procurement documentation: either the price justification is mandatory included in the application (or sent in the prescribed manner, for example, along with a signed draft contract), or is provided only at the request of the commission of the customer .

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30 A free interpretation of the immortal quote from The Master and Margarita by M. Bulgakov: “Never ask for anything. Never and nothing, and especially for those who are stronger than you. They will offer and give everything themselves!

31 Resolution of the Arbitration Court of the Ural District of December 24, 2016 in case No. А60-27171/2015.

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Summing up

The examples described above show that it is problematic for the customer to completely eliminate the risks that arise when submitting abnormally cheap offers and working with a supplier on dumping terms. However, minimizing them by competently finalizing the procurement regulations and procurement documentation is quite realistic.

As a definition of the dumping threshold, it seems appropriate to consider the deviation from the average (calculated without taking into account anomalous deviations) price of procurement participants, and as the main tool, the obligation to substantiate the ability to fulfill obligations on the declared conditions by the dumping procurement participant (price structure, resources, etc.) in combination with confirmation that he has a positive experience of working under similar contracts and more thorough control of each stage of the execution of the contract.

Having chosen the necessary "weapon" from the available arsenal, it is important to carefully determine the order of its use in the procurement regulation, not forgetting to improve as law enforcement practice develops. Therefore, the process of improving the procurement rules at the customer should take place regularly, since the legislation does not limit the number and frequency of amendments to the procurement regulation.

Webinars of this teacher:

Hello dear colleague! In today's article, we will talk about anti-dumping measures, as well as the effectiveness of their application. These measures are aimed at reducing the risks of Customers in connection with the artificial underestimation of prices during tenders and auctions. In 44-FZ, anti-dumping measures are regulated by Article 37, and when conducting purchases under 223-FZ, they can be established by Customers in the Procurement Regulations. We will talk about all the nuances of using these measures below in this article. ( Note: this article was updated on April 25, 2019).

1. Anti-dumping measures under 44-FZ

1.1 The concept of dumping

Dumping(from the English dumping - reset) - the sale of goods (works, services) at artificially low prices.

It's no secret that contracts with artificially low prices are mostly fraudulent. The dumping procurement participant receives an advance payment (if any), and the work remains unfulfilled. In addition, dumping contributes to a general drop in the level of work (services provided) and the quality of the products supplied.

However, as practice has shown, not only fraudsters or one-day firms resort to dumping, but also quite decent organizations. And the reason for such actions is obvious - the lack of proper experience and qualifications for healthy competition.

1.2 Taran dumping scheme

It is quite difficult for young organizations, as well as newly-baked individual entrepreneurs without work experience, to participate in public procurement. Therefore, dumping for “newcomers” has been and most likely will be the only working tool in the competitive struggle for a long time to come. The previous 94-FZ did not provide for anti-dumping measures, so cases of a serious decline during trading were quite common. In negligent suppliers, the so-called "Battering Ram" scheme was a favorite.

Briefly recall the meaning of this scheme. As a rule, three organizations participated in the conspiracy. The first participant, who was supposed to win the auction, took the first step with a slight price reduction (0.5-1% of the NMTsK). Then two other participants entered the game, which as quickly as possible knocked down the NMTsK contract until the submission of price proposals by other participants would be meaningless. Then, when considering the second parts of the applications, the applications of these participants were rejected, because. they knowingly attached the wrong documents. And the winner was the participant who managed to make a price offer with a minimum step.

1.3 What anti-dumping measures are provided for in 44-FZ?

With the advent of the 44-FZ, the situation has changed for the better, but, in my opinion, very slightly. And so, what anti-dumping measures appeared in 44-FZ?

According to part 1 of article 37 of 44-FZ, if during a tender or auction NMCC is more than 15 million rubles , the contract is concluded only after the provision by such a participant in the amount exceeding 1.5 times the amount of the contract performance security specified in the tender or auction documentation, but not less than the amount of the advance payment (if the contract provides for the payment of an advance payment).

That is, if the NMTsK is more than 15 million rubles, the procurement participant, when signing the contract, is obliged to provide one and a half times the security for the performance of the contract.

