Acquisition of apartments 

Anti-dumping measures in public procurement: the definition of dumping. Integrity and business reputation of the procurement participant Confirmation of good faith

The tenderer sooner or later faces dumping in the state order. The very phenomenon of dumping has existed in the field of tenders for a very long time, practically since the emergence of the institution of public procurement in Russia. The concept of "anti-dumping measures" in the state order appeared not so long ago, namely after the adoption of 44-FZ. In the law No. 94-FZ that was in force before 44-FZ, there was no such concept. At the same time, in practice, of course, there was dumping in the state order, but the state did not try to fight this phenomenon legislatively. What is "dumping" in the state order at the moment and what methods of combating this phenomenon are used? Let's try to figure everything out!

What is dumping in the state order?

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

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


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

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

Two situations are possible:

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

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

Information confirming the integrity of the supplier.

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

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

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

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

Such a situation can have far-reaching consequences for the supplier with the entry of the participant into the register of unscrupulous suppliers, in case of participation in the electronic tender. If the customer reveals false information in an open tender, the participant will get off with the rejection of the application.

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

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

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

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

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

Was there dumping?

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

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

It should also be understood that too low a cost can cause poor quality of the supplied goods, works, services. Customers and suppliers should try to seek and find a middle ground in this difficult matter.

The Department for the Development of the Contract System of the Ministry of Economic Development of Russia considered the appeal.

In accordance with Part 3 of Article 37 of the Federal Law of April 5, 2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law N 44-FZ) to information, confirming the good faith of the procurement participant includes the information contained in the register of contracts concluded by customers and confirming the performance by such participant during:

one year prior to 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);

two years before the date of filing an application for participation in a tender or auction of four or more contracts (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);

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).

Thus, the procurement participant, at its discretion, provides information on completed contracts for any of the three options provided for by Part 3 of Article 37 of Law N 44-FZ.

At the same time, according to Part 2 of Article 37 of Law N 44-FZ, if during the auction the initial (maximum) price of the contract 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 the initial (maximum) price of the contract, the contract is concluded only after such a participant provides a security for the performance of the contract in the amount specified in part 1 of article 37 of Law N 44-FZ, or information confirming the good faith of such a participant as of the date of filing the application in accordance with part 3 of article 37 Law N 44-FZ.

At the same time, we would like to draw your attention to the fact that clarifications of a public authority have legal force, if this body is endowed, in accordance with the legislation of the Russian Federation, with special competence to issue clarifications on the application of the provisions of regulatory legal acts. In accordance with the Regulations on the Ministry of Economic Development of Russia, approved by Decree of the Government of the Russian Federation of June 5, 2008 N 437, the Ministry of Economic Development of Russia is not empowered to clarify the legislation of the Russian Federation.

Department Director
development of the contract system		 M.V. Chemerisov

Document overview

In accordance with Law N 44-FZ, the procurement participant must confirm his good faith. To do this, he provides information from the register of contracts, confirming the execution by such a participant during the year before the date of filing an application for participation in the auction of three or more contracts executed without applying sanctions to the participant; within two years before the date of application - four or more contracts (at the same time, at least 75% of the contracts must be executed without sanctions); within three years prior to application - three or more contracts executed without application of sanctions.

The procurement participant, at its discretion, provides information on executed contracts for any of the three indicated options.

In addition, if during the auction NMTsK is 15 million rubles. and less and the procurement participant has offered a price that is 25 percent or more lower than the NMTsK, the contract is concluded only after such participant provides security for the performance of the contract.

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

In this article, we will talk about what criteria exist as an assessment of a conscientious purchase by a supplier.

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

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

    Advance payment by the supplier - provision,

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

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

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

Information proving the integrity of the supplier

As confirmation of the good faith of the supplier, provideextract from the unified register of contracts. In this case, the criteria for evaluating good faith are as follows:

    Absence of penalties for at least three completed contracts in the last 12 months.

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

    Over the past three years prior to the submission of documentation for participation in the tender, 3 or more contracts were completed, while no penalties were applied to them.

As a confirmation of the good faith of the supplier, only those contracts are used, the amount of which is not less than 20% of the contract for which the application is submitted by the tender participant.

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

The decision of the customer to conclude a contract with a bona fide supplier

Winning the auction does not mean that the customer will sign the draft contract with the winner of the tender. After the last bidding, the customer has access to the second parts of the bids. During the period established by law, the accuracy of the information provided by the winner is checked. Members of the commission of the customer, in the course of studying the documentation of the supplier, check the compliance of the provided data with reality. Based on this, a decision is made to sign a contract with the winner of the state tender. If the data turn out to be contradictory and unreliable, the customer has the right to refuse to sign the contract, which he officially notifies with objective reasons, and enters the tender winner in the register of unscrupulous suppliers.

