Information about the good faith of the bidder is. Conscientiousness and business reputation of the procurement participant Documents confirming good faith

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, who 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 a 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 NMCC (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 are subject to 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, and others federal laws and regulatory legal acts of the Russian Federation, as well as approved and placed in a single information system(EIS) Procurement Regulations.

According to part 2 of article 2 of 223-FZ, the Procurement Regulation is a document that regulates the entire 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 executing contracts, as well as other provisions related to procurement security.

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.

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 these 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 business day following the day of signing the specified protocol. If the procurement participant in the case provided for by paragraph 2 of this article, as part of the application for participation in 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, does not provide information confirming its good faith in accordance 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 business 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 when 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 in 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 amount of unit prices of goods is twenty-five percent or more lower than the initial (maximum) price of the contract, the initial amount 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 specified decision of the procurement commission is recorded in the protocol 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 contract price, 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 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.

The concept of dumping

Dumping (from English dumping- reset) - in economic theory, the sale of goods at artificially low prices.

Dumping prices are significantly lower than 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 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 state and municipal procurement within one year before the date of filing an application for participation in the 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 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, performer), 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 working 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 an amount one and a half times higher than the amount of the security for the performance of the contract specified in the tender documentation, but not less than in 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 the number of the register entry: the fact of 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 if 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 drawn up in a protocol, which is posted in a single information system and brought to the attention of all auction participants no later than the working day following the day of signing the specified 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.

The decision of the Arbitration Court of the Khanty-Mansiysk Autonomous Okrug - Yugra dated April 2, 2015 in case N A75-2002 / 2015

Example 2

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).

(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 registry data 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 registry by customers.

(Decision 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 electronic auction does not send the signed draft contract or protocol of disagreements to the customer after thirteen days from the date of placement in the EIS of the protocol of 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 tenders for 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 the tender documentation different values of the significance of the criteria for evaluating bids for cases when a tender participant submits an application containing a proposal for a contract price that is up to 25% lower than the NMC 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(foodstuffs, funds for the provision of ambulance, including ambulance specialized, medical care in an emergency or urgent form, medicines, fuel), the procurement participant who offered the contract price, which 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:

a 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 of medicines is carried out, 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 maximum selling price registered in accordance with the legislation on circulation of medicinal products.

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.

Information confirming the good faith of the procurement participant isinformation about transactions made by a participant in procurement tenders earlier. The main points regarding the confirmation of the reliability of the person involved in the procurement will be considered in our article.

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

Law No. 44-FZ of April 5, 2013 “On the Contract System” introduced a new (compared to the previous version of the legislative act) rule, which includes a number of anti-dumping measures for those participating in tender and auction procedures. Dumping is a feigned reduction in the price of goods and services compared to the market price. Accordingly, anti-dumping measures are measures aimed at combating such a decline.

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

With an initial contract value of more than 15,000,000 rubles. — provision of interim measures in the amount of 1.5 times greater than the provisional parameter determined by the auction or tender documentation (but not less than the amount of the advance payment, if any).
With an initial contract value of 15,000,000 rubles. and less:
- security in one and a half times the amount of security determined by tender documents,
- or the presence of information confirming the good faith of the procurement participant (44-FZ, part 3, article 37).

No other form of anti-dumping procedures is envisaged by Law No. 44-FZ and may be appealed against by participants in a tender or auction.

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

Register of contracts

The concept of the register of contracts is established by Art. 103 of Law No. 44-FZ, the procedure for its formation is the Decree of the Government of the Russian Federation “On the procedure for maintaining the register ...” dated November 28, 2013 No. 1084. The same decree approved the rules for filling out the register.

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

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

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

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

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

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

In the amount of 3 or more contracts completed within a year prior to the date of submission of the bid under consideration. At the same time, under all contracts, the participant should not be charged with penalties or penalties.
Consisting of 4 or more trades executed within 24 months prior to the date of submission of tender documents under consideration. In this case, 75% of the contracts must be completed without applying penalties or similar sanctions to the participant.
The set includes 3 or more contracts executed within 36 months prior to the consideration of the specified tender application. At the same time, under all contracts, no penalties or penalties should be applied to the participant.

In all these cases, the value of each of the contracts must be at least 20% of the price offered by the contestant for the conclusion of the contract in question.

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

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

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

Documents that confirm the good faith of the procurement participant (example of registration, sample filling in the table)

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

Links to contracts selected in accordance with the statutory requirement, indicating for each of them:
- purchase number according to the register;
- customer data;
- registration data of the contract (number and date);
- contract value;
- execution date.
A link to a page with information about the penalties imposed on the participant during the execution of the contract, which can be found in the contract card (for each of the selected transactions) on the "Information on the execution (termination) of the contract" tab. At the same time, it is also necessary to take screenshots of pages with information about the absence or presence of penalties or forfeits against the contestant for past transactions.

A sample format for the information to be included in the file might look like this:

Purchase register number	Customer name	No. and date of the contract	Contract amount, rub.	Period of execution
	Administration of MO "Yushkino"	2153236346236 from 07/21/2017	RUB 500,000.00		http://zakupki.gov.ru/pgz/
	Administration of MO "Yushkino"	5623452345666 from 08/17/2017	RUB 245,000.00		http://zakupki.gov.ru/pgz/
	Administration of MO "Yushkino"	6321341236263 dated 12/11/2017	RUB 113,000.00		http://zakupki.gov.ru/pgz/

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

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 save more money in your 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 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-FZ or by-laws. 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 bidder provides to the customer is publicly available 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.