According to part 2 of article 37 of 44-FZ, if during a tender or auction NMTsK is 15 million rubles or less and the procurement participant with whom the contract is concluded, it is proposed contract price, which is 25% or more lower than the NMTsK , the contract is concluded only after such participant provides security for the performance of the contract in the amount exceeding 1.5 times the amount of the contract performance security specified in the tender or auction documentation, or information confirming good faith such participant on the date of filing the application, with the simultaneous provision by such participant of the contract performance security in the amount of the contract performance security specified in the procurement documentation.

That is, if the NMTsK is up to 15 million rubles, the procurement participant, when signing the contract, can provide a choice of:

- or one and a half times ensuring the performance of the contract;

- or documents confirming the good faith of such a participant + security for the performance of the contract, established in the documentation.

1.4 What purchases are subject to anti-dumping measures?

Many procurement participants mistakenly believe that anti-dumping measures apply to absolutely all procurement procedures, including and. According to Article 37 of the 44-FZ, anti-dumping measures are applied ONLY to and .

1.5 Confirmation of the good faith of the procurement participant

The procurement participant can confirm his good faith by providing information on executed contracts for a certain period of time before the date of filing an application for participation in the tender or auction:

When conducting open competition , competition with limited participation , two-stage competition , closed competition , closed competition with limited participation , closed two-stage competition the specified information must be presented as part of the application (part 4 of article 37 of 44-FZ).

And when conducting open competition in electronic form , competition with limited participation in electronic form , two-stage competition in electronic form , auction a document confirming good faith must be provided to the Customer along with the signed contract (part 5 of article 37 of 44-FZ).

Important! Identification of the unreliability of the information provided in the case of "paper" tenders leads to the rejection of the application, and in the case of electronic procurement leads to the recognition of the participant as evaded from signing the contract.

1.6 What if your contract details are not in the registry?

If the contract with the Customer is concluded, but there is no information about the contract in the register, it is necessary first of all to contact the Customer to find out the reason for the absence of an entry in the register. For failure to provide or untimely provision of information on the conclusion of the contract and its execution, the administrative responsibility of the Customer is provided.

1.7 Special cases of application of anti-dumping measures under 44-FZ

1. If a tender is held for the performance of research, development or technological work, the Customer can set different values of the criteria for evaluating applications with a reduction price of up to 25% and over 25% of the NMTsK (part 7 of article 37 of 44-FZ);

2. If goods are purchased for the normal life support of the population (food, first aid supplies, medicines, fuel, etc.), in addition to the usual anti-dumping measures (one and a half times enforcement of the contract or confirmation of the good faith of the procurement participant), the participant must also justify the price reduction by providing the customer (part 9 of article 37 of 44-FZ):

a letter of guarantee from the manufacturer indicating the price and quantity of the goods supplied (in free form);
documents confirming the availability of goods from the procurement participant (waybill, checks);
other documents and calculations confirming the ability of the procurement participant to deliver the goods at the proposed price

3. According to part 12 of article 37 of 44-FZ, anti-dumping measures are not applied if, when purchasing medicines that are included in the list of vital and essential medicines approved by the Government of the Russian Federation, the procurement participant with whom the contract is concluded offers a price of all purchased medicinal products, reduced by no more than 25% relative to their maximum selling price registered in accordance with the legislation on circulation of medicinal products.

As you can see, with the advent of Federal Law 44, the requirements for procurement participants resorting to dumping have become tougher. However, it is difficult to say that this has radically changed the situation for the better.

Firstly, those participants who used dumping before 44-FZ also continue to use it. Of course, this "pleasure" has become more expensive, but not so much as to completely abandon it.

Secondly, those participants who, as before, have a sufficient level of qualification and experience, are unlikely to try to win an order only at the expense of price.

Only a combination of factors, such as: application security, anti-dumping measures, contract enforcement, fines and penalties, as well as the lack of an advance payment, cut off negligent suppliers from purchases. That is, anti-dumping tools are only effective in combination with the above measures, and do not give the desired effect when used separately.

2. Anti-dumping measures under 223-FZ

Companies that fall under 223-FZ carry out their purchases in accordance with the Constitution of the Russian Federation, the Civil Code of the Russian Federation, 223-FZ, 135-FZ, other federal laws and regulatory legal acts of the Russian Federation, as well as approved and placed in a single information system ( UIS) Procurement Regulations.