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

The Law “On the Contract System…” dated 05.04.2013 No. 44-FZ introduced a new (compared to the previous version of the legislative act) rule, which includes a number of anti-dumping techniques 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:

  1. 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).
  2. 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 of 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 aforementioned 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:

  1. 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.
  2. 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.
  3. The set includes 3 or more contracts executed within 36 months prior to the consideration of the specified tender application. At the same time, under all contracts, no penalties or penalties should be applied to the participant.

In all these cases, the cost 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:

  1. Find information about contracts concluded by the customer in the register of contracts. To do this, you need to 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.
  2. From the list, select contracts that meet the requirements of Part 3 of Art. 37 of Law No. 44-FZ regarding the method of confirming the business reputation of a procurement participant, according to one of the options proposed by the legislator.
  3. Generate documentation for the 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:

  1. Links to contracts selected in accordance with the legal 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.
  2. 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

Name of the customer

No. and date of the contract

Contract amount, rub.

Period of execution

Administration MO "Yushkino"

2153236346236 from 07/21/2017

RUB 500,000.00

http://zakupki.gov.ru/pgz/

Administration MO "Yushkino"

5623452345666 from 08/17/2017

RUB 245,000.00

http://zakupki.gov.ru/pgz/

Administration 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.

In part 3 of Art. 37 of the 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 - Law N 44-FZ) states that contracts confirming the good faith of the supplier must be executed without the application of penalties (fines, penalties) to such a participant. The supplier declares contracts in confirmation of his good faith, which were not fully executed (terminated by mutual agreement) without the application of fines (penalties).
Can such contracts confirm the good faith of the supplier in accordance with the requirements of part 3 of Art. 37 of Law N 44-FZ?

On this issue, we take the following position:
Information confirming the fulfillment by the procurement participant of contracts terminated by agreement of the parties without applying liability measures to the procurement participant is information confirming the good faith of such a participant. However, it is possible that the procurement participant will have to defend his case in court.