According to part 2 of article 2 of 223-FZ, the Procurement Regulation is a document that regulates all the procurement activities of the Customer and must contain procurement requirements, including the procedure for preparing and conducting procurement procedures (including procurement methods) and the conditions for their application, the procedure for concluding and execution of contracts, as well as other provisions related to procurement.

This means that each Customer independently develops its Procurement Regulations, which prescribes the methods of procurement, the procedure for their preparation and conduct, incl. and applied anti-dumping measures. These measures may differ from those provided for in Article 37 of 44-FZ.

This concludes my article. If you have any questions, then ask them below in the comments to this article.

Anti-dumping measures are one of the special rules that are provided for by 44-FZ, aimed at protecting customers and suppliers from unfair competition. Customers are obliged to apply anti-dumping measures to bidders if they have crossed a reasonable line of price reduction at the auction. Consider when and how they are applied according to 44-FZ and 223-FZ.

What are anti-dumping measures

Anti-dumping measures are applied when making purchases that are carried out by competitive methods. Their goal is to prevent dumping, i.e. artificial reduction of the final contract price by 25% or more. Such discounts are fraught with restriction of competition by unscrupulous participants and the risk for customers to receive a low-quality product or service.

There are cases when honest suppliers bring down the price even below cost, for example, for the sake of entering the market. They do not count on promising work. But, as practice shows, more often such schemes are aimed at eliminating competitors.

As a precautionary measure, the winning bidder either provides increased performance security or proof of good faith. In some cases, he will be required to justify the final cost.

Differences in 44-FZ and 223-FZ

If dumping appeared during the auction, the winner must confirm good faith with documents, attaching them to the signed contract. Otherwise, it will fall into the register of unscrupulous suppliers.

If increased security is chosen, the participant is obliged to present it before concluding the contract.

Anti-dumping measures under 223-FZ are applied somewhat differently. The text of the law does not mention them. But part 2 of Art. 2 223-FZ gives the Regulations on Procurement the right to regulate all procurement activities of the customer, including the preparatory stages. The customer has the right to introduce his own rules in the fight against dumping. They are either the same as in the law on the contract system, or different.

How to apply

When the anti-dumping measures 44-FZ are applied, the enforcement of the contract increases by 1.5 times, compared to that specified in the documentation, if the NMTsK is above 15 million rubles.

Since 01/01/2019, the rules for applying anti-dumping measures have been clarified with an initial maximum contract price of up to 15 million rubles. Interpretation of Art. 37 44-FZ has ceased to be twofold. Since this year, anti-dumping measures have been applied in this way: it is either securing the performance of a contract in one and a half times, or ensuring its performance in a “standard” one-time amount, together with information about good faith.

It is impossible to provide "good faith" without money or a bank guarantee as a security for the execution of a government contract.

It is important to note that when purchasing scientific, design or technological works through a competition, the customer has the right to evaluate applications with a normal decrease (up to 25%) according to one criteria, and with dumping - according to others (parts 7 and 8 of article 37).

If food, fuel, items for emergency and emergency medical care are purchased, then the participant with the dumping offer is obliged to provide the customer with a price justification. For these purposes, use:

a letter of guarantee from the manufacturer of the product;
documentary evidence of the availability of goods;
other papers confirming the possibility of delivery.

On July 1, 2019, part 13 of Art. 37 44-FZ. It obliges the customer to prescribe in the state contract a condition on the prohibition to transfer an advance payment if such a contract is signed with a procurement participant who offered a price 25 or more percent lower than the NMTsK. This reduces cases of artificial and unjustified price reductions by unscrupulous procurement participants who do not plan to fulfill their obligations in order to exclude such participants from receiving an advance.

Features of application in procurement for SMP and SONKO

If the procurement is carried out with restrictions for SMP and SONCO, the participant is exempted from providing security for the performance of the contract, taking into account anti-dumping measures, if, prior to the conclusion of the contract, it provides information from the register of contracts on the execution of at least 3 contracts (excluding legal succession) within 3 years before the date of filing the application . These contracts must be executed without the application of penalties to it, and the sum of their prices is not less than the NMTsK (the maximum value of the contract price). If this information is not available, then the participant will provide security for the performance of the contract, taking into account anti-dumping measures in the usual manner. But the security is calculated from the price of the contract, and not from the NMCC, and cannot be less than the advance. This is indicated in Part 6, 8.1 of Art. 96 44-FZ.

A responsibility

For lack of information about anti-dumping measures, they will be fined, under Part 4.2 of Art. 7.30 Administrative Code, for 3000 rubles. An official will be punished for approving tender documentation, documentation about an auction, about holding a request for proposals, for determining the content of a notice on holding a request for quotations in violation of the requirements provided for by the legislation on the contract system.

When anti-dumping measures are not applied

Exceptions to the rule on the application of anti-dumping measures include several situations. Do not take such measures in the following cases:

at an electronic auction, which is held at the price of a unit of goods, work or services;
if they did not provide for the enforcement of the contract under Part 8 of Art. 96 44-FZ;
if you conclude an energy service contract;
if you purchase medicines from the Vital and Essential Drugs List and the price of all medicines is reduced by no more than 25 percent relative to their registered maximum selling price (part 12 of article 37 of 44-FZ).

Download the letter of the Ministry of Finance of October 13, 2017 No. 24-02-08/67122

Download the letter of the Ministry of Economic Development of January 13, 2017 No. D28i-289

Download the letter of the Ministry of Economic Development of August 17, 2016 No. D28i-287

Article 37. Anti-dumping measures during tenders and auctions

6. The security specified in parts 1 and 2 of this article shall be 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 having evaded the conclusion of the 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.

up to twenty-five percent below the initial (maximum) contract price;
twenty-five percent or more below the initial (maximum) contract price.

10. The justification specified in paragraph 9 of this article shall be provided:

by the procurement participant who offered the price of the contract, the sum of unit prices of goods is twenty-five percent or more lower than the initial (maximum) price of the contract, the initial sum of unit prices of goods, as part of an application for participation in an open tender, a tender with limited participation, a two-stage tender, a closed tender , a closed competition with limited participation, a closed two-stage competition. If such a participant fails to comply with this requirement or if the procurement commission recognizes the proposed contract prices, the sum of the unit prices of goods as unreasonable, the application of such a participant is rejected. The said decision of the procurement commission shall be 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;
the procurement participant with whom the contract is concluded, when sending a signed draft contract to the customer during an open tender in electronic form, a tender with limited participation in electronic form, a two-stage tender in electronic form, an auction. If such a participant fails to comply with this requirement, he is recognized as having evaded the conclusion of the contract. If the procurement commission recognizes the proposed contract price, the sum of unit prices of goods as unreasonable, the contract with such a participant is not concluded and the right to conclude a contract passes to the procurement participant who offered the same as the winner of this tender or auction, the contract price, the sum of unit prices of goods or whose contract price offer contains the best conditions for the price of the contract, following the conditions offered by the winner of this tender or auction. In these cases, the decision of the procurement commission is drawn up in a protocol, which is placed 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.

11. If the winner of a tender or auction is recognized as having evaded concluding a contract, the procurement participant with whom, in accordance with the provisions of this Federal Law, a contract is concluded, the requirements of this article shall apply in full.

12. The provisions of this article shall not apply if, in the course of procurement of medicinal products included in the list of vital and essential medicinal products approved by the Government of the Russian Federation, the procurement participant with whom the contract is concluded offers the price of all purchased medicinal products reduced by no more than than twenty-five percent of their registered, in accordance with the legislation on the circulation of medicines, the maximum selling price.

13. Payment of an advance payment upon execution of a contract concluded with a procurement participant specified in parts 1 or 2 of this article is not allowed.

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

Answer

The customer holds a tender or auction, NMTsK ≤ 15 million rubles, and the winner reduces the price by 25 percent or more. Then the customer applies anti-dumping measures. The winner has a choice: provide a 1.5 times higher contract security or confirm good faith. This is stated in Part 2 of Article 37 of Law No. 44-FZ.

If the participant confirms good faith, the amount of the security does not change. How to confirm good faith - in the recommendation.

In what ways the participant confirms good faith

To confirm good faith, the winner provides the customer with information from the register of contracts. At the same time, the participant has a choice of which information to show.

1. Information about three or more contracts. At the same time, the winner fulfilled the contracts without penalties and within a year before the date when applications are submitted.

2. Information about four or more contracts. At the same time, the winner executed all contracts within two years before the date when the participants submit applications, and more than 75 percent of the contracts - without penalties.

3. Information about three or more contracts. At the same time, the winner executed the contracts without penalties and within three years before the date when the applications are submitted.

For all three options that are possible for the winner, the general rule applies. The cost of one of the contracts must be at least 20 percent of the price offered by the procurement participant. For example, the customer holds an auction and the NMCC - 15 million rubles. The participant proposed the price of the contract - 10.5 million rubles. The price of one of the contracts that the winner will provide must be at least 2.1 million rubles. (10.5 × 20%).

This is stated in Part 3 of Article 37 of Law No. 44-FZ and explained in the letter of the Ministry of Economic Development of Russia dated December 7, 2016 No. D28i-3260.

Law No. 44-FZ does not indicate that the participant must provide information on contracts with the subject of the procurement in which he won.

Situation: the winner of the purchase, which reduced the NMTsK by 25 percent or more, has been operating on the market for less than a year. How to prove good faith?

The participant has the right to provide the customer with information on three or more contracts that he executed without penalty. This is stated in Part 3 of Article 37 of Law No. 44-FZ and explained in the letter of the Ministry of Economic Development of Russia dated January 28, 2016 No. OG-D28-1419.

Situation: how to confirm good faith to the winner of a joint purchase

The winner of the joint procurement provides the customer with information from the register of contracts. At the same time, the price of one of the executed contracts must be at least 20 percent of the sum of the prices of all joint procurement contracts. This position is supported by specialists of the Ministry of Economic Development of Russia in a letter dated January 11, 2016 No. D28i-46.

Specialists of the Ministry of Economic Development refer to the fact that the NMTsK, which the customer indicates in the notice and documentation for joint purchases, is determined as the sum of the initial (maximum) contract prices of each customer. And the customer applies anti-dumping measures when the participant reduces the NMTsK from the notice by 25 percent or more (subparagraph “b” of paragraph 6 of the Rules approved by Decree of the Government of the Russian Federation of November 28, 2013 No. 1088, Article 37 of Law No. 44-FZ) .

Situation: Can a participant in an auction for milk confirm good faith with fruit contracts

Yes maybe.

To confirm good faith, the participant provides information from the register of contracts. The legislator did not establish that contracts should be for the supply of similar goods (part 3 of article 37 of Law No. 44-FZ, letter of the Ministry of Economic Development of Russia dated February 12, 2016 No. D28i-287).

Situation: is it possible to confirm good faith with contracts under 223-FZ, commercial contracts, subcontracts

No. The participant confirms the good faith with information from the register of contracts under Law No. 44-FZ. Commercial contracts and subcontracts are not included in the register of contracts. Contracts under 223-FZ are included in the register of contracts under Law 223-FZ (part 3 of article 37 of Law No. 44-FZ).

How a Member Provides Integrity Information

Bidders provide information on good faith as part of the application, auction participants - with a signed draft contract. In this case, the customer acts depending on the situation.

The tender commission found that the information on good faith is unreliable. The commission rejects the application and enters the information into the protocol of consideration and evaluation of applications. The minutes indicate the reason why the application was rejected. The commission signs the protocol, and within the next business day, the customer notifies the participant that the application was rejected.

The bidder did not provide information on good faith as part of the application. The customer does not reject the participant's application, but concludes a contract only after the winner provides a 1.5-fold increase in contract security. In this case, if the customer has provided for an advance in the contract, the winner provides security, the amount of which is not less than the advance.

The bidder did not provide information on good faith or the auction commission found that the information is unreliable. The participant is recognized as evaded. The commission draws up the decision in minutes. The protocol is signed and placed in the EIS within the next business day.

This is stated in parts 4 and 5 of article 37 of Law No. 44-FZ, the decision of the Arbitration Court of the Volga District of June 23, 2016 No. F06-9551 / 2016, the decision of the Samara Regional Court of November 8, 2016 No. 21-2087 / 2016.

The customer signs the contract only after the winner provides information on good faith or security. This is stated in Part 2 of Article 37 of Law No. 44-FZ and explained in the letter of the Ministry of Economic Development of Russia dated November 8, 2016 No. D28i-2911.

No, the participant confirms his good faith with information from the register of contracts only under Law No. 44-FZ.