Position justification:
As follows from the Federal Law of April 5, 2013 N 44-FZ "On the contract system in the field of procurement of goods, works, services to meet state and municipal needs" (hereinafter - Law N 44-FZ), in cases provided for by these norms, the contract is concluded only after the participant provides a security for the performance of the contract in the prescribed amount or information confirming the good faith of such a participant as of the date of filing the application in accordance with part 3 of this article.
According to Law N 44-FZ, 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 a participant of contracts in accordance with any of the three options provided for by this rule, at its discretion (see in connection with this clarification of the Ministry of Economic Development of the Russian Federation in letters dated 07.12.2016 N D28i-3260, dated 08.11.2016 N D28i-2911). In these cases, the price of one of the contracts must be at least 20% of the price at which the procurement participant is invited to conclude a contract in accordance with Law N 44-FZ. This information must be provided by the auction participant when sending the signed draft contract (Law N 44-FZ) to the customer.
The norm of Law N 44-FZ does not allow determining whether information about a contract executed by the counterparty in good faith (without the imposition of penalties), but in an amount less than originally provided for by the contract terminated by agreement of the parties, can be considered appropriate for the purposes of this article. Such contracts take place in cases where the customer, for objective reasons, loses the need for the full scope of goods, works, services originally provided for by the contract and procurement documentation - in these cases, the contract is terminated by mutual agreement of the parties (for more details, see, for example, in the answer Legal Consulting Service on the Question: A contract for the supply of food products has been concluded. The customer wants to terminate it and conclude a new contract for a smaller volume with the same supplier at the same prices. Is it possible to terminate the contract without paying for the already delivered batch of products?)
As follows from Law N 44-FZ, the execution of the contract includes a set of measures listed in the specified part, including the acceptance of goods, works and services, their payment, the application of liability measures implemented after the conclusion of the contract and aimed at achieving the objectives of the procurement through the interaction of the customer with the supplier (contractor, performer) in accordance with civil law. At the same time, by virtue of the above norm, the execution of the contract implies acceptance, payment not only for the contract as a whole, but also for individual stages of its execution (clauses 1, 2 of the specified norm).
In accordance with the Civil Code of the Russian Federation (recall that, by virtue of Law No. 44-FZ, the legislation on the contract system is based, among other things, on the provisions of the Civil Code of the Russian Federation), the obligation is terminated by its proper execution. At the same time, according to the Civil Code of the Russian Federation, in the event of a change or termination of a contract, obligations are considered to be changed or terminated from the moment the agreement of the parties on the change or termination of the contract is concluded, unless otherwise follows from the agreement or the nature of the change in the contract, and in the event of a change or termination of the contract in a judicial proceeding - with the moment the court decision to amend or terminate the contract enters into force. From the foregoing, it follows that the change or termination of the contract (including refusal to perform) is possible only in relation to existing (unfulfilled) obligations. At the same time, it is obvious that it is impossible to change or terminate the contract, the obligations under which are fulfilled in full.
The logic of these reasoning underlies the conclusions of the law enforcement practice, which does not recognize as information confirming the good faith of the counterparty, information about contracts that were terminated during execution by agreement of the parties (as due to the fact that the customer lost the need for the volumes of goods supplied performed works that were specified at the conclusion of the contract, and for other reasons). Thus, in the decision of the Federal Antimonopoly Service for St. Petersburg dated June 24, 2016 N 44-2528 / 16, the controlling body did not recognize information about contracts terminated by agreement of the parties as confirming the good faith of the participant, despite the fact that under such contracts in a single information system (hereinafter - UIS ) there were no acts of work performed in full; the work performed under these contracts was not fully paid, and in the EIS these contracts have the status "Execution terminated" (see a similar conclusion in the decision of the OFAS for the Murmansk region dated September 26, 2016 N 06-09 / RNP-51-64).
At the same time, we note that it does not follow from the above general norms of civil law on the performance of obligations and the performance of a contract that the obligations of a contract terminated by agreement of the parties are unfulfilled. The agreement by the parties of the terms on the fulfillment of the obligation is not completely, but in a certain part of it does not contradict the norms of the Russian Federation on the fulfillment of obligations (the Civil Code of the Russian Federation) and corresponds to the principle of freedom of the parties in determining the terms of the contract (the Civil Code of the Russian Federation). The execution of the contract for the purposes of N 44-FZ, as already noted, implies, among other things, acceptance, payment for individual stages of the execution of the contract (, Law N 44-FZ).
It seems to us that the establishment of a requirement to provide, for the purposes of Law N 44-FZ, exclusively contracts executed in the initially agreed volumes, contradicts the meaning of this rule. Indeed, in part and Law N 44-FZ, it is about confirming the good faith of the procurement participant, while the termination of the contract by agreement of the parties is obviously not evidence of bad faith of one of them. Moreover, according to the general rule of the Civil Code of the Russian Federation, the good faith of the participants in civil legal relations and the reasonableness of their actions are assumed until proven otherwise (paragraphs three and four of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 N 25 "On the application by the courts of certain provisions of Section I of Part One of the Russian Federation "). Accordingly, the absence of facts of the application of penalties (fines, penalties) under contracts, even if terminated ahead of schedule, testifies in favor of the good faith of the supplier (contractor, performer).
We also note that the requirement to provide only contracts executed in the initially agreed volumes limits competition, since it limits the number of bidders capable of reducing the contract price by more than 25%, only to those who, during the periods specified in Law N 44-FZ concluded and executed contracts in full initially agreed volume.
Such a formalized approach may affect subsequent decisions of procurement participants under those contracts, the objective need to terminate which periodically arises from customers. Contract executors - potential participants in subsequent purchases can avoid termination by agreement of the parties and insist on meeting the customer's actually absent need, which, in turn, will contradict such procurement principles as the principle of responsibility for the effectiveness of meeting state and municipal needs, the principle of efficient procurement ( , Law N 44-FZ), and in addition to the principles of good faith in the fulfillment of obligations in civil legal relations (, Civil Code of the Russian Federation).
The above arguments, in our opinion, testify in favor of the fact that information confirming the good faith of a procurement participant also includes information confirming the performance by such a participant of contracts that were terminated by agreement of the parties.
In conclusion, we note that the above is our expert opinion. Unfortunately, we have not been able to find any case law on this issue. For an official clarification on this issue, we recommend that you contact the Ministry of Economic Development of Russia or the Federal Antimonopoly Service of Russia. It is also possible that the procurement participant will have to defend his case in court.

Prepared answer:
Legal Consulting Service Expert GARANT
Chashina Tatiana

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Barseghyan Artem

The material was prepared on the basis of an individual written consultation provided as part of the Legal Consulting